HUC UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE ON PLEADING AND PRACTICE IN COURTS OF RECORD IN CIVIL CASES IN THE STATE OF OKLAHOMA WITH FORMS BY ARTHUR B. HONNOLD OF THE OKLAHOMA BAR AUTHOR OF A TREATISE ON OKLAHOMA JUSTICE PRACTICE, AND A TREATISE ON WORK- MEN ? S COMPENSATION, FORMERLY A MEMBER OF THE EDITORIAL STAFF OF THE WEST PUBLISHING. COMPANY IN THREE VOLUMES VOLUME I . KANSAS CITY, MO. VERNON LAW BOOK COMPANY 1922 T \J.\ COPYBIGHT, 1922 BY VERNON LAW BOOK COMPANY (HON.PL.& PBAC.) - PREFACE THOUGH Oklahoma is one of the newest states, the Code of Civil Prac- tice adopted from Kansas and the changes made since its adoption in the Territory have been so thoroughly tried out and so frequently construed by the .highest courts in clear, analytical opinions that a comprehensive work on procedure and practice can now be written, based on controlling authorities. Such a work is here attempted. Every statute relating in any way to procedure is quoted in full in connection with the treatment of the subject td which the statute relates. Every Kansas and Oklahoma case containing any discussion of procedural matters has been examined and the law gleaned therefrom, in so far as it is applicable to the practice in Oklahoma at the present time. A stu- dious effort has been made to eliminate all decisions which are now inapplicable, or which have been reversed or overruled. Although the Code of Civil Procedure was adopted with a view of simplifying and stabilizing the rules of procedure, all of these rules, with their numerous qualifications and applications, cannot be said to be incorporated in the statute as adopted by the Legislature. Volumes have been written around a single clause or section of the Constitution of the United States; likewise, pages, if not volumes, could well be written around each of various sections of the Code all being based upon decisions throwing light upon the construction and application of the Code provisions. In the year 1850, Mr. Justice Selden, of the Supreme Court of New York, said: "Many of the technical rules of the common-law system of pleading may well have been considered as originating in, and con- nected with, those distinctions between the different forms of action which were peculiar to that law. There are, however, some of those rules which are so well adapted to accomplish the end of all pleading that I should find it difficult to persuade myself that the Legislature could have intended to abrogate them." The evil of the common-law system of pleading, depending upon a system of rules necessarily artificial and complex, in consequence of (iii) IV PREFACE which, either through ignorance or mistake, an issue would be formed not involving the real merits of the controversy, and a decision be pro- duced contrary to justice and equity, was originally sought to be reme- died by allowing the widest scope in the proof of facts not strictly in issue. This remedy has been repudiated by the Code, and this evil remedied in large part by the liberal allowance of amendments. The Code abolishes the distinctions between actions at law and suits in equity, and the course of proceeding in both cases is now the same. Whether the action depends upon legal or upon equitable principles, it still remains .a civil action, to be commenced and prosecuted without reference to this distinction. Although this is true in reference to the form and course of proceeding in the action, the principles determina- tive of the rights of the parties remain unchanged. The more liberal view of the Code is that it is based upon an entirely new theory, with different ends to accomplish, and that it is better, in order to carry out its spirit, to consider it as a new theory, to be construed and carried into e'ffect upon principles peculiar to itself. If the attorneys of to-day were first made familiar with the rules of common-law pleading as they existed in the early part of the last cen- tury, it would be well to adopt this view ; but so many rules, many of which grew out of the old rules, have been built up around the provi- sions of the Code, in such way as to become in effect a part thereof, that the question whether these rules are the same as those existing at common law is of minor importance. In other words, it is generally enough to know that, ever since the adoption of the Code, we have been borrowing from the common law to supplement and clarify the Code ; but the extent to which we have borrowed is not of any great impor- tance, since the majority are more familiar with these rules than with the original rules of the common law. However, familiarity with the common-law rights of action is important. Mr. Justice Burwell, of the Supreme Court of the Territory of Oklahoma, well said that, "while the forms of actions have been changed, we must not forget that the right of any particular action, as it existed at common law, remains the same, unless abridged or denied by the statute ; and, while the common- law forms of action have been abolished, the rights of such actions continue to exist, but under a different name. Every cause of action that existed under the common-law forms, which has not been abolish- ed, still exists under the name of a 'civil action.' The statute did not abolish common-law causes of action ; it only abolished their forms and grouped them under one head." PREFACE V This work may be said to contain two indexes; one the table of contents at the beginning of the work, and the other the index proper at the close. It also contains a table of statutes and con- stitutional provisions, showing the section of the work in which each such statute or provision is cited. It also contains a table of cases, in which are arranged in alphabetical order all of the several thousand cases cited. The arrangement and general form of the work is the result of several years' experience, and, if it is found to be logical and work- able, the lawyer should be able, with the other aids above mention- ed, to find in these volumes what he wants, with a minimum of effort, provided it is within the scope of the work. A sample of every form suggested by the text, or the statutes quoted, is contained in these volumes, and it is hoped that they will be of aid, at least, in the preparation and the checking of forms prepared by the lawyer. I desire to acknowledge an indebtedness for valuable assistance given by my law partner, Mr. Herbert D. Mason, and also by the fol- lowing attorneys: Mr. Kenneth Lawing, who assisted in the prep- aration of the entire work; Mr. L. G. Williams, who assisted in the preparation of the forms; Mr. Roscoe E. Harper, Professor of Law of the Oklahoma University, who assisted on the chapter on Appeal and Review, and Mr. Elton B. Hunt, who assisted in the portion of the work relative to certain special proceedings and special writs. ARTHUR B. HONNOLD. TULSA, OKLAHOMA, January 2, 1922. TABLE OF CONTENTS VOLUMES I TO III VOLUME I CHAPTER I COURTS AND COURT OFFICERS Sections 1-142. Article I. Courts and judges. 1-31. Division I. Relating to code practice in general. 32-45. Division II. Judges in general. 46-81. Division III. District courts and judges. 82-89. ' Division IV. Superior courts and judges. 90-113. Division V. County courts and judges. 114-142. Division VI. Supreme Court and judges. 143-198. Article II. Other court officers. 143-145. Division I. In general. 146-162. Division II. Court clerks. 163-172. Division III. Sheriffs and other peace officers. 173-198. Division IV. Attorneys. ARTICLE I COURTS AND JUDGES DIVISION I. RELATING TO CODE PRACTICE IN GENERAL 1. Courts open for administration of justice. 2. Due process. 3. Judicial power vested where. 4. Judges Conservators of the peace. 5. Title of chapter. 6. Prior decisions and precedents Stare decisis. 7. Decisions of federal courts, 8. Common law. 9. Obiter dictum. 10. Law of the case. 11. Statutes and construction. 12. Erroneous words and punctuation. 13. Rule of ejusdem generis. 14. Statute construed as a whole. 15. Statutes construed together or in the light of each other. HON.PL.& PEAC. (vii) viii . TABLE OF CONTEXTS Sections 16. Administrative construction. 17. Provisos or exceptions. 18. Statute adopted from another state. 19. Adjournment by sheriff. 20. Publications. 21. Affirmation. 22. Computation of time. 23. Surety Justification. , 24. Qualifications. 25. Real estate mortgage as bond. 26. Valuation of real estate. 27. False valuation Penalty. 28. Action on bond. 29. Several actions on security. 30. Submission of controversy. 31. Impeachment and removal from office. DIVISION 11. JUDGES IN GENERAL 32. As public officer. 33. Judge pro tempore. 34. Waiver of objections. 35. Powers of special judges. 36. Liabilities. 37. Change of judge. 38. Disqualifications. 39. Relationship. 40. Bias and prejudice. 41. Objections and procedure. 42. Form Application for disqualification of judge. 43. Waiver of disqualifications. 44. Acts of disqualified judge. 45. Powers at chambers. DIVISION 111. DISTRICT COURTS AND JUDGES 46. District court Where held. 47. Districts and judges. 48. Sessions Time for Adjournments. 49. Change of district Disposition of cases pending. 50. Special terms. 51. Adjournment of term. 52. Two or more judges sitting at same time. 53. Additional judge. 54. District judges Expenses. 55. Reporter Appointment Qualifications. 56. Duties of court reporter. 57. Salary and fees. 58. Traveling expenses. 59. Tenure and oath of office. 60. Notes filed Admissibility in evidence Transcripts. 61. Appeal to district court. 62. Party in default. 63. Who may appeal. TABLE OF CONTENTS IX Sections 64. When appeal must be taken. -65. Appeal how taken. 66. Appeal bond. 67. Stay of execution. 68. Commitment How stayed. 69. Justification of sureties Increased bond. 70. Appeal bond form Action upon. 71. Appeal not to stay issue of letters. 72. Appeal not to stay order revoking letters, (tc. 73. Proceedings. 74. Powers of the appellate court. 75. Trial de novo. 76. Penalty for neglect of county judge to transmit record. 77. Dismissal of appeal Effect Costs. 78. Enforcement of decree. 79. Executor's bond stands in place of appeal bond. 80. Reversal for error not to affect lawful acts. 81. Rules of district court. DIVISION IV. SUPERIOB COURTS AND JUDGES 82. Superior courts in general. 83. Qualifications of judges Term of office. 84. Election. 85. Procedure Juries Appeals. 86. Court stenographer. 87. Sheriffs County attorneys. 88. Judge's salary. 89. Transfer of causes. DIVISION V. COUNTY COTTBTS AND JUDGES 90. Procedure Seal. 91. Terms of court. 92. Proceedings in vacation Out of court. 93. Calendar. 94. Stenographer. 95. Duties. 96. Oath and tenure of offlce. 97. Fees for making transcripts. 98. Ex oiucio court clerk. 99. Compensation. 100. Fees Record. 101. Report of. 102. Fees paid to treasurer. 103. Special court towns. 104. Judge Term of office Qualification. 105. To give bond. 106. Office and records. 107. Practice prohibited. 108. Temporary county judge. 109. How elected. 110. Fee when affidavit of bias made. 111. County judge County attorney Salary. : TABLE OF CONTENTS Sections 112. Court reporters. 113. Rules for county court. DIVISION VI. SUPREME COURT AND JUDCIES 114. Membership Quorum Eligibility Term of office Vacancies Ju- risdiction. 115. Justices Judicial districts Election Law clerks. 116. Referees and first law clerk. 117. Chief justice Election. 118. Vice chief justice Election. 119. Justices Not to be candidate for other office. 120. Commencement of term. 121. Sessions Opinions. 122. Chief justice Expiration of terms Election. 123. Clerk. 124. Law governing. 125. Salaries of justices. 126. Effect of invalidity. 127. Jurisdiction Divisions. 128. Appeals from county court. 129. Appeals from corporation commission. 130. Appeals from state labor commission. 131. Formation of new counties. 132. Speedy hearing. 133. Original jurisdiction Division of assets and liabilities among counties. 134. Parties Proceedings. 135. Constitution. 136. Jurisdiction Removal of state capitol and normal schools. 137. Jury trial when. 138. Trial. 139. Jury How selected. 140. Costs Witness fees. 141. Reports. 142. Supreme court rules. ARTICLE II OTHER COURT OFFICERS DIVISION 1. JN GENERAL 143. Compensation. 144. Deputies Duties. 145. Bailiffs. DIVISION II. COURT CLERKS 14G. Office Selection Eligibility. 147. Official bond Form. 148. Powers and duties Contestants. 149. Liabilities. 150. Deputies. 151. Vacancies. 152. Fees and salaries. TABLE OF CONTENTS XI Sections 153. Books to be kept. 154. Appearance docket. 155. Indorsements. 156. Execution docket. 157. Judgment docket. 158. Journal. 159. Files. 160. Cases Court records. 161. Application of statute. 162. Journal entry Order of sale Homestead Insane spouse. DIVISION III. SHERIFFS AND OTHER PEACE OFFICERS 163. Sheriffs and deputies. 164. Service of writs and process Amercement. 165. Substitute for sheriff. 166. Fees and salaries. 167. Power aud duty. 168. Liability Amercement. 169. Official bonds. 170. Acts of deputy. 171. Wrongful attachment. 172. Indemnity bonds. DIVISION IV. ATTORNEYS 173. Who permitted to practice Examinations for admission. 174. Applicants to conform to rules Fees for admission. 175. Examination Commission. 176. Qualifications. 177. Persons not permitted to practice. 178. Attorneys from other states How admitted. 179. Oath upon admission. 180. Foreign attorneys. 181. Duties. 182. Power, duty, and liability. 183. Implied authority Tender Compromise Notice 184. May receive money for client. 185. Proof of authority to appear. 186. Purchasing property. 187. Lien for services Extent Notice. 188. Fees. 189. Enforcement Compromise without notice. 190. Amount which may be recovered. 191. May not become surety in action in which employed. 192. Lien Release by giving bond. 193. Suspension of license Disbarment. 194. Causes. 195. Defenses Limitations. 196. Proceedings How commenced. 197. Trial Judgment. 198. Attorney and client in general. Xil TABLE OF CONTENTS CHAPTER II ARBITRATION, COMPROMISE, AND SETTLEMENT Sections 199-200. Article I. Arbitration. . 201-202. Article II. Compromise and settlement. ARTICLE I ARBITRATION 199. In general. 200. Forms. ARTICLE II COMPROMISE AND SETTLEMENT 201. In general. 202. Construction. CHAPTER III JURISDICTION 203-216. Article I. Nature, scope, elements, and exercise. 217-247. Article II. Original, concurrent, and appellate jurisdiction. ARTICLE I NATURE, SCOPE, ELEMENTS, AND EXERCISE 203. Jurisdiction defined. 204. Basis and elements. 205. Original jurisdiction. 206. Scope, extent, and place of exercise. 207. Territorial extent. 208. Where parties reside or may be found. 209. Jurisdiction of subject-matter. 210. Trusts. 211. Consent and waiver. 212. Ancillary jurisdiction. 213. Rule of comity. 214. Shown by record. 215. Determination of jurisdiction. 216. Objections. ARTICLE II ORIGINAL, CONCURRENT, AND APPELLATE JURISDICTION 217. Concurrent jurisdiction. 218. Personal injuries. 219. Appeals From police judges and justices of the peace. 220. From town justice court. 221. From county commissioners. TABLE OF CONTENTS Sections 222. How taken. 223. State and federal courts. 224. Transfer of causes. 225. Transfer to state courts. 226. County courts Jurisdiction Judge pro tempore. 227. Amount involved. 228. Probate jurisdiction Sessions. 229. Title involved. 230. Bastardy proceedings. 231. Appellate jurisdiction. 232. District courts. 233. Special cases. 234. Amount involved. 235. Appeals from county court. 236. Appeals in probate cases. 237. Indians and Indian lauds. 238. Indian lands. 239. Misconduct in office. 240. Taxes and assessments. 241. Public lands. 242. Vested when Exemption from taxation. 243. Equity. 244. Foreclosure. 245. Superior courts. 246. Supreme Court. 247. Appeals from county court. xiii 248-264. 265-273. CHAPTER IV VENUE Article I. Where actions brought Article II. Change of venue. ARTICLE I WHERE ACTIONS BROUGHT 248. Where subject located. 249. Subject-matter. 250. Relating to real estate. 251. Land located in more than one county Specific performance. 252. Where cause arose. 253. Residence of parties. 254. Domestic corporation Insurance company. 255. Foreign corporations and nonresidents. 256. Process Foreign corporations. - 257. When charter revoked. 258. Actions against guaranty companies. 259. Actions against transportation or transmission companies. 260. Actions against turnpike companies. 261. Action against board of county commissioners. XIV TABLE OF CONTENTS Sections 262. Divorce and annulment. 263. Other actions. 264. Waiver of right. ARTICLE II CHANGE OF VENUE 265. Change of venue. 266. Discretion. 267. Grounds Disqualification of judge. 268. Local prejudice. 269. Application. 270. Hearing and order. 271. Waiver. 272. Proceedings after change. 273. Form. CHAPTER V REMEDIES AND RIGHTS 274-295. Article I. In general. 296-298. Article II. Election of remedies. ARTICLE I IN GENERAL 274. Remedies. 275. Cumulative remedy. 276. Actions and special proceedings. l'~7. Distinctions abolished. 278. Determination of character. N 279. Common-law actions. 280. Tort and contract. 281. Illegal transactions. 282. Injury without liability. 283. ' Tenders. 284. Right of action Warrantee Costs and expenses. 285. Action on surveyor's bond. 286. Surety against principal. 287. Money received. 288. Conditions precedent Warranty. 289. Death pending action. 290. Claim against estate. 291. Usury. Claim against municipality. 293. Offer Demand Notice. 294. Taxes. 295. Insurance. TABLE OF CONTENTS XV ARTICLE II ELECTION OF REMEDIES Sections 296. Necessity. 297. Effect. 298. What constitutes. 299-310. 311-328. 299. 300. 301. 302. 303. 304. 305. 306. 307. 308. 309. 310. CHAPTER VI ABATEMENT, SURVIVAL AND REVIVOR Article I. Survival and abatement Article II. Revivor. ARTICLE I SURVIVAL AND ABATEMENT What actions survive. Death or assignment. Death of. plaintiff. Death of defendant. Personal injuries. Action for wrongful death. Who may sue Amount of recovery. Party in representative capacity Change. Receiver. Transfer of interest. Where action does not survive. Abatement Pendency of another action. ARTICLE II REVIVOR 311. Where action survives upon death of party. 312. Proceedings. 313. Who may move. 314. Consent or notice. 315. Notice by publication. , 316. Death of plaintiff. 317. Death of defendant. 318. Limitation. $19. Amendment to petition. 320. Time of order. 321. Delay to revive. 322. Vacation of order. 323. Objections and waiver. 324. Action dismissed, when. 325. At instance of defendant. 326. Trial. 327. Death after judgment. 328. Revivor of judgment Forms. XVI TABLE OF CONTENTS CHAPTER VII LIMITATIONS Sections 329-342. Article I. Purpose, validity, and operation. 343-344. Article II. Commencement of action. 345-360. Article III. When statute begins to run. 361-378. Article IV. Limitation periods. 379-391. Article V. Suspension and tolling of statute. 392-397. Article VI. Extension and waiver. 398-400. Article VII. Contract limitations. ARTICLE I PURPOSE, VALIDITY, AND OPERATION 329. Purpose and validity of statutes. '330. What law governs Foreign laws. 331. Construction and operation. 332. Retroactive operation. 333. Actions already barred. 334. As against state, municipality, or public officers. .335. Will contest. 336. As to defenses in general. .'!.'!7. As to set-off or counterclaim. 338. Computation of time. 339. Bar absolute Operation in general. 340. Debt of husband and wife. 341. Replevin. 342. Foreclosure. ARTICLE II COMMENCEMENT OF ACTION 343. When action commenced. 344. Amendment. ARTICLE III WHEN STATUTE BEGINS TO RUN 345. Accrual of right or defense In general. 346. Real property. 347. Personal property. 348. Contracts in general. '!'. Continuing contracts. 860. Scvcrable contracts and installments. ::"!. Bonds. Covenants Mortgage deed. Municipal warrants. "4. Torts. Guaranty. Malfeasance in office. TABLE OP CONTENTS XV11 Sections 357. Statutory liability. 358. Equitable actions. 359. Conditions precedent. 360. Trusts. ARTICLE IV LIMITATION PERIODS 361. Application of statutes. 362. Real actions. 363. Other actions. 364. Fraud. 365. Foreign judgment Bonds, etc. 366. Action for recovery of estate sold by guardian. 367. Liens. 368. Liens against railroads. 369. Actions against notaries. 370. Rejected claim. 371. Vacancy in administration. 372. Action against sureties on bond. 373. Actions for wrongful death. 374. Assessments Suits to set aside. 375. Demand Tender. 376. Actions for usurious interest. 377. Tax deed. 378. Nonresident alien landowners. ARTICLE V SUSPENSION AND TOLLING OF STATUTE 379. Suspension of statute in general. 380. Disability. 381. Infancy. 382. Person of unsound mind. 383. Suspension of statute by death. 384. Absence or flight. 385. Nonresidence. 386. Concealment. 387. Of person. 388. Return. 389. Fraud or fault. 390. Ignorance, mistake, and duress. 391. Revivor. ARTICLE VI / EXTENSION AND WAIVER 392. Failure otherwise than on merits. 393. Extension. 394. Acknowledgment. 395. Extension agreement HON.PL.& PRAC. b XV111 Sections 396. TABLE OF CONTENTS Part payment. 397. Waiver of limitations. ARTICLE VII CONTRACT LIMITATIONS 398. In general. 399. Insurance policy. 100. Mutual accident and sickness insurance. CHAPTER VIII PARTIES 401-406. Article I. In general. 407-423. Article II. Plaintiff. 424-436. Article III. Defendant. 437^39. Article IV. Intervenes 440-443. Article V.* Defects, objections, and amendments. ARTICLE I IN GENERAL 401. Designation of parties. 402. Counties Dental board. 403. Married women. 404. Joinder Necessary parties. 405. Where parties numerous. 406. Style. ARTICLE II PLAINTIFF 407. Real party in interest. 408. Joinder. 409. New party. 410. Capacity to sue. 411. Corporations. In particular cases. 413. Creditors. 414. Stockholders' suit. 415. Insurance. 416. Taxpayers Injunction. 417. Assignee and assignor. 418. Persons not personally interested. 419. Guardian. 420. Infants Wards. 421. Tenants in common. 422. Government and governmental agencies. 423. Action for death. TABLE OF CONTENTS XIX ARTICLE III DEFENDANT Sections 424. Necessary and proper parties defendant 425. Receiver. 426. Liens. 427. Joinder. 428. Defendants severally liable. 429. Infants. 430. Guardian ad litem 431. Husband and wife. 432. State as defendant. 433. Change of parties and new parties. 434. Substitution Plaintiff. 435. Disclaimer. 436. Substitution of judgment creditor. ARTICLE IV INTERVENER 437. Interplea Affidavit Trial. 438. Pleading. 439. Cases outside statute. ARTICLE V DEFECTS, OBJECTIONS, AND AMENDMENTS 440. Want of interest or capacity. 441. Nonjoinder. 442. Misjoinder. 443. Amendment. CHAPTER IX COMMENCEMENT OF ACTION 444-450. Article I. Accrual of cause. 451-505. Article II. Process. 451-460. Division I. In general. ! 461-489. Division II. Service and return. 490-500. Division III. Service by publication. 501. Division ,1V. Exemption from service. 502-505. Division V. Objections and amendments. 506-511. Article III. Appearance. ARTICLE I ACCRUAL OF CAUSE 444. Definition. 445. How action commenced. 446. Effect Notice to third persons. XX TABLE OF CONTENTS Sections 447. Premature actions. 448. Insurance. 449. Waiver. 450. Cure of defect. ARTICLE II PROCESS DIVISION I. IN GENERAL 451. Definition. 452. Style of process. 453. Necessity and use of process. 454. Issuance of summons. 455. To another county. 456. Prsecipe Form. 457. Form and requisites. 458. Indorsements. 459. Alias summons. (60. Abuse of process. DIVISION II. SERVICE AND RETURN 461. In general. 462. Indorsement. 463. Acceptance of service and appearance. 464. By whom served. 465. Service on only part of defendants. 466. Effect of judgment. 467. Manner of service. 468. Validity and effect of service. 469. Service out of state. 470. Service on corporation. 471. On foreign corporation. 472. On insurance company. 473. Insurance commissioner. 474. Insurance board. 475. On railroad company and stage line Agent. 476. Where no agent appointed. 477. Where personal service impossible. 478. Actions against counties. 479. Service on infant. 480. Service on sheriff. 481. On inmates f hospitals for insane. 482. Notice or process issued by state board of arbitration. 483. County court. 484. Return. 485. Fees. 486. Conclusiveness. 487. Entering return. 488. Evidence of service. 489. Forms. TABLE OF CONTENTS XXI DIVISION III. SERVICE BY PUBLICATION Sections 490. In general. 491. Service by publication When authorized. 492. In what actions authorized. 493. On whom authorized. 494. Unknown heirs or devisees. 495. Affidavit Forms. 496. Divorce. 497. Order. 498. Publication notice Form. 499. Mailing with petition. 500. Proof of publication. DIVISION IV. EXEMPTION FBOM SERVICE 501. Persons attending court Witnesses. DIVISION V. OBJECTIONS AND AMENDMENTS 502. Motion to quash Form. 503. Amendment. 504. Where service by publication. 505. Waiver of objections. ARTICLE III APPEARANCE 506. For infant. 507. General appearance. 508. Special appearance. 509. Effect. 510. Waiver of process. 511. Objections Preservation and waiver. CHAPTER X CONTINUANCE AND DISMISSAL 512-526. Article I. Continuance. 527-539. Article II. Dismissal. ARTICLE I CONTINUANCE 512. When granted Discretion. 513. Stipulation. 514. Grounds Illness of party. 515. Accident or mistake. 516. Amendment of pleading. 517. Absence of counsel. 518. Depositions. 519. Absence of witness. xxn TABLE OF CONTENTS Sections 520. Surprise at trial. 521. Admissions to prevent continuance. 522. Offer to confess judgment. 523. Application and affidavit Forms. 524. Time of making. 525. Further continuances. 526. Objections Waiver. ARTICLE II DISMISSAL 527. Dismissal without prejudice. 528. Right Discretion. 529. Involuntary Discretion Grounds. 530. Process Pleadings Non-compliance with order 531. Continuance. 532. Want of prosecution. 533. Forms Motion to dismiss Order. 534. .reinstatement. 535. Dismissal without order of court. 536. Parties. 537. Dismissal as to part of defendants. 538. Trial of counterclaim after dismissal. 539. Jurisdiction subsequent. CHAPTER XI PLEADINGS 540-544. Article I. In general. 545-55o. Article II. Rules of pleading. 554-561. Article III. Rules for construing pleadings. 562-587. Article IV. Petition. 562. Division I. In general. 563-579. Division II. Contents, form, sufficiency, and construction. 580-585. Division III. Joinder, splitting, consolidation, and severance. 586-587. Division IV. Exhibits and prayer. 588-637. Article V. Answer. 588-302. Division I. Answer in general. 603-606. Division II. General denial. 607-615. Division III. Verified denial. 616-635. Division IV. Counterclaim and set-off. 636-637. Division V. Unauthorized pleas. 638-645. Article VI. Reply. 646-648. Article VII. Filing and subscribing. 649-660. Article VIII. Amended and supplemental pleadings. 661-664. Article IX. Defects and objections. 665-702. Article X. Motions and orders thereon. 665-673. Division 1. Motions in general. 674-678. Division II. Orders. 679-702. Division III. Particular motions. TABLE OF CONTEXTS XX111 Sections 703-721. 722-733. 722-728. 729-732. 733. Article XI. Demurrer. Article XII. Issues, proof, and variance. Division I. Issues. Division II. Proof. Division III. Variance. ARTICLE I IN GENERAL 540. Defined. 541. Pleadings allowed. 542. Nature, how determined. 543. Caption Forms. 544. Counties. ARTICLE II RULES OF PLEADING 545. Former rules abolished. 546. What must be pleaded. 547. Special matters. 548. Estoppel. 549. Pleading conclusions and law. 550. Pleading evidence. 551. Uncertainty in pleadings. 552. Pleading in the alternative. 553. Pleading by reference. 554. 555. 556. 557. 558. 559. 560. 561. ARTICLE III RULES FOR CONSTRUING PLEADINGS Liberal construction. General and specific allegations. Admissions. Presumptions. Surplusage. Construction against pleader. Construing allegations together. Construed as of what time. ARTICLE IV PETITION DIVISION I. IN GENERAL 562. Copy for defendant. DIVISION IT. CONTEXTS, FORM, AND CONSTRUCTION 563. Contents. 564. Designation of parties. XXIV TABLE OF CONTEXTS Sections 565. Of unknown defendant. 566. Necessary allegations. 567. Presumptions Judicial notice. 568. Judgment Form. 569. Form and manner of allegations. 570. Election. 571. Contractual conditions precedent Form. 572. Instrument for payment of money Private statute Form. 573. Libel or slander Form. 574. Construction and operation. 575. Requisites and sufficiency. 576. Fraud Form. 577. Limitations Form. 578. Matters necessary to be pleaded. 579. Forms Petitions. DIVISION III. JOINDER, SPLITTING, CONSOLIDATION, AND SEVERANCE 580. Joinder Forms of motions. 581. Separately stating and numbering. 582. Where demurrer sustained. 583. Splitting. 584. Consolidation. 585. Order Forms. DIVISION IV. EXHIBITS AND PHAYEB 586. Exhibits.- 587. Prayer. ARTICLE V ANSWER DIVISION I. ANSWER IN GENERAL 588. Contents Forms. 589. Construction. 590. Joinder. 591. Matters necessary to plead. 592. Affirmative defenses Forms. 593. Fraud Form. 594. Limitations Form. 595. Pleading defenses in action on note. 596. Pleading attachment or garnishment. 597. Defenses in replevin. 598. Adverse possession. 599. Inconsistent defenses. 600. Negative pregnant. 601. Defense in libel and slander. 602. Supplemental answer. DIVISION II. GENERAL DEXIAL 603. Effect and sufficiency. 604. Disclaimer Form. 605. Must be entered for whom. 606. Effect By guardian ad litem. TABLE OF CONTENTS XXV DIVISION III. VEEIFIED DENIAL sections 607. Verification in general. 608. Who may verify. 609. How made On belief. 610. Execution of written instruments Indorsement. 611. Appointment or authority. 612. Account. 613. Corporation and partnership. 614. Waiver. 615. Forms. DIVISION IV. COUNTERCLAIM AND SET-OFF 616. Counterclaim Nature Right to interpose Set-off Limitations. 617. Set-off Right to interpose. 618. Defined and distinguished Statute applied. 619. Subsisting right. 620. Equity. 621. Cross-bill or cross-petition. c>22. Landlord and tenant. 623. Action against United States. 624. Cross-demands Deprivation. til'f). Assignments. 626. Definition. 627. Parties and mutuality. 02.S. New party Counterclaim. 629. New party Set-off. 630. Form and requisites. 631. Notice. 632. Waiver. 633. Withdrawal. 634. Neglect to claim Cost. 635. Forms. DIVISION V. UNAUTHORIZED PLEAS 636. Plea in abatement. 637. Plea in bar. ARTICLE VI REPLY 638. Reply or demurrer. 639. When reply necessary. 640. Counterclaim or set-off in reply. 641. Demurrer or reply to answer by codefendant. 642. Construction and effect. 643. Requisites and sufficiency Forms. 644. Departure. 645. Waiver of objections. ARTICLE VH FILING AND SUBSCRIBING 646. Time for filing. 647. Additional time Withdrawal Service of amendment., 648. Signing. XXVI TABLE OF CONTEXTS ARTICLE VIII AMENDED AND SUPPLEMENTAL PLEADINGS Sections 649. Amendnieut before answer. 650. Formal defects. 651. Allowance of amendment Discretion Forms. 652. Variance. 653. Failure of proof. 654. Amendment on demurrer. ' 655. Continuance after amendment. 656. Notice of amendment. 657. Interlineation. 658. Subject-matter of amendment. 659. Supplemental pleadings. 660. Lost pleadings. ARTICLE IX DEFECTS AND OBJECTIONS 661. Immaterial errors. 662. Cure of error. 663. Waiver. 664. Objection to introduction of any evidence Form. ARTICLE X MOTIONS AND ORDERS THEREON DIVISION I. MOTIONS IN GENERAL 665. Definition -Several objects. 666. Notice Form. 667. Service Return Form. 668. By officer Fees. 669. Appearance. 670. Affidavits and pleadings to motion. 671. Hearing. 672. Effect of continuance. 673. Second motion. DIVISION II. ORDERS 674. Ruling Form. 675. Law of the case. 676. Nunc pro tune order Form. 677. Entry Notice. 678. Vacating and modifying. DIVISION III. PARTICULAR MOTIONS 679. Motion to dismiss. 680. Motion for judgment on the pleadings Nature Form, 681. Grounds for sustaining or overruling. 682. Departure. 683. Judgment against verdict. 684. Motion to strike from files Form. TABLE OF CONTENTS XXV11 Sections 685. Affirmative pleading. 686. Defensive pleadings. 687. Demurrer. 688. Departure. 689. Limitations. 690. Amended pleading. 691. Failure to amend. 692. Motion to strike from pleading Form. 693. Motion to strike parties Form. 694. Motion to make more definite and certain. 695. Form and requisites. 696. Time of making. 697. Waiver Dismissal. 698. Motion to require pleader to separately state and number. 699. Form and requisites. 700. Waiver Dismissal. 701. Motion to require election Form. 702. Time of making. ARTICLE XI DEMURRER 703. Grounds Forms. 704. Misjoinder of parties. 705. Office of demurrer. 706. Requisites and construction. 707. Time to demur After motions. 708. Admissions for purpose of demurrer. 709. General demurrer. 710. Limitations. 711. Objection to introduction of any evidence as alternative. 712. Demurrer and answer. 713. . Where single count. 714. Joint demurrer. 715. Demurrer to answer. 716. To amended answer. 717. To set-off or counterclaim. 718. Demurrer to reply. 719. Demurrer relating back. 720. Construction of pleading demurred to. 721. Ruling, order, and judgment. ARTICLE XII ISSUES, PROOF, AND VARIANCE DIVISION I. ISSUES Kinds. Of law. Of fact. 725. Where both issues arise. 726. Allegations deemed true. XXV111 TABLE OF CONTENTS Sections 727. Admissions. 728. Material allegation. DIVISION II. PROOF 729. Proof required under certain pleadings Verified denial. 730. Proof admissible under pleadings. 731. Under general denial. 732. When evidence admissible of facts not pleaded. DIVISION 733. Rules and application. III. VARIANCE 734-774. 775-780. Article I. Depositions. Article II. Affidavits. ARTICLE I DEPOSITIONS 734. Defined. 735. When taken. < 736. Subpoena for deposition. 737. Contempt Discharge. 738. Abuse of process. 739. Stipulation. 740. Before whom taken. 741. Depositions taken out of state. 742. Officer disinterested. 743. Commission. 744. Notice. 745. Publication notice. 746. Contempt Refusal to testify. 747. Writing of depositions. 748. Filing. 749. Authentication. 750. Certificate. 751. When to be filed. 752. Fees for taking. 753. Exceptions. 754. Requisites and sufficiency. 755. To be decided before trial. 756. Incoinpetency and irrelevancy. 757. Motion to suppress Form. 758. Objections at hearing. . 759. Waiver of objections. 760. Perpetuating testimony. 761. Petition Form. 762. Order for examining witnesses Form. 763. Cross-interrogatories. TABLE OF CONTENTS Sections 764. Before whom taken. 765. Filing and use Costs. 766. Error waived by not excepting. 767. When deposition may be used. 768. Unavailability of witness. 769. Deposition as evidence. 770. May be read when. 771. Admission of part of deposition. 772. Copies. 773. Interpleader. 774. Forma. ARTICLE II AFFIDAVITS 775. Definition. 776. Use. 777. Jurat. 778. Before whom taken. 779. By whom made. - 780. Forms. CHAPTER XIII TRIAL 781-795. Article I. In general. 796-801. Article II. Argument and conduct of counsel. 802-824. Article III. Issues and trial thereof. bo2. Division I. Issues in general. 803-824. Division II. Taking case or question from jury. xxix ARTICLE I IN GENERAL 781. Definition. 782. Time of trial. 783. Waiver of right 784. Docket. 785. Copy for bar. 786. Presence of judge. 787. Presence of parties and attorneys. 788. Conduct and remarks of judge. 789. Consolidation. 790. Separate trials Several defendants. 791. Reporter Duties. 792. Order of trial Issues Damages Motions Objections. 793. Waiver of right to object. 794. Issues Trial by court or jury. 794a. Trial by court. 794b. Agreed statement of facts. 795. Submission without suit XXX TABLE OF CONTENTS Sections 796. 797. 798. 799. 800. 801. ARTICLE II ARGUMENT AND CONDUCT OF COUNSEL Opening statement. Argument. Right to open and close. Retaliatory statements. Conduct. Objections and exceptions'. ARTICLE III ISSUES AND TRIAL THEREOF DIVISION I. ISSUES IN GENERAL 802. Issues not pleaded. DIVISION II. TAKING CASE OB QUESTION FROM JTJKT 803. In general. 804. Retrial. 805. Questions of law and fact. 806. Negligence in general. 807. Contributory negligence Assumption of risk. 808. Agency. 809. Will contest. 810. Malicious prosecution. 811. Libel and slander. 812. Weight of evidence and credibility of witnesses. 813. Uncontroverted evidence. 814. Motions and demurrer. 815. Demurrer to evidence. 816. Effect as admission. 817. What rulings proper. 818. Cure of error. 819. Trial by court. 820. Ruling and judgment sustaining demurrer. 821. Form. 822. Direction of verdict. 823. Effect of motion. 824. Form of motion. CHAPTER XIV WITNESSES 825-840. Article I. Procuring attendance and testimony. 841-859. Article II. Examination of witnesses. 841-852. Division I. Direct examination. 853-858. Division II. Cross-examination. 859. Division III. Redirect examination. 860-874. Article III. Competency and privilege. 875-888. Article IV. Credibility and impeachment. TABLE OP CONTENTS XXXI ARTICLE I PROCURING ATTENDANCE AND TESTIMONY Sections 825. Taking testimony Modes. 826. Oath Interpreter. 827. Subpoena Issuance. 828. Contents Duces tecum. 829. Service. 830. Disobedience of Contempt. 831. Forms. 832. Attachment for nonatteiidance. 833. Punishment. 834. Requisites of Form. s35. Prisoners as witnesses. 836. Custody. 837. Attendance. 838. Of adverse party. 839. Witness may demand fees. 840. Refusal to testify Contempt. ARTICLE II EXAMINATION OF WITNESSES DIVISION I. DIRECT EXAMINATION 841. Mode of testifying. 842. Questions. 843. Leading questions. 844. Hostile witnesses. 845. Repetition. 846. Interrogation by court. 847. Responsiveness of answer. 848. Aids to explain testimony Diagrams Computation. 849. Refreshing memory. 850. Memoranda as evidence. 851. Stenographer's notes. 852. Recalling witnesses. . DIVISION II. CROSS-EXAMINATION 853. Extent of cross-examination. 854. Limitation to subjects of direct examination. 855. Collateral and irrelevant matters. 856. Character witness. 857. Cross-examination of party. 858. Recalling witness. DIVISION III. REDIRECT EXAMINATION S59. Scope and extent. XXX11 TABLE OF CONTENTS ARTICLE III COMPETENCY AND PRIVILEGE Sections 860. In general. S61. Knowledge Signature Books and accounts. 862. Persons interested. 863. Adverse party. 864. Incompetents. 865. Husband and wife. 866. Attorney and client. 867. Clergyman or priest. 868. Physician and patient. 869. Construction of statutes. 870. Conviction of crime. 871. Self-incrimination. 872. Waiver. 873. Transactions with decedent. 874. Witness privileged from being sued. ARTICLE IV CREDIBILITY AND IMPEACHMENT 875. Credibility. 876. Corroboration. 877. Impeachment. 878. Impeaching own witness. 879. Character and conduct of witness. 880. Reputation Place and time of acquiring. 881. Particular facts. 882. Conviction of crime. 883. Cross-examination to test reliability or to discredit 884. Conduct in reference to the case. 885. Inconsistent statements. 886. Contradicting witness. 887. Prior corroborating statements. 888. Sustaining evidence. TABLE OF CONTENTS xxxin VOLUME II CHAPTER XV EVIDENCE Sections 889-911. Article I. In general. 889-898. Division I. Preparation for trial. 899-911. Division II. Reception of evidence. 912-922. Article II. Judicial notice. 923-949. Article III. Presumptions. 950-965. Article IV. Burden of proof. 966-1103. Article V. Admissibility. 966-987. Division I. Relevancy and materiality. 988-993. Division II. Res gestse. 994-996. Division III. Similar matters. 997-1019. Division IV. Documentary evidence. 997-1010. Subdivision I. Statutes, ordinances, and public records. 1011-1019. Subdivision II. Private writings. ' 1020-1039. Division V. Parol and extrinsic evidence. 1040-1064. Division VI. Opinion evidence. 1040-1060. Subdivision I. Nonexpert testimony. 1061-1064. Subdivision II. Expert testimony. 1065-1067. Division VII. Hearsay. 1068-1073. Division VIII. Declarations. 1074-1082. Division IX. Best and secondary evidence. 1083-1086. Division X. Demonstrative evidence. 1087-1103. Division XI. Admissions. 1104-1141. Article VI. Quantum, weight and sufficiency. ARTICLE I IN GENERAL DIVISION 1. PREPABATION FOB TRIAL 889. Genuineness of writings Admission. 890. Documents Preliminary inspection. 891. Copy of writing. 892. Duty to furnish evidence. 893. Misconduct Falsifying evidence. 894. Fraud or deceit to witness. 895. Preparation of false evidence. 896. Destruction of evidence. 897. Keeping witness from attending. 898. Bribery of witness. DIVISION II. RECEPTION OF EVIDENCE 899. Oral examination Objections. 900. Exclusion of witnesses. HOX.PL.& PRAC c XXXIV TABLE OF CONTENTS Sections 901. Offer of proof. 902. Restricting to special purpose. 903. Withdrawal of evidence. 904. Limiting number of witnesses. 905. Order of proof. 906. Preliminary proof. 907. Rebuttal and surrebuttal. 90S. Reopening case. 909. Objections Forms. 910. Motion to strike out Form. 911. Exceptions. ARTICLE II JUDICIAL NOTICE 912. Matters of common knowledge. 913. Political subdivisions. 914. Legislature. 915. Laws and ordinances. 916. Acts of Congress. 917. Laws of other states. 918. Indians. , 919. Jurisdiction of courts. 920. Judicial proceedings. 921. Officials Authority. 922. Rules and acts. ARTICLE III PRESUMPTIONS 923. In general. 924. Knowledge of law. 925. Continuance of fact. 926. Personal status. 927. Indians. 928. Regularity in business. 929. Mail matter. 930. Available evidence not produced. 931. Laws of another state. 932. judicial proceedings. 933. Official acts. 934. Carriers. 935. Railroads Injury to passenger. 936. Injury to employee. 937. Damage to property. 938. Wrongful death. 939. Death. 940. Fraud. 941. Contracts. 942. Agency. 943. Reports Records Partnership. 944. Wills. TABLE OF CONTENTS XXXV Sections 945. Trusts. 946. Bills and notes. 947. Marriage. 948. Payment. 949. Libel and -slander. ARTICLE IV BURDEN OF PROOF 950. In general. 951. Personal status. 952. Particular issues. 953. Contracts. 954. Bailment. 955. Bills and notes Execution. 956. Holder. 957. Consideration. 958. Insurance In general. 959. Proof of loss. 960. Misrepresentation or breach. 961. Indians. 962. Statute of limitations. 963. Damages. 964. Malicious prosecution. 965. Negligence., ARTICLE V ADMISSIBILITT DIVISION I. RELEVANCY AND MATEBIAIJTY 966. Pertinent to issues. 967. Materiality. 968. Value. 969. Reasonable compensation. 970. Damages. 971. Personal injuries. 972. Wrongful death. 973. Negative evidence. 974. Will contest. 975. Divorce. 976. Fraud. 977. Insurance. 978. Marriage. 979. Price. 980. Title. 981. Services. 982. Condemnation proceedings. 983. Agency and partnership. 984. Unlawful arrest. 985. Entire conversation or transaction. 986. Telephone conversations. 987. Motive or intent. XXXVi TABLE OF CONTENTS DIVISION II. RBS GEST^J Sections 988. What constitutes. 989. Discretion. 990. Declarations. 991. Injury and pain. 992. Acts and statements. 993. Directions. DIVISION III. SIMILAR MATTERS 994. In general. 995. Fraud. 996. Custom Accidents Value. DIVISION IV. DOCUMENTARY EVIDENCE Subdivision I. Statutes, Ordinances, and, Public Records 997. Acts of Congress Statute books Legislative journals. 998. Foreign laws. 999. Ordinances. 1000. Congressional documents. 1001. Copies Public records. 1002. Official books and records. 1003. Court records and files. 1004. Records of justice of the peace. 1005. Departmental records. 1006. Land office receipts and records. 1007. Official signatures presumed genuine. 1008. Authentication. 1009. Copies of foreign records. 1010. Translations. Subdivision II. Private Writings 1011. Church records. 1012. Corporate records. 1013. Written instruments. 1014. Recitals in deeds and mortgages. 1015. Account books. 1016. Memoranda. 1017. Letters. 1018. Maps and photographs. 1019. Identification and authenticity. DIVISION V. PAROL AND EXTRINSIC EVIDENCE 1020. Contracts. 1021. Insurance policies. 1022. Notes and indorsements. 1023. Deeds and mortgages. 1024. Tickets, bills of lading, and receipts. 1025. Release. 1026. Court records. 1027. Ordinances. 1028. Memoranda and incomplete contracts. TABLE OF CONTENTS XXXvii Sections 1029. Minutes. 1030. Wills. 1031. Surety and guaranty. 1032. Agency. 1033. Consideration. 1034. Delivery. 1035. Mistake. 1036. Fraud Duress. 1037. Separate or subsequent oral contract. 1038. Evidence explanatory of writing. 1039. Evidence showing performance or discharge. DIVISION VI. OPINION EVIDENCE Subdivision 1. Nonexpert Testimony "1040. Conclusions and opinions in general. 101. Nonexpert witnesses in general. 1042. Foundation. 1043. Discretion. 1044. Value. 1045. Paternity, race, and age. 1046. Mental condition. 1047. Physical appearances, conduct, and condition. 1048. Financial condition. 1049. Medical and surgical practice. 1050. Speed. 1051. Damages. 1052. Amount. 1053. Custom and usage. 1054. Habits and nature. 1055. Ownership. 1056. Agency. 1057. Handwriting. 1058. Identification. 1059. Dangerous and safe conditions Negligence. 1060. Competency and skill. Subdivision II. Expert Testimony 1061. Subject-matter. 1062. Competency of experts. 1063. Examination of experts Hypothetical questions. 1064. Handwriting. DIVISION VII. HEARSAY 1065. In general. 1066. Statements of others than parties or witnesses. 1067. Evidence based .on hearsay. DIVISION VIII. DECLARATIONS 1068. Intent. 1069. Self-serving declarations. 1070. Against interest. 1071. Persons in possession. XXXviil TABLE OF CONTENTS Sections 1072. Age and pedigree. 1073. Dying declarations DIVISION IX.-*-BEST AND SECONDARY EVIDENCE 1074. Necessity of best evidence. 1075. Matters evidenced -by writing. 1076. Public records. 1077. Court records. 1077a. Evidence at former trial or other proceeding. 1078. Contents of writing. 1079. Collateral writings. 1080. Copies. 1081. Secondary evidence admissible when. 1082. Notice. DIVISION X. DEMONSTRATIVE EVIDENCE 1083. Exhibition of person. 1084. Exhibition of articles. 1085. Experiments and tests. 1086. Handwriting. DIVISION XI. ADMISSIONS 1087. Judicial admissions. 1088. Offers of compromise. 1089. Written statements. 1090. Conduct. 1091. Acquiescence or silence. 1092. Admissions by parties or others interested. 1093. Admissions of former owners or privies. 1094. Admissions by agents. 1095. Admissions by corporate and municipal officers. 1096. Husband and wife. 1097. Principal and surety. 1098. Guardian. 1099. Conspirators. 1100. Preliminary evidence. 1101. Mode of proof. 1102. Explanation. 1103. Construction. ARTICLE VI QUANTUM, WEIGHT, AND SUFFICIENCY 1104. Consideration of testimony in general. 1105. Uncontradicted evidence. 1106. Quantum of proof in general. 1107. Prima facie evidence. 1108. Circumstantial evidence. 1109. Affirmative and negative evidence Conclusions. 1110. Effect of opinion evidence. 1111. Effect of admissions. 1112. Testimony of party. 111.".. Party bound by bis own evidence. TABLE OF CONTENTS XXXIX Sections 1114. Contracts. 1115. Notes. 1116. Conveyances. 1117. Gifts. 1118. Insurance. 1119. Trusts. 1120. Wills. 1121. Court records and files. 1122. Partnership. 1123. Agency and official capacity. 1124. Sales. 1125. Fraud. 1126. Negligence and cause. 1127. Novation. 1128. Title. 1129. Payment Receipts. 1130. Amount of damages. 1131. Usury. 1132. Copy of articles of incorporation. 1133. Recovery of penalties. 1134. Abandonment of homestead. 1135. Financial status. 1136. Ejectment. 1137. Attachment. 1138. Cancellation of instruments. 1139. Reformation of instruments. 1140. Divorce. 1141. Bastardy. CHAPTER XVI JURY Article I. Right to jury trial. Article II. Jury panel. Article III Qualifications, challenges, and exemptions. Article IV. Oath, number, term, and summoning. Article V. Custody, conduct, and deliberations- Article VI. Verdict. ] 142-1150. 1151-1162. 1163-1171. 1172-1175. 1176-1189. 1190-1203. 1204-1216. Article VII. Special interrogatories and findings. ARTICLE I RIGHT TO JURY TRIAL 1142. Right to jury trial Verdict. 1143. Waiver. 1144. In equity cases. 1145. Trial of issues. 1146. In actions at law or in equity or mixed actions. 1147. In particular actions or proceedings. 1148. In special proceedings. x l TABLE OF CONTENTS Sections 1149. On intermediate appeal. 1150. Infringement of right. ARTICLE II JURY PANEL 1151. Jury commission. 1152. Meeting of jury commissioners Quorum. 1153. Jury lists. 1154. Lists to be certified. 1155. District court How drawn. 1156- Venires How served Form. 1157. Open venires Talesmen Form. 1158. County court How selected. 1159. Procedure when regular panel exhausted. 1160. Qualifications of jurors Exemptions. 1161. Former list removed when new list selected. 11G2. Irregularities in drawing. ARTICLE III QUALIFICATIONS, CHALLENGES, AND EXEMPTIONS 1163. Challenges to panel. 1164. Statutory grounds for challenge. 1165. Qualifications in general. 1166. Waiver of objection. 1167. Order of challenges. 1168. Challenges for cause. 1169. Vacancies filled at once. 1170. Talesmen. 1171. Exemptions. ARTICLE IV OATH, NUMBER, TERM, AND SUMMONING 1172. Oath. 1173- Number of jurors. 1174. Term of service. 1175. Selection and summoning. ARTICLE V CUSTODY, CONDUCT, AND DELIBERATIONS 1176. Admonition. 1177. Misconduct of others. 1178. View of premises. 1179. Taking papers and articles to jury room. 1180. Additional instructions. 1181. Information after retirement. TABLE OF CONTENTS xli \ .Sections 1182. Custody of jury during deliberations. 1183. Deliberations. 1184. Coercing verdict. 1185. Quotient verdict. 1186. Improper considerations. 11^7. Matters considered Evidence read Personal knowledge of juror. 1188. Discharge of jury. 1189. Objections and exceptions. ARTICLE VI VERDICT 1190. Definition, form, and reception. 1191. Number of jurors assenting. 1192. Signature. 1193. Polling of jurors. 1194. Parties Designation. 1195. Severance Variance. 1196. Several counts. 1197. Surplusage. \ 1198. Disregarding instructions. 1199. Amending and correcting verdict. 1200. Construction and operation. 1201. Impeachment of verdict. 1202. Objections and exceptions. 1203. Form. ARTICLE VII SPECIAL INTERROGATORIES AND FINDINGS 1204. Special verdict and findings. 1205. Power to require. 1206- Interrogatories. 1207. Preparation and form. 1208. Withdrawal. 1209. Special findings. 1210. Requisites and sufficiency. 1211. Responsiveness. 1212. Inconsistency. 1213. Defects and amendments. 1214. Construction. 1215. Objections and exceptions. 1216. Form. CHAPTER XVII INSTRUCTIONS 1217. Definition. 1218. Province of court. 1219. Defining words and terms. xlii TABLE OF CONTENTS Sections 1220. Verdict Findings Deliberations and determination of jury Ar- gument of counsel. 1221. Province of jury. 1222. Written instructions Request. 1223. Time of making request. 1224. Time of giving instructions 1225. Accuracy. 1226. Misleading instructions. 1227. Formal requisites and sufficiency. 1228. Instructions and pleadings. 1229. Instructions and evidence. 1230. Illustrations. 1231. Withdrawal of instructions. 1232. Instructions on issues- 1233. Applicability to pleadings and evidence. 1234. Positive and negative evidence. 1235. Limiting effect of evidence. 1236. Matters of general knowledge. 1237. Requested instructions. 1237a. Objections and exceptions. 1238. Forms. CHAPTER XVIII JUDGMENT 1239-1244. Article I. Definition, validity, and parties. 1245-1252. Article II. Confession of judgment. 1253-3261. Article III. Conformity. 1253-1255. Division I. Conformity to issues. 1256-1259. Division II. Conformity to verdict. 1260-1261. Division III. Conformity to findings. 1262-1291. Article IV. Rendition, form, and requisites. 1262-1267. Division I In general. 1268-1271. Division II. Rendition. 1272-1275. Division III. Equity. 1276-1291. Division IV. Record of judgment. 1292-1304. Article V. Default judgment. 1292-1299. Division I. Requisites and validity. 1300-1304. Division II. Opening and vacating judgment. 1305-1324. Article VI. Reversing, vacating, or modifying. 1305-1314. Division I. Authority to review. 1315-1324. Division II. Proceedings. 1325-1364. Article VII. Operation, construction, enforcement, and satis- faction. 1325-1331. Division I. In general. 1332-1335. Division II. Enforcement. 1336-1347. Division III. Payment, satisfaction, and discharge. 1348-1364. Division IV. Judgment liens. 1365-1370. Article VIII. Assignment of judgment. 1371-1394. Article IX. Collateral attack. 1371-1374. Division I. Judgment impeachable collaterally. TABLE OF CONTENTS xliii Sections 13757-1390. Division II Grounds of attack. 1391-1392. Division III Proceedings. 1393-1394. Division IV Probate of wills. 1395-1461. Article X. Res adjudicata. 1395-1411. Division I. In general- 1412-1425. Division II. Causes of action or defenses merged, barred, or concluded. 1426-1429. Division III. Persons to whom bar available. 1430-1440. Division IV. Judgments conclusive in general. 1441-1453. Division V.> Persons concluded. 1454-1401. Division VI Matters concluded. 1462-1467. Article XI. Amount of recovery. 1468-1471. Article XII. Actions on judgments. 1472-1478. Article XIII. Equitable relief. 1479-1485. Article XIV. Foreign judgments. 1486-1488. Article XV. Transcript. ARTICLE I DEFINITION, VALIDITY, AND PARTIES 1239- Definition. 1240. Validity. 1241. Jurisdiction. 1242. Judgment in rein. 1243. Parties. 1244. New parties. ARTICLE II CONFESSION OF JUDGMENT 1245. Confession by defendant Form. 1246. By prisoner Witness. 1247. By attorney Authority. 1248. By agreement. 1249. Cause to be stated. 1250. Affidavit. 1251. Enforcement. 1252- Offer to confess judgment Form. ARTICLE III CONFORMITY DIVISION I. CONFORMITY TO ISSUES 1253. Conformity to issues in general. 1254. Conformity to pleadings. 1255. Prayer. xliv TABLE OF CONTENTS DIVISION II. CONFORMITY TO VERDICT Sections 1256. Judgment on verdict. 1257. Interest. 1258. On special verdict. 1259. Judgment against verdict. DIVISION III. CONFORMITY TO FINDINGS 1260. Supported by findings. 1261. Approval of findings. ARTICLE JV RENDITION, FORM, AND REQUISITES DIVISION I. IN GENERAL 1262. For defendant. 1263. Against infant. 1264. On motion. 1265. Judgment in foreclosure suit. 1266. Appeal from county commissioners. 1267. Corporations Involuntary dissolution. DIVISION II. RENDITION 1268. Time. 1269. Ejectment. 1270. Interplea. 1271. Bastardy. DIVISION III. EQUITY 1272. In general. 1273. Specific performance. 1274. Foreclosure. 1275. Mechanic's lien. DIVISION IV. RECORD OF JUDGMENT 1276. Journal entry Form. 1277. Clerk to make record. 1278. When made. 1279. Contents. 1280. To be signed. 1281. Completing record. 1282. Conclusiveness. 1283. Nunc pro tune orders. 1284. Lost or destroyed judgment. 1285. Filing transcript Justice's judgment, 1286. In other county. 1287. Record in realty case- 1288. Recording. 1289. Involuntary dissolution. 1290. Record as notice. 1291. Orders and decrees. TABLE OF CONTENTS xl ARTICLE V DEFAULT JUDGMENT DIVISION I. REQUISITES AND VALIDITY Sections 1292. Petition. 1293. When party is in default. 1294. Proof taken Damages. 1295. Time for rendering judgment. 1296. Validity of judgment Service Form of judgment. 1297- Actions to which state is party Dismissal Default Notice to Attorney General. 1298. Notice How given Proof- 1299. Judgment without notice void. DIVISION II. OPENING AND VACATING DEFAULT JUDGMENT 1800- Opening judgment after default on service by publication. 1301. Excusable default. 1302. Pleading Form. 1303. Valid defense Excuse Petition Effect of motion. 1304. Discretion of court. ARTICLE VI REVERSING, VACATING OR MODIFYING DIVISION I. AUTHORITY TO REVIEW 1305. Jurisdiction and power." 1306. During term. 1307. After term. 1308. Common-law powers. 1309. Want of jurisdiction. 1310. Other remedies. 1311. Errors Irregularities. 1312. Law. 1313. Pleading. 1314. Operation and effect. DIVISION II. PEOCEEDINGS 1315. Motion Form. 1316. Petition Form. 1317. Hearing. 1318. ^Evidence. 1319. Trial of ground of review. 1320. Defense must be shown. 1321. Suspending proceedings Bond Forms. 1322. Premature judgment. 1323. Time for application. 1324. Applicable to what courts. xlvi TABLE OF CONTENTS ARTICLE VII OPERATION. CONSTRUCTION, ENFORCEMENT, AND SATISFACTION DIVISION I. IN GENERAL Sections 1325. ' Establishes claim. 1326. Death after verdict. 1327. For recovery of land. 1328. Surety. 1329. Joint defendants. , 1330. Interpretation Interest. 1331. Collusiveness. DIVISION II. ENFORCEMENT 1332. Judgments before death. 1333. Guaranty companies. 1334. Conveyance ordered Form of order. 1335. Alimony. DIVISION III. PAYMENT, SATISFACTION, AND DiscHABaa 1336. Dormant Judgments. 1337. Revival. 1338. Necessity. 1339. Death of party. 1340. Proceedings Forma. 1341. Effect of revival. 1342. Mode of payment. 1343. Set-off of judgments. 1344. Merger. 1345. Release. 1346. Compelling satisfaction. 1347. Vacating satisfaction Forms. DIVISION IV. JUDGMENT LIENS 1348. Statutory regulations .Lien on real estate. 1349. Nature of lien. 1350. Debtor's realty. 1351. Extent of lien. 1352. Lien of corporation commission. 1353. Homestead. 1354. Osage Indian lands. 1355. Alimony. 1356. Animals. 1357. Judgments against counties. 1358. Receipt by clerk. 1359. Priorities. 1360. Judgment and conveyances. 1361. Prior unrecorded deed. 1362. Receivership. 1363. Duration of lien. 1364. Postponement of lien. TABLE OF COTs 7 TEXTS ARTICLE VIII ASSIGNMENT OF JUDGMENT xlvii Sections 1365. In general. 1366. Consideration and validity. 1367. Setting aside assignment. 1368. Effect of transfer. 1369. Rights of parties. - 1370. As to each other. ARTICLE IX / COLLATERAL ATTACK DIVISION I. JUDGMENTS IMPEACHABLE COLLATERALLY 1371. In general. 1372. Particular courts County court District court. 1373. Federal court. 1374. Nature of subject-matter. DIVISION II. GROUNDS OF ATTACK 1375- Invalidity In general. 1376. Default judgment- 1377. Want of jurisdiction. 1378. Want of service. 1379. Service by publication. 1380. Presumption of jurisdiction. 1381. Effect of recitals. 1382. Extrinsic evidence. 1383. Errors and irregularities In general- 1384. As to parties. 1385. As to pleadings. 1386. In proceedings. 1387. Perjury. 1388. Fraud. 1389. Collusion. 1390- Available defenses. DIVISION III. PROCEEDINGS 1391. Nature of attacks. 1392. Preventing enforcement. DIVISION IV. PROBATE OF WILLS 1393. In general. 1394. Ancillary probate. xlviii TABLE OF CONTENTS ARTICLE X RES ADJUDICATA DIVISION 1. IN GENERAL Sections 1395. Nature of former recovery. 1396. Nature of action Warrant indebtedness. 1397. Equitable actions. 1398. Interplea. 1399. Real property. 1400. Criminal prosecutions. 1401. Scope of adjudication. 1402. Judgments without prejudice. 1403. Reserving rights. 1404. Default. 1405. Motion or summary proceedings. 1406. Void in part. 1407. Dismissal. 1408. Demurrer. 1409. Verdict without judgment. 1410. Pendency of appeal. 1411. Judgment vacated or reversed. DIVISION II. CAUSES OF ACTION OB DEFENSES MERGED, BABRED, OB CONCLUDED 1412. Nature of merger. 1413- Elements of judgment. 1414. Identity of actions. 1415. Identity of subject-matter. 1416. Theory of action. 1417. Form of remedy. 1418. Grounds of action. 1419. Relief. 1420. Splitting actions Single and entire. 1421. Accounts. 1422. Installments. 1423. Torts. 1424. Successive causes of action. 1425. Defenses concluded. DIVISION III. PERSONS TO WHOM BAB AVAILABLE 1426. Mutuality of estoppel. 1427. Parties or privies. 1428. Joint and several contractors. 1429. Joint tort-feasors. DIVISION IV. JUDGMENTS CONCLUSIVE IN GENERAL 1430. Nature In general. 1431. Failure to appeal. 1432. Judgments of federal courts. 1433. Probate jurisdiction. 1434. Finality of determination. TABLE' OF CONTENTS xlix Sections 1435. Special proceedings. 1436. Form of judgment. 1437. Confession or consent. 1438. Default. 1439. Judgment on motion. 1440. Erroneous judgment. DIVISION V. PERSONS CONCLUDED 1441. Identity of persons In general. 1442. Unknown parties. 1443. Additional parties. 1444. Official capacity. 1445. Participating in action. 1446. Representatives. 1447. Privity in general. 1448. Vendor and purchaser. 1449. Other special relations. 1450. Coplaintiffs and codefendants. 1451. Persons not parties or privies. 1452. Evidence. 1453. Evidence of property rights. DIVISION VI. MATTERS CONCLUDED 1454. Scope of estoppel. 1455. Identity of subject-matter. 1456. Identity of issues. 1457- Matters not in issue. 1458. Issues undecided. 1459. Title or right to property. 1460. Rights under contracts. 1461. Real property. ARTICLE XI AMOUNT OF RECOVERY 1462. Damages Assessment Measure. 1463. Breach of warranty. 1464. Unlawful detention Conversion. 1465. Use and occupation. 1466. Exemplary damages. 1467. Interest and attorney's fees. ARTICLE XII ACTIONS ON JUDGMENTS 1468. Cause of action. 1469. Who may sue. 1470. Review. 1471. Foreign judgments. HON.PL.& PRAC. d TABLE OF CONTENTS ARTICLE XIII EQUITABLE RELIEF Sections 1472. In general. 1473. Fraud. 1474. Injunction Forms. 1475. Suit to vacate. 1476. Parties. 1477. Pleading. 1478. Evidence. ARTICLE XIV 1479. 1480. 1481. 1482. 1483. 1484. 1485. FOREIGN JUDGMENTS In general. Recognition- Jurisdiction. Judgment in rem. Fraud. Conclusiveness. Divorce and alimony. Enforcement in other states. ARTICLE XV TRANSCRIPT 1486. Filing judgment in district court Forms. 1487. Certificate of amount paid. 1488. Revivor. CHAPTER XIX NEW TRIAL 1489-1493. Article I. Scope of remedy. 1494-1505. Article II Grounds. 1506-1526. Article III. Procedure. ARTICLE I SCOPE OF REMEDY 1489. Inherent power. 1490. Discretion. 1491. Waiver. 1492. Second application. 1493. Pendency of application Its effect. TABLE OF CONTENTS li ARTICLE II Sections GROUNDS 1494. Statutory power. 1494a. Errors and irregularities in general. 1495. Misconduct. 1496. Rulings and instructions. 1497. Jurors Disqualification Misconduct- 1498. Defective verdict or findings. 1499.. Verdict contrary to instructions. 1500. Verdict contrary to evidence. 1501. Special findings. 1502. Amount of recovery. 1503. Mistake, passion or prejudice. 1504. Surprise, accident or mistake. 1505. Newly discovered evidence. -Communications. ARTICLE III PROCEDURE 1506. Application. 1507. When motion is proper Form. 1508. Ruling of court on motion Right to new trial. 1509. Time for making. 1510. Requisites Application. 1511. Statement of grounds and specification of errors. 1512. Parties. 1513. Extrinsic evidence. 1514. Jurors. 1515. Affidavits Forms. 1516. As to newly discovered evidence Form. 1517. Transcript of evidence. 1518. Amendment. 1519. Abandonment of motion. 1520. Order Forms. 1521. Setting aside. 1522. Hearing. 1523. Time. 1524. Conditions to granting. 1525. Reduction of verdict or remission of excess Form of order. 1526. Petition for new trial Form. 1527-1534. 1535-1551. 1552-1562. 1563-1571a. 1572-1578. CHAPTER XX COSTS Article I. Security for costs. Article II. Taxation of costs. Article III. Items taxable as costs. Article IV. Collection and payment. Article V Costs on appeal. Hi TABLE OF CONTENTS ARTICLE I SURETY FOR COSTS Sections l.~>27. In general Statute- 1528. Bond Form. 1529. Deposit. 1530. Pauper affidavit Form. 1531. False swearing. 1532. Additional security. 1533- Failure to give security. 1534. Remedies against sureties Form of motion. ARTICLE II TAXATION OF COSTS 1535. Right to award. 1536. Costs taxed by clerk. 1537. Costs where defendant disclaims. 1538. Costs go with judgment. 1539- Prevailing party. 1540. Costs that may be taxed at discretion of court. 1541. On motions. 1542. Quo warranto. 1543. Defendant. 1544. Apportionment. 1545. Waiver. 1546. On joint liability. 1547. Effect of tender or offer to confess ju figment. 1548. Settlement, stipulation and abatement. 1549. Costs Corporations Involuntary dissolution. 1550. Liability of representative. 1551. Costs on interplea. ARTICLE III ITEMS TAXABLE AS COSTS 1552. Attorney's fees. 1553. Stenographer's fees. 1554. Receivership. 1555. Fees for legal publication Taxed as costs. I.~.j6. Contempt proceedings. 1557. Jurors. 1558. Witnesses- 1559. Guardian. 15GO. Court clerks Fees. 1561. Sheriffs and constables Fees. 1562. County judge Fees. TABLE OF CONTENTS liii ARTICLE IV COLLECTION AND PAYMENT Sections 1563. Fees When due. 1564. Process Fees for service. 1565. Cost Proof of payment. 1566. Costs Statement of. '1567. Fees Receipt for. 1568. Execution. 1569. Costs By whom held. 1570- Mileage Constructive. 1571. Municipal corporations. 1571a. Apportionment of deposits and collections. ARTICLE V COSTS ON APPEAL 1572. In general. 1573- Apportionment. 1574. Attorney fees. 1575- Case-made. 1576. Briefs. 1577. Motion to retax Form. 1578. Dismissal of appeal. CHAPTER XXI EXECUTIONS 1579-1585. Article I. Nature and requisites. 1586-1594. Article II. Property subject. 1595-1605- Article III. Issuance, form, and requisites. 1606-1634. Article IV. Levy and enforcement. 1635-1653. Article V Sale and redemption. 1654-1661. Article VI. Proceeds, amercement, and return. 1662-1670. Article VII. Supplemental proceedings. 1671. Article VIII. Wrongful execution. ARTICLE I NATURE AND REQUISITES 1579. Kinds. 1580. Judgment. 1581. Conformity to. 1582. Enforcement of. 1583. Contribution. 1584. Principal and surety. 1585. Several executions. TABLE OF CONTEXTS ARTICLE II Sections PROPERTY SUBJECT 1586- In general. 1587- Interests subject. 1588. Crops. 1589. Movable property of public service corporation. 1590. Corporation stock Attachment and execution. 1591. Corporate franchises. 1592. Particular estates. 1593- Equitable interests. 1594. Property in custodia legis. ARTICLE III ISSUANCE, FORM, AND REQUISITES 1595. Issuance. 1596. On abstract or transcript of justice. 1597. To sheriff of another county. 1598. After death. 1599. Time. 1600. Contents Forms. 1601. Amount. 1602. Alias writ. 1603. Seal. 1604. Amendment. 1605. Collateral attack. ARTICLE IV LEVY AND ENFORCEMENT 1606. Enforcement Exemptions. 1607. Homestead exemption. 1608. Exemptions not to apply, when. 1609. Exemption of personalty not to apply, when. 1610. Pensions. 1611. Ministers' libraries- 1612. Motor vehicles Claiming exemptions Damages. 1613- Benevolent corporations. 1614. Order to appear Forms. 1615. Priorities between executions. 1616. Attachments and executions Who may levy. 1617. Void when otherwise levied. 1618. The levy. 1619. Advance of printer's fees. 1620. Appraisement and return. 1621. Property of officer. 1622. Excessive levy. 1623. Appraisement waived. 1624. Mortgaged chattels. TABLE OF CONTENTS lv Sections 1625. Corporate stock. 1626. Redelivery bond Form. 1627. Delivery on execution. 1628. Quashing execution Form. 1629. Injunction. 1630. Creation of lien. 1631. Dependent on levy. 1632. Liens prior to execution. 1633- Duration of lien on realty. 1634. Claims of third persons Bond Form. ARTICLE V SALE AND REDEMPTION 1635. Duty of officer. 1636. Place of sale Who may purchase. 1637. Alias execution. 1638. Time of sale. 1639. Notice of sale. 1640. Confirmation of sale. 1641. Setting aside sale Form of motion and order. 1642. Waiver and estoppel. 1643. Collateral attack. 1644. Presumption of validity. 1645. Recovery of amount bid. 1646. Title of purchaser and interest acquired. 1647. Sheriff's deed Form. 1648. Possession. 1649. Corporate stock. 1650. Corporate franchise Form of certificate of purchase. 1651. Redemption of franchise. 1652. Irregularities. 1653. Reversal of judgment. ARTICLE VI PROCEEDS. AMERCEMENT, AND RETURN 1654. Clerk. 1655. Amercement Forms. 1656. Execution mailed. 1657. Distribution among execution creditors. 1658. Surplus. 1659. Return Form. 1660. Neglect of officer. 1661. Payment. Ivi TABLE OF CONTENTS ARTICLE VII SUPPLEMENTAL PROCEEDINGS Sections 1662. In general. 1662a. Examination of debtor and others Arrest Contempt. 1663. Reference Form. 1664. Receivers Order of appointment Form. 1665. Continuance. 1666. Lien on funds- 1667. Fees and costs. 1668. Contempt. 1669. Orders. 1670. Judgment enforced after death. ARTICLE VIII WRONGFUL EXECUTION 1671. Conversion Damages. CHAPTER XXII JUDICIAL SALES 1672. Judgment or order Forms. 1673. Appraisement. 1674. Authority to sell. 1675. Notice. 1676. Return, confirmation, and objections. 1677. Foreclosure. 1678. Opening or vacating sale Forms. 1679. Resale Form of order. 1680. Collateral attack. 1681. Title and rights of purchaser. 1682. Taxes. 1683. Wrongful sale- 1684. Validity. 1685. Foreclosure sale. 1686. Without appraisement. 1687. Right of redemption. 1688. Tax sales. 1689. Estray sales. CHAPTER XXIII REPLEVIN 1690-1703. Article I. Rights and defenses. 1704-1707. Article II. Jurisdiction and parties. 1708-1721. Article III Proceedings for taking and redelivery of property. 3722-1731. Article IV. Pleadings and evidence. TABLE OF CONTENTS Ivii Sections 1732-1733. Article V. Damages. 1734-1752. Article VI. Trial, judgment, enforcement of judgment, and re- view. 1753-1756. Article VII. Liabilities on bonds and undertakings. ARTICLE I RIGHTS AND DEFENSES 1690. Remedy Nature. 1691. Property subject. 1692. Scope Equity. 1693. Liens on animals* 1694. Property seized under prohibitory law. 1695. Rent Crop. 1696. Purchaser with notice liable- 1697. Plaintiffs right to possession. 1698. Detention by defendant. 1699. Defendant's possession. 1700- Conditions precedent- 1701. Demand for return. 1702. Defenses. 1703. Estoppel. ARTICLE II JURISDICTION AND PARTIES 1704. Waiver of jurisdiction. 1705. Plaintiff. 1706. Defendant. 1707. Intervention and substitution." ARTICLE III PROCEEDINGS FOR TAKING AND REDELIVERY OF PROPERTY 1708. In general. 1709. Affidavit Form. 1710. Replevin undertaking Form. 1711. Order of replevin Form. 1712. To different counties. 1713. Execution of order. 1714. Officer may forcibly enter buildings. 1715. Custody of property. 1716. Statutory provisions for delivery by attachment. 1717. Redelivery to defendant Undertaking Form. 1718. Plaintiffs' objection to sureties Form. 1719- Effect of redelivery. 1720. Quashing writ Forms. 1721. Return. Iviii TABLE OF CONTENTS ARTICLE IV PLEADINGS AND EVIDENCE Sections 1722. Complaint Form and requisites. 1723. Demand. 1724. Amended and supplemental complaint. 1725. Amendment of affidavit. 1726. Issues, proof, and variance Matters to be proved. 1727. Variance. 1728. Burden of proof. 1729. Defenses under answer General denial. 1730- Evidence admissible. 1731. Sufficiency of evidence. ARTICLE V DAMAGES 1732. Elements of compensation. 1733. Exemplary damages. ARTICLE VI TRIAL, JUDGMENT, ENFORCEMENT OF JUDGMENT, AND REVIEW 1734. Failure to prosecute- 1735. Scope of inquiry. 1736. Trial. 1737. Questions for jury. 1738. Directed verdict Instructions. 1739. Verdict and findings Requisites. 1740. Value of property Description. 1741. New trial. 1742. Judgment In general Form. 1743. For defendant. 1744. Description of property. 1745. Possession or return. 1746. For value of property. 1747. Judgment in alternative. 1748. Damages. 1749. Operation and effect. 1750. Enforcement of judgment. 1751. Appeal and error. 1752. Costs. ARTICLE VII LIABILITIES ON BONDS AND UNDERTAKINGS 1753. Replevin bonds. 1754. Redelivery bonds. 1755. Discharge of sureties. 1756. Extent of liability. TABLE OF CONTENTS lix CHAPTER XXIV EJECTMENT Sections 1757-1759. Article I. Nature and right of action. 1760-1766. Article II Trial, recovery, and defenses- 1767-1769. Article III. Damages. ARTICLE I NATURE AND RIGHT OF ACTION 1757. Possessory right. 1758. Form of action. 1759. Plaintiff must have right at commencement of action. ARTICLE II TRIAL, RECOVERY, AND DEFENSES 1760. Title to sustain action. 1760a. Petition Form. 1761. Right to recover. Oil leases. Recovery where right ceases during action. Defenses. Evidence and instructions. New trial. 1762. 1763. 1764. 1765. 1766. ARTICLE III DAMAGES 1767. Questions to be determined. 1768. Improvements and taxes. 1769. Recovery of rent. CHAPTER XXV AUXILIARY PROCEEDINGS 1770-1848. Article I Attachment. 1770-1773. Division I. Nature and grounds. 1774-1777. Division II Property subject. 1778-17. Grounds Motion Form. 1876. Bond releasing garnishment Form Exceptions. TABLE OF CONTEXTS Ixili DIVISION V I. CLAIMS BY THIRD PERSONS Sections . 1877. Disclosure by garnishee Order Notice Default. 1878. Action by claimant- DIVISION VII. WRONGFUL GARNISHMENT 1879. Grounds of liability. 1880. Measure of damages. ARTICLE III RECEIVERS 1881. Grounds and occasion for receivership. 1882. Particular instances. 1883. Corporations Involuntary dissolution. 1884. Petition Form. 1885. Parties. 1886. Jurisdiction. 1887. Notice Order Forms. 1888. Eligibility. 1889. Oath and bond Forms. 1890. Liability on bond. 1891. Objections Waiver Collateral attack. 1892. Contempt Interference with receiver. 1893. Vacation of order Supreme Court Form. 1894. Powers. 1895. Title and custody of property. 1896. Liens- 1897. Disposition of litigated property Order Form. 1898. Existing contracts. 1899. Investment of funds Application Order Forms. 1900. Receiver's sales. 1901. Distribution and disposition. 1902. Receivership expenses. 1903. Taxes. 1904. Compensation. 1905. Appeals. 1906. Actions by and against receivers. 1907. Liability of plaintiff and third persons. 1908. Additional forms. ARTICLE IV REFERENCE 1909. Reference by consent Stipulation Form. 1910. Upon application or court's motion Order Form. 1911. Reference In vacation. 1912. Referee Appe'utment, qualification, and compensation Orde r Oath Forms. 1913. Trial Reports Exceptions Forms. 1914. Review by court. 1915. New trial. Ixiv TABLE OF CONTEXTS ARTICLE V LIS PENDENS Sections 1916. Theory of lis pendens- 1917. Notice of action. 1918. Jurisdiction. 1919- Pendency of action. 1920. Amendment. 1921. Transfers pending suit. 1922. Unrecorded deeds. 1923. Persons bound by decree. VOLUME III CHAPTER XXVI PROCEEDINGS IN EQUITY 1924-1926- Article I. Equitable remedies 'in general. 1927-1970. Article II. Divorce and alimony. 1927-1934. Division I Grounds. 1935-1937. Division II Defenses. 1938-1949. Division III. Jurisdiction and procedure. 1950-1963. Division IV Awards. 1964-1970. Division V. Custody and support of children. 1971-1983. Article III. Quieting title- 1971-1974. Division I. Right of action and defenses. 1975-1980. Division II. Proceedings and relief. 1981-1983- Division III. Government land. 1984-1999- Article IV- Specific performance. 1984-1987. Division I. Grounds, n'ature of action, and defenses. 1988-1999. Division II Enforceable contracts and enforcement of same. 2000-2030. Article V Partition. 2000-2003. Division I. Right of action- 2004-2020- Division II. Proceedings and relief. 2021-2030- Division III. Partition in county court. 2031-2079. Article VI. Injunction. 2031-2038. Division I. Nature and grounds. 2039-2055. Division II Subjects and relief. 2056-2066. Division III. Restraining order and temporary injunction. 2067-2071- Division IV- Contempt. 2072-2079. Division V. Liability on bonds. 2080-2097. Article VII. Foreclosure. TABLE OF CQNTENTS Ixv ARTICLE I EQUITABLE REMEDIES IN GENERAL Sections 1924. Maxims, principles, and application. 1925. Remedies. 1926. Laches. ARTICLE II DIVORCE AND ALIMONY DIVISION I. GROUNDS 1927. Enumeration of grounds. 1928- Abandonment. 1929. Pregnancy before marriage Impotency. 1930. Cruelty. 1931. Fraudulent contract. 1932. Habitual drunkenness. 1933. Neglect of duty. 1934. Marriage of incompetents voidable. DIVISION II. DEFENSES 1935. Insanity. 1936. Condonation. 1937. Res judicata. DIVISION III. JURISDICTION AND PROCEDURE 1938. Residence. 1939. Separate domicile. 1940. Domicile to obtain a divorce. 1941. Petition Summons or notice Forms. 1942. Answer Form. 1943. Default. 1944. Evidence. 1945. Appeal Remarriage. 1946. Decree Contents Form. 1947- Vacation and modification Motions Orders Forms. 1948. Collateral attack. 1949. Effect. DIVISION IV. AWARDS 1950. Where divorce refused. 1951. Jurisdiction of person and property. 1952. Orders Forms. 1953. Restraining order Form. 1954. Temporary alimony and expenses Form. 1955. Permanent alimony and division of property. 1956. Without divorce. 1957. Amount. 1958. Modification of decree. 1959. Release of obligation. 1960. Agreements of parties. 1961. Disposition of property. HON.PL.& PRAC. e TABLE OF CONTENTS Sections 1962. Construction and effect of decree. 1963. Fraudulent conveyances. DIVISION V. CUSTODY AND SUPPORT OF CHILDREN 1964. Jurisdiction. 1965. Decree Form Grounds. 1966. Effect. 1967. Modification. 1968. Enforcement. 1969. Award as to support. 1970. Support where no provision decreed. ARTICLE III QUIETING TITLE DIVISION I. RIGHT OF ACTION AND DEFENSES 1971. Possession Nature of action. 1972. Cloud on title. 1973. Title to support action. 1974- Defenses. DIVISION II. PROCEEDINGS AND RELIEF 1975. Petition Form. 1976. Cotenants. 1977. Answer Disclaimer Forms- 1978. Reply. 1979. Parties. 1980. Decree Form. DIVISION III. GOVERNMENT LAND 1981. Patent erroneously issued. 1982. Actions. 1983. Hearing and findings. ARTICLE IV SPECIFIC PERFORMANCE DIVISION I. GROUNDS, NATURE OF ACTION, AND DEFENSES 1984. Grounds of relief. 1985. Nature of action. 1986. Discretion of court. 1987. Defenses. DIVISION II. ENFORCEABLE CONTRACTS AND ENFORCEMENT OF SAME 1988. Requisites and validity. 1989. Mutual obligations. 1990. Consideration. 1991. Oral contracts Statute of frauds. 1992. Fraud Illegal contracts. TABLE OF CONTENTS Sections 1993. Options. 1994. Rescission or abandonment. 1995. Real property Tender Delay. 1996. Laches. 1997. Contracts to devise. 1998. Personal services. 1999. Performance before trial. bcvii ARTICLE V PARTITION DIVISION I. RIGHT OF ACTION 2000. Property subject to partition. 2001. Possession and cotenancy. 2002. Agreements. 2003. Conditions precedent. DIVISION II. PROCEEDINGS AND RELIEF 2004. Jurisdiction. 2005. Parties. 2006. Pleadings Forms. 2007. Order for partition Form. 2008. Commissioners. 2009. Allotment of portions. 2010. Duty Report Form. 2011. Final decree Form. 2012. Taking land at appraised value Form. 2013. Sale Order Form. 2014. Return and deed Forms. 2015. Confirmation of Sale Form. 2016. Costs, fees, and expenses. 2017. Extent of court's power Additional relief and orders. 2018. Taxes, rent, and incumbrances. 2019. Proceeds. 2020. Lis pendens. DIVISION III. PARTITION IN COUNTY COURT 2021. Common estate Commissioners. 2022. Petition, parties, and notice. 2023. Realty in different counties. 2024. Notice Steps by commissioners. 2025. Division of property. 2026. Assignment to one owner. 2027. Sale of estate. 2028. Report of proceedings. 2029. Assignment of residue. 2030. Advancements. Ixviii TABLE OF CONTENTS ARTICLE VI DIVISION I. NATURE AND GBOUNDS Sections 2031. Nature of remedy Writ. 2032. Anticipated violation of right. 2033. Substantial injury. 2034. Defenses Laches. 2035. Res judicata. 2036. Past wrongs. 2037. Adequate remedy at law. 2038. Mandatory injunction. DIVISION II. SUBJECTS AND RELIEF 2039. Tax and nuisance. 2040. Civil actions. 2041. Miscellaneous proceedings. 2042. Property and conveyances. 2043. Trespass. 2044. Public lands. 2045. Contracts. 2046. Sale of good will. 2047. Corporations. 2048. Public officers. 2049. Elections. 2050. Enforcement of ordinances. 2051. Public safety. 2052. Criminal acts and prosecutions. 2053. Infringement. 2054. Board of arbitration. 2055. Final decree. DIVISION III. RESTRAINING OBDEK AND TEMPORARY INJUNCTION 2056. Notice. 2057. Restraining order Form. 2058. Temporary injunction Grounds Form. 2059. Bond Form. 2060. Affidavits. 2061. Vacating or modifying Motions Decrees Forms. 2062. Operation of orders. 2063. Defendant may obtain injunction. 2064. Objections. 2065. Order of injunction Service Form. 2066. Effective when. DIVISION IV. CONTEMPT 2067. Disobedience of injunction. 2068. Jurisdiction to punish. 2069. Proceedings. 2070. Acts constituting violation. 2071. Defenses. TABLE OP CONTENTS Ixix DIVISION V. LIABILITY ON BONDS Sections 2072. In general. 2073. Extent of liability. 2074. Actions Conditions precedent. 2075. Time for suing. 2076. Pleading Forms. 2077. Defenses. 2078. Evidence. 2079. Damages. ARTICLE VII FORECLOSURE 2080. Real estate mortgage. 2081. Security deed. 2082. Appraisement. 2083. Right of redemption. 2084. Chattel mortgages. 2085. Notice Form. 2086. Sale. 2087. Attorneys' fees. 2088. Pledges. 2089. Liens against railroads. 2090. Mechanics' and materialmen's liens. 2091. Parties to action. 2092. Consolidation. 2093. Judgment Sale. 2094- Costs Attorney fees. 2095. Action by owner When. 2096. Lien claimants to share pro rata. 2097. Liens Oil and gas property Rent Crops. CHAPTER XXVII SPECIAL WRITS 2098-2158. Article I. Habeas corpus. 2098-2118- Division J. Theory and purpose. 2119-2158. Division II. Jurisdiction, proceedings, and relief. 2159-2237. Article II. Mandamus. 2159-2173. Division I. Nature and grounds. 2174-2213- Division II. Subjects of relief. 2214-2237. Division III. Procedure. 2238-2239. Article III. Certiorari. 2240-2252. Article IV. Prohibition. 2240-2245. Division I. Nature and grounds. 2246-2252. Division II. Procedure, 2253-2274- Article V. Quo warranto. 2253-2262. Division I. Nature and grounds. 2263-2274. Division II. Procedure. 1XX TABLE OF CONTENTS ARTICLE I HABEAS CORPUS DIVISION I. THEORY AND PURPOSE Sections 2098. Nature of writ. 2099. A constitutional right. 2100. Other remedies. 2101. Appeal or error. 2102. Nature of detention. 2103. Voluntary surrender. 2104. Authority for detention. 2105. Proceedings reviewable Pardons. 2106. Arrest and commitment. 2107. Bail for murder when preliminary hearing was waived. 2108. Judgment and commitment. 2109. Grounds for issuance In general. 2110. Want of jurisdiction or authority. 2111. Void proceedings. 2112. Irregularities. 2113. Former jeopardy. 2114. Void statute or ordinance. 2115. Excessive bail. 2116. Who entitled to relief. 2117. In whose favor granted. 2118. Habeas corpus never suspended. DIVISION II. JURISDICTION, PROCEEDINGS, AND RELIEF 2119. Jurisdiction In general. 2120. When in custody of other court or officers. 2121. Of judges and judicial officers. 2122. Jurisdiction of parties. % 2123. Waiver. 2124. Application Contents Form. 2125. Sufficiency of petition. 2126. Security for costs not required. 2127. Dismissal Motion to dismiss. 2128. Warrant for prisoner P^orm. 2129. Execution. 2130. Writ may issue to admit prisoner to bail. 2131. Hearing on application. 2182. Writ Contents Form. 2133. Delivery of writ. 2134. Service. 2135. On Sunday. 2136. Vacating writ. 2137. Return. 2138. Requisites of return Form. 2139. Failure to make return. 2140. Exception to return. 2141. Evidence. TABLE OF CONTENTS Ixxi Sections 2142. Hearing on writ or return. 2143. Scope of inquiry and power of court. 2144. Jurisdiction.. 2145. Compef attendance of witnesses. 2146. Sufficiency of evidence. 2147. Extradition. 2148. Irregularity. 2149. Determination of particular issues Custody of infant. 2150. Commitment for contempt. 2151. Reduction of bail. 2152. Disposition of person. 2153. Discharge Notice. 2154. Appeal. 2155. Effect of determination. 2156. Effect of refusal to discharge. 2157. Liability of officer for obeying writ. 2158. Constitutional provisions. ARTICLE II MANDAMUS DIVISION I. NATURE AND GROUNDS 2159. Nature of writ. 2160. By whom issued Who subject to writ. 2161. Existence of remedy at law. 2162. Appeal or error. 2163. Where other proceedings are pending. 2164. Discretion of court. 2165. Joinder of proceedings. 2166. Successive applications. 2167. Nature of rights to be protected. 2168. What acts commanded. 2169. Demand of performance. 2170. Defenses. 2171. Mandamus useless. 2172. Abatement. 2173. Who entitled to relief. DIVISION II. SUBJECTS OF RELIEF 2174. Exercise of judicial powers and discretion. 2175. When disqualified. 2176. Acts in violation of law. 2177. Proceeding with cause Dismissal. 2178. Injunction. 2179. Trial by jury. 2180. Entry of order. 2181. Vacation of order. 2182. Execution Judicial sale. 2183. Proceedings for review. 2184. Enforcement of mandate on review. 2185. Taxation of costs. Ixxii TABLE OF CONTENTS Sections 2186. Criminal proceedings. 2187. Officers subject to mandamus. 2188. State officers and boards. 2189. Ministerial acts. 2190. Exercise of discretion. 2191. Specific acts. 2192. Elections. 2193. Appointment or recall of public officers. 2194. Title to office Possession. 2195. Establishment of schools. 2196. Public records. 2197. Contracts. 2198. Franchise. 2199. Grant of licenses. 2200. Maintenance and repair of public bridges. 2201. Levy of taxes. . 2202. Audit and allowance of accounts. 2203. Issue of warrants and bonds. 2204. Payment of warrants. 2205. Payment of judgments. 2206. Levy of taxes to pay bonds and interest. 2207. Payment of judgments. 2208. Assessment of taxes. 2209. Payment of taxes. 2210. Meetings of corporations. 2211. Corporate franchises Construction of works. 2212. Operation of works. 2213. Individuals. DIVISION III. PROCEDURE 2214. Jurisdiction. 2215. Time to sue. 2216. Parties plaintiff In name of state. 2217. Defendants. . 2218. Pleadings. 2219. Motion or application Affidavit Notice Forms. 2220. Disqualification of judge. 2221. In Supreme Court. 2222. Writ of mandamus Contents Forms. 2223. Peremptory writ. 2224. Issuance and service. 2225. Answer or return. 2226. Motion to quash construed as answer. 2227. Demurrer. 2228. Cross-petition. 2229. Demurrer to answer or return. 2230. Dismissal before hearing. 2231. Conduct of trial. 2232. Evidence. 2233. Scope of inquiry. 2234. Extent of relief. 2235. Damages bar to action. TABLE OF CONTENTS Ixxil'i Sections 2236. Punishment for contempts-Penalty. 2237. Appeal and error. ARTICLE III CERTIORARI 2238. Nature and office of writ. 2239. When issued Review Form. ARTICLE IV PROHIBITION DIVISION I. NATURE AND GROUNDS 2240. Nature of remedy. 2241. Existence of other remedies. 2242. Proceedings of courts and judges. 2243. Of public officers and boards. 2244. Grounds for relief. 2245. Prohibition not beneficial Abatement. DIVISION II. PROCEDURE 2246. Jurisdiction. 2247. Objections in lower court. 2248. Parties. 2249. Scope of inquiry. 2250. Appeal. 2251. Dismissal. 2252. Forms. ARTICLE V QUO WARRANTO DIVISION I. NATUBE AND GROUNDS 2253. Nature of writ. 2254. Writ abolished Civil action. 2255. Statutory grounds. 2256. Existence of municipality School district organization. 2257. Exercise of corporate franchise. 2258. Trial of title to office Usurpation. 2259. Forfeiture and maladministration. 2260. Adequate remedy at law. 2261. Discretion of court. 2262. Defenses. DIVISION II. PROCEDURE 2263. Venue. 2264. Parties plaintiff. 2265. Control of proceedings. 2266. Parties defendant. 2267. Petition Contents Form. 226S. Answer. Ixxiv TABLE OF CONTENTS Sections 2269. Evidence. 2270. Powers of court Inquiry. 2271. Judgment Form. 2272. In contest for office. 2273. Costs. 2274. In action against corporations. CHAPTER XXVIII SPECIAL PROCEEDINGS 2275-2283. Article I. Dissolution proceedings. 2284-2294. Article II. Determination of heirship. 2295-2299. Article III. Homestead and marital rights. 2300. Article IV. Adoption and bastardy. 2301-2306. Article V. Contempt. 2307-2317. Article VI. Seizure, confiscation, and forfeiture. 2318-2338. Article VII. Condemnation proceedings. 2339-2352. Article VIII. Restoration of records. 2353-2358. Article IX. Occupying claimants. 2359-2360. Article X. Escheat. 2361-2367. Article XI. Libel and slander. ARTICLE I DISSOLUTION PROCEEDINGS 2275. Dissolution of corporation 2276. Voluntary.. 2277. Involuntary. 2278. Who may bring action. 2279. Not duly incorporated. 2280. Elections. 2281. Dissolution of insurance companies. 2282. Dissolution of partnership. 2283. Forms. ARTICLE II DETERMINATION OF HEIRSHIP 2284. Jurisdiction Appeals. 2285. Petition Who may file Contents. 2286. Hearing Notice Service. 2287. Trial Judgment Rehearings. 2288. Appeals How taken. 2289. Method not exclusive. 2290. Invoking jurisdiction in action relating to real property. 2291. Judgment Findings. 2292. Judgment Collusiveness. 2293. Service by publication. 2294. Proof of service. TABLE OF CONTENTS Ixxv .Sections 2295. 2296. 2297. 2298. 3299. ARTICLE III HOMESTEAD AND MARITAL RIGHTS Husbaud and wife. Effect of proceedings. Setting aside decree. Homestead Insane spouse. Service of petition. ARTICLE IV ADOPTION AND BASTARDY 2300. Adoption Bastardy Delinquent children Majority rights. ARTICLE V CONTEMPT 2301. Hearing Jury trial. 2302. Evidence Application. 2303. Alimony, support, and suit money. 2304. Corporation commission Appeal. 2305. Burden of proof. 2306. Injunction against liquor nuisance. ARTICLE VI SEIZURE. CONFISCATION AND FORFEITURE 2307. Forfeiture of property used in violation of prohibitory laws. 2308. Searches. 2309. Vehicles. 2310. Automobiles. 2311. Beer. 2312. Procedure. 2313- Appeals allowed. 2314. Jurisdiction. 2315. Complaint. 2316. Interplea. 2317. Gambling apparatus. ARTICLE VII CONDEMNATION PROCEEDINGS 2318. Condemnation proceedings Railroads. 2319- Compensation to owner. 2320. Report Review Jury trial. 2321. Appeal Condemnation proceedings. TABLE OF CONTENTS Sections 2322. Application of law. 2323. Eminent domain Oil pipe line companies. 2324. Foreign corporations may not exercise eminent domain. 2325. Condemnation proceedings Parties entitled to prosecute. 2326. Special proceedings Eminent domain Lands subject. 2327. Procedure Appeal. 2328. Pipe line companies. 2329. Water power companies. 2330. Municipalities. 2331. Other persons. 2332. Acquisition by United States. 2333. Light, heat, and power companies. 2334. Establishment of roads by county commissioners. 2335. Landowner may start proceedings. 2336. Trial and evidence. 2337. Effect of condemnation Damages. 2338. Condemnation of Indian lands. ARTICLE VIII RESTORATION OF RECORDS 2339. Restoration by certified copy. 2340. Restoration where no certified copy is to be had. 2341. Restoration of probate records. 2342. Restoration of record in cases appealed. 2343. County records- 2344. Plats to be restored by court action. 2345. An interested individual may petition Form. 2346. Duties of county commissioners. 2347. Abstract records may be used. 2348. Courts may act to establish title. 2349. Effect of court decree Form. 2350. Certified copy of deed may be recorded. 2351. Power to act may be in legal representative. 2352. Admissibility of oral and other evidence. ARTICLE IX OCCUPYING CLAIMANTS 2353. Reimbursement for improvements and expenditures. 2354. Trial and appraisement. 2355. Judgment Appeal. 2356. Purchase by occupant- 2357. Refunding purchase money. 2358. Where ejectment brought. ARTICLE X ESCHEAT 2359. When property escheats. 2360. Escheat proceedings, how instituted and carried on. TABLE OF CONTENTS Ixxvii ARTICLE XI LIBEL AND SLANDER Sections 2361. Libel defined. ^362. Slander defined. 2363. Privileged communication defined. 2364. Pleading Proof and defenses. 2365. Extent of liability. 2366. Malice presumed. 2367. Minimum judgment. CHAPTER XXIX APPEAL AND REVIEW 2368-2370. Article I. Origin, right, and mode of appeal. 2371-2373. Article II. Appellate jurisdiction. 2374-2379. Article III. Decisions reviewable. 2380-2383. Article IV. Eight of appeal. 2387-2418. Article V. Presentation below. 2419-2422. Article VI. Parties. 2423-2431. Article VII. Manner of taking appeal. 2423-2425. Division I. Time of taking appeal. 2426-2427. Division II. Deposit and bond. 2428-2431. Division III. Notice, petition in error, and appearance. 2432-2436. Article VIII. Effect of appeal, supersedeas and stay. 2437-2464. Article IX. Transcript and case-made. 2437-2440. Division I. Record in general. 2441-2444. Division II. Transcript. 2445-2464. Division III. Case-made. 2465-2468. Article X. Assignment of errors. 2469-2475. Article XI. Briefs. 2476-2485. Article XII. Dismissal and abandonment. 2486-2489. Article XIII Hearing and rehearing. 2490-2544. Article XIV. Review. 2490-2499. Division I. Scope and extent. 2500. Division II. Rulings. 2501-2502. Division III Parties entitled to complain. 2503-2505. Division IV. Amendments and additional proof. 2506-2515. Division V. Presumptions. 2516-2521. Division VI. Discretionary rulings. 2522-2524. Division VII. Evidence, verdict and findings. 2525-2540. Division VIII. Harmless error. 2541. Division IX. Waiver of error. 2542-2544. Division X. Intermediate and subsequent appeals. 2545-2556. Article XV. Decision. 2557-2562. Article XVI. Bonds. 2563. Article XVII. Rules of Supreme Court TABLE OF CONTENTS ARTICLE L ORIGIN, RIGHT, AND MODE OF APPEAL Sections 2368. Origin and right of appeal. 2369. Cross-appeals and successive appeals. 2370. Consolidation for appeal. ARTICLE II APPELLATE JURISDICTION 2371. Powers of court. 2372. Basis of jurisdiction. 2373. Existence of controversy. ARTICLE III DECISIONS REVIEWABLB 2374. Final orders. 2375. New trial. 2376. Receivers. 2377. Temporary injunctions. 2378. Pleadings. 2379. Amount in controversy. ARTICLE IV RIGHT OF APPEAL 2380. Persons entitled. 2381. Waiver of appeal. By compliance with order or decree. Payment of judgment. 2384. Payment of costs. Acceptance of benefits. 2386. By selection of another remedy. ARTICLE V PRESENTATION BELOW 2387. Issues in lower court. 2388. Sufficiency of presentation. 589. Objections and rulings Venue Parties Process Clerk. J390. Jurisdiction of lower court. 2391. Judge pro tern. 2392. Motions Incidental proceedings Attachments 2393. Pleadings. 2394. Reference. TABLE OF CONTENTS IxxiX Sections 2395. Conduct of trial. 2396- Argument and conduct of counsel. 2397. Evidence and witnesses. 2398. Instructions. 2399. Sufficiency of court's findings. 2400. The verdict. 2401. Judgment. 2402. Report of referee. 2403. Appeals from justice court. 2404. Specific and general objections. 2405. Sufficiency of objection. 2406. Objection by motion Necessity. 2407. Objection to judgment Costs. 2408. Necessity for ruling. 2409. Exceptions. 2410. As to pleadings. 2411. Findings of jury, court, or referee. 2412. Judgment. 2413. Rulings after judgment. 2414. Sufficiency and effect Withdrawal. 2415. Timeliness of objection and exception. 2416. Motion for new trial. 2417. Presentation of errors. 2418 Time- ARTICLE VI PARTIES 2419. Necessary parties. 2420. Rules. 2421. Death of party. 2422. Defect of parties. ARTICLE VII MANNER OF TAKING APPEAL DIVISION I. TIME OF TAKING APPEAL 2423. Periods applicable. 2424. Time during which limitation runs. 2425. Extension of time Dismissal. DIVISION II. DEPOSIT AND BOND 2426. Deposit for costs. 2427. Bond. DIVISION III. NOTICE, PETITION IN EKROB, AND APPEARANCE. 2428. Notice of appeal in open court. 2429. Petition in error. 2430. Assignment of errors. 2431. Appearance. IxXX TABLE OF CONTENTS ARTICLE VIII EFFECT OF APPEAL, SUPERSEDEAS, AND STAY Sections 2432. Suspension of jurisdiction below. 2433. Collateral matters. 2434. Undertaking for stay Form. 2435. Stay pending appeal. 2436. Inherent power to grant stay. ARTICLE IX TRANSCRIPT AND CASE-MADE DIVISION I. RECORD IN GENERAL 2437. Necessity and requisites- 2438. Presentation for review. 2439. Conclusiveness of record. 2440. Conflicts. DIVISION II. TRANSCRIPT 2441. Contents. 2442. Matters presented for review. 2443. Requisites and sufficiency. 2444. Certificate. DIVISION III. CASE-MADE 2445. Function and necessity. 2446. Attached to petition Complete record Costs. 2447. Service, amendment, settlement, and filing Exceptions. 2448. Attestation Filing. 2449. Extension of time Motion Order Forms. 2450. Service. 2451. Parties served. 2452. Contents. 2453. Form and sufficiency. 2454. Amendments. 2455. Settlement and certification. 2456. Time for settlement. 2457. Notice. 2458. Death, expiration of term, or absence of trial judge. 2459. Special judge Appellate court. 2460. Filing in both courts. 2461. Correction Notice. 2462. Waiver of defects. 2463. Conclusiveness of certificate. 2464. Matters presented for review. TABLE OF CONTENTS bcXXl ARTICLE X Sectlons ASSIGNMENT OF ERRORS 2465. Necessity. 2466. Requisites and sufficiency. 2467. Matters presented for review. 2468. Amendment. ARTICLE XI BRIEFS 2469. Necessity. j 2470. Form and requisites. 2471. Specification of errors. 2472. Argument. 2473. Defective briefs. 2474. Failure to file and serve. 2475. Disposition of appeal. ARTICLE XII DISMISSAL AND ABANDONMENT 2476. Voluntary dismissal. 2477. Involuntary dismissal. 2478. Moot questions. 2479. Defects in proceedings. 2480. Frivolous appeals. 2481. Failure to prosecute appeal. 2482. Dismissal by court on its own motion. 2483. Motion for dismissal. 2484. Abandonment. 2485. Vacating order of dismissal and reinstatement. ARTICLE XIII HEARING AND REHEARING 2486. Advancement Continuance. 2487. Rehearing. 24S8. Petition Form. 2489. Matters considered. ARTICLE XIV REVIEW DIVISION I. SCOPE AND EXTENT 2490. Scope in general. 2491. Consideration of evidence. 2492. Agreed statement. HO??.P:L.&PRAC. f Ixxxii TABLE OF CONTENTS Sections 2493. Questions of law and of fact. 2494. Abstract and hypothetical questions. 2495. In equity case. 2496. Special findings. 2497. Theory adopted below. 2498. Reason for decision. 2499. Dependent on nature of decision. DIVISION II. RULINGS 2500. On pleadings and motions. DIVISION III. PARTIES ENTITLED TO COMPLAIN 2501. In general. 2502. Invited error, estoppel, and waiver. DIVISION IV. AMENDMENTS AND ADDITIONAL PROOF 2503. Remanding for amendment. 2504. Amendment regarded as made in lower court. 2505. Additional proofs in appellate court. DIVISION V. PRESUMPTIONS 2506. Burden of showing error. 2507. Jurisdiction and organization of lower court. 2508. Judgment arid verdict. 2509. Findings. 2510. Pleadings. 2511. Motions and orders. 2512. Reference. , 2513. Dismissal, demurrer to evidence, and direction of verdict. 2514. Instructions. 2515. Case-made. DIVISION VI. DISCRETION ART RULINGS 2516. In general. 2517. Motions and pleading. 2518. New trial. 2519. Reception of evidence and examination of witnesses. 2520. Submission of issues. 2521. Judgment, execution, and sale. DIVISION VII. EVIDENCE, VERDICT AND FINDINGS 2522. Evidence and witnesses. 2523. Verdicts. 2524. Findings. DIVISION VIII. HARMLESS ERBOB 2525. Errors not affecting substantial right. 2526. Errors not affecting result. 2527. Where judgment correct. 2528. Presumption and prejudice. TABLE OF CONTENTS IxXXlii Sections 2529. Pleadings. 2530. Interlocutory proceedings. 2531. Jury and trial. 2532. Evidence. 2533. Statements and conduct of counsel. 2534. Cure of error. 2535. Demurrer to evidence and direction of verdict. 2536. Submission of issues and instructions. 2537. Cure of error. 2538. Conduct of the jurors. 2539. Findings. 2540. Judgment. DIVISION IX. WAIVER OF EBKOB 2541. Express and implied waiver. DIVISION X. INTERMEDIATE AND SUBSEQUENT APPEALS 2542. Intermediate courts Cases from justice court 2543. Cases from county court. 2544. Subsequent appeals. ARTICLE XV DECISION 2545. Decision in general. 2546. Affirmance. 2547. Modification. 2548. Reversal. 2549. Mandate. 2550. Direction of judgment. 2551. New trial. 2552. Proceedings in lower court. 2553. Powers and duties. 2554. Amendments. 2555. Disposition of property. 2556. Jurisdiction of appellate court after remand. ARTICLE XVI BONDS 2557. Liability on bonds. 2558. Action on appeal or supersedeas bond. 2559. Void or defective appeal. 2560. Accrual or release of liability. 2561. Enforcement of liability. 2562. Extent of liability. Ixxxiv TABLE OP CONTENTS ARTICLE XVII RULES OF SUPREME COURT Sections 2563. Rules stated. TABLE OF STATUTES CITED (Page 2557) TABLE OF CONSTITUTIONAL PROVISIONS CITED (Page 2569) TABLE OF CASES CITED (Page 2571) INDEX (Page 2715) A TREATISE ON HON.PL.& PBAC. (I) 1 Ch. 1) COURTS AND COURT OFFICERS CHAPTER I COURTS AND COURT OFFICERS Sections 1-142. Article I. Courts and judges. 1-31. Division L Relating to code practice In general. 32-45. Division II. Judges in general. 46-81. Division III. District courts and judges. 82-89. Division IV. Superior courts and judges. 90-113. Division V. County courts and judges. 114-142. Division VI. Supreme Court and judges. 143-198. Article II. Other court officers. 143-145. Division I. In general. 146-162. Division II. Court clerks. 163-172. Division III. Sheriffs and other peace officers. 173-198. Division IV. Attorneys. ARTICLE I COURTS AND JUDGES DIVISION 1. RELATING TO CODE PRACTICE IN GENERAL Sections 1. Courts open for administration of justice. 2. Due process. 3. Judicial power vested where. 4. Judges Conservators of the peace. 5. Title of chapter. 6. Prior decisions and precedents Stare decisis. 7. Decisions of federal courts. 8. Common law. 9. Obiter dictum. 10. Law of the case. 11. Statutes and construction. 12. Erroneous words and punctuation. 13. Rule of ejusdem generis. 14. Statute construed as a whole. 15. Statutes construed together or in the light of each other. 16. Administrative construction. 17. Provisos or exceptions. 18. Statute adopted from another state. 19. Adjournment by sheriff. 20. Publications. 21. Affirmation. 22. Computation of time. 23. Surety Justification. 24. Qualifications. 25. Real estate mortgage as bond. 26. Valuation of real estate. 27. False valuation Penalty. (3) COURTS AND COURT OFFICERS (Ch. 1 Sections 28. Action on bond. 29. Several actions on security. 30. Submission of controversy. 31. Impeachment and removal from office. DIVISION 11. JUDGES IN GENERAL 32. As public officer. 33. Judge pro tempore. 34. Waiver of objections. 35. Powers of special judges. 36. Liabilities. 37. Change of judge. 38. Disqualifications. 39. Relationship. 40. Bias and prejudice. 41. Objections and procedure. 42. Form Application for disqualification of judge. 43. Waiver of disqualifications. 44. Acts of disqualified judge. 45. Powers at chambers. DIVISION 111. DISTRICT COURTS AND JUDGES 46. District court Where held. 47. Districts and judges. 48. Sessions Time for Adjournments. 49. Change of district Disposition of cases pending. 50. Special terms. 51. Adjournment of term. 52. Two or more judges sitting at same time. 53. Additional judge. 54. District judges Expenses. 55. Reporter Appointment Qualifications: 56. Duties of court reporter. 57. / Salary and fees. 58. Traveling expenses. 59. Tenure and oath of office. 60. Notes filed Admissibility in evidence Transcripts. 61. Appeal to district court. 62. Party in default. 63. Who may appeal. 64. When appeal must be taken. 65. Appeal how taken. 66. Appeal bond. 67. Stay of execution. 68. Commitment How stayed. 69. Justification of sureties Increased bond. 70. Appeal bond form Action upon. 71. Appeal not to stay issue of letters. 72. Appeal not to stay order revoking letters, etc. 73. Proceedings. 74. Powers of the appellate court. (4) Art. 1) COURTS AND JUDGES Sections 75. ' Trial de novo. 76. Penalty for neglect of county judge to transmit record. 77. Dismissal of appeal Effect Costs- 78. Enforcement of decree. 79. Executor's bond stands in place of appeal bond. 80. Reversal for error not to affect lawful acts. 81. Rules of district court. DIVISION IV. SUPERIOR COURTS AND JUDGES 82. Superior courts in general. 83. Qualifications of judges Term of office. 84. Election. 85. Procedure Juries Appeals. 86. Court stenographer. 87. Sheriffs County attorneys. 88. Judge's salary. 89. Transfer of causes. DIVISION V. COUNTY COURTS AND JUDGEB 90. Procedure Seal. 91. Terms of court. 92. Proceedings in vacation Out of court. 93. Calendar. 94. Stenographer. 95. Duties. 96. Oath and tenure of office. 97. Fees for making transcripts. 98. Ex officio court clerk. 99. Compensation. 100. Fees Record. 101. Report of. 302. Fees paid to treasurer. 103. Special court towns. 104. Judge Term of office Qualification. 105. To give bond. 306. Office and records. 107. Practice prohibited. 308. Temporary county judge. 109. How elected. 110. Fee when affidavit of bias made. 311. County judge County attorney Salary. 112. Court reporters. 113. Rules for county court. DIVISION VI. SUPREME COURT AND JUDGES 314. Membership Quorum Eligibility Term of office Vacancies Juris- diction. 115. Justices Judicial districts Election Law clerks. 116. Referees and first law clerk. 117. Chief justice Election. 118. Vice chief justice Election. (5) S i COURTS AND COURT OFFICERS (Ch. 1 Sections 119. Justices Not to be candidate for other office. 120. Commencement of term. 121. Sessions Opinions. 122. Chief justice Expiration of terms Election. 123. Clerk. 124. Law governing. 125. Salaries of justices. 126. Effect of invalidity. 127. Jurisdiction Divisions. 128. Appeals from county court. 129. Appeals from corporation commission. ISO. Appeals from state labor commission. 131. Formation of new counties. 132. Speedy heariqg. 133. Original jurisdiction Division of assets and liabilities among counties. 134. Parties Proceedings. 135. Constitution. 136. Jurisdiction Removal of state capital and normal schools. .137. Jury trial when. 138. Trial. 139. Jury How selected. 140. Costs Witness fees. 141. Reports. 142. Supreme court rules. DIVISION I. RELATING TO CODE PRACTICE IN GENERAL 1. Courts open for administration of justice "The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and jus- tice shall be administered without sale, denial, delay, or prejudice." 1 This provision is self-executing, 2 and prohibits the trial of any cause by a judge or juror prejudiced against either party. Prohibi- tive clauses of a Constitution are always self-executing and require no legislative provision for their enforcement. 3 This clause ex- pressly requires that courts grant relief in a speedy manner. It does not, hpwever, require a jury trial in proceedings under the Workmen's Compensation Act (Laws 1915, c. 246), 4 or in a pro- 1 Const. Okl. art. 2, 6. 2 Mayes v. Pitchford, 26 Okl. 129, 109 P. 821. 3 State ex rel. Smith v. Brown, 24 Okl. 433, 446, 103 P. 762 ; Ex parte Hudson, 3 Okl. Cr. 393, 106 P. 540; Lewis v. Russell, 4 Okl. Cr. 129, 111 P. 818. 4 Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938, (6) Art. 1) COURTS AND JUDGES 2 ceeding by the state before the corporation commission to recover a refund of excess rates, 5 nor does it give a party a right to a trial before a particular judge. 6 2. Due process "No person shall be deprived of life, liberty, or property, without due process of law." T This provision does not always require judicial hearings. It re- quires such hearings in matters of a purely judicial nature, but not in matters purely administrative, such as matters of taxation. 8 It requires only that a party shall have reasonable notice and op- portunity to be heard. 9 That the trial court fails to follow the stat- ute in taxing costs raises no question as to violation of the due pro- cess clause. 10 A citizen has no property in a defense, and, while rights accrued to him under existing laws and which have thereby become vested may not be taken away by a change of rule, he cannot complain that he is denied due process of law, where a rule is changed before any rights have accrued to him thereunder. 11 6 Pioneer Telephone & Telegraph Co. v. State, 40 Okl. 417, 138 P.. 1033. 6 State v. Brown, 8 Okl. Cr. 40, 126 P. 245, Ann. Cas. 1914C, 394. 7 Const. Okl. art. 2, 7. Exercise by commissioner of land office of min- isterial and judicial functions as to state school lands under Laws 1907-08, c. 49, art. 2, and Rev. Laws 1910, 7177, 7186, 7187, is not a denial of "due process of law," either under Const. Amend. U. S. 14, or Const. Okl. art. 2, 7. Wilhite v. Cruce (Okl.) 172 P. 962. The equitable and common-law jurisdiction granted to the courts by the organic act of the territory of Oklahoma were a part of that due process of law which is guaranteed to every citizen as a protection of his life, liberty, and property. Smith v. Speed, 66 P. 511, 11 Okl. 95, 55 L. R. A. 402. The jurisdiction of the courts in equity as provided in the organic act of Okla- homa Territory is as much due process of law as the right of trial by jury in cases at common law. Id. 8 Anderson v. Ritterbusch, 22 Okl. 761, 98 P. 1002 ; Anderson v. Ritterbusch, 98 P. 1002, 22 Okl. 761. Where a motion to vacate a decree of foreclosure and sale thereunder was made by the owner of the equity of redemption upon whom no valid service was had in the foreclosure proceeding, and the grantee of the purchaser at the foreclosure sale was served with notice of such motion, appeared and answered, filed an affidavit in opposition to the motion, and also a motion to dismiss the motion to vacate, actively conducted the defense, and appeal- ed from the decree, a decree setting aside the judgment of foreclosure ami permitting the owner of the equity of redemption to appear, plead, and set up her defense, did not deny to the grantee due process of law. Harding v. Gillett, 107 P. 665, 25 Okl. 199. 10 Cramer v. Farmers' State Bank of Galva, 158 P. 1111, 98 Kan. 641. " Dickinson v. Cole (Okl.) 177 P. 570. (7) 2-6 COURTS AND COURT OFFICERS (Ch. 1 Failure to give notice of an application for alimony pendente lite is not a deprivation of property without due process of law. 12 Notice by publication, consisting of two successive insertions in a paper of general circulation in the county in which the land to be embraced within the boundaries of a drainage district is located, is sufficient to constitute due process of law. 13 A judgment of the district court affirming the action of the coun- ty commissioners on a claim, without giving claimant a chance to be heard, would be a deprivation of property without due process. 14 The statute providing that, if a foreign corporation doing busi- ness in the state fails to appoint an agent therein for service, service may be made on the secretary of state, is not a denial of due process of law. 16 3. Judicial power vested where "The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law." 16 4. Judges Conservators of the peace "All judges of courts of this state, and justices of the peace, shall, by virtue of their office, be conservators of the peace throughout the state." 1T 5. Title of chapter The chapter relating thereto shall be known as the Code of Civil Procedure of the state of Oklahoma. 18 6. Prior decisions and precedents Stare decisis Principles of public policy demand that a fixed construction of constitutional law should not be unsettled, unless clearly erro- 12 Gundry v. Gundry, 68 P. 509, 11 Okl. 423. 18 Riley v. Carrico, 110 P. 738, 27 Okl. 33. 14 Cherokee County Pub. Co. v. Cherokee County, 48 Okl. 722, 151 P. 187. 18 Title Guaranty & Surety Co. v. Slinker, 143 P. 41, 42 Okl. 811. 16 Const. Okl. art. 7, 8 1. 17 Const. Okl. art. 7, 19. " Rev. Laws 1910, 4641. (8) Art. 1) COURTS AND JUDGES 6 neous. 19 Where a series of decisions of a court of last resort have been acted upon as the proper interpretation of the law for a long time, they will not be interfered with, though the courts would decide otherwise were the question a new one. 20 But the doctrine of stare decisis does not preclude a departure from precedent es- tablished by a series of decisions clearly erroneous, unless property complications have resulted and a reversal would work a greater injury and injustice than would ensue by following the rule. 21 The Supreme Court will give full consideration to authorities founded upon and supported by living principles, but will not recog- nize or follow precedents which have outlived their usefulness; when the reason for a rule ceases, the court will not enforce such rule. 22 The construction of a statute in a civil proceeding is authority t Anderson v. State, 123 P. 442, 7 Okl. Cr. 130. 20 Inman v. Sherrill, 116 P. 426, 29 Okl. 100. Judicial decisions, acted on as settled rule of contract, are to be followed on the principle of stare decisis whether right or wrong. Lasiter v. Ferguson, 79 Okl. 200, 192 P. 197. 21 Thurston v. Fritz, 138 P. 625, 91 Kan. 468, 50 L. K. A. (N. S.) 1167, Ann. Gas. 1915D, 212. Rule of property. A decision of the Supreme Court of the United States following the decisions of the Supreme Court of Illinois in construing "rules of property" in Illinois, is not applit; 'e as a precedent to an Oklahoma con- tract, where the Oklahoma decisions are in conflict with those of Illinois. Hill Oil & Gas Co. v. White, 53 Okl. 748, 157 P. 710. In an action to recover an Indian allotment, testimony of lawyers that the rule laid down by the United States Circuit Court of Appeals in a certain case had not been followed generally by the profession and trial judges held properly excluded on objection that it was incompetent and immaterial. McDougal v. McKay, 142 P. 987, 43 Okl. 261, judgment affirmed 35 S. Ct. 605, 237 U. S. 372, 59 L. Ed. 1001. Though an act authorizing the vacation of town sites might be held uncon- stitutional if the question were a new one, but it had been held valid for many years and tracts of land have been fenced and farmed as rural lands, and voting places have been determined accordingly, and city finances and municipal affairs have been adjusted for years on the supposition that the law was constitutional, the doctrine of stare decisis, based on the necessity of stability in the interpretation of the law, applies, and the former decision will not be disturbed. Bull v. Kelley, 112 P. 133, 83 Kan. 597. 22 Caples v. State, 104 P. 493, 3 Okl. Cr. 72, 26 L. R. A. (N. S.) 1033. Though decision that poll tax law of 1911 did not apply to cities of first class was influenced by language in another statute, enacted at same session, repeal of such other statute will not change interpretation of poll tax law- City of Topeka v. Wasson, 101 Kan. 824, 168 P. 902. (9) g-7 COURTS AND COURT OFFICERS (Ch. 1 for a like construction in a criminal prosecution. 23 It is the settled policy of the Supreme Court to follow the construction given to criminal statutes by the Criminal Court of Appeals. 24 The Supreme Court of the state took and possesses any and all the jurisdiction of the Supreme Court of the territory, except as otherwise provided, and has the same power and right to re-ex- amine a decision of that court, holding a territorial statute invalid, and to determine whether or not such act is invalid, and, if such decision is erroneous, to overrule it. 25 Where the Legislature has, by legislative enactment, prescribed rules and regulations governing contracts and agreements relating to real estate, or any interest therein, such legislative enactment must govern, any decisions of other states, or territories, to the contrary, notwithstanding. 26 The determination as to whether an instruction, abstractly cor- rect, but inapplicable to the facts of the case was prejudicial will not ordinarily serve as a precedent for any other case. 27 7. Decisions of federal courts Where an act of Congress which governs a contract has been construed by the Supreme Court of the United States, the deci- sion of that court is supreme, and state courts are bound by it. 28 In cases arising in state courts, involving rights and liabilities of parties to an interstate railroad shipment, the decisions of United 28 State v. Coyle, 122 P. 243, 7 Okl. Cr. 50, rehearing denied 130 P. 316, 8 Okl. Cr. 686. 2 * State v. Russell, 124 P. 1092, 33 Okl. 141; Ex parte Anderson, 124 P. 980, 33 Okl. 216 ; Ex parte Lightle, 124 P. 983, 33 Okl. 223 ; Ex parte Rial, 124 P. 983, 33 Okl. 224; Ex parte Spurlock, 124 P. 983, 33 Okl. 225. 25 State v. Chaney, 102 P. 133, 23 Okl. 788; Frick Co. v. Oats, 94 P. 682, 20 Okl. 473. \ 6 McCormick v. Bonfils, 60 P. 296, 9 Okl. 605. "Brownell v. Moorehead (Okl.) 165 P. 408. 28 Missouri, K. & T. R>. Co. v. Walston, 133 P. 42, 37 Okl. 517. The strict construction placed by the federal courts upon the act of Congress relative to extradition proceedings between states, is binding on state courts. Ex parte Owen, 136 P. 197, 10 Okl. Cr. 284, Ann. Cas. 1916A, 522. The decisions of the United States Supreme Court holding valid the acts of Congress suspending for 21 years the interstate federal laws which would permit the introduction of intoxicating liquors as interstate commerce into the Indian territory are binding upon state courts. Huff v. State, 9 Okl. Cr. 675, 133 P. 265. (10) Art. 1) COURTS AND JUDGES 7~g States Supreme Court, construing and applying the federal act, are controlling. 29 , In determining questions of federal cognizance, the state Supreme Court is bound by rules of decisions adjudicated in the Supreme Court of the United States. 80 As to cases pending in the territorial courts in Indian Territory and Oklahoma Territory at the time of the erection of the state, de- cisions of the Supreme Court of the United States are controlling. 31 8. Common law "The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma ; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally con- strued to promote their object." 82 This statute precludes the following of decisions based on the civil law as governing authority in this jurisdiction. 33 When the people came to Oklahoma from the different states in 1889, they 29 St. Louis, I. M. & S. Ry. Co. v. Bentley (Okl.) 176 P. 250; St. Louis, I. M. & S. Ry. Co. v. Patterson, 75 Okl. 204, 182 P. 701; Atchison, T. & S. F. Ry. Co. v. Cooper (Okl.) 175 P. 539. The several sections of the Act Cong. March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 8605-8612), making it unlawful for railroads engaged in interstate commerce to use cars not equipped with specified appliances, are framed upon the same general plan, and, notwithstanding any minor differ- ences in their language, a declaration by the Supreme Court of the United States that one of them is intended to impose upon the railroad the absolute duty of keeping in good repair the equipment therein required, irrespective of any question of negligence, determines that a like interpretation is to be given to the others. Brinkmeier v. Missouri Pac. Ry. Co., 105 P. 221, 81 Kan. 101, judgment affirmed 32 S. Ct. 412, 224 U. S. 268, 56 L. Ed. 758. 30 Miller v. State, 106 P. 810, 3 Okl. Cr. 457. 31 Fidelity & Deposit Co. of Maryland v. Rankin, 124 P. 71, 33 Okl. 7 ; State Mut. Ins. Co. v. Craig, 111 P. 325, 27 Okl. 90; Missouri, K. & T. Ry, Co. v. Walker, 113 P. 907, 27 Okl. 849; Stanford v. National Drill & Mfg. Co., 114 P. 734, 28 Okl. 441; Sullivan v. Mercantile Town Mut. Ins. Co., 94 P. 676, 20 Okl. 460, 129 Am. St. Rep. 761. 32 Rev. Laws 1910, 4642. 33 Chicago, R. I. & P. Ry. Co. v. Groves, 93 P. 755, 20 Okl. 101, 22 L. R. A. (N. S.) 802. 8-11 COURTS AND COURT OFFICERS (Ch. 1 brought with them the rules of the common law as recognized by the American courts. 84 * Words not defined by statute, but having a fixed meaning at common law, will be given the common-law meaning. 35 9. Obiter dictum The expression of a view on a point not necessary to the decision is "obiter dictum," 86 binding upon nobody. 87 10. Law of the case The trial court's error in setting aside a verdict and in granting a new trial where it has jurisdiction to do so, unless appealed from or otherwise legally reviewed, becomes final, and cannot be availed of by the litigant prejudicially affected in a subsequent trial of same cause. 88 Where plaintiff's demurrer to paragraphs of the answer has been overruled his motion to strike the same paragraphs for the same reasons assigned in the demurrer is properly denied. 39 Where the Supreme Court renders a decision which is afterwards overruled, the overruled decision is the law of the case in which rendered. 40 A person not a party oV privy in an action cannot have a vested right in an erroneous decision made therein. 41 : 11. Statutes and construction Provision has been recently made for a compilation of all laws of a general nature, without change or modification, except the .elimination of all statutes which have been expressly repealed. Each section shall be numbered consecutively with the correspond- ing number of the Revised Laws of Oklahoma of 1910. 42 * Hoppe Hardware Co. v. Bain, Sheriff, et al., 21 Okl. 177, 95 P. 765, 17 L. R. A. (N. S.) 310, following McKennon v. Winn, 1 Okl. 327, 33 P. 582, 22 L. R. A. 501. so Welty v. U. S., 14 Okl. 7, 76 P. 121. * Lansten v. Lansten, 55 Okl. 518, 154 P. 1182. 87 State v. Crosby Bros. Mercantile Co., 103 Kan. 896, 176 P. 670. 88 O'Neil Engineering Co. v. City of Lehigh, 75 Okl. 227, 182 P. 659. s Deerhig v. Meyers, 116 P. 793, 29 Okl. 232. o Stonebraker v. Ault, 59 Okl. 189, 158 P. 570. *i Crigler v. Shepler, 101 P. 619, 79 Kan. 834, 23 L. R. A. (N. S.) 500. * 2 Sess. Laws 1921, p. 158 (H. B. 490), 1-4. (12) Art. 1) COURTS AND JUDGES 11 In the construction of statutes, the intention of lawmakers, when ascertained, must govern. 48 The presumption is that the Legislature does not intend to change existing law beyond what is expressly declared ; and, where an act creating a remedy or right does not prescribe the procedure, it will be assumed that the general procedure was intended, unless ex- pressly excluded. 44 In construing a statute containing words which have a fixed meaning at common law, which the statute nowhere defines, they will be given the same meaning they have at common law. 45 The court may look to the evils and mischiefs to be remedied. 48 Where there is a doubt as to the legislative intent arising from the wording of the statute, the court should follow that construc- tion which will lead to the most reasonable conclusion if violence is not done to the plain meaning of the words of the statute. 47 Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship, or ambiguity, and to favor public convenience. 48 When a strict construction of a particular statute would defeat legislative intent, as shown by other enactments on the same sub- 48 In re Cleveland's Claim (Okl.) 180 P. 852. Any rule of statutory construction which defeats the legislative intent must be abandoned. Cherokee County Pub. Co. v. Cherokee County, 48 Okl. 722, 151 P. 187. Where the language of an act conveys a definite meaning involving no absurdity, or any contradiction of other parts of the statute, the apparent meaning must be accepted. Falter v. Walker, 47 Okl. 527, 149 P. 1111. 44 State v. Hooker, 98 P. 964, 22 Okl. 712. 45 Welty v. United States, 76 P. 121, 14 Okl. 7. 4 Blevins v. W. A. Graham Co. (Okl.) 182 P. 247; Board of Com'rs of Creek County v. Alexander, 58 Okl. 128, 159 P. 311; Blevins v. W. A. Gra- ham Co. (Okl.) 182 P. 247. 47 St. Louis-San Francisco By. Co. v. Caldwell, 75 Okl. 153, 182 P. 688. 48 McGannon v. State, 124 P. 1063, 33 Okl. 145, Ann. Cas. 1914B, 620. A statute must be given the meaning apparent on its face where the words used convey a distinct meaning which involves no absurdity or contradic- tion. Leahy v. Indian Territory Illuminating Oil Co., 39 Okl. 312, 135 P. 416. It is the duty of the courts to sustain elections when free from fraud or charge of improper conduct, where it can be done by a liberal construction of the laws relating thereto, rather than defeat them by requiring a rigid conformity to technical statutory directions not affecting the substantial rights of the electors. Town of Grove v. Haskell, 104 P. 56, 24 Okl. 707. (13) 11-13 COURTS AND COURT OFFICERS (Ch. 1 ject in pursuance of a general purpose in accomplishing a particular result, such construction should not be adopted. 49 An apparent intent of an amendment will be carried into the original act, and every presumption indulged to effectuate that in- tent. 50 A statute which is inconsistent with, and covers the entire subject covered by, a prior statute, but which does not expressly repeal it, may be construed to repeal it by substitution. 61 12. Erroneous words and punctuation Where the plain intent can be gathered from the context, the court may substitute or supply a necessary word. 52 Courts are not bound by punctuation or grammatical construc- tion, but will give effect, if possible, to the true meaning of the statute. 63 But less latitude is allowed in the construction of a crim- inal statute than in the case of a civil statute. 54 13. Rule of ejusdem generis Under the rule of ejusdem generis, where general words follow the enumeration of particular classes, the general words will be 49 In re Cleveland's Claim (Okl.) 180 P. 852; Groom v. Wright, 121 P. 215. 30 Okl. 652. Statutes are not to be taken literally, but are to be interpreted so as to give effect to the purpose of the law-making power ; and to the legislative intent is to be ascribed a reasonable and not a technical meaning. Brown v. Woods. 39 P. 473, 2 Okl. 601. 60 Bonnett v. State, 47 Okl. 503, 150 P. 198. 61 J. W. Ripey & Son v. Art Wall Paper Mill, 112 P. 1119, 27 Okl. 600. 02 Trustees', Executors' & Securities Ins. Corp. v. Hooton, 53 Okl. 530, 157 P. 293, L. R. A. 1916E, 602. The word "and" may be substituted for the word "or" when necessary to make a statute express the true legislative intent as gathered from the con- text and the circumstances attending its enactment. State v. Hooked, 98 P. 964, 22 Okl. 712. Where words have been erroneously used in a statute and the context af- fords the means of correction, the proper words will be deemed substituted. Schaffer v. Board of Com'rs of Muskogee County, 124 P. 1069, 33 Okl. 288. 53 Ex parte Hunnicutt, 123 P. 179, 7 Okl. Cr. 213. The intention of the Legislature governs the construction of a statute, and, if that requires a change in the punctuation, or even in the wording, of the statute, such change must be made. Stiles v. City of Guthrie, 41 P. 383, 3 Okl. 26. 5 * The courts have no power to add to the plain and mandatory provision of the statute fixing the punishment for the crime of perjury (Rev. Laws 1910, 2219, subd- 1), though the word "information" is clearly omitted therefrom through an oversight of the committee revising the Code and of the Legis- lature. Arnold v. State (Okl. Cr. App.) 132 P. 1123. (14) Art. 1) COURTS AND JUDGES 13~14 construed as applicable only to things of the same general char- acter or class as those enumerated, 55 except where the particular words exhaust the class. 58 This rule is resorted to merely as an aid in the construction of a statute and has no application where it clear- ly appears that the Legislature intended the general words to go be- yond the class specifically designated. 57 Where the court finds an expression not so definite in its import as other parts of the statute, if upon review of the whole the real intention can be collected from the definite expressions, a construc- tion should be adopted that will give effect to the definite expres- sions used unless it contravenes some other potent provision of law. 58 14. Statutes construed as a whole A statute must be construed as a whole, and -every word in it made effective if possible. 59 Where there is an apparent conflict in different portions of a statute, the court should harmonize them, if practicable, giving that construction which will render them operative. 80 55 Board of Com'rs of Kingfisher County v. Grimes, 75 Okl. 219, 182 P. 897. 66 Where particular words of a statute exhaust the class, then general words must be given a meaning beyond the class. Kansas City Southern Ry. Co. v. Wallace, 38 Okl. 233, 132 P. 908, 46 L. R. A. (N. S-) 112. 57 Kansas City Southern Ry. Co. v. Tansey, 139 P. 267, 41 Okl. 543; Kajj- sas City Southern Ry. Co. v. Wallace, 38 Okl. 233, 132 P. 908, 46 L. R. A. (N. S.) 112. 58 Ex parte Tyler, 102 P. 716, 2 Okl. Cr. 455. 5 9 Territory v. Clark, 35 P. 882, 2j Okl. 82; Bohart v. Anderson, 103 P. 742, 24 Okl. 82, 20 Ann. Cas. 142; Bretz v. El Reno State Bank (Okl.) 177 P. 362; Matthews v. Rucker (Okl.) 170 P. 492; Board of Com'rs of Creek County v. Alexander, 58 Okl. 128, 159 P. 311 ; Kansas City Southern Ry. Co. v. Wallace, 38 Okl. 233, 132 P. 908, 46 L. R. A. (N. S.) 112; Blevins v. W. A. Graham Co. (Okl.) 182 P. 247; Ex parte Hunnicutt, 123 P. 179, 7 Okl. Cr. 213 ; Lee v. Roberts, 41 P. 595, 3 Okl. 106. 60 Trapp v. Wells Fargo Express Co., 97 P. 1003, 22 Okl. 377. While it is part of the history of the Statutes of 1893 that different por- tions of them were adopted without material alteration from the statutes of different states, and that different portions are not, in all respects, consist- ent with each other, it is yet the duty of the Supreme Court to endeavor to reconcile them wherever it is possible so to do, in order that the legislative intent may be, as far as possible, effective. One part of the statute will not be allowed to defeat another, if, by any reasonable construction, the two may be made to stand together. Durham v. Linderman, 64 P. 15, 10 Okl. 570. There is no conflict between different provisions of a statute, if there is (15) 15 COURTS AND COURT OFFICERS (Ch. 1 15. Statutes construed together or in the light of each other To ascertain the legislative intent in the enactment of. a statute, the court may look to other statutes upon the same or related sub- jects. 61 Statutes are in pari materia which relate to the same person or thing or same class of persons or things. To ascertain the legisla- tive intent in enacting a statute, not only must the whole statute and every part of it be considered, but, where there are several statutes in pari materia, they are all, whether referred to or not, to be taken together, and one part construed with another in the con- struction of any material provision. 62 Acts passed at same legislative session, and particularly those a reasonable meaning of the words used, considering the manner of their use, which will bring them into harmony. Sackett v. Rose, 55 Okl. 398, 154 P. 1177, L. R. A. 1916D, 820. When statutes contain two distinct provisions, one being specific with pre- cise directions to do a particular thing for a specific purpose, and the other general, prohibiting" certain acts which in their general sense include the par- ticular thing authorized by the specific direction, the general prohibition clause does not control the specific authority. The particular direction is construed in the nature oi| an exception. Atchison, T. & S. F. R. Co. v. Haynes, 58 P. 738, 8 Okl. 576. 61 Blevins v. W. A. Graham Co. (Okl.) 182 P. 247. Where different legislative enactments have reference to same subject and are consistent with each other, they should be construed together and harmonized, if possible, so that effect will be given each so far as is con- sistent} with evident intent of latest enactment. Thacker v. Witt, 64 Okl. 169, 166 P. 713. Subsequent statutes may be considered as aid in interpret- ing prior legislation on same subject. Id. Subsequent legislative enactments may be considered as aid in interpreta- tion of prior legislation on same subject. Board -of Com'rs of Creek County v. Alexander, 58 Okl. 128, 159 P. 311. When strict interpretation of partic- ular statute would defeat intent as shown by other legislation enacted ac- cording to general purpose in accomplishing particular result, such construc- tion should not be adopted. Id. i 62 De Graffenreid v. Iowa Land & Trust Co., 95 P. 624, 20 Okl. 687. The laws regulating the issue and registration of warrants, and for issue and sale of bonds for the purpose of realizing a fund out of which to pay such warrants, are pari materia, and must be construed with reference to each other. Diggs v. Lobitz, 43 P. 1009, 4 Okl. 232. When two statutes covering the same matter are not wholly irreconcilable, effect should be given to both. Carpenter v. Russell, 73 P. 930, 13 Okl. 277. Where two statutes cover the same matter, and one part of them is suscep- tible of two constructions, and language of another part is clear and is con- sistent with one of such constructions and opposed to the other, the con- struction harmonizing all sections must be adopted. Town of Comanche v. Ferguson (Okl.) 169 P. 1075. (16) Art. 1) COURTS AND JUDGES 15 passed at nearly the same time relating to similar subject, are pre- sumed to be actuated by the same policy, and should be construed each in the light of the other. 88 Statutory provisions, which have been repealed or superseded, may be looked to in construction of amendatory acts in pari ma- teria. 64 The state statutes are to be construed in connection with the Constitution of the United States and acts of Congress adopted in pursuance thereof. 65 Where there are two statutory provisions, one of which is special and clearly includes the matter in controversy, and prescribes dif- ferent rules and procedure from those in the general statute, the special statute, and not the general statute, applies. 66 63 State v. Prairie Oil & Gas Co., 64 Okl. 267, 167 P. 756. The rule that statutes relating to the same subject-matter should be con- strued together, and effect given to each, ought specially to be applied where the statutes were enacted at the same session of the Legislature. Hess v. Trigg, 57 P. 159, 8 Okl. 286. Acts passed the same day, separately* or at the same session, are to be construed together; the presumption being that they are all intended to operate, and may not be altered by construction, when the words may have their proper operation without it. Trapp v- Wells Fargo Express Co., 97 P. 1003, 22 Okl. 377. Act May 1, 1913 (Laws 1913, c. 161), consolidating certain offices and pro- viding for deputies, and Act May 19, 1913 (Laws 1913, c. 212), fixing the sal- ary of county officers in counties having a population of over 80,000, being passed at the same session of the Legislature, should be construed together as one act, so that all parts of the act may stand. Ratliff v. Fleener, 143 P. 1051, 43 Okl. 652. Sess. Laws 1913, c. 161, consolidating the offices of register of deeds and county clerk, should be construed, in determining its constitutionality, in pari materia with Sess. Laws 1913, c. 212, as amended by Act Feb. 1, 1915 (Laws 1915, c. 6), and as if it had read from the beginning as it does with the amendatory act incorporated in it. Bonnett v. State, 47/ Okl. 503, 150 P. 198. 64 Searcy v. State, 64 Okl. 257, 167 P. 476. 65 Overton v. State, 123 P. 175, 7 Okl. Cr. 203, denying rehearing 114 P. 1132, 7 Okl. Cr. 203. 6 ' 6 Gardner v. School Dist. No. 87, Kay County, 126 P. 1018, 34 Okl. 716. A general act is not to be construed as applying to cases covered by a prior special act on the same subject. Carpenter v. Russell, 73 P. 930, 13 Okl. 277. The courts in construing a general statute should interpret it so as not to conflict with an earlier special statute which could stand independently for a useful purpose. Incorporated Town of Valliant v. Mills, 116 P. 190, 28 Okl. 811. HON.PL.& PBAC. 2 (17) 15-18 COURTS AND COURT OFFICERS (Ch. 1 A joint resolution, signed by the Governor, but not having the force of law, declaring the purpose of a former act, may be con- sidered as an aid in construing such former act. 6T 16. Administrative construction The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, and which has been long acquiesced in, is to be considered in the interpretation of the same. 68 17. Provisos or exceptions The proviso of a statute is generally a clause containing a condi- tion that a certain thing shall or shall not be done in order that something in another clause shall take effect. 69 Its office being to restrain or qualify some preceding matter, it should be confined to what precedes it, unless it clearly appears to have been intended to apply to some other matter, and is to be construed in connection with the section of which it forms part. 70 It relates to the para- graph or distinct portion of the enactment which immediately pre- cedes it, unless the contrary intention is clearly apparent. 71 18. Statute adopted from another state Where a statute is taken from another state after its construction by the highest court of that state, it is presumed that it was adopted as so construed ; 72 but, to sustain the presumption, such construc- 67 Board of Com'rs of Creek County v. Alexander, 58 Okl. 128, 159 P. 311. 8 League v. Town of Taloga, 129 P. 702, 35 Okl. 277. The construction placed on. statutes by officers charged with the enforce- ment thereof at or near the time of their enactment, and which has long been acquiesced in, is a just medium for their judicial interpretation. Hun- ter v. State, 49 Okl. 672, 154 P. 545 ; Foote v. Town of Watonga, 130 P. 597, 37 Okl. 43. A ruling of the Commissioner of the General Land Office that the date of application for enrollment of a citizen of the Five Civilized Tribes should be held to be the anniversary of the birth is not a construction of Act Cong. May 27, 1908, 3, relating to conclusiveness of enrollment as to age of In- dian. Heffner v. Harmon, 60 Okl. 153, 159 P. 650. 69 Trimmer v. State, 141 P. 784, 43 Okl. 152. 70 Searcy v. State, 64 Okl. 257, 167 P. 476. 71 Leader Printing Co. v. Nichols, 50 P. 1001, 6 Okl. 302. 72 Conwill v. Eldridge (Okl.) 177 P. 79; Chisholm v. Weisse, 39 P. 467. 2 Okl. 611 ; St. Louis & S. F. R. Co. v. Bruner, 52 Okl. 349, 152 P. 1103. Where a statute is adopted from another state, decisions of the Supreme Court of such state, construing the statute prior to its adoption, are con- trolling. Amsden v. Johnson (Okl.) 158 P. 1148. It will be presumed that Congress, in adopting statutes of Arkansas for (18) Art. 1) COURTS AND JUDGES 18 tion must have been placed thereon by the highest judicial tribu- nal authorized to pass upon the question, and must have been so long established as to have been known, or so long that it reason- ably might have been known, to the legislature adopting it. 78 It follows that the decisions of the Supreme Court of Kansas, con- struing the Code provisions of that state before their adoption in Oklahoma, are ordinarily binding here. 7 * This means that these decisions are as conclusive on the Oklahoma Supreme Court as one of their own former decisions would be, not that they cannot de- cide contrary to it under the same circumstances that would justify the revocation of one of their own prior decisions. 75 The Nebras- ka Code originally was practically identical with the Kansas Code, and is now very similar to both the Kansas and Oklahoma Codes. While the Nebraska decisions are not binding in Oklahoma, yet so the Indian Territory, adopted the construction previously placed on them by the Supreme Court of Arkansas. Steele v. Kelley, 122 P. 934, 32 Okl. 547 ; National Live Stocks Commission Co. v. Taliaferro, 93 P. 983, 20 Okl. 177; State v. Caruthers, 98 P. 474, 1 Okl. Cr. 428; Glenn v. City of Ardmore, 122 P. 658, 32 Okl. 414. The Supreme Court will follow the principles of construction and inter- pretation of the Code of Civil Procedure which are applied by the Supreme Court of Kansas, since it was adopted from that state. United States v. Choctaw, O. * G. R. Co., 41 P. 729, 3 Okl. 404. The Code of Civil Procedure (St. 1890) having been adopted from Indiana, and the Supreme Court of that state having, prior to such adoption, held that the provision of the Code relating to the trial of rights of property was applicable only to proceedings) before a justice of the peace, the Supreme Court of Oklahoma is bound by that construction. Hixon v. Hubbell, 44 P 222, 4 Okl. 224. Laws 1907-08, c. 10, art. 1, is not affected by construction placed on a simi- lar law by the Supreme Court of Missouri, in the absence of a showing that such act was borrowed from Missouri after the law of that state had been construed. Wheeler v. City of Muskogee, 51 OkL 48, 151 P. 635. 73 Smith v. Baker, 49 P. 61, 5 Okl. 326. The mining act of Pennsylvania though similar to the Kansas statute (Gen. St. 1909, 4975-5059) enacted to protect the health and safety of mine workers, was not adopted as the law of Kansas, and hence the Pennsylvania Supreme Court decisions interpreting it are persuasive only. Burgin v. Mis- souri, K. & T. Ry. Co., 133 P. 560, 90 Kan. 194. 74 Mulhall v. Mulhall, 3 Okl. 308, 41 P. 109; Grimes v. Cullison, 3 Okl. 270, 41 P. 355 ; Oklahoma City v. Welsh, 3 Okl. 295, 41 P. 598 ; Kilgore v. Yarnell et al., 24 Okl. 525, 103 P. 698. Following Farmers' State Bank of Arkansas City v. Stephenson, 23 Okl. 695, 102 P. 992 ; Brown et al. v. Massey, 19 Okl. 482, 92 P. 246; Brunson v. Merrill, 17 Okl. 44, 86 P. 431. 7 Greenville Nat. Bank v. Evans-Snyder-Buel Co., 9 Okl. 353, 60 P. 249. (19) 18-18 COURTS AND COURT OFFICERS (Ch. 1 far as they are consistent with logic and reason they will be fol- lowed. 76 The Oklahoma Supreme Court is not bound by a subsequent construction or by a decision of an intermediate court of appeals of the other state. 77 The rule that the Legislature in adopting a statute of another state is presumed to have adopted the construction placed thereon by the highest court of such state does not apply where such con- struction is contrary to the Constitution or well-defined legislative policy of the adopting state, or the adopted statute exists in many states and the decided weight of authority is against such construc- tion. 78 Where a statute is not peculiar to the state from which it was adopted, but other states have substantially the same statute "which their courts have construed differently, the construction of the state from which it was adopted, being opposed to the weight of authority, will not be followed. 79 19. Adjournment by sheriff "If the judge of a court fail to attend at the time and place ap- pointed for holding his court, the sheriff shall have power to adjourn the court, from day to day, until the regular or assigned judge at- 7 Allsman v. Oklahoma City, 21 Okl. 142, 95 P. 468, 17 Ann. Gas. 184, 16 L. R. A. (N. S.) 511, note; Swan v. Wilderson, 10 Okl. 547, 62 P. 422. 77 Given v. Owen (Okl.) 175 P. 345. A decision of the Supreme Court of Arkansas, rendered since the laws of that state were extended over the Indian Territory, is not even persuasive when in conflict with the settled law of Oklahoma. Marx v. Hefner, 46 Okl. 453, 149 P. 207, Ann. Gas. 1917B, 656. Kansas decisions, construing a stat- \ite subsequent to its adoption in Oklahoma, have no binding force here. Richardson et al. v. Penny, 9 Okl. 655, 60 P. 501. The construction placed upon a statute of a state by the court of last re- sort of that state at the time of its adoption by another state is controlling in construing the statute in the latter state, and not subsequent construc- tions. Barnes v. Lynch, 59 P. 995, 9 Okl. 11, 156. 78 Hutchinson v. Krueger, 124 P. 591, 34 Okl. 23, 41 L. R. A. (N. S.) 315, Ann. Gas. 1914C, 98. A statute adopted from "another state does not bring with it the construc- tion placed upon it by the highest court of that state, where such construction is contrary to the Constitution or well-defined policy of the adopting state or is contrary to the decided weight of authority of other states. Western Terra Gotta Co. v. Board of Education of City of Shawnee, 136 P. 595, 39 79 Ex parte Bowes, 127 P. 20, 8 Okl. Cr. 201. (20) Art 1) COURTS AND JUDGES 20~23 tend, or a judge pro tempore be selected; but if the judge be not present in his court, nor a judge be assigned or a judge pro tempore be selected, within two days after the first day of the term, then the court shall stand adjourned for the term. The sheriff shall exercise the powers and duties conferred and imposed upon him by the statutes of this State, and by the common law." 80 20. Publications "All publications and notices required by law to be published in newspapers in this state, if published in newspapers having one side of the paper printed away from the office of publication, known as patent outsides or insides, shall have the same force and effect as though the same were published in newspapers printed wholly and published in the county where such publication shall be made, if one side of the paper is printed in said county where said notices are required to be published." 81 21. Affirmation "Whenever an oath is required by this Code, the affirmation of a person, conscientiously scrupulous of taking an oath, shall have the same effect." 82 22. Computation of time "The time within which an act is to be done shall be computed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded." 83 23. Surety Justification "A ministerial officer, whose duty it is to take security in any undertaking provided for by this Code or by other statutes, shall require the person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer, and shall be indorsed upon or attached to the undertaking. The taking of such an affidavit shall not exempt the officer from any liability to which he might otherwise be subject for taking insufficient se- curity." 84 Okl. 716. The mechanics' lien law, though adopted from Kansas, will not be given the construction placed upon it by the Supreme Court of Kansas so as to permit liens on public property. Id. 80 Rev. Laws 1910, 5338. 83 Rev. Laws 1910, 5341. Rev. Laws 1910, 5348. 84 Rev. Laws 1910, 5342. 82 Rev. Laws 1910, 5340. (21) 24-28 COURTS AND COURT OFFICERS (Ch. 1 24. Qualifications "The surety in every undertaking provided for by this Code or other statutes, unless a surety company, must be a resident of this state and worth double the sum to be secured, over and above all exemptions, debts and liabilities. Where there are two or more sureties in the same undertaking, they must, in the aggregate, have the qualifications prescribed in this section." 85 25. Real estate mortgage as bond "In every instance in this state where bond, indemnity or guaran- ty is required, a first mortgage upon improved real estate within this state shall be accepted : Provided, that the amount of such bond, guaranty or indemnity shall not exceed fifty per cent, of the reason- able valuation of such improved real estate, exclusive of all build- ings thereon; provided, further, that where the amount of such bond, guaranty or indemnity shall exceed fifty per cent, of the rea- sonable valuation of such improved real estate, exclusive of all buildings, then such first mortgage shall be accepted to the extent of such fifty per cent, valuation." 8e 26. Valuation of real estate "The officer, whose duty it is to accept and approve such bond, guaranty or indemnity, shall require the affidavits of two freehold- ers versed in land values in the community where such real estate is located to the value of such real estate. Said officer shall have the authority to administer the oaths and take said affidavits." 8T 27. False valuation Penalty "Any person willfully making a false affidavit as to the value of .any such real estate shall be guilty of perjury and punished accord- ingly. Any officer administering or accepting such affidavit know- ing it to be false, shall be guilty of subornation of perjury and pun- ished accordingly." 88 28. Action on bond "When an officer, executor or administrator within this state, by misconduct or neglect of duty, forfeits his bond or renders his sure- ties liable, any person injured thereby, or who is, by law, entitled to 80 Rev. Laws 1910, 5343. ? Rev- 1>aws 1910 5345 ie Rev. Laws 1910, g 5344. Rev. Laws 1910, 5346. (22) Art.1) COURTS AND JUDGES 29-31 the benefit of the security, may bring an action thereon in his own name, against the officer, executor or administrator and his sureties, to recover the amount to which he may be entitled by rea- son of the delinquency. The action may be instituted and proceed- ed in on a certified copy of the bond, which copy shall be furnish- ed by the person holding the original thereof." 89 29. Several actions on security "A judgment in favor of a party for one delinquency does not preclude the same or another party from an action on the same security for another delinquency." 00 30. Submission of controversy "Parties to a question, which might be the subject of a civil ac- tion, may without action agree upon a case containing the facts up- on which the controversy depends, and present a submission of the same to any court, which would have jurisdiction if an action had been brought. But it must appear, by affidavit, that the controver- sy is real, and the proceedings in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment as if an action were pending." 81 "The case, the submission, and a copy of the judgment, shall constitute the record." 92 "The judgment shall be with costs, may be enforced, and shall be subject to reversal in the same manner as if it had been rendered in an action, unless otherwise provided in the submission." 8S 31. Impeachment and removal from office Any elective state officer may be impeached for cause. 9 * All elective officers not liable to impeachment shall be subject to re- moval from office. 95 "When sitting as a court of impeachment, the Senate shall be presided over by the Chief Justice, or if he is absent or disqualified, then one of the Associate Justices of the Supreme Court, to be selected by it, except in cases where all the members of said court are absent or disqualified, or in cases of impeachment of any Jus- 89 Rev. Laws 1910, 5349. 80 Rev. Laws 1910, 5350. 91 Rev. Laws 1910, 5303. 82 Rev. Laws 1910, 5304. SRev. Laws 1910, 5305. 84 Const. Okl. art. 8, 1. 85 Const. Okl. art. 8, 2. (23) 31-33 COURTS AND COURT OFFICERS (Ql. 1 tice of the Supreme Court, then the Senate shall elect one of its own members as a presiding officer for such purposes. The House of Representatives shall present all impeachments." ' "When the Senate is sitting as a court of impeachment, the Sena- tors shall be on oath, or affirmation, impartially to try the party impeached, and no person shall be convicted without the concur- rence of two-thirds of the Senators present." 97 "Judgment of impeachment shall not extend beyond removal from office, but this shall not prevent punishment of any such officer on charges growing out of the same matter by the courts of the state." 98 "The Legislature shall pass such laws as are necessary for carry- ing into effect the provisions of this article." 99 DIVISION II. JUDGES IN 32. As public officer The. judges of the district courts * and of the superior courts are state officers. 2 An attorney at law, when elevated to the bench of any court of record, is prohibited from practicing law in any state court, so long as he occupies such position. 3 He is only permitted to finish business on hand in the United States courts at the time of his elevation to the bench.* 33. Judge pro tempore Where a county judge certifies his disqualification in a particular case or proceeding, a judge pro tempore must be elected. 5 The rec- ord must show that the judge of the trial court was disqualified, that such special judge was an attorney duly agreed on or elected, and that he took the required oath. 6 The pro tempore county judge * Const. Okl. art. 8, 3. 97 Const. Okl. art. 8, g 4. 98 Const. Okl. art. 8, 5. 99 Const. Okl. art 8, 6. 1 Grayson v. Ferryman, 25 Okl. 339, 106 P. 954. 2 State v. Breckinridge, 34 Okl. 649, 126 Pac. 806. 3 Lilly v. State, 123 P. 575, 7 Okl. Cr. 284, Ann. Gas. 1914B, 443. Id. 6 State v. Taylor (Okl.) 171 P. 452; Rev. Laws 1910, 5814. 6 Apple v. Ellis, 50 Okl. 80, 150 P. 1057. (24) Art. 1) COURTS AND JUDGES 33~35 in a given case is, for the time being and for the purpose of that case, a "county officer." 7 A disqualified judge should carefully abstain from taking any part in the selection of the person who is to preside in his place in the trial of a cause in which he has been disqualified. 8 His author- ity ceases with a lapsing of the term at which he was selected, unless the case is finally disposed of at such term, and in that case ceases with a final disposition of the cause. 9 Prior to 1909 no provision having been made by law whereby a judge pro tempore could be selected in the event of the disqualifica- tion of the regular judge, a special judge elected by the members of the bar present, which election was opposed by one of the parties to the action was not a judge either de jure or de facto, and a trial had before him was a nullity. 10 All orders, judgments, and decrees made by a judge pro tempore not lawfully selected are a nullity. 11 34. Waiver of objections Where a special judge is chosen to sit in a particular case, which is not finally determined at the term, and he presides at a subse- quent term at which his authority is recognized by the parties, they thereby waive any objection that he was not re-elected. 12 And where counsel for defendants fail to challenge the votes of attor- neys for plaintiff on the election of a judge pro tempore, they can- not make such objection after the election of one opposed by them. 13 35. Powers of special judges A special judge, selected by agreement, has no jurisdiction over any cause other than the one in which he is selected. 1 * 7 Board of Com'rs of Oklahoma County v. Twyford, 39 Okl. 230, 134 P. 968. s Kelly v. Ferguson, 114 P. 631, 5 Okl. Or. 316; Id., 115 P. 284, 5 Okl. Cr. 700. 8 Dodd v. State, 115 P. 632, 5 Okl. Cr. 513. An order for a change of venue by a judge pro tempore not lawfully selected, though on petition of accused, confers no authority on a duly qualified judge in the county to which the change is ordered. Id. 10 Stanclift v. Swingle, 120 P. 252, 30 Okl. 544; Cowart v. State, 111 P. 672, 4 Okl. Cr. 122 ; Williams v. State, 113 P. 1060, 5 Okl. Or. 144. 11 Dodd v. State, 115 P. 632, 5 Okl. Cr. 513. 12 Ellington v. State, 123 P. 186, 7 Okl. Cr. 252. is Deninger v. Gossom, 46 Okl. 596, 149 P. 220. " Hirsh v. Twyford, 139 P. 313, 40 Okl. 220. (25) 35-36 COURTS AND COURT OFFICERS (Ch. 1 Where an application for change of judge is granted, and the clerk of the district court is ordered to notify the clerk of the Su- preme Court of such change, and on the same day an order at. chambers is made by the chief justice assigning another judge to- hold the district court and determine all cases that may come before him during the absence of the regular judge, the judge so assigned has jurisdiction to try any case or matter which may come before him while acting under such order. 15 Where a district judge is assigned by the Chief Justice of the Supreme Court to hold court in another district than his own, such judge while so acting is a judge pro tempore of the district in which he is sitting. 16 That the regular judge is holding court in the same district and at the same time that a special judge is trying a crimi- nal case therein does not affect the latter's jurisdiction. 17 Where the regularly elected judge is disqualified and a special judge is selected, his authority ceases at the end of the term; and if the case is continued to another term the special judge has no authority to preside at the trial of the second term, unless again lawfully selected. 18 A district judge has no right or power to perform judicial acts affecting cases pending in any other district, unless authorized to do so by constitutional or statutory provision. 19 A special county judge, appointed to try the issues in a proceed- ing to probate a will, is without jurisdiction to appoint an adminis- trator of the estate or to make any other order as to the adminis- tration proceeding. 20 36. Liabilities An action will not lie against a judicial officer for a judicial act, where there is jurisdiction of the person and subject-matter, though it was done maliciously, or even corruptly. The same protection 18 Barbe v. Territory, 86 P. 61, 16 Okl. 562; Id., 91 P. 783, 19 Okl. 119. l Dobbs v. State, 115 P. 370, 5 Okl. Cr. 475, denying rehearing 114 P. 358. 5 Okl. Cr. 475. 17 Johnson v. State, 97 P. 1059, 1 Okl. Cr. 321, 18 Ann. Cas. 300. 1 Patterson v. United States, 7 Okl. Cr. 272, 118 P. 150. l9 Dobbs v. State, 115 P. 370, 5 Okl. Cr. 475, denying rehearing 114 P. 358, 5 Okl. Cr. 475. 20 State v. Outcelt, 143 P. 198, 43 Okl. 482. (26) Art 1) COURTS AND JUDGES 37~38 extends to judges of inferior and limited, as well as to those of general, jurisdiction as to liability for official acts. 21 37. Change of judge Under the constitutional provision that right and justice shall be administered without prejudice, a change of judge for bias or prejudice is a constitutional right. 22 38. Disqualifications When prejudice of the trial judge is made ground for a motion for change of judge, the Legislature may prescribe the method of determining such matter, but it cannot abolish such ground of dis- qualification. 23 The interest of the district judge as a resident taxpayer of the petitioning municipality in condemnation proceedings will not dis- v. Dibbens, 61 Okl. 221, 160 P. 589, L. R. A. 1917B, 360. A county judge, in rendering judgment in a case pending in his court, acts judicially, and is not amenable to a civil action for damages, though the judgment was erroneous, and, in rendering it, he erroneously exceeds the jurisdiction of his court. Comstock v. Eagleton, 69 P. 955, 11 Okl. 487, ap- peal dismissed (1905) 25 S. Gt. 210, 196 U. S. 99, 49 L. Ed. 402. Where an administrator, pursuant to order of county court, paid into court an amount in excess of inheritance tax, and the county judge failed to turn over money after expiration of term, the money did not come into his hands as county judge so as to render his bond liable. Pitman v. State, 59 Okl. 270, 158 P. 1137. 22 Rea v. State, 105 P. 384, 3 Okl. Cr. 276, 139 Am. St. Rep. 954. Sess. Laws 1908, p. 285, c. 27, art. 1, 8, provides that no judge of the coun- ty court shall sit in any proceeding after a party has filed an affidavit in writing, corroborated by two credible persons, that affiant has reason to be- lieve and does believe that the judge is prejudiced, where he cannot have a fair and impartial trial before him. Held, that this provision does not abridge the declaration in Bill of Rights that right and justice shall be administered without sale, denial, delay, or prejudice. Ex parte Ellis, 105 P. 184, 3 Okl. Cr. 220, 25 L. R. A. (N. S.) 653, Ann. Gas. 1912A, 863. Under Bill of Rights, art. 2, 6, providing that right and justice shall be administered without sale, denial, delay, or prejudice as well as by the unwritten dictates of nat- ural justice, the courts are commanded to administer justice without prej- udice. Id. - 3 Mayes v. Pitchford, 109 P. 821, 26 Okl. 129; Ex parte Hudson, 106 P. 540, 3 Okl. Cr. 393, rehearing denied 107 P. 735, 3 Okl. Cr. 393; Ex parte Hines, 106 P. 544, 3 Okl. Cr. 408, rehearing denied 107 P. 738, 3 Okl. Cr. 408. Const. Bill of Rights, art. 2, 6, prohibits a judge from trying a case in which he is prejudiced by or for either party. McCullough v. Davis, 11 Okl. Cr. 431, 147 P. 779. A judge may be disqualified for prejudice in favor of accused, though such disqualification is not provided for by statute, since it rests on constitutional grounds. State v. Brown, 126 P. 245, 8 Okl. Cr. 40, Ann. Gas. 1914C, 394. (27) 39 COURTS AND COURT OFFICERS (Ch. 1 qualify him; 24 but it has been held otherwise where the action con- stituted an attack on the validity of a special bond election to se- cure money to build a courthouse and jail. 25 That a county judge was disqualified by prejudice in the matter of the probate of a will did not disqualify him to determine other questions in the adminis- tration of the estate. 28 39. Relationship The word "party," as used in the statute disqualifying a judge to sit in a case, wherein one party is related to him within the fourth degree of consanguinity, includes any person directly inter- ested in the subject-matter of the suit or the result of the same, though not a party of record. 27 A judge is disqualified to sit in a case in which he is a material witness 28 or in which he partici- pated as an attorney before his elevation to the bench. 29 This rule seems to have been qualified in one criminal case, 30 but cannot be relaxed in civil cases, particularly where there are contesting liti- gants. It has been held that a county judge was not disqualified from settling a guardian's account because he acted as attorney for the guardian in the matter of his appointment. 31 2 * Lawton Rapid Transit Ry. Co. v. City of Lawton, 122 P. 212, 31 Okl. 458. 26 Mackey v. Crump, 49 Okl. 578, 153 P. 1128; Rev. Laws 1910, 5812. 26 State v. Johnson, 139 P. 699, 40 Okl. 511. 27 State v. Pitchford, 141 P. 433, 43 Okl. 105. Under Rev. Laws 1910,. 5812, a judge is disqualified to hear a cause wherein his son is employed on a contingent fee as attorney for one party and, under section 248, giving him a lien, has an interest in the result. State v. Pitchford, 141 P. 433, 43 Okl. 105. In a proceeding in the county court by a guardian to invest the money of his ward pursuant to Comp. Laws 1909, 5513, the guardian was a "party" thereto within Comp. Laws 1909, 5139, disqualifying a judge to act in any proceeding in which he may be related to any party within the fourth degree ; and a brother-in-law of the guardian was disqualified to sit as judge in the proceeding. Hengst v. Burnett, 40 Okl. 42, 135 P. 1062. 28 Powers v. Cook, 48 Okl. 43, 149 P. 1121, L. R. A. 1915F, 766. 29 Dodd v. State, 115 P. 632, 5 Okl. Cr. 513. 30 The mere fact that a judge may be witness in case, or that he has con- ducted a preliminary examination resulting in a prosecution of) defendant, in the absence of any showing of bias or prejudice on his part, does not dis- qualify him. State v. Lockridge, 118 P. 152, 6 Okl. Cr. 216, 45 L. R. A. (N. S.) 525, Ann. Cas. 1913C, 251. 81 Title Guaranty & Surety Co. v. Slinker, 128 P. 696, 35 Okl. 128; Id., 128 P. 698, 35 Okl. 153. (28) Alt. 1) COURTS AND JUDGES 40 40. Bias and prejudice Public confidence in the judicial system demands that the cause be tried by an unprejudiced judge, and a denial of a change of judge on the ground of prejudice will be presumed a denial of justice, at least where the prejudice is clearly made to appear. 32 A constitutional provision guaranteeing every person charged with crime a trial without prejudice does not include the opinion of the judge as to the guilt or innocence of the defendant; but to disqualify the judge, it must appear that he is biased against him to such an extent as will prevent his giving a fair trial. 33 Judicial officers should abstain from participating in public meet- ings in which questions are discussed, which might afterward come before them for decision. A judge should not commit himself on questions of fact or law which may come before him, until the mat- ter is properly presented in open court. There is a manifest differ- ence between being prejudiced against the commission of a crime and being prejudiced against a person charged with its commission, and the fact that a judge is prejudiced against the crime does not disqualify him from presiding at a criminal trial. 34 32 Ex parte Ellis, 105 P. 184, 3 Okl. Cr. 220, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863. Accused has a right to a change of judge where the presid- ing judge is prejudiced against him. Lewis v. Russell, 111 P. 818, 4 Okl. Cr. 129. Under the law prior to the passage of Act March 22, 1909 (Laws 1909, c. 14; Snyder's Comp. Laws 1909, 2012-2017), it was error to refuse a change of judge, where defendant filed an affidavit stating that the presiding judge was prejudiced against him, and for that reason he could not obtain a fair trial before such judge. Cavenees v. State, 109 P. 125, 3 Okl. Cr. 729. Where a judge had not consulted with the county attorney as to the facts in a perjury case, and knew nothing concerning the facts thereof further than that the case was pending in his court, the fact that the judge stated upon hearing of a demurrer to the information that he thought the county attorney was correct in desiring the trial before the trial of another person for murder for whom the one accused of perjury was stated to be an impor- tant witness, so that, if the latter was innocent of perjury alleged to have been committed in a previous trial of the one. charged with murder, such per- son might have the benefit of his evidence, and that, if the one charged with perjury was guilty, the state might have the benefit of the exclusion of his testimony, did not show prejudice of the judge towards the one charged with perjury so as to disqualify him from presiding at the trial. O'Brien v. Clark, 113 P. 543, 5 Okl. Cr. 112. 33 Ingles v. McMillan, 113 P. 998, 5 Okl. Cr. 130, 45 L. R. A. (N. S.) 511. 4 Crawford v. Ferguson, 115 P. 278, 5 Okl. Cr. 377, 45 L. R. A. (N. S.) 519 ; 41-42 COURTS AND COURT OFFICERS (Ch. 1 41. - Objections and procedure Where accused in good faith desires a change of judge on account of prejudice, he should exercise due diligence as soon as he can con- veniently assert his rights after knowledge of such prejudice. 85 An application for change of judge for bias, stating no facts and filed after the jury is impaneled, is properly denied. 86 A defendant, seek- ing to disqualify a trial judge on any ground, must follow the statu- tory procedure. 87 The application or affidavit for change of judge for prejudice must set forth the facts on which the claim is based. 88 Where speeches made by the judge in his campaign for re-election showed that he was prejudiced against defendant, an application for change of judge should have been granted. 39 Where a district judge is disqualified to hear and determine a cause pending before him, and refuses to certify his disqualifica- tion when requested in the manner provided by law, mandamus will lie. 40 42. - Form Application for disqualification of judge APPLICATION FOR DISQUALIFICATION OF JUDGE Comes now the above-named defendant, J. D., and, after having given^ reasonable notice to the plaintiff herein, makes this his ap- plication^ for a certification of disqualification of the Honorable - , judge of this eourt, in the above-entitled cause, and in support hereof this defendant states : That this is an action instituted by the plaintiffs for the purpose 118 R 152 ' 6 Okl - Cr ' 216 > 45 L " R - A - (N- S.) 525, Ann. "Ingles v. McMillan, 113 P. 998, 5 Okl. Cr. 130, 45 L. R. A. (N S.) 511. 6 White v. State, 50 Okl. 97, 104, 150 P 716 718 **" ?^?f r ~ Hudson ' 106 p - 540 ' 3 Okl. Cr. 393, rehearing denied 10T P. do, 3 Okl. Cr. 393 ; Ex parte Hines, 106 P. 544, 3 Okl. Cr. 408 rehearine denied, 107 P. 738, 3 Okl. Cr. 408. *ln x 0kL Cr< 129 ' ln R 818 ' M r ers v Bail *y, 109 P. 820, ^1. 133 ; Mayes v. Pitchford, 109 P. 821, 26 Okl. 129 ; Kelly v. Ferguson 114 P. 631, 5 Okl. Cr. 316; Id., 115 P. 284, 5 Okl Cr. 700 Where it is sought to disqualify a judge because a material witness for Defendant, the application) for change of judge must clearly show wherein testimony of the judge is material. Johnson v. Wells, 115 P. 375, 5 Okl. v/r. oDy. J9 McCullough v. Davis, 11 Okl. Cr. 431, 147 P 779 10 State v. Fullerton, 76 Okl. 35, 183 P. 979 (30) Art. 1) COURTS AND JUDGES 42 of quieting their title to certain property described as follows, to wit: [Describe land.] That said action is a suit in equity, and said plaintiffs seek herein to have canceled, set aside, vacated, and held for naught a certain option contract made, executed, and de- livered by the plaintiffs on or about , 19 , a copy of which said option contract is attached to the plaintiffs' petition herein, marked Exhibit A, and to which reference is hereby made, and to have canceled, set aside, and held for naught a certain warranty deed and a certain contract, both dated , 19 , executed by the plaintiffs to this defendant, J. D., a copy of which said deed and contract are attached to the plaintiffs' petition, marked Ex- hibits B and C, and to which reference is hereby made. That a prior action was heretofore instituted in this court by the plaintiffs herein against one F. S. to have canceled and set aside certain instruments of conveyance made, executed, and deliv- ered by the said plaintiffs to the said F. S., which said action is No. in the district court of county, Oklahoma, and which said action was heretofore, on or about the day of , . 19 , tried in this court before his honor, , judge of the said district court of county, Oklahoma. That in said action last above referred to it was the contention of the said defendant therein, F. S., that at least a part of the con- sideration for the deed executed to him by the plaintiffs, and which the plaintiff sought to have canceled, was certain financial and other assistance rendered by the said defendant, F. S., in connec- tion with the conveyances to this defendant, J. D., and that upon the trial of said cause No. in. the district court of county, Oklahoma, before his honor, , judge of said court, testimony was introduced and heard as to the transactions resulting in the option contract of , 19 , executed by the plaintiffs to this defendant, J. D., and with reference to the contract and deed of , 19 , executed by said plaintiffs to this defendant, J. D. That this defendant, J. D., was not a party to said cause No. in the district court of county, Oklahoma, and was not represented or heard therein. That in the present action the plaintiffs seek to have the instru- ments above mentioned, which were executed by the plaintiffs to this defendant, canceled upon the ground, among others, that said (31) 42 COURTS AND COURT OFFICERS (Ch. 1 instruments are invalid on account of want of consideration, and by pleadings filed in this cause an issue of fact has been joined upon the question of want of consideration for the execution of said in- struments, as well as upon other questions referring to the validity of said instruments above mentioned executed by the plaintiffs to said defendant, J. D. That this cause is assigned for trial before his honor, , on the day of , 19 , who is one of the judges of said district court of county, Oklahoma. That in said cause No. in the district court of county, Oklahoma, which was heard by his honor, the said , on or about the day of , 19 , his honor, the said , made findings of fact up- on the questions involved in said cause, and among other facts found with reference to the instruments above mentioned, executed by the plaintiffs to this defendant, and in connection with the pro- curement of which the said defendant in said cause No. con- tended that he had rendered certain financial and other assistance as follows: "I might add another word : Even if F. C. has paid $666.67, and that is all the testimony in the case shows he did pay for the sixth interest in this royalty, which to this day has produced something like $15,000, still the $666.67 absolutely gained no advantage for A. M. at all, because he paid it for an agreement which was supported by absolutely not one penny's consideration, unless there is a dollar in the agreement." (Italics ours.) That the payment above referred to, and which his honor, the said , found was no advantage whatever to the plaintiff here- in, A. M., was a payment which the said defendant in said cause No. testified he had made in connection with the execution and delivery of the instruments which the plaintiff in this case made, executed, and delivered to the defendant, J. D., and which the said plaintiffs are seeking in this caus to have canceled. That by said findings above referred to his honor, the said , found there was no consideration for the execution of the instruments executed by the plaintiffs to this defendant, J. D., and which said plaintiffs are seeking to cancel in this action. That in his finding of facts in connection with said cause No. his honor, the said , further found as follows : "I am not certain that there is any more than a dollar, because (32) Art. 1) COURTS AND JUDGES 42 J. D. took an agreement to collect A. M/s royalty or one-fourth thereof and pay him back with his own royalty, with an obliga- tion not to pay any one single penny unless he did collect the royal- ties; in other words, J. D. was not out a single dollar, except for the option, which he might have exercised or not as he saw fit, but he actually made A. M. pay $333.34 back to get that option off; and after he did that he gave him one-half of the royalty. Of course,' I am not holding that that contract is void, because that contract is not involved in this case. However, A. M. had still an option for $100 on his hands." That, as heretofore stated, this is an equitable action, and his honor, the said , will pass upon both the questions of law and fact involved herein. That by reason of the matters and things above set forth this defendant states that his honor, the said , is biased and prej- udiced herein, and has formed and expressed his opinion upon certain questions of fact which are involved in this action, and upon which he, as the judge before whom this cause has been assigned for trial, must pass upon in the trial of this cause, and that by reason thereof he has prejudged this cause, and is disquali- fied from hearing the same, and should so certify his disqualifica- tion. This defendant states that the matters and things hereinabove referred to all appear of record in this cause and in cause No. in this court, and that the records and pleadings in said cause No. and in this cause are referred to and made a part hereof in so far as necessary to show the matters and things hereinbefore set out. Wherefore this defendant prays that this, application for disquali- fication of his honor, the said , be allowed and granted, and that his honor, the said , certify herein his disqualification to hear this cause, and that such other and further proceedings be had and taken herein as are consistent with right and justice and the statutes in such cases made and provided. J. D., Applicant, By } His Attorneys. HON.PL.& PEAC. 3 (33) 42 COURTS AND COURT OFFICERS (Ch. 1 State of Oklahoma,\ gg . County of J J. D., of lawful age, being first duly sworn, upon oath deposes and says : That he is the defendant named in the above and foregoing ap- plication for disqualification of judge; that he has read said ap- plication and knows the contents thereof, and that the matters and things therein set forth are true and correct. [Signed] J. D. Subscribed and sworn to before me this - day of , 19. [Seal.] [Signed] , Notary Public. My commission expires . NOTICE; OF APPLICATION FOR DISQUALIFICATION OF JUDGE To the Above-Named Plaintiffs, A. M. and B. M. : You will please take notice that the above-named defendant, J. D., will on this day file with the court clerk of county, Okla- homa, ex officio clerk of the district court of - county, Okla- homa, his application for the disqualification of the Honorable , judge of said court; in the trial of this case, and said ap- plication, a copy of which is attached to this notice, will be present- ed to the said Honorable , at the district court room in the county court house at Oklahoma, on the day of , 19 , at o'clock M., or as soon thereafter as counsel may be heard. You will therefore govern yourselves accordingly. , Attorneys for Defendant, J. D. Service of the above and foregoing notice is hereby acknowledged to have been made upon the above-named plaintiffs, A. M ; . and B. M., upon this - day of = , 19 , at o'clock M., and receipt of a copy of the application for disqualification is also acknowledged to have been delivered simultaneously with the service of the above and foregoing notice. , Attorneys for Plaintiffs. (34) Art. 1) COURTS AND JUDGES 43~46 43. Waiver of disqualifications The disqualification of a judge is a matter of public policy and cannot be waived. 41 Where a special judge is elected or agreed upon in a particular case, which is not finally determined at the term at which he is elected or agreed upon, and he presides at a subsequent term at which his authority is recognized, any objec- tions that he was not re-elected, or reagreed upon, are waived. 42 But the right of accused to a change of judge where the presid- ing judge is prejudiced against him, cannot be abrogated. 43 44. Acts of disqualified judge On the filing by accused of an affidavit in proper time, stating that he cannot have a fair and impartial trial on account of the prejudice of the judge, such judge cannot thereafter perform any official act binding on accused except the allowance of such change of judge. 44 A judge who is disqualified in a cause by reason of interest may enter a formal judgment directed by the appellate court, as in such case he is not required to exercise any judgment or discretion. 45 Where a trial judge is disqualified, he cannot make a valid order appointing a special county .attorney upon the suggestion of the disqualification of the regular attorney. 46 45. Powers at chambers "Judges of the district, superior and county courts shall, within their respective districts and counties, be authorized to hear and determine at chambers, motions to dissolve attachments." * 7 DIVISION III. DISTRICT COURTS AND JUDGES 46. District court Where held "The terms of the district court shall be held at the county seat of the respective counties." 48 41 Holloway v. Hall, 79 Okl. 163, 192 P. 219. 42 Ex parte Elgan, 126 P. 584, 8 Okl. Cr. 75. 43 Lewis v. Russell, 111 P. SIS, 4 Okl. Cr. 129. 44 Buchanan v. State, 101 P. 295, 2 Okl. Cr. 126. 4 5 Cullins v. Overton, 54 P. 702, 7 Okl. 470. 46 Dodd v. State, 115 P. 632, 5 Okl. Cr. 513. 47 Rev. Laws 1910, 5318. 4 s Const. Okl. art 7, 25. (35) 47 COURTS AND COURT OFFICERS (Ch. 1 47. Districts and judges The state js divided into district court judicial districts. Pro- vision is made by statute for the time of holding terms of district court in various counties. In certain districts, provision is made for two or more judges. 49 Provision is made for two additional judges in the district composed of Pawnee and Tulsa counties. 50 The state Constitution provides: "Until otherwise provided by law, the state shall be divided into twenty-one judicial districts and the qualified electors in each of the said districts shall elect a judge of the district court as provided herein, except in the Thir- teenth judicial district two judges shall be elected. Such judge shall be a citizen of the United States, and shall have been a resi- dent of the territory embraced within the state for two years, and of the territory comprising his district at least one year, prior to his election; and he shall have been a lawyer licensed by some court of record, or shall have been a judge of some court of record, or both such lawyer and judge, for four years next preceding his election, and shall reside in his district during his term of office. The term of office of the district judge shall be four years, and at the time of his election he shall have reached the age of twenty- five years. Regular terms of the district court shall be held in each organized county of this state at least twice in each year. The time of convening the district court in each county in this state, until the Legislature shall otherwise provide, and the duration of the term, shall be fixed by the Supreme Court of the state. The term of the district judges elected at the first election shall expire on the last day next preceding the second Monday in January, nine- teen hundred and eleven, and the judges of the district court there- after shall be elected at the general election next preceding the com- mencement of their terms of office. "In case of the illness of the judge elected in any district, or if for any other cause he shall be unable to preside in the district in which he was elected, the Chief Justice may designate any district *Rev. Laws 1910, 1779, 1780, 1793; Sess. Laws 1910-11, pp. 176-178, 1-12; Sess. Laws, 1913, p. 5, 1-3; p. 64, 1-3; p. 605, 1-2; Sess. Laws 1915, p. 10, 1 ; pp. 551, 552, 1, 2 ; Sess. Laws 1917, p. 183, 1, 2 ; p. 185, 1; p. 187, 1; pp. 201-205, 1-11; Sess. Laws 1919, pp. 34, 55, 1-3 ; pp. 115, 116, 1-4 ; p. 336, 1, 2 ; p. 403, 1. co Sess. Laws 921, p. 3 (S. B. No. 17), 1-4. (36) Art 1) COURTS AND JUDGES 48 judge, in the state to hold any term of court in said district in lieu of the judge elected to hold the courts of said district. When ever the public business shall require it, the Chief Justice may ap- point any district judge of the state to hold court in any district, and two or more district judges may sit in any district separately at the same time. In the event any judge shall be disqualified for any reason from trying any case in his district, the parties to such case may agree upon a judge pro tempore to try the same, and, if such parties cannot agree, at the request of either party a judge pro tempore may be elected by the members of the bar of the district, present at such term. If no election for judge pro tem- pore shall be had, the Chief Justice of the state shall designate some other district judge to try such case." 61 48. Sessions Time for Adjournments The terms of courts of record begin on the day fixed by law; and if the judge be not present in his court, or a judge pro tempore selected, within two days after the first day of the term, then the term lapses, and cannot thereafter be revived by the judge or any other officer of the court; and any attempted proceedings had in such court after the lapse of the term is coram non judice and void. 52 A district judge may hold court to hear matters which may be disposed of without a jury, though the court expense fund has been exhausted. The statute fixing the terms of the district courts of the state does not require a jury term to be held and expenses to be incurred, chargeable to the court expense fund, when that fund has been exhausted. 53 The fact that the district court of one county was theoretically in session because it had not been adjourned sine die while the judge was presiding at a trial in another county in the same district did not amount to a violation of the old rule that two courts can- not be in session in the same district at the same time. 54 Nor were the proceedings of adjourned sessions of the district court coram non judice and void, notwithstanding the regular term in another 61 Const. Okl. art. 7, 9. s 2 Wilson v. State, 109 P. 289, 3 Okl. Or. 714; Collins v. State, 114 P. 1127, 5 Okl. Cr. 254; Douglas v. Same, 114 P. 1128, 5 Okl. Or. 682. 53 State v. Stanfleld, 126 P. 239, 34 Okl. 524. e* In re Dossett, 37 P. 1066, 2 Okl. 369. (37) 48-51 COURTS AND COURT OFFICERS (Ch. 1 county in the same district had intervened between the time of the adjournment and the convening of the adjourned session. 53 Where a judge adjourns the court without fixing any time at which it should reconvene, it cannot again convene until the next regular session of the court; 56 but if the court is adjourned to a day certain, and the judge is unable to hold court on such day and, at a subsequent day, within the term, a session is held, the court is legally constituted and its proceedings are valid. 57 The times for holding sessions of the district court in the coun- ties of the fifth district were recently fixed by statute. 58 49. Change of district Disposition of cases pending "In any county detached from one judicial district and added to another, if there be any case pending in the district court of such county which has at any time been tried by the judge of said court, and by him taken under advisement, and still undecided, it shall be the duty of the judge who tried said cause to make and render his finding and judgment therein and to determine all the motions therein, and to allow and settle the case made therein or dispose of such case in all respects as though said county had not been detached from his district." 59 50. Special terms "Special terms of the district court in any county in a district may be called by the resident judge of said district, by order en- tered of record in such court, notice of such special term to be given in at least two consecutive issues of a weekly newspaper published and of general circulation in such county, prior to the convening of such special term." 60 51. Adjournment of term "The regular term of any district court may be adjourned from time to time, or sine die, by a resident judge of the district court or by any other district judge assigned and holding court in such district, but such adjournment shall be [to] a time prior to the con- 85 In re Dossett, 37 P. 1066. 2 Okl. 369. 16 Irwin v. Irwin, 37 P. 548, 2 Okl. 180. 57 St. Louis & S. F. R. Co. v. James, 128 Pac. 279, 36 Okl. 19G. 88 Sess. Laws 1919, c. 281. 59 Rev. Laws 1910, 1781. 60 Rev. Laws 1910, 1795. (38) Art. 1) COURTS AND JUDGES 52~54 vening of the next regular term. The regular judge, or any judge assigned, may make all orders with reference to the adjournment of the term." 61 52. Two or more judges sitting at same time "Two or more district judges may sit and hold court at the same time in the same county during term time ; and regular terms or adjourned terms of court in two or more counties in the v same judi- cial district shall proceed until the same are adjourned sine die." 62 53. Additional judge "When, upon petition to the supreme court of the State of the majority of the county commissioners of the counties embraced in any judicial district in this state, it is made to appear that any dis- trict court within the state has such an unusual number of cases awaiting trial by such court that a thorough, prompt and effective administration of justice cannot be 'secured in said district, it shall become the duty of said court to recommend to the Governor the appointment of an additional judge for such district for such period as the court may consider necessary to meet the condition ; and upon such recommendation the Governor shall appoint an ad- ditional 'judge for such district for the time recommended by the court." G3 "Such additional judge shall possess like qualifications and pow- ers and perform such duties and receive such compensation as provided by law for other district judges of this State." 6 * 54. District judges Expenses "All judges of the district court of the state of Oklahoma, shall be paid their actual and necessary traveling expenses while hold- ing court outside <5f the county wherein said district judge per- manently resides, when said district judge shall file an itemized 61 Rev. Laws 1910, 1794. 62 Rev. Laws 1910, 1796. 63 Rev. Laws 1910, 1782. 64 Rev. Laws 1910, 1783. Act March 22, 1909 (Laws 1909, c. 14, art. 3) 3, authorizing the Governor to appoint an additional district judge, held not a violation of Const, art. 7. 9. In re Byrd, 122 P. 516, 31 Okl. 549; Oklahoma City Land & Develop- ment Co. v. Hare (Okl.) 168 P. 407. (39) 54-56 COURTS AND COURT OFFICERS (Ch. 1 statement of the expenses, sworn to, with receipts and vouchers attached, with the state auditor." 65 "When any district judge is ordered by the chief justice to per- form duties outside his district, said judge shall be entitled to his necessary and actual expense incident to the performance of such duties. Said judge, when so assigned outside his district, shall certify his expense account, as above provided, to the Chief Jus- tice, and when such account is so certified and approved the state auditor is hereby authorized to " issue his warrant on the state treasurer, to be paid out of any funds in the treasury not otherwise appropriated." 66 55. Reporter Appointment Qualifications "The district judge in each judicial district shall appoint, when- ever in his judgment it will expedite public business and tend to the more economical administration of justice, a shorthand reporter who shall be well skilled in the art of stenography and competent to perform the duties required of him, which competency shall be ascertained by the applicant writing correctly one hundred and fifty words per minute for five consecutive minutes in open court, the matter written not being previously known to him." ** 56. Duties of court reporter "It shall be the duty of the court reporter to take down in short- hand and to correctly transcribe, when required, all the proceed- ings upon the trial of any cause, as well as all statements of counsel, the witnesses or the court, made during the trial of any cause or with reference to any cause pending for trial, when required by a party or attorney interested therein, and all other matters that might properly be a part of a case-made for appeal or proceeding in error. An attorney in any case pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer, or when his presence is required by such attorney, shall be taken and transcribed. A refusal of the court to permit, or, when requested, to require any statement to be taken down by the stenographer, or transcribed after being taken down, upon the same being shown 85 Sess. Laws 1919, c. 33, 1. * Rev. Laws 1910, 1785. 6 Rev. Laws 1910, 1784. (40) Art. 1) COURTS AND JUDGES 57~60 by affidavit or other direct and competent evidence, to the supreme court, shall be deemed prejudicial error, without regard to the merits thereof." 8 - 57. Salary and fees The district* court reporter shall receive an annual salary of $1,800 per year. 69 "In addition to the annual salary of said stenographer he shall charge and receive ten cents per folio for writing transcripts : Pro- vided, that two carbon copies shall be furnished without charge." 70 "The reporter shall, on the request of either party in a civil or criminal case, make out such transcript and deliver the same to- the party desiring it, on payment of his fees therefor by such party at the rate of ten cents per folio, which shall be allowed as taxable cost." 71 58. Traveling expenses "The reporter shall proceed from county to county where the district courts are held and shall be in attendance upon said courts to perform such duties as shall be required of him, and shall re- ceive as traveling expenses for each mile actually and necessarily traveled in going to, and returning from each district court, to be paid by the county to which he travels, the sum of five cents per mile." 72 59. Tenure and oath of office "The reporter shall hold his office at the pleasure of the Judge appointing him, and his oath of office shall be filed in the office of the clerk of the district court." 73 60. Notes filed Admissibility in evidence Transcripts "The shorthand reporter in any court of record shall file his notes taken in any case with the clerk of the court in which the cause was tried. Any transcript of notes so filed, duly certified by the reporter of the court who took the evidence as correct, shall be admissible as evidence in all cases, of like force and effect as tes- timony taken in the cause by deposition, and subject to the same 8 Rev. Laws 1910, 1786. Rev. Laws 1910, 1789. 69 Sess. Laws 1919, c. 211, 1. 72 Rev. Laws 1910, 1790. 70 Rev. Laws 1910, 1787. Rev. Laws 1910, 1791. (41) 61 COURTS AND COURT OFFICERS (Ch. 1 objection ; a transcript of said notes may be incorporated into any bill of exceptions or case-made. On appeal it shall be the duty of the reporter to furnish such transcript when demanded, as requir- ed by law. If any reporter ceases to be the official reporter of the court, and thereafter makes a transcript of the notes taken by him while acting as 'official reporter, he shall swear to the transcript as true and correct, and when so verified the transcript shall have the same force and effect as if certified while he was official reporter." 7 * 61. Appeal to district court "A judgment rendered, or final order made, by any tribunal, board or officer exercising judicial functions, and inferior in ju- risdiction to the district court, may be reversed, vacated or modified by the district court except where an appeal to some other court is provided by law." 73 "An appeal may be taken to the district court from a judgment, decree or order of the county court : ''First. Granting, or refusing, or revoking letters testamentary or of administration, or of guardianship. "Second. Admitting, or refusing to admit, a will to probate. "Third. Against or in favor of the validity of a will or revoking the probate thereof. "Fourth. Against or in favor of setting apart property, or making an allowance for a widow or child. "Fifth. Against or in favor of directing the partition, sale or con veyance of real property. "Sixth. Settling an account of an executor, or administrator or guardian. "Seventh. Refusing, allowing or directing the distribution or partition of an estate, or any part thereof or the payment of a debt, claim, legacy or distributive share ; or, "Eighth. From any other judgment, decree or order of the county court in a probate cause, or of the judge thereof, affecting a substan- tial right." 70 "If the judgment of a justice of the peace, taken on error, as herein provided, to the county or district court, be affirmed, it shall be the duty of such court to render judgment against the plaintiff ** Rev. Laws 1910, 1792. Rev. Laws 1910, 6501. 75 Rev. Laws 1910, 8 5235. (42) Art 1) COURTS AND JUDGES 61-63 in error for the costs of suit, and award execution therefor; and the court shall thereupon order the clerk to certify its decision in the premises to the justice, that the judgment affirmed may be enforc- ed, as if such proceedings in error had not been taken; or such court may award execution to carry into effect the judgment of such justice, in the same manner as if such judgment had been rendered in the county or district court." 77 "When the proceedings of a justice of the peace are taken in error to the county or district court, in the manner aforesaid, and the judgment of such justice shall be reversed or set aside, the court shall render judgment of reversal, and for the costs that have accrued up to that time, in favor of the plaintiff in error, and award execution therefor; and the same shall be retained by the court for trial and final judgment, as in cases of appeal." 78 "If the county or district court affirm a judgment on petition in error, it shall also render judgment against the plaintiff in error, for five per cent upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes that there was reasonable grounds for the proceedings in error." 79 62. Party in default Any party aggrieved may appeal from the county court, except where the decree or order of which he complains, was rendered or made upon his default. 80 63. Who may appeal "A person interested in the estate or funds affected by the de- cree or order, who was not a party to the special proceeding in which it was made, but who was entitled by law to be heard there- in, upon his application, or who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard, if it had been previously acquired, may also appeal as prescribed in this article. The facts which entitle such person to appeal, must be shown by an affidavit which must be filed with the notice of appeal." 81 77 Rev. Laws 1910, 5264. 78 Rev. Laws 1910, 5265. 79 Rev. Laws 1910, 5277. 80 Rev. Laws 1910, 6502. 61 Rev. Laws 1910, 6503. (43) 64-66 COURTS AND COURT OFFICERS (Ch. 1 64. When appeal must be taken "An appeal by a party, or by a person interested who was pres- ent at the hearing, must be taken within ten days, and an appeal by a person interested, who was not a party and not present at the hearing, within thirty days from the date of the judgment, de- cree or order appealed from." 82 65. Appeal how taken "The appeal must be made : "First. By filing a written notice thereof with the judge of the county court, stating the judgment, decree, or order appealed from, or some specific part thereof, and whether the appeal is on a ques- tion of law, or of fact, or of both, and, if of law alone, the particular grounds upon which the party intends to rely on his appeal; and, "Second. By executing and filing within the time limited in the preceding section, such bond as is required in the following sections. It shall not be necessary to notify or summon the appellee or re- spondent to appear in the district court, but such respondent shall be taken and held to have notice of such appeal in the same man- ner as he had notice of the pendency of the proceedings in the coun- ty court." 8S This statute may be complied with by dictating into the record the notice of appeal, in open court, in the presence of appellee and his counsel, and by executing and filing the required appeal bond within ten days. 84 A motion for new trial is not required to confer jurisdiction upon the district court. 88 The term "civil causes," or "civil cases," as used in the statute and Constitution, does not include matters within the probate jurisdiction of the county court. 86 66. Appeal bond "The appeal bond shall be in such sum as the judge of the county court shall require and deem sufficient, with at least two suffi- cient sureties to be approved by the judge, conditioned that the appellant will prosecute his appeal with due diligence 'to a deter- 82 Rev. Laws 1910, 6504. 83 Rev. Laws 1910, 6505. 8 * In re Tubbee's Estate, 48 Okl. 410, 149 P. 1120. 86 Welch v. Barnett, 34 Okl. 166, 125 P. 472. * Welch v. Barnett, 34 Okl. 166, 125 P. 472. (44) Art. 1) COURTS AND JUDGES 66-67 mination, and will abide, fulfill and perform whatever judgment, decree or order may be rendered against him in that proceeding by the district court, and that he will pay all damages which the op- posite party may sustain by reason of such appeal, together with all costs that may be adjudged against him." 87 The appeal bond required on appeal from the county court to the district court in a probate proceeding is required not only to pro- tect the rights of the appellee, but also on the ground of public policy and for other reasons. 88 An appeal bond required by statute cannot be waived. 89 67. Stay of execution "If the judgment, decree or order appealed from be for, or di- rect, the payment of money, or the delivery of any property, or grant leave to issue an execution, the appeal shall not stay the execution thereof, unless the appeal bond be furthermore condition- ed to the effect that if the judgment, decree or order, or any part thereof be affirmed, or the appeal be dismissed, the appellant shall pay the sum so directed to be paid or levied, or, as the case may re- quire, shall deliver the property so directed to be delivered, or the part thereof as to which the judgment, decree or order shall be af- firmed." 90 " Rev. Laws 1910, 6506. ss Adair v. Montgomery (Okl.) 176 P. 911 ; Rev. Laws 1910, 6504, 6505. An administrator who appeals from an order of removal does not act in his representative capacity, so as to be within Gen. St. 1889, par. 2977, provid- ing that "no executor or administrator shall be required to enter into a bond to entitle him to appeal." Coutlet v. Atchison, T. & S. F. R. Co., 52 P. 68, 59 Kan. 772 ; Erlanger v. Danielsoh, 26 P. 505, 88 Cal. 480 ; Mallory's Estate v. Burlington & M. R. Co., 36 P. 1059, 53 Kan. 557. Administrator, appealing to district court from probate court's order charging him with interest on certain funds and deducting such charges from an allowance of compensation and directing distribution of estate, is required, by Gen. St. 1915, 4678, to give a bond. In re Baird's Estate, 102 Kan. 317, 169 P. 1149. 89 The appeal bond required on appeal from county court to district court in a probate proceeding is jurisdictional, and, without a statutory provision, cannot be waived by court or parties. Adair v. Montgomery (Okl.) 176 P. 911. Where a case is tried in the probate court, and judgment rendered for plaintiff, and defendant attempts to appeal, without giving an appeal bond, and, after the transcript of the proceedings in the probate court is filed in the district court, plaintiff makes a timely motion to dismiss the appeal 90 Rev. Laws 1910, 6507. (45) 67-68 COURTS AND COURT OFFICERS (Ch. 1 - 'Xo proceeding to reverse, vacate or modify any judgment or final order of a justice of the peace shall operate as a stay of execu- tion, unless the clerk of the district or county court, in which such proceeding is commenced, shall take a written undertaking to the defendant in error, executed on the part of the plaintiff in error, by one or more sureties, to be approved by the clerk, to the effect : "First. When the judgment directs the payment of money, that the plaintiff will pay all costs which have accrued or may accrue in such proceedings in error, together with the amount of any judg- ment that may be rendered against the plaintiff in error, either upon and after the affirmance thereof in the district or county court, or on the further trial of the case in such court, after the judgment of the court below shall have been set aside or reversed. "Second. When the judgment directs the delivery of the pos- session of lands or tenements by the plaintiff in error, he will not commit or suffer to be committed any waste thereon; and if the judgment be affirmed by the court above or if judgment be rendered against the plaintiff upon further trial of the case, after the judg- ment of the court below shall have been set aside or reversed, that he will pay double the value of the use and occupation of the prop- erty, from the date of the undertaking until the delivery of the prop- erty, pursuant to the judgment, and all damages and costs that may be awarded against him." 91 On an appeal staying proceedings, the subject-matter involved is removed from the jurisdiction of the trial court until the appeal has been determined. 92 68. Commitment How stayed "An appeal from any judgment, decree or order directing the commitment of any person, does not stay the execution thereof, un- less the appeal bond be also to the effect that if the judgment, de- for the reason that no appeal bond was given to effectuate the appeal, and such motion is overruled, and the parties are required to go to trial, any appearance for the purpose of protecting his rights on the trial will not amount to a waiver of the giving of an appeal bond, or give the court the right to try and determine such cause. Vowell v. Taylor, 58 P. 944, 8 Okl. 625. yi Rev. Laws 1910, 5256. > 2 Burnett v. Jackson, 111 P. 194, 27 Okl. 275. A county court has no ju- risdiction pending an appeal to the district court from an order transferring a guardianship proceeding from that court to the county court of another county under Sess. Laws 1910, c. 25, to make certified copies of the ordexs (46) Art 1) COURTS AND JUDGES 69-70 cree or order appealed from be affirmed, or the appeal be dismissed, the appellant shall, within twenty days after such affirmance or dis- missal, surrender himself, in obedience to the judgment, decree or order, to the custody of the sheriff to whom he was committed. If the condition of such bond be violated, it may be prosecuted in the same manner and with the same effect as an administrator's official bond; and the proceeds of the action must be paid or distributed, as directed by the county court, to or among the persons aggrieved, to the extent of the pecuniary injuries sustained by them, and the balance, if any, must be paid into the county treasury. 93 69. Justification of sureties Increased bond "The provisions of sections 6262 to 6280, inclusive, apply to appeal bonds; and the respondent may apply to the appellate court or the judge thereof, upon notice, for an order requiring the ap- pellant to increase the sum fixed by the judge of the county court, or to give additional security ; and if the applicant make default in giving a new bond, pursuant to an order to increase the same, or to give additional security, the appeal may be dismissed." 9 * 70. Appeal bond form Action upon "Every appeal bond must be to the state of Oklahoma; must contain the name and residence of each of the sureties thereto, and must be filed in the county court. The judge of the county court may, at any time, in his discretion, make an order authorizing any person aggrieved to bring an action on the bond, in his own name or in the name of the state. When it is brought in the name of the state, the damages collected must be paid over to the county court, and therein distributed as justice may require." 95 That a bond on appeal from a county court to the district court is made to the administrator instead of to the state does not render it void so as to defeat the district court's jurisdiction. 96 and judgments and transmit the same, as its power to act therein is sus- pended by the appeal. Id. 93 Rev. Laws 1910, 6508. a * Rev. Laws 1910, 6509. 95 Rev. Laws 1910, 6510. 9 In re Barnes' Estate, 47 Okl. 117, 147 P. 504. Despite Comp. Laws 1909, 5460 (Rev. Laws 1910, 6510), requiring bond on appeal from the county to the district court to be made payable to the (47) 71-73 COURTS AND COURT OFFICERS (Ch. 1 71. Appeal not to stay issue of letters "An appeal from the decree or order admitting a will to probate, or granting letters testamentary, or letters of administration, does not stay the issuing of letters where, in the opinion of the county judge, manifested by an entry upon the minutes of the court, the preservation of the estate requires that such letters should issue. But the letters so issued do not confer power to sell real property by virtue of any provision in the will, or to pay or satisfy legacies or to distribute the property of the decedent among the next of kin, until the final determination of the appeal." 9T 72. Appeal not to stay order revoking letters, etc. "An appeal from a decree or order -revoking probate of a will, letters testamentary, letters of administration or letters of guardian- ship, or from a decree or order suspending or removing an execu- tor, administrator or guardian, or removing or suspending a testa- mentary trustee or a person appointed by the county court, or ap- pointing an appraiser of personal property does not stay the execu- tion of the decree or order appealed from." 88 73. Proceedings "The judge of the county court must, within ten days from the filing of the notice of appeal and the giving of the required bond, cause a certified copy thereof and of the judgment, decree or order, or specific part thereof appealed from, and of the minutes, records, papers and proceedings in the case, to be transmitted to the clerk of the district court of the county, to be filed in his office; and the appeal may be heard and determined at any day thereafter by said court, at any general, special or adjourned term ; and if the appel- lant make no appearance when the case is called for trial, or other- wise fail to prosecute his appeal, the respondent may, on motion, have the appeal dismissed, or may open the record and move for an affirmance." " state of Oklahoma, an appeal bond, otherwise In conformity with the stat- ute, is valid. Barnett v. Blackstone Coal & Mining Co., 60 Okl. 41, 158 P. 588. 97 Rev. Laws 1910, 6511. 98 Rev. Laws 1910, 6512. 99 Rev. Laws 1910, 6513. (48) Art. 1) COURTS AND JUDGES 74~76 74. Powers of the appellate court "The plaintiff in the county court shall be the plaintiff in the district court, and when the appeal is on questions of law alone the appellate court may reverse, affirm or modify the judgment, decree or order, or the part thereof appealed from, and every immediate order which it is authorized by law to review, in any respect men- tioned in the notice of appeal, and as to any or all of the parties, and it may order a new hearing. Upon such appeal, so much of the evidence as may be necessary to explain the grounds, and no more, may be certified into the appellate court." * 75. Trial de novo "When the appeal is on questions of fact, or on questions of both law and fact, the trial in the district court must be de novo, and shall be conducted in the same manner as if the case and proceedings had lawfully originated in that court ; and such appellate court has the same power to decide the questions of fact which the county court or judge had, and it may, in its discretion, as in suits in chancery, and with like effect, make an order for the trial by jury of any or all the material questions of fact arising upon the issues between the parties, and such an order must state distinctly and plainly the questions of fact to be tried." 2 A "trial de novo" has a well-defined and generally understood meaning, and does not contemplate the framing of new and differ- ent issues in the appellate court. 3 Thus on trial de novo in the district court, on appeal from the county court in probate matters, the district court can render only such judgment or make such or- der as the county court should have made. 4 76. Penalty for neglect of county judge to transmit record "If the judge of the county court neglect or refuse to make or transmit such certified copies as are hereinbefore required to be 1 Rev. Laws 1910, 6514. 2 Rev. Laws 1910, 6515. Appeal to district court from order of county court on questions of law and of fact, gives jurisdiction to determine matter de novo, and hearing therein is not simply a review to determine whether error of law was com- mitted in court 'below. In re Standwaitie's Estate (Okl.) 175 P. 542. Rev. Laws 1910, 6501. 3 Parker v. Lewis, 45 Okl. 807, 147 P. 310. 4 Parker v. Lewis, 45 Okl. 807, 147 P. 310. HON.PL.& PBAC. 4 (49) 77-78 COURTS AND COURT OFFICERS (Ch. 1 transmitted to the clerk of the district court in cases of appeal, he may be compelled by the district court by an order entered, upon motion, to do so ; and he may be fined, as for contempt, for any such neglect or refusal. A certified copy of such order may be served upon the county judge by the party or his attorney." 5 77. Dismissal of appeal Effect Costs "The dismissal of an appeal by the district court is in effect an affirmance of the judgment, decree or order appealed from; and when an appellant shall have given, in good faith, notice of appeal, but omits, through mistake, to do any other act necessary to per- fect the appeal or to stay proceedings, the appellate court may per- mit an amendment, on such terms as may be just." 6 "Such appellate court may award to the successful party the costs of the appeal ; or it may direct that such costs abide the event of a new hearing, or of the subsequent proceedings in the county court. In either case the costs may be made payable out of the estate or fund, or personally by the unsuccessful party, as directed by the appellate court; or, if no such direction be given, as directed by the county court." 7 "If the county or district court affirm a judgment on petition in error, it shall also render judgment against the plaintiff in error, for five per cent, upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes that there was reasonable grounds for the proceedings in error." 8 t 28. Enforcement of decree "When a judgment, decree or order, from which an appeal has been taken, is wholly or partly affirmed, or is modified by the judg- ment rendered by the district court upon such appeal, it must be enforced, to the extent authorized by the latter judgment, by the county court, in like manner as if no appeal therefrom had been taken ; and the district court must direct the proceedings to be remitted for that purpose to the county court or to the judge thereof." 9 5 Rev. Laws 1910, 6516. 8 Rev. Laws 1910, 6517. 7 Rev. Laws 1910, 6518. (50) 8 Rev. Laws 1910, 5277. Rev. Laws 1910, 6519. Art.l) COURTS AND JUDGES 79~81 79. Executor's bond stands in place of appeal bond "When an executor or administrator who has given an official bond appeals from a judgment, decree or order of the county court or judge, made in the proceedings had upon the estate of which he is administrator or executor, his said bond stands in the place of an appeal bond, and the sureties therein are liable as on such appeal bond." 10 80. Reversal for error not to affect lawful acts "When the order or decree appointing an executor, or administra- tor, or guardiarf, is reversed on appeal for error, and not for want of jurisdiction of the court, all lawful acts in administration upon the estate, performed by such executor, or administrator or guardian, if he have qualified, are as valid as if such order or decree had been affirmed." X1 81. Rules of district court The district courts have authority to make necessary and rea- sonable rules governing the transaction of business therein, and a rule requiring that parties who desire that the court shall state in writing its findings of fact separately from its conclusions of law shall request the same at the commencement of the trial has been held not unreasonable or illegal in Kansas. 12 Where a rule of the district court provides that demurrers and motions shall only be heard on certain days, the court, without agreement of counsel, cannot disregard the rule and hear a demur- rer prior to the day it would regularly come on for hearing. 13 But the rules prescribed must not be unreasonable. 1 * 10 Rev. Laws 1910, 6520. 11 Rev. Laws 1910, 6521. 12 Sehuler v. Collins, 65 P. 662, 63 Kan. 372. 13 Holbert v. Patrick (Okl.) 176 P. 903. 14 The district court of the territory of Oklahoma could not impose a rule requiring a party appealing a case from the probate court to the district court to deposit with the clerk of the district court a specified sum for clerk's costs conditioned that on the failure to do so the court should dis- miss the appeal. Goodwin v. Bickford, 93 P. 548. 20 Okl. 91, 129 Am. St. Rep. 729 : Nelson v. Lollar, 94 P. 176, 20 Okl. 291 ; Stone v. Clogston, 105 P. 642, 25 Okl. 162. (51) 82-83 COURTS AND COURT OFFICERS (Ch. 1 DIVISION IV. SUPERIOR COURTS AND JUDGES 82. Superior courts in general There is created and established by statute in certain counties of this state, a court of civil and criminal jurisdiction coextensive with the county to be known as the superior court of such county, which shall be a court of record and shall be held in the largest city of such county. 15 Many of the superior courts heretofore established have been abolished. 18 83. Qualifications of judges Term of office "The said court shall be presided over by a judge whose quali- fications shall be the same as are required for district judges and who shall be a resident of the county for which he shall have been elected or appointed. The regular term of such judge shall be four years and he shall within the county, have and exercise all the powers of a district judge and all the powers of a county judge, limited to the jurisdiction herein conferred." ir Sess. Laws 1915, c. 20, 1; Sess. Laws 1917, c. 135, 1-21. Sess. Laws 1909, c- 14, art. 7, under which the superior court of Pottawa- tomie county was organized, held constitutional. Parker v. Hamilton, 49 Okl. 693, 154 P. 65. Sess. Laws 1917, c. 135, 14, transferring all causes from district court to superior court of Okfuskee county, created by act and prescribing proce- dure, held unconstitutional. Diehl v. Crump (Okl.) 179 P. 4, 5 A. L. R. 1272. Section 6 of Act March 22, 1913, entitled "An act amending section 1 of article 7 of chapter 14 of Session Laws 1909, etc." (Laws 1913, c. 77), applies to superior courts continued by said act until January, 1915, as well as to those continued indefinitely by the act. State v. Superior Court of Oklahoma County, 136 P. 424, 40 Okl. 120. Special provision has been made by statute for the superior court of Ok- mulgee county and for the jurisdiction, judge, and terms of court thereof, and other matters pertaining thereto (Sess. Laws 1917, c. 131, 1-15), as is also true of Creek county (Sess. Laws 1917, c. 138, 1-15). 16 Sess. Laws 1919, c. 116. The superior court in all counties having a population in excess of 100,000 according to the last federal census is abolished, and all causes of which the district court has jurisdiction are transferred thereto by the statute. Like- wise all causes of which the county court has exclusive original jurisdiction are transferred to such court. Sess. Laws 1921, c. 2 (S. B. No. 16) 1-3. Sess. Laws 1915, c. 20, 3. (52) Art. 1) COURTS AND JUDGES 83~86 The term of an appointee continues until his successor can be elected. 18 84. Election At the general election of county officers every fourth year after the year 1918, "the qualified electors of such county wherein a superior court has been established, * * * .shall elect a judge of said court for such county to serve from the second Monday of the following January until the second Monday of January four years thereafter and until his successor shall be elected and quali- fied." 19 85. Procedure Juries Appeals "The procedure in said court shall follow the procedure that is or may be provided for the district court. The juries for said court shall be selected in the same manner as juries for the district court, and the jury commissioners of all counties in which a superior court is created by operation of this act, whenever they meet to make jury lists for the district court shall make an additional certified list of jurors of the same number as for the district court and mark the same 'Jury List No. 3, for the Superior Court/ and shall de- liver the same to the court clerk, and said clerk and the sheriff of the county shall select from said list the jurors for the superior court in the same manner as for the district court, juries in said court shall be composed of the same number of men of the same qualifications as in the district court, and all laws relative to juries and jurors for district courts shall be, and are hereby made ap- plicable to the said superior courts. Appeals from said court shall be taken to the Supreme Court of the state and to the Criminal Court of Appeals of the state, in the same manner as is now or may hereafter be provided by law for taking appeals from the dis- trict court to said appellate courts." 20 86. Court stenographer "The judge of said court shall appoint a stenographer whose fees and compensation shall be the same as provided by law for like services rendered by the stenographer for the district court, and he shall be paid by the county in which the court is located, and 18 State v. Breckinridge, 126 P. 806, 34 Okl. 649. Sess. Laws 1915, c. 20, 8 5. 20 Sess. Laws 1915, c. 20, 6. (53) gg 87-89 COURTS % AND COURT OFFICERS (Ch. I the court clerk shall tax the same fee for stenographers as is pro- vided by law for the payment of stenographers in district courts." 21 87. Sheriffs County attorneys "The county attorney and sheriff of every county wherein such a court shall be established shall appear in said court and therein perform all services for the state and county in the same manner, and exercise the same powers as provided by law in relation to the district court and processes issued therefrom." 22 88. Judge's salary "The judge of the superior court of each county shall receive as full compensation the following salary ; in counties having a popu- lation of not to exceed fifty thousand, the sum of two thousand eight hundred dollars per annum ; and in counties in excess of fifty thou- sand in population, the sum of three thousand dollars per annum. The salary of such superior judge shall be paid out of the court fund of the county in which said superior court is located." 23 89. Transfer of causes "The district court or judge thereof in any county wherein a superior court exists may, in his discretion, at any time transfer any cause pending and undetermined therein to the superior court of said county. The superior court or judge thereof may, at any time, in his discretion, transfer to the district court of said county any cause pending and undetermined therein which may be within the jurisdiction of the district court. The county court or judge thereof, may at any time, in his discretion, transfer any cause pend- ing therein, except probate matters, to the superior court. Upon such transfer being made, such cause shall stand for trial in the court to which it has been so transferred as if it had been original- ly filed therein, and in such cases the court clerk shall transfer the original files to the court to which said cause has been so transfer- red." 2 * 21 Sess. Laws 1915, c. 20, 8. . 22 Sess. Laws 1915, c. 20, 9. 23 Sess. Laws 1915, c. 20, 10. 2 * Sess. Laws *921, c. 250 (H. B. No. 22) 1, amending Sess. Laws 1915, c. 20, lii. Laws 1915,- c. 20, validating all proceedings of district courts in causes transferred thereto under Laws 1913, c. 77, validated transfer of a cause from superior court to district court having concurrent jurisdiction and swbso (54) Art. 1) COURTS AND JUDGES 90~91 DIVISION V. COUNTY COURTS AND JUDGES 90. Procedure Seal "For the trial of all civil and criminal cases in the county court the pleadings, practice and procedure, both before and after judg- ment, shall be the same as that of the district court, except where special statutory proceedings are prescribed." 25 The seal of the probate court, in the absence of legislation, be- came the official seal of the county court. 26 91. Terms of court "In each county, commencing on the first Mondays of January, April, July and October of each year, except as otherwise herein provided, county court shall convene at the county seat and con- tinue in session so long as business may require : Provided, that said courts shall always be open and in session for the transaction of all probate business in their respective counties." 27 "In counties where it may be provided by law for such court to be held at a place or places other than the county seat, such court shall convene on the first Mondays of January, April, July and Oc- tober of each year, at the county seat, and remain in session for a period of three weeks, find may then, by proper order of said court, be adjourned to such time as the judge thereof may deem proper: Provided, that the same shall not conflict with the term of said court provided for at any other place in said county; and provided, further, that said term of court cannot be adjourned to resume at a later date than eight weeks from the date of entering the order of such adjournment." 28 "If there is only one place other than the county seat at which it is provided by law for holding terms of the county court, th^ quent proceedings therein. Chicago, R. I. & P. Ry. Co. v. Austin, 63 Okl. 169, 163 P. 517, L. R. A. 1917D, 666. A party to a civil action pending in the superior court who seeks to re- move the cause to the district court under section 6 of the act of March 22, 1913 (Laws 1913, c. 77), must, under Act March 22, 1911 (Laws 1910-11, c. 121), amending Laws 1909, c. 14, art. 7, 10, file his motion for such trans- fer before the cause is set for trial -in the superior court. State v. Superior Court of Oklahoma County, 136 P. 424, 40 Okl. 120. 25 Rev. Laws 1910, 1821. 26 Stewart v. State, 105 P. 374, 3 Okl. Cr. 618. 27 Rev. Laws 1910, 1823. 28 Rev. Laws 1910, 1824. (55) 91 COURTS AND COURT OFFICERS (Ch. 1 terms of said court at such place shall commence on the first Mon- days of February, May, August and November of each year, and continue in session for the period of three weeks, if the public busi- ness requires it." 29 "If there are two places in the county other than the county seat at which it is provided by law for holding terms of the county court in addition to the county seat, the terms of court shall be held at said place nearer the county seat as aforesaid, to wit : On the first Mondays in February, May, August and November of each year and continue in session as aforesaid. At the other place in said county where said county court is to be held other than at the coun- ty seat, terms of courts shall be held commencing on the first Mondays of March, June, September and December of each year, and continue in session for the period of three weeks each time, or so long as the public business may require." 30 The statute merely commits to the sound discretion of the county court the power to adjourn the sessions of that court from time to time as business may require, and gives no power to prolong the term. An adjournment of the regular term at the county seat may be had to a day later than an intervening term provided for by law at some other place. 31 Adjournment of the regular term without fixing in the order of adjournment any time at which the court shall reconvene pre- cludes the court from again convening until the time fixed by law for the next regular session. 32 Where terms of court are fixed by law, and the court fails to 29 Rev. Laws 1910, 1825. 30 Rev. Laws 1910, 1826. Act of the Legislature of 1909, House Bill No. 460 (Laws 1909, c. 14, art. 20), providing for holding the county court at Prague, in Lincoln county, uses the words "term" and "session" interchangeably. Rakowski v. Wagoner, 103 P. 632, 24 Okl. 282. Comp. Laws 1909, 2008-2011 (Rev. Laws 1910, 1824-1826), inclusive, fixing the terms of the county courts in the several counties of the state, em- braces all the law on the subject and provides uniformity in the terms of such court in the several counties, and repeals Act March 12, 1909 (Laws 1909, c. 14, art. 13), fixing the terms of county court of Wagoner county at Coweta. In re James, 111 P. 947, 4 Okl. Cr. 94 ; In re Williams, 111 P. 950,. 4 Okl. Cr. 101 ; In re Nichols, 111 P. 950, 4 Okl. Cr. 102. 81 Tucker v. State, 139 P. 998, 10 Okl. Cr. 565. 82 Baker v. Newton, 112 P. 1034, 27 Okl. 436. (56) Art. 1) COURTS AND JUDGES 91-93 convene at the time, the parties cannot, by agreement, confer ju- risdiction to render a judgment at another time. 83 Where proper officers assemble at the proper place, but at a time not authorized by law, they are not a court, and any judicial pro- ceedings then had which can be had only in term time are void. 34 The county courts are always in session for the. transaction of probate business, and the part of the statute providing for terms of county courts has no application to probate jurisdiction of the courts. 35 Where the general term of the county court has been once regu- larly convened on the day fixed by law, it continues until the time fixed by law for the next succeeding term, unless previously ad- journed sine die. 36 A general term of court, when regularly convened, can expire only by operation of law or by adjournment sine die. It will not expire by law until tKe first day of the next general term. 37 Failure of the judge to appear and hold a session on that day does not re- sult in lapse of the term. 38 92. Proceedings in vacation Out of court A judgment in a civil action at a time when the court is not le- gally in session, is void for want of jurisdiction. 39 "A judge of the county court, as contradistinguished from the county court, may exercise out of court all the powers expressly conferred upon him as judge." 40 93. Calendar "The county judge shall on the first day of each term prepare a calendar of the cases standing for trial at said term, placing the causes on said calendar in the order in which the same are number- ed on the docket and setting the cases for trial in such order upon convenient days during said term ; and the provisions of the chap- 33 American Fire Ins. Co. v. Pappe, 43 P. 1085, 4 Okl. 110. 3 * In re James, 111 P. 947, 4 Okl. Or. 94 ; In re Williams, 111 P. 950, 4 Okl. Cr. 101 ; In re Nichols, 111 P. 950, 4 Okl. Or. 102/ 35 Southern Surety Co. v. Chambers (Okl.) 180 P. 711. 36 Tucker v. State, 139 P. 998, 10 Okl. Cr. 565. 37 Brown v. State, 11 Okl. Cr. 498, 148 P. 181. 38 St. Louis & S. F. R. Co. v. James, 128 P. 279, 36 Okl. 196. 39 American Fire Ins. Co. v. Pappe, 4 Okl. 110, 43 P. 1085. * Rev. Laws 1910, 6192. (57) 94-98 COURTS AND COURT OFFICERS (Gl. 1 ter on civil procedure relative to the docket in district courts shall so far as they are applicable apply to said calendar." 41 94. Stenographer "The judge of the county court may appoint, in writing, when- ever in his judgment it will expedite public business, a shorthand reporter, to be known as 'County Stenographer,' who shall be ex officio deputy clerk of the county court, and who shall possess the same qualifications in the art of stenography as is required of such officer in the district court." 42 95. Duties "It shall be the duty of the county stenographer, under the direction of the county judge, to take down in shorthand the oral testimony of witnesses, the rulings of the court, the objections made, and the exceptions taken during the trial of all civil and criminal cases, and also such other matters as the court shall order." * 3 96. Oath and tenure of office "County stenographers shall hold their offices at the pleasure of the county judge appointing them, and their official oath shall be filed in the office of the county court and be recorded in the journal of said court." 4 * 97. Fees for making transcripts "The judge of the county court may, upon the application of ei- ther party, under the same terms and conditions as prescribed by law in the district court, direct such reporter to make out and file with the clerk of said court a transcript of his shorthand notes. The party ordering the transcript shall pay for the same at the same price and under the same terms and conditions as for like services in the district court, but all such fees shall be paid into the county treasury to the credit of the court fund." 45 98. Ex officio court clerk "The county stenographer shall occupy and maintain his office in the office of the judge of the county court, and when such stenog- 41 Rev. Laws 1910, 1827. 42 Rev. Laws 1910, 1833. Stenographer as deputy clerk, see Sess. Laws 19}5, p. 41, l. 43 Rev. Laws 1910, 1834. Rev. Laws 1910, 1844. * 9 Rev. Laws 1910, 1843. (59) 104-105 COURTS AND COURT OFFICERS (Ch. 1 county seat, and in such counties the jurisdiction of the county courts in the different towns is fixed and provision made for sep- arate jury lists. 51 104. Judge Term of office Qualification "There is hereby established in each county in this state a county court, which shall be a court of record ; and, at the election to rati- fy this Constitution, there shall be elected in each county a county judge, who shall hold his office until the close of the day next pre- ceding ' the second Monday in January, nineteen hundred and eleven; and thereafter the term of office of the county judge shall be two years, and he shall be elected at each biennial general elec- tion. The county judge shall be a qualified voter and a resident of the county at the time of his election, and a lawyer licensed to practice in any court of record of the state. The County judge shall be judge of the county court." 5a 105. To give bond "The county judge, before entering upon the duties of his office, shall enter into a bond to the state of Oklahoma for the use and benefit of the county, in a sum to be fixed by the board of county commissioners, which shall not be less than three thousand dol- lars nor more than ten thousand dollars, to be approved by the board of county commissioners, conditioned that he will faithfully discharge all the duties required of him by this chapter, and for the payment into the county treasury of all moneys that may come into his hands by virtue of his office as such county judge." 53 "Rev. Laws 1910, c. 21, art. 2, 1845-2050; Sess. Laws 1910-11, p. 57, 1-5, p. 58, 6-8, p. 59, 1, 2, p. 60, 3, 4, p. 61, 5-7, p. 62, 8, 9, p. 63, 1-3, p. 64, 4-7, p. 67, 1, 2, p. 68, 3-6, p. 69, 7, p. 137, 1-4, p. 138, 5-7, p. 141, p. 239, 1-4, p. 240, 5-7, p. 241, 8, 9 ; Sess, Laws 1913, p. 18, 1, 2, p. 69, g 1, p. 70, 2-3, 5, p. 71, 6-8, p. 72, 9, p. 134, 1-3, p. 135, 4, 5, p. 136, 6, 7, p. 180, 1-3, p. 181, 4-6, p. 390, 1, 2, p. 392, 1, 2 ; Sess. Laws 1915, p. 15, 1, p. 16, 2, p. 62, 1, 2, p. 63, 4-7, p. 64, m 8, 9, p. 70, 1, p. 71, 2-4, p. 72, 5-7, p. 109, 1, 2, p. 153, 1-3, p. 164, 1, p. 165, 2, 3, p. 166, 4-6, p. 408, 1-3, p. 433, 1-3, p. 570, 1, p. 571, 1-5, p. 572, 6-9, p. 573, 10, 11, p. 626,. 1 ; Sess. Laws 1917, p. 187, 1, p. 188, 1, 2, p. 189, 1-3, p. 215, 1, p. 216, S 2-5, p. 217, 6, p. 222, 1, p. 223, 2-6, p. 224, 7-9. <*2 Const. Okl. art. 7, 11. "a Rev. Laws 1910, 1822. (60) Art. 1) COURTS AND JUDGES 106-110 106. Office and records "The judge of the county court shall keep his office at the county seat, in such rooms as the county may provide, and his office shall be kept open at reasonable hour's. He shall safely keep all the papers, books and records of his office or relating to any case of business of the county court or before him as judge thereof, and receive and pay out, according to law, any money which by law may be payable to him. The county shall provide for such tables, desks, cases for books of record and other property or furniture re- quired for his office." 54 107. Practice prohibited "A judge of the county court shall not be counsel or attorney in any civil action for or against any executor, administrator, guar- dian, trustee, minor or other person over whom or whose accounts he has or by law would have jurisdiction, whether such action re- late to the business of the estate or not." 5 * 108. Temporary county judge "Whenever the county judge of any county is unable to* perform the duties of his office because of illness, absence from the county, or other disqualification, a temporary judge may be chosen by the bar of the county and such temporary judge so chosen shall have the same authority and the same power as the regular judge." 56 This statute and the Constitution provide for a judge pro tempore in a special proceeding. 57 109. How elected "The clerk of the county court shall fix the time for the election of such temporary county judge, and shall serve a written notice on each member of the bar of the county at least forty-eight hours prior to such election. Such election shall be by ballot and shall be under the general direction of said clerk of the county court." 5S 110. Fee when affidavit of bias made "Whenever a temporary judge is chosen to sit as a trial judge in any case on account of bias or prejudice of the regular judge, the B * Rev. Laws 1910, 1828. 65 Rev. Laws 1910, 1829. 66 Rev. Laws 1910, 1830. 67 Hengst v. Burnett, 40 Okl. 42, 135 P. 1062. 68 Rev. Laws 1910, 1831. (61) 110-111 COURTS AND COURT OFFICERS (Ch. 1 party making the affidavit under the law shall be charged a fee of twenty-five dollars, to be taxed as costs in the case; and in no event shall the county be liable for more than one-half of such costs." 59 Courts should use reasonable discretion in giving time to pay such costs, or file a bond for the same. 60 111. County judge County attorney Salary The statute providing that "the county judge and county attor- ney of each county shall receive as full compensation the follow- ing salaries in counties having a population of not exceeding 7,000, the sum of $1,350.00 each per annum ; in counties having a popula- tion of over 7,000 and not exceeding 10,000, the sum of $1,500.00 each per annum; and in addition to the foregoing, in all counties in excess of 10,000 inhabitants and not exceeding 20,000 inhabitants, the sum of $50.00 for each additional 1,000; in addition to the fore- going, in counties in excess of 20,000 and not to exceed 30,000 in- habitants, the sum of $25.00 for each additional 1,000; in addition to the foregoing, in counties of 30,000 inhabitants and not exceed- ing 40,000 inhabitants the sum of $15.00 for each additional 1,000; in addition to the foregoing, in counties of 40,000 inhabitants and not exceeding 50,000 inhabitants the sum of $10.00 for each ad- ditional 1,000; and in all counties in excess of 50,000 inhabitants the sum of $3,000.00 per annum," 61 is qualified by a statute re- cently enacted providing that "in all counties in this state having a population not less than 37,499 and not more than 37,750 as shown by the last Federal census, the county attorneys of any such coun- ties on and .after January 4th, 1923, shall be paid an annual salary of three thousand five hundred ($3,500.00) dollars, and the county 89 Rev. Laws 1910, 1832. A county is not liable for the fee of a pro tempore county judge; there being no statute imposing such liability. Board of Com'rs of Oklahoma County v. Twyford, 39 Okl. 230, 134 P. 968. The provision of Rev. Laws 1910, 1832, that "in no event shall the county be liable for more than one-half of such cost," is not enough, standing alone, to make a county liable for the fee of a pro tempore county judge. Id. 60 Deninger v. Gossom, 46 Okl. 596, 149 P. 220. 61 Sess. Laws 1910-11, p. 152, 1, amending Rev. Laws 1910, 1839. The compensation of judges of the county courts in counties with a popu- lation of less than 20,000, under Const: Schedule, 18 (Buim's Ed. 467), is, as provided by Sess. Laws Okl. 1903, p. 161, c. 14, 1, the sum of $1,600, to (62) Art 1) COURTS AND JUDGES 112-114 judges in such counties on and after January 4th, 1923, shall be paid an annual salary of three thousand ($3,000.00) dollars." 62 112.- Court reporters The statute providing for appointment of a county stenographer by county clerk on approval of county court confirmed by county commissioners, is mandatory, and proper administration of jus-* tice demands prompt compliance therewith by public officers. 63 In counties having a population of 80,000 or less, 64 a county stenographer cannot retain fees for making transcripts of proceed- ings in the couifty court, but compensation for such services is limited to salary. 65 113. Rules for county court The statute authorizes the Supreme Court to make rules relating to probate procedure 66 and binding on county courts. 67 The county court cannot promulgate a rule requiring that a party appealing from a justice's court shall make a deposit with the clerk of the county court on costs accruing therein. 68 DIVISION VI. SUPREME COURT AND JUDGES 114. Membership Quorum Eligibility Term of office Va- cancies Jurisdiction The constitution provides "the Supreme Court shall consist of five Justices until the number shall be changed by law. The state shall be divided into five Supreme Court judicial districts Until the Legislature shall change the number of members of the court, at which time the Legislature shall redistrict the state to conform to the number of Justices of the Supreme Court. From each of said districts, candidates for Justice of the Supreme Court shall be nominated by political parties, or by petitioners of the respective be retained out of the fee received by him as judge. State v. Frear, 96 P. 628, 21 Okl. 397. 62 Sess. Laws 1921, c. 64, 1 (S. B. 281). 3 Sess. Laws 1913, c. 161, 2 ; Wiswell v. State, 14 Okl. Cr. 517, 173 P. 662. 64 Sess. Laws 1919, p. 244. 65 Board of Com'rs of Oklahoma County v. De Armond, 55 Okl. *618, 155 P. 592 : Waide v. Atchison, T. & S. F. Ry. Co., 56 Okl. 38, 155 P. 884. 66 Rev. Laws 1910, 5347. 67 State v. Eight, 49 Okl. 202. 152 P. 362. 68 St. Louis & S. F. R. Co. v. McAllister, 56 Okl. 244, 155 P. 1123. (63) 114-115 COURTS AND COURT OFFICERS (Ch. 1 districts, in the manner provided by law, and such candidates shall be voted for by the qualified voters of the state at large, and no elector at such election shall vote for more than one candidate from each district. The candidate from each district receiving the high- est number of votes cast in the state at said election shall be de- clared the Justice-elect in said district. A majority of the members of the Supreme Court shall constitute a quorum, and the concur- rence of the majority of said court shall be necessary to decide any question. No person shall be eligible to the office of Justice of the Supreme Court unless he shall be at the time of his election a citizen of the United States and shall have been a resident of the territory embraced within the state for a period of two years, and of the territory comprising the district from which he is elect- ed for a period of one year; and unless he shall have attained the age of thirty years and shall have been a lawyer licensed by some court of record, or shall have been a judge of some court of record, or such judge and lawyer together at least five years. "The term of office of the Justices of the Supreme Court shall be six years, except as herein provided. Each member of such court shall be a conservator of the peace throughout the state ; and in case of a vacancy in the membership of said court, the Governor shall, by appointment from the district, fill such vacancy until the next general election for State officers, and at such general election the vacancy for the unexpired term shall be filled by election by the qualified voters of the state." 69 115. Justices Judicial districts Election Law clerks "The Supreme Court shall consist of nine Justices." 70 Provision is made by law for the division of the state into nine Supreme Court judicial districts, 71 and for the election of a Justice from each Supreme Court judicial district, and their terms of office fixed. 72 Each Justice may appoint a law clerk, who shall be a competent stenographer and typist, at a salary of $1,200 per year, to assist such Justice in his clerical work and perform other duties. 73 69 Const. Okl. art. 7, 3. * 2 Sess. Laws 1917, p. 232, 3. 70 Sess. Laws 1917, p. 282. 1. TS Sess. Laws 1917, p. 233, 5. " Sess. Laws 1917, p. 232, i 2. (64) Art. 1) COURTS AND JUDGES 116-120 116. Referees and first law clerk Provision has been made by statute for two Supreme Court referees and one first law clerk as an assistant to the Chief Jus- tice, and for their salary, appointment and qualifications. 7 * 117. Chief Justice Election "The Chief Justice of the Supreme Court shall be elected by members of the Supreme Court on the second Monday in January of each odd-numbered year. If for any reason the election of Chief Justice should not occur on the day mentioned, the court shall by order fix some day for such election. The Chief Justice when so elected shall hold office for two years, or until his successor is elected and qualified." 7B 118. Vice Chief Justice Election "The members of the Supreme Court shall, at the time fixed by law for the election of a Chief Justice, or at such other time as may be necessary, elect one of their number as Vice Chief Justice, who shall perform the duties of the Chief Justice in his absence, sickness or inability to serve. The term of office of such Vice Chief Justice shall be concurrent with the Chief Justice presiding at the time of his election." 7e 119. Justices Not to be candidate for other office "No Justice of the Supreme Court shall become during the term for which he may be elected or appointed, a candidate for any office other than a judicial position." 77 120. Commencement of term "The term of office of the Justices of the Supreme Court shall commence on the second Monday of January following their elec- tion: Provided, however, that the term of office of the Justices elected at the first election under this Constitution shall commence upon the admission of the state into the Union, and shall continue as hereinafter provided. Those appointed or elected to fill vacan- cies shall enter upon the discharge of their duties as soon as they qualify." 78 T* Sess. Laws 1919, c. 127, 2. * 7 Sess. Laws 1917, p. 233, 7. Rev. Laws 1910, 1750. 78 Const. Okl. art. 7, 4. 7 io Rev. Laws 1910, 1751. HON.PI-.& PRAC. 5 (65) 121-123 COURTS AND COURT OFFICERS (Ch. 1 121. Sessions Opinions "The sessions of the Supreme Court shall be held at the seat of Government, and the sessions and duration thereof shall be fixed by rule of said court, until fixed by the Legislature ; but the first term of the Supreme Court shall be held within ninety days after the admission of the state. The Supreme Court shall ren- der a written opinion in each case within six months after said case shall have been submitted for decision." 7 * 122. Chief Justice Expiration of terms Election "At the first session of the Supreme Court the Justices thereof shall elect one of their number Chief Justice, who shall serve as Chief Justice until the expiratiorj of his term of office; thereafter the Chief Justice shall be elected in the manner provided by law. Of the Justices elected at the first election, the term of two of them shall expire at the close of the day next preceding the second Mon- day in January, nineteen hundred and nine; and the term of two of the others shall expire at the close of the day next preceding the second Monday in January, nineteen hundred and eleven, and the term of the other Justice shall expire at the close of the day next preceding the second Monday in January, nineteen hundred and thirteen. The Supreme Court shall, by order duly entered in its minutes, provide the means of determining by lot the expira- tion of the terms of each of the Justices as hereinbefore provided, and shall determine in accordance therewith, and enter in the minutes of the court its order showing the expiration of the term of each of such Justices. After the first election, Justices >f the Su- preme Court shall be elected at the general biennial election next preceding the beginning of their respective terms." 80 123. Clerk "There shall be elected by the qualified electors of the state at each election for Governor, a clerk of the Supreme Court, who shall be at least twenty-five years of age and a qualified elector of the state, and whose term shall be the same as that of the Govern- 79 Const. Okl. art. 7, 5. As to divisions, opinions, jurisdiction, referees, and law clerks of the Su- preme Court, see Sess. Laws 1919, p. 181, 1-4. 80 Const. Okl. art. 7, 6. (66) Art 1) COURTS AND JUDGES 124-127 or, and he shall give bond for faithful performance of his duty as may be prescribed by law." 81 124. Law governing "The appellate and the original jurisdiction of the Supreme Court shall be invoked in the manner now prescribed by the laws of the territory of Oklahoma until the Legislature shall otherwise pro- vide." 82 125. Salaries of Justices "The salary of each Justice of the Supreme Court and each Judge of the Criminal Court of Appeals shall be six thousand dol- lars ($6,000.00) per annum, payable monthly, as provided by law." 83 i 126. Effect of invalidity Provision is made by statute that if the preceding clause fixing the, salaries of Justices "shall be held by the Supreme Court of this State to be invalid as to Justices of the Supreme Court and Judges of the Criminal Court of Appeals now in office or any of them, such decision shall not affect the validity of said section one of this act as to Justices of the Supreme Court and Judges of the Crimi- nal Court of Appeals hereafter elected or appointed; and it is here- by declared the intention of the Legislature that the salary of each Justice of the Supreme Court and each Judge of the Criminal Court of Appeals hereafter to be elected or appointed shall be six thou- sand dollars ($6,000.00) per annum, payable monthly as provided by law, whether this act as to the Justices of the Supreme Court and Judges of the Criminal Court of Appeals now in office or any of them shall be held invalid or otherwise." 8 * 127. Jurisdiction Divisions "The Supreme Court may by rules provide for two divisions of said court, each division to be constituted of any four Justices sit- ting with the Chief Justice, Vice Chief Justice, or any Justice desig- nated by the Chief Justice or the Vice Chief Justice. Each of the divisions may sit, hear, consider, and determine causes and all questions which may arise therein, subject to the provisions herein contained as to hearings before the whole court. A concurrence of 81 Const. Okl. art. 7, 7. 83 Sess. Laws 1919, c. 204. 1. 82 Const. Okl. art. 7, S. 8 * Sess. Laws 1919, c. 204, 2. (67) 127-129 COURTS AND COURT OFFICERS (Ch. 1 a majority of the Justices of the whole court in the determina- tion of any cause shall be necessary, and in case of a dissent in a division in the termination of any cause such cause shall thereup- on be determined by the whole court. Causes involving the con- stitutionality of a statute shall be assigned for oral argument or submission before the whole court, and no former adjudication of the court shall be overruled or materially modified except upon con- ference of the whole court. Nothing in this section shall be con- strued as limiting the authority of the "court to submit other causes to the whole court : Provided, that when any rule of the Supreme Court is in conflict with any law of this state, said rule shall have no effect." 8B A statute has just been enacted conferring upon the Supreme Court an original jurisdiction in suits to enjoin the collection of illegal taxes for any state purpose and prescribing the procedure therein. 88 128. Appeals from county court "Appeals and proceedings in error shall be taken from the judg- ments of county courts direct to the Supreme Court * * * in all cases appealed from justices of the peace, * * * and in all civil cases originally brought in the county court, in the same man- ner and by like proceedings as appeals are taken to the Supreme Court from judgments of the district court." 87 129. Appeals from Corporation Commission Appellate jurisdiction is conferred upon the Supreme Court in this state to review the action of the Corporation Commission in making any order, or orders, in cases arising under the laws relating to the production and sale of crude oil or petroleum. "Such ap- peal may be taken by any person, firm or corporation, shown by the record to be interested therein, in the same manner and time as appeals are allowed by law from other orders of the Corporation Commission. Said orders so appealed from shall not be supersed- ed by the mere fact of such appeal being taken, but shall be and re- 85 Sess. Laws 1919, c. 127, 1. As to divisions, opinions, jurisdiction, referees, and law clerks of the Su- preme Court, see Sess. Laws 1919, p. 181, 1-4. 86 Sess. Laws 1921, c. 31 (S. B. No. 134) 1-9. 87 Rev. Laws 1910, 1819. (68) Art. 1) COURTS AND JUDGES 129-130 main in full force and effect until legally suspended or set aside by the Supreme Court." 88 Appellate jurisdiction is conferred upon the Supreme Court of this state to review the order of said commission made un- der the laws relative to production and transportation of natural gas. "Such appeal may be taken by any person, firm or corpora- tion shown by the record to be interested therein, in the same man- ner and time as appeals are allowed by law from other orders of the Corporation Commission. Said orders so appealed from, may be superseded by the commission or by the Supreme Court upon such terms and conditions as may be just and equitable." 89 130. Appeals from State Labor Commission In all cases before the State Labor Commission arising under the Workmen's Compensation Law, "the award or decision of the commission shall be final and conclusive upon all questions within its jurisdiction between the parties, unless within thirty days aft- er a copy of such award or decision has been sent by said com- mission to the parties affected, an action is commenced in the Supreme Court of the state to review such award or decision. Said Supreme Court shall have original jurisdiction of such action, and is authorized to prescribe rules for the commencement and trial of the same. Such action shall be commenced by filing with the clerk of the Supreme Court a certified copy of the award or de- cision of the commission attached to the petition by the com- plainant wherein the complainant or petitioner shall make his as- signments or specifications as to wherein, said award or decision is erroneous and x illegal. Said proceeding shall be heard in a sum- mary manner and have precedence over all other civil cases in such court, except preferred Corporation Commission appeals. The commission shall be deemed a party to such proceeding and the Attorney General, without extra compensation, shall represent the commission therein. Such action shall be subject to the law and practice applicable to other civil actions cognizable in said court. Upon the final determination of said action in which the award or 88 Sess. Laws 1915, p. 38, 7. An appeal may be taken to the Supreme Court from a ruling of the State Corporation Commission. St. Louis-San Francisco Ry. Co. v. Teel (Okl.) 198 P. 78. 89 Sess. Laws 1915, p. 401, 7. (69) P 131-133 COURTS AND COURT OFFICERS (Ch. 1 decision of the commission is sought to be reviewed, the commis- sion shall make an order or decision in accordance with the judg- ment of said court. The commission shall not be liable for any costs apart from said proceeding, but otherwise the costs shall be taxed as in other cases." 90 131. Formation of new counties Exclusive original jurisdiction is conferred upon the Supreme Court of Oklahoma over all controversies that may arise under the provisions of law for the formation of new counties and selec- tion of county seats, "and any person affected by such election shall have a right to a hearing before the Supreme Court upon application filed and presented within thirty days after any such election shall be held." 9] 132. Speedy hearing "If any application for a hearing, upon any question arising after such election has been held, is filed with the Supreme Court, it shall be the duty of said court to make said matter special and give it precedence over the other business of said court, and consider and pass upon the same as speedily as is consistent with the business of said court." 92 133. Original jurisdiction Division of assets and liabilities among counties Original and exclusive jurisdiction is conferred by law upon the Supreme Court in all actions brought for the purpose of equitably dividing and distributing the property, assets and liabilities, de- rived through the process of taxation, bonds, warrants or other evi- dences of indebtedness, of any county formerly existing in the territory of Oklahoma, between such county and any. new county or counties, and in all actions involving the custody of, or right to transcribe the tax rolls or other records of any such county, and the ownership and distribution of taxes assessed and collectable there- in, and providing for the appointment of a special master in chan- cery in such cases. 83 80 Sess. Laws 1915, p. 586, art. 2, 13. 91 Sess. Laws 1910-11, p. 81, 13; Rev. Laws 1910, 1533. 92 Sess. Laws 1910-11, p. 81, 14; Rev. Laws 1910, 1534. 93 Sess. Laws 1917, p. 226, g 1, amending Rev. Laws 1910, 1512. (70) Art. 1) COURTS AND JUDGES 134-136 134. Parties Proceedings Any additional necessary party may be brought in on proper ap- plication and showing after expiration of the thirty days. The pro- ceeding under this statute is a summary proceeding to contest county seat elections, exclusive jurisdiction being conferred upon the Supreme Court, and any city, town, or place, being a candidate for county seat at an election, has a right of hearing before the Supreme Court on application filed within thirty days after the election is held. The requirement that the petition be filed within thirty days is jurisdictional. There is no requirement of the statute that the county be a party to the proceeding. 94 135. Constitution Section 6 of article 17 of the Constitution of Oklahoma provid- ing for the relocation or removal of county seats of the different counties of the state, is self-executing, and it was not necessary to enact statutes in order that same might be enforced. The statute provides additional precautions and supplements the procedure. 95 136. Jurisdiction Removal of state capital and normal schools "Exclusive original jurisdiction is hereby conferred upon the Supreme Court of the state of Oklahoma, to hear and determine any action that may be brought involving the legality of the removal or location, or any attempt to remove or locate, the state capital or any normal school or other educational or charitable institution of the state, and in any such action the Supreme Court shall have the same power and jurisdiction, including the power to appoint a referee, which it now has under "the laws of this state in contests over the location of county seats, and all such actions shall be governed by the same procedure which now prevails in county seat contests : Provided, that any resident taxpayer of this state, shall have a right to a hearing before the Suprerne Court upon the execution of a good and sufficient bond for cost, to be approved by the clerk of the court. And, provided further that any and all actions brought under the provisions of this act shall be commenced within ten days after the passage of any act for the removal or location of the state 94 Incorporated Town of Westville v. Incorporated Town of Stillwell, 24 Okl. 892, 105 P. 664. 95 Incorporated Town of Westville v. Incorporated Town of Stillwell, 24 Okl. 892, 105 P. 664. (71) 137-140 COURTS AND COURT OFFICERS (Ch. 1 capital or any normal school or other educational or charitable in- stitution of the state." 9, in the sum of (2) dollars, for the payment of which we hereby bind ourselves, our heirs, executors and administrators, jointly and severally, by these presents. Whereas, the above bounden was duly (3) to the office of : of the county of , in the state of Oklaho- ma, on the day of , 19 : Now, therefore, the condition of this obligation is such, that if the said shall (4) , then this obligation shall be void ; otherwise, to remain in full force and effect. In testimony whereof, witness our hands, this day of , 19-. (Qualification of sureties.) (1) At least three sureties required. (2) Fill in statutory amount required for the office specified. (3) Elected or appointed. (4) Specify the bounden obligation. 148. Powers and duties Contestants "The clerk of each of the courts shall exercise the powers and perform the duties conferred and imposed upon him by the stat- utes of this state, and by the common law. In the performance of his duties, he shall be under the direction of his court." 15 "Justices of the peace and other judicial tribunals having no clerk, and the clerks of every court of record, shall, upon request, and bein'g paid the lawful fees therefor, furnish an authenticated transcript of the proceedings containing the judgment or final or- der in said court, or of a case-made, to either of the parties to the same, or to any person interested in procuring such transcript." 16 The clerk's duty in respect to recording proceedings, orders, judg- ments, and decrees is ministerial, and he acts under the exclusive jurisdiction and direction of his court. 17 He is the officer of the court, and in order to properly perform the duties devolving on him 15 Rev. Laws 1910, 5335. 16 Rev. Laws 1910, 5250. 17 Hirsh v. Twyford, 139 P. 313, 40 Okl. 220. (77) 148-149 COURTS AND COURT OFFICERS (Ch. 1 by law it is the duty of the judge of the court to recognize him as such. 18 An order of a district court, directing the clerk to pay certain money to a person named is a final order, and erroneous, where the record shows that the fund never came into the hands of the clerk, but into those of her predecessor, and was paid out by him under order of the court. 19 The judge should recognize as clerk the person holding the prima facie title to the office. 20 Where two persons claiming title to the office of clerk present their credentials to the judge of the district court, and each request the judge to recognize him as such clerk, it is the duty ol the judge to examine such credentials to determine which one of the claimants holds the prima facie title to the office, and such examina- tion does not constitute passing on the title to public office. 21 149. Liabilities A clerk receiving moneys by virtue of his office holds the same in trust. 22 His bond is liable for all moneys coming into his hands as such clerk under the law and by virtue of his office and unac- counted for by him. 23 Deposits made in court cases to secure costs which, as earned, belong to the county, are sums coming into the clerk's hands by vir- tue of his office, as are also sheriff's and stenographer's fees coming into the hands of a clerk of court and belonging to the county are received by virtue of his office, and hence his bond is liable for the failure to pay over same. 24 Under the statute authorising actions on official bonds, 25 the drawer of a certified check deposited in lieu of bail, can sue on the official bond of a district clerk who has cashed such check and em- 18 Matney v. King, 93 P. 737, 20 Okl. 22; Ramsey v. Same, 93 P. 754, 20 Okl. 67. 19 Sanderson v. Sanderson, 186 P. 791, 91 Kan. 98. 20 Sanderson v. Sanderson, 136 P. 791, 91 Kan. 98. 21 Sanderson v. Sanderson, 136 P. 791, 91 Kan. 98. 2 Fidelity & Deposit Co. of Maryland v. Rankin, 124 P. 71, 33 Okl. 7. 23 Hughes v. Board of Com'rs of Oklahoma County, 50 Okl. 410, 150 P. 1029; Southwestern Surety Ins. Co. v. Neal (Okl.) 197 P. 439. -* Hughes v. Board of Com'rs of Oklahoma County, 50 Okl. 410, 150 P. 1029. 25 Rev. Laws 1910, 5349. (78) Art. 2) OTHER COURT OFFICERS 149-152 bezzled the proceeds, though the clerk's bond was executed to the state of Oklahoma as obligee. 28 That the statute does not authorize the clerk to accept a certified check in lieu of a cash deposit men- tioned in an order admitting to bail constitutes no defense in such action. 27 No action will lie against a clerk in charge of the records of mechanics' and other liens, for a false certificate furnished a pur- chaser that there were no liens against the property purchased, where the only lien is one for materials furnished the grantor, which was filed against the land after it had been conveyed to the pur- chaser with warranty, for he cannot be injured by such certificate. 28 150. Deputies A deputy clerk may perform the purely ministerial duties of the clerk in recording the list of jurors on the journal of the court and certifying to the correctness thereof. 29 151. Vacancies Where the clerk is suspended under the statute authorizing same, 30 the county commissioners may fill the temporary vacancy, and the appointee, after qualifying, may perform duties of office during suspension. 31 152. Fees and salaries The federal fee bill was not continued in force after statehood, and hence clerks of courts of the state were not entitled^to receive a fee of $5 per day for attending court. 32 The court clerk receives the same salary as did the district court clerk. 33 -' 6 Ahsmuhs v. Bowyer, 39 Okl. 376, 135 P. 413, 50 L. R. A. (N. S.) 1060. 27 Id. 28 United States Wind Engine & Pump Co. v. Linville, 23 P. 597, 43 Kan. 455. 29 Tegeler v. State, 9 Okl. Cr. 138, 130 P. 1164. 30 Rev. Laws 1910, 5605, 5606. 31 Smith v. State, 13 Okl. Cr. 619, 166 P. 463. 32 Hughes v. Board of Com'rs of Oklahoma County, 50 Okl. 410, 150 P. 1029; Board of Com'rs of Grant County v. Ernest, 45 Okl. 725, 147 P. 322; Hughes v. Board of Com'rs of Oklahoma County, 50 Okl. 410, 150 P. 1029. An allowance by the board of county commissioners of $5 per day to the 83 Board of Com'rs of Oklahoma County v. Beaty, 53 Okl. 393, 156 P. 1181 ; In re Laing, 143 P. 665, 43 Okl. 598. (79) 152-156 COURTS AND COURT OFFICERS (Ch. 1 The clerk cannot recover for making a transcript different from that ordered. 34 Where the county commissioners paid a district court clerk a per diem fee for attending sessions for which there was no statutory authority, such payments may be recovered from the clerk. 86 153. Books to be kept "The clerk of the district court shall keep an appearance docket, a trial docket, a journal, a judgment docket, an execution docket, and such other books as may be ordered by the court or required by law." 8 7 Ireland v. Linn County Bank, 103 Kan. 618, 176 P. 103, 2 A. L. R. 184. 88 Gardner v. Cooper, 60 P. 540, 9 Kan. App. 587, affirming judgment 58 P. 230, 9 Kan. App. 587. S9 Rev. Laws 1910, 234. Unqualified persons are prohibited from practicing law. Sess. Laws 1919, p. 248, 1-3. An attorney admitted to practice in the Indian Territory United States Court was eligible to admission to practice in the Oklahoma Supreme Court. Martindale v. Shaha, 51 Okl. 670, 151 P. 1019. (90) Art. 2) OTHER COURT OFFICERS - 175-177 fee that may be required by law for the issuance of the license, the sum of twelve dollars. All other applicants shall pay to the clerk of the Supreme Court at the time of filing their application in addition to the fee that is or may be required by law, for the issu- ance of license, the sum of five dollars." 175. Examination Commission "When a person applies to said court for admission to the bar, he shall be examined by the court, or by a commission appointed by the court, and under such rules and regulations as the court may provide, touching his fitness and qualifications ; and if, on such examination, the court is satisfied that he is of good moral character, and has a competent knowledge of the law, and suffi- cient general learning, an oath of office shall be administered to him, and an order shall be made on the journal that the applicant be admitted to practice as an attorney and counselor at law in all courts of record of this state: Provided, that said court may ap- point, to serve for one or more years, a commission composed of not less than five persons learned in the law to assist in such ex- amination. The clerk of the Supreme Court shall be ex officio sec- retary of any commission appointed by the Supreme Court to assist in the examination of applicants." 91 176. Qualifications "No person shall be admitted to such examination unless he is twenty-one years of age, and is a citizen of the United States, or has declared his intention of becoming a citizen thereof; nor until he has produced from some attorney at law a certificate setting forth that the applicant is of good moral character, and that he has regularly and attentively studied law during the period of two years previous to his application, and that he believes him to be a person of sufficient legal knowledge and ability to discharge the duties of an attorney and counselor at law." 92 177. Persons not permitted to practice "No person shall practice as an attorney and counselor at law in any court of this state who is not a citizen of the United States, or po Rev. Laws 1910, 235. 2 Rev. Laws 1910, 8 239. 91 Rev. Laws 1910, 237. (91) 178-179 COURTS AND COURT OFFICERS (Ch. 1 who holds a commission as judge of any court of record, or who is a sheriff, coroner, or deputy sheriff; nor shall the clerk of the Supreme Court, or the clerk of the district court, or probate court, or the deputy of either, practice in the particular court of which he is clerk or deputy clerk; but nothing herein contained shall prevent any judge of any of the courts of this state from finishing any busi- ness by him undertaken in the district, circuit or Supreme Court of the United States, prior to his election or appointment as judge ; and an alien who has declared his intention to become a citizen of the United States may practice as if he were a citizen." 93 178. Attorneys from other states How admitted "Any person residing in the state or coming into the state for the purpose of making it his permanent residence, upon producing satisfactory evidence that he has been regularly admitted as an at- torney and counselor at law in another state or territory, where an examination in the highest appellate court of the state is required, may be admitted to practice law in this state under such rules, regulations and conditions as the Supreme Court may make and publish, upon producing satisfactory evidence that he is a person of good moral character, and that he has never been disbarred." 94 V 179. Oath upon admission "Upon being permitted to practice as attorneys and counselors at law, they shall, in open court, take the following oath: 'You do solemnly swear that you will support, protect and defend the Constitution of the United States, and the Constitution of the state of Oklahoma ; that you will do no falsehood or consent that any be done in court, and if you know of any you will give knowl- edge thereof to the judges of the court, or some one of them, that it may be reformed ; you will not wittingly, willingly or knowingly promote, sue, or procure to be sued, any false or unlawful suit, or give aid or consent to the same; you will delay no man for lucre or malice, but will act in the office of attorney in this court accord- ing to your best learning and discretion, with all good fidelity as well to the court as to your client. So help you God.' " 96 93 Rev. Laws 1910, 240. Rev. Laws 1910, 242. 9 * Rev. Laws 1910, 241. (92) Art. 2) OTHER COURT OFFICERS 180-182 180. Foreign attorneys. "Any practicing attorney of another state or territory, having professional business in the courts of this state, may be admitted to practice therein upon taking the oath aforesaid." 9a 181. Duties "It is the duty of an attorney and counselor: "First. To maintain, while in the presence of the courts of justice, or in the presence of judicial officers engaged in the dis- charge of judicial duties, the respect due to the said courts and judicial officers, and at all times to obey all lawful orders and writs of the court. "Second. To counsel and maintain no actions, proceedings or defenses except those which appear to him legal and just, except the defense of a person charged with a public offense. "Third. To employ for the purpose of maintaining the causes confided to him such means only as are consistent with truth, and never to seek to mislead the judges by any artifice or false state- ments of facts or law. "Fourth. To maintain inviolate the confidence, and, at any peril to himself, to preserve the secrets of his client. "Fifth. To abstain from all offensive personalities, and to ad- vance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which he is charged. "Sixth. Not to encourage either the commencement or contin- uance of an action or proceeding from any motive of passion or interest. "Seventh. Never to reject for any consideration personal to him- self the cause of the defenseless or the oppressed." 9I 182. Power, duty, and liability The court should treat all persons having business therein with absolute fairness, and such persons, and especially attorneys, should treat the court in the same manner, and unfairness of attorneys, and any attempt to impose upon the confidence of the court, can- not be too strongly condemned. The proper administration of jus- 6 Rev. Laws 1910, 243. 87 Rev. Laws 1910, 244. (93) 182-183 COURTS AND COURT OFFICERS (Ch. 1 tice requires that attorneys- should be fair and honorable with op- posing counsel, the court, and their clients. 98 Attorneys are not liable, if their acts are in good faith and perti- nent to the matter in question." An attorney undertaking to conduct a case impliedly agrees to carry it to its termination, and cannot abandon it without cause or reasonable notice. 1 Ratification of the act of an attorney is equivalent to an original grant of authority. 2 183. Implied authority Tender Compromise Notice An attorney, employed to institute and prosecute a suit, has no implied authority to receive a tender, 3 or to make a compromise or settlement. 4 98 Caples v. State, 104 P. 493, 3 Okl. Cr. 72. 26 L. R. A. (N. S.) 1033. Attorneys must treat each other and the trial courts with fairness and good faith. Simmons v. State, 114 P. 752, 4 Okl. Cr. 490, denying rehearing 112 P. 35, 4 Okl. Cr. 489. While it is an attorney's duty to do everything that is fair and legal to protect the substantial rights of his client, it is also his duty to the court to try the case on its actual merits, and not to present questions, not jurisdic- tional, which are purely technical, and do not involve the actual merits. Os- tendorf v. State, 128 P. 143, 8 Okl. Cr. 360. Defendant, an attorney employed to protest confirmation of a guardian's sale of client's land, who, after his protest, failed, and on information to and approval by client raised the bid and purchased land and, after offering it to client for amount of bid, sold it at a small profit, held, on the evidence, to have acted in utmost good faith and fairness to client. Watts v. Jackson, 75 Okl. 123, 182 P. 508. 99 Waugh v. Dibbens, 61 Okl. 221, 160 P. 589, L. R. A. 1917B, 360. iMcLaughlin v. Nettleton, 47 Okl. 407, 148 P. 987. He is authorized by his employment to do in behalf of his client all acts necessary or incidental to prosecution and management of suit which affect the remedy as distin- guished from the cause of action. He has the right to waive a jury and consent to try his client's case on a date before the action regularly stands for trial. Neil v. Union Nat. Bank of Chandler (Okl.) 178 P. 659. On an issue as to the sufficiency of a notice to vacate certain railroad de- pot grounds, signed in the name of the railroad company . by F. and A., "its attorneys," the word "attorneys" should be construed to mean attorneys at law. Nolan v. St. Louis & S. F. R. Co., 91 P. 1128, 19 Okl. 51. A duly au- thorized attorney, after employment, may give any notice affecting the sub- stantial rights of his client that the client might himself have given, and those affected by the notice must take notice thereof. Id. 2 St. Louis & S. F. R. Co. v. Leger Mill Co., 53 Okl. 127, 155 P. 599. 3 Massachusetts Bonding & Ins. Co. v. Vance (Okl.) 180 P. 693. 4 Massachusetts Bonding & Ins. Co. v. Vance (Okl.) 180 P. 693; First (94) Art. 2) OTHER COURT OFFICERS 183~186 Where an attorney compromises a pending action and his au- thority to do so is put in issue, the burden is on the party assert- ing the compromise to .show authority therefor or ratification thereof. 5 But in an action to enforce a compromise and settlement of a damage case, it will not be presumed that the attorney mak- ing the settlement for defendant was without lawful authority, and slight evidence will be deemed sufficient to take the case to the jury on that question. 6 Prior to judgment, an attorney has no interest in the cause of action enabling him to prevent any bona fide settlement by the client. 7 184. May receive money for client "An attorney and counselor has power to receive money claim- ed by his client in an action or proceeding during the pendency thereof, or afterwards, unless he has been previously discharged by his client, and, upon payment thereof, and not otherwise, to dis- charge the claim or .acknowledge satisfaction of the judgment." 8 185. Proof of authority to appear "The court may, on motion of either party, and on the showing of reasonable grounds therefor, require the attorney for the adverse party, or for any one of the several adverse parties, to produce or prove by his oath, or otherwise, the authority under which he ap- pears, and, until he does so, may stay proceedings by him on behalf of the parties for whom he assumes to appear." ' 186. Purchasing property An attorney is not under an absolute disability to purchase his client's property; but where he does purchase, he assumes burden of proving his utmost good faith, his payment of an adequate con- sideration, and that he fully informed client of all material facts and State Bank of Indiahoma v. Carr (Okl.) 180 P. 856; Turner v. Fleming, 13O P. 551, 37 Okl. 75, 45 L. R. A. (N. S.) 265, Ann. Gas. 1915B, 831. 5 Scott v. Moore, 52 Okl. 200, 152 P. 823 ; Hamberger v. White, 54 Okl. 736, 154 P. 576. 6 St. Louis & S. F. R. Co. v. Leger Mill Co., 53 Okl. 127, 155 P. 599. 7 Wells Fargo & Co. v. Moore, 31 Okl. 135, 120 P. 612. 8 Rev. Laws 1910, 245. 9 Rev. Laws 1910, 246. (95) 186-187 COURTS AND COURT OFFICERS (Ch. 1 gave the same disinterested advice he would have given on a sale to a stranger. 10 Where an attorney buys land from a vendee at foreclosure sale, the fact that he had been an attorney for the mortgagor does not prevent the attorney from purchasing the land in his own right, in the absence of fraud, and where he had no duty to perform incon- sistent with the purchase. 11 Where the sale of a judgment to an attorney is beneficial to his client, and for an adequate price, and made pursuant to the desire of the client, the attorney is not, by reason of his relation to the judgment creditor, precluded from relief under the judgment. 12 187. Lien for services Extent Notice "From the commencement of an action, or from the filing of an answer containing a counterclaim, the attorney who represents the party in whose behalf such pleading is filed shall, to the extent here- inafter specified, have a lien upon his client's cause of action or counterclaim, and same shall attach to any -verdict, report, deci- sion, finding or judgment in his client's favor, and the proceeds thereof, wherever found, shall be subject to such lien, and no set- tlement between the parties without the approval of the attorney shall affect or destroy such lien, provided such attorney serves no- tice upon the defendant or defendants, or proposed defendant or defendants, in which he shall set forth the nature of the lien he claims and the extent thereof; and said lien shall take effect from and after the service of such notice, but such notice shall not be necessary provided such attorney has filed such pleading in a court of record, and indorsed thereon his name, together with the words 'Lien claimed.' " 18 An attorney has a lien only upon his client's affirmative cause of action which cannot be extended to services merely protecting an existing right or title in client's property. 1 * Where an attorney's contract to bring action for land in the ad- verse possession of another gives him a percentage of the land in 10 Watts v. Jackson, 75 Okl. 123, 182 P. 508. 11 Harrison v. Murphey, 39 Okl. 548, 49 L. R. A. (N. S.) 1059, 135 P. 1137, 12 Holmes v. Culver, 133 P. 164, 89 Kan. 698. 18 Rev. Laws 1910, 247. i* Elliott v. Orton (Okl.) 171 P. 1110, L. R. A. 1918E, 103. (96) Art. 2) OTHER COURT OFFICERS 188 event of recovery or compromise, such lien is prior to an oil and gas lease executed by the client pending suit; and, where on com- promise part of fend is conveyed to the attorney to satisfy lien, it is not subject to the lease. 15 188. Fees "It shall be lawful for an attorney to contract for a percentage or portion of the proceeds of 'a client's cause of action or claim not to exceed fifty per centum of the net amount of such judgment as may be recovered, or such compromise as may be made, whether the same arises ex contractu or ex delicto, and no compromise or set- tlement entered into by a client without such attorney's consent shall affect or abrogate the lien provided for in this chapter." 18 A contract for attorney's fees and note and mortgage therefor, after inception of litigation, will not be set aside, in absence of al- legation or proof of fraud, mistake, or imposition. 17 A valid covenant in an attorney's contract, for contingent fees, based on a legal consideration, is enforceable, though a separable covenant for the same consideration is void as against public pol- icy. 18 In an action to recover attorney's fees under contract making the amount contingent on success, counsel's skill, diligence, and legal knowledge should be measured largely by the result, and not by number or length of pleadings, number of appearances in court, or time consumed in oral argument. 19 A client, who has contracted to pay an attorney a percentage of proceeds of cause of action, can- not compromise his cause of action, so as to affect the attorney's fee or abrogate his lien. 20 Where a defense in an action was based on the alleged want of authority of plaintiff's attorney to give a certain notice, the burden was on defendant to prove such want of authority. 21 Where a 18 Gust v. Van Court (Okl.) 178 P. 683. 16 Rev. Laws 1910, c. 5, 248. 17 Spaulding v. Beidleman, 61 Okl. 183, 160 P. 1120. 18 Allen v. Shepherd (Okl.) 169 P. 1115; Culver v. Diamond (Okl.) 167 P. 223, 64 Okl. 271. 19 Cornelius v. Smith (Okl.) 175 P. 754, 9 A. L. R. 233. 20 Allen v. Shepherd (Okl.) 169 P. 1115; Herman Const. Co. v. Wood, 128 P. 309, 35 Okl. 103. 21 Nolan v. St. Louis & S- F. R. Co., 91 P. 1128, 19 Okl. 51. HON.PL.& PRAC. 7 (97) 189 COURTS AXD COURT OFFICERS (Ch. 1 client contracts to pay a contingent fee, and compromised with ad- verse party, without attorney's consent, the attorney might sue adverse party for the amount due under the contract. In such a case he must show client's meritorious cause of action, and what client would have been entitled to receive. 22 189. Enforcement Compromise without notice "Should the party to any action or proposed action, whose in- terest is adverse to the client contracting with an attorney settle or compromise the cause of action or claim wherein is involved any lien, as mentioned in the preceding section thereof, such adverse party shall thereupon become liable to such attorney for the fee due him or to become due him under his contract of employment. After judgment in any court of record, the attorney's lien, provided for herein may also be effective against the judgment debtor, by en- tering same in the judgment docket opposite the entry of the judg- ment, and such attorney may enforce any lien provided for by this act in any court of competent jurisdiction by action filed within one year after he becomes aware of such compromise, or judgment may be rendered on his motion in the case in the court in which the suit was brought." 23 Under a former statute it was held that, where an attorney files a lien claim and the case is compromised by his client without his con- sent, he may recover his fee from the party settling with his client if his client should have prevailed, but not otherwise. 24 In an ac- 22 Allen v. Shepherd (Okl.) 169 P. 1115. 23 Sess. Laws 1919; e. 22. 1, amending Rev. Laws 1910, 249. Where parties to a judgment in trial court settle their controversy after appeal to Supreme Court, the appeal will be dismissed, notwithstanding the attorneys for defendants have a contract for a contingent fee and the settle- ment was without their consent. Ingrain v. Johnson (Okl.) 176 P. 241. Where attorney was employed to bring suit, and it was compromised with- out notice to him, and he sues the adverse party for compensation for serv- ices, he need not show merits of his client's cause, but merely employment, a suit, compliance with statute, a compromise by adverse litigant without notice, and value of services. Oklahoma Coal Co. v. Hays (Okl.) 176 P. 931. In attorney's suit to recover a fee against an adverse litigant, the attorney's client, whose action has been compromised and settled, is not a necessary party. Id. Where the client with whom an attorney has contracted pursuant to Laws 1909, c. 4, compromises the case without the attorney's consent, the attorney * 4 Crump v. Guyer, 60 Okl. 222, 157 P. 321, 9 A. L. R. 331. (08) Art. 2) OTHER COURT OFFICERS 189-190 tion to recover an attorney fee from an adverse litigant, plaintiff must show that the litigation was compromised without notice or opportunity to him to be present and establish his client's rights. 25 Where an attorney under the terms of his general employment de- bars himself from employment by others whose interests are an- tagonistic to those of his client, such service is a proper item of charge in a suit for services rendered under the general employ- ment. 20 An attorney has a general possessory or retaining lien on proper- ty or money of his client in his hands for his fees, etc., which lien is not lost while the money is still under control of attorney's agent. 27 That an Indian Territory attorney eligible to admission to prac- tice in the Oklahoma Supreme Court had not been enrolled when he contracted with a client, did not preclude him from recovering from his associate counsel his share of a fee collected by such counsel. 28 190. Amount which may be recovered "Should the amount of the attorney's fees be agreed upon in the contract of employment, then such attorney's lien and cause of may recover as his fee from the adverse litigant the amount he would have received on final judgment for his client. Gulf, C. & S. F. Ry. Co. v. Wil- liams, 49 Okl. 126, 152 P. 395. In an attorney's action to recover a percentage fee from the adverse litigant with whom his client has compromised, the attorney may establish the merits of the client's cause of action. Id. Where the plaintiff attorney had contracted with his client for 50 per cent, of the amount recovered, the measure of his recovery from the adverse litigant was 50 per cent, of what would have been recovered by suit, with interest, and not merely that which would constitute "a reasonable attorney's fee." Id. 25 Whitehead v. Spriggs, 58 Okl. 42, 158 P. 439. Where a contract for contingent fee has been made and a compromise had between the client and the adverse litigant, without consent of the attorney, the latter may sue the adverse litigant for the amount due him under his con- tract, and show the amount his client would have been entitled to if the suit had been prosecuted to judgment. Herman Const. Co. v. Wood, 128 P. 309, 35 Okl. 103. 26 Mellon v. Fulton, 98 P. 911, 22 Okl. 636, 19 L. R. A. (N. S-) 960. In an action by an attorney to recover against defendant for collusive set- tlement with a client of plaintiff to defraud him of his fees, evidence held insufficient to establish the charge of fraud with the certainty required. Wells Fargo & Co. v. Moore, 31 Okl. 135, 120 P. 612. 27 American Nat. Bank' of Stigler v. Funk (Okl.) 172 P. 1078, L. R. A. 1918F, 1137. 28 Martindale v. Shaha, 51 Okl. 670, 151 P. 1019. (99) 190-191 COURTS AND COURT OFFICERS (Ch. 1 action against such adverse party shall be for the amount or por- tion of the property so agreed upon. If the fee be not fixed by contract the lien and cause of action, as aforesaid, shall be for a rea- sonable amount for not only the services actually rendered by such attorney, but for a sum, which it might be reasonably sup- posed, would have been earned by him, had he been permitted to complete his contract, and been successful in the action, and such attorney in order to recover need not establish that his client, if the case had gone to trial, would have been successful in the action, but the fact of settlement shall be sufficient without other proof to establish that the party making the settlement was liable in the action. Should the contract be for a contingent fee and specify the amount for which action is to be filed, then the lien and cause of action, as aforesaid shall be for the amount contracted for if fixed at a definite sum of money or for the percentage of the amount or property sued for as mentioned in said contract where the fee is fixed on a percentage basis, not exceeding thirty-three and one-third per cent, of the amount sued on where the settlement is before a verdict or judgment and if made after verdict or judg- ment then the full contract price." 29 A sum certain provided for in a mortgage as an attorney's fee will be deemed reasonable, unless extravagantly large or extor- tionate. 30 Where an attorney's services are performed under entire con- tract which has not been completely performed, he may sue upon a quantum meruit and recover the reasonable value of the services rendered, subject to set-off for breach of contract. 31 191. May not become surety in action in which employed "Licensed attorneys of this state are prohibited from signing any bonds as surety in any civil or criminal action in which they may be employed as counselors, pending or about to be com- menced in any of the courts of this state, or before any justice of 29 Sess. Laws 1919, c. 22, 2. 80 A provision for a fee of $300 on foreclosure of a mortgage for $3,000 held not excessive as a matter of law. Gourley v. Williams, 46 Okl. 629, 149 P. 229. si Hamilton v. Blakeney (Okl.) 165 P. 141. (100) Art. 2) OTHER COURT OFFICERS 192-193 the peace. All such bonds shall be absolutely void, and no penalty can be recovered of the attorney signing the same." 32 192. Lien Release by giving bond "Any person interested may release said lien by executing a bond in the sum double the amount claimed, or in such sum as may be fixed by a judge of the court in which the action or judgment is or has been pending, payable to the attorney, with security to be ap- proved by the clerk of the court, conditioned to pay the amount finally due the attorney for his services, which amount may be ascertained by suit on the bond." 33 193. Suspension of license Disbarment "The Supreme Court may revoke or suspend the license of an attorney or counselor at law, but not until a copy of the charges against him shall have been delivered to him by the clerk of the court in which the proceedings shall have been commenced and an opportunity shall have been given him to be heard in his de- fense." 3 * A lawyer must conduct himself with fidelity and stern integrity, and there is no place at the bar for the unscrupulous. Disbarment, meaning professional excommunication and death, should be re- sorted to only when it is apparent that the interest of the commu- nity, the integrity of courts, or the honor of the profession imper- atively demand it. 35 A disbarment proceeding is a civil proceeding. 36 It is an "ac- tion," as that word is employed in its broadest sense of including all of the various proceedings ordinarily allowed in courts of jus- tice. 37 Disbarment is not a criminal or punitive proceeding, but the direct question therein is whether the respondent's character and 32 Rev. Laws 1910, 256. An appeal bond signed by a licensed attorney employed in the trial is void. Schaffer v. Troutwein, 129 P. 696, 36 Okl. 653. 33 Rev. Laws 1910, 250. s* Rev. Laws 1910, 251. 35 In re Sitton (Okl.) 177 P. 555. 38 In re Biggers, 104 P. 1083, 24 Okl. 842, 25 L. R. A. (N. S-) 622; Disbar- ment of Connell, 79-Okl. 212, 192 P. 564. 37 In re Wilcox, 135 P. 995, 90 Kan. 646. (101) 194 COURTS AXD COURT OFFICERS (Cll. 1 conduct are such that the Supreme Court should protect the public and courts of justice against him. 33 194. Causes "The following are sufficient causes for suspension or revoca- tion: "First. When he has been convicted of a felony under the stat- utes of Oklahoma, or a misdemeanor involving moral turpitude, in either of which cases the record of conviction is conclusive evi- dence. "Second. When he is guilty of a willful disobedience or viola- tion of any order of the court requiring him to do or forbear any act connected with or in the line of his profession. "Third. For the willful violation of any of the duties of an attor- ney or counselor." 39 * 8 In re Sitton (Okl.) 177 P. 555. as Rev. Laws 1910, 252. An attorney's willful violation of any of his duties is sufficient ground for disbarment. In re Warren, 49 Okl. 87, 151 P. 619. A county 1 attorney accepting a bribe not to prosecute may be disbarred. In re Simpson, 79 Okl. 305, 192 P. 1097. Court may disbar for official mis- conduct. In re Simpson, 79 Okl. 305, 192 P. 1097. Attorney's conviction of felony is ground for revocation of his license to practice law in the state. In re Horine, 64 Okl. 315, 167 P. 1148. Attorney's conviction of misdemeanor involving moral turpitude under statutes of Okla- homa is ground for revocation of his license to practice law in state. In re Williams, 64 Okl. 316, 167 P. 1149. "Moral turpitude" is anything contrary to justice, honesty, modesty, or good morals. Id. The printing and publication of a pamphlet falsely and maliciously attack- ing the integrity of the courts and the judges thereof, designed to willfully, purposely, and maliciously misrepresent and bring them into disrepute, held ground for disbarment of an attorney. State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A. 1915D, 1218. In disbarment proceedings, respondent, who while a county attorney col- lected moneys on forfeited bonds, etc., and instead of turning it over, after deducting his commission, withheld it on a claim of county's indebtedness to him, exposed himself to charge of professional misconduct subject to repri- mand. In re Sittou (Okl.) 177 P. 555. An attorney who collected the money belonging to a client and failed to ac- count for it, giving no excuse, is guilty of a breach of duty warranting his disbarment. In re Warren, 49 Okl. 87, 151 P. 619. Upon referee's finding, supported by evidence, that attorney at law was con- victed of embezzlement, he will be disbarred. In re Horine, 64 Okl. 315, 167 P. 1148. Where evidence in record fully supported referee's findings of fact and conclusions of law that respondent had willfully violated his duties' as an (102) Art. 2) OTHER COURT OFFICERS 194 The Supreme Court is not limited in its disciplinary power over attorneys to the grounds and remedies indicated by statute, but the statutory provisions are merely cumulative. 40 While an attorney cannot be disbarred for filing a pleading, a pe- tition with pamphlet attached which falsely and maliciously at- tacks the courts and judges may be considered as evidence of the attorney's unfitness to practice law. 41 \ attorney and counselor at law, and was guilty of unethical and unprofession- al conduct, for which his license to practice law should be revoked, the re- port would be approved, and the license revoked. State v. Curd, 75 Okl. 15, 181 P. 484. Evidence in support of count of information or petition showing that re- spondent was attorney for a third party, and appeared in court as attorney for an Indian, and procured orders for benefit of third party, who had pur- chased from the Indian soon after he became of age all his claims against his former guardian at a price seeming to be inadequate, held not sufficient to disbar. In re Huddleston, 75 Okl. 48, 181 P. 711. A member of a firm of attorneys who received a claim for collection, and who, in the absence of his partner, collected it and deposited it to his 'own credit and checked it out for his personal use, would be suspended for six months. State v. Breslin (Okl.) 169 P. 897. A member of a firm of attor- neys receiving a claim for collection who was absent when his partner col- lected it and misappropriated the proceeds, and who upon knowledge thereof forwarded the amount in settlement of the claim, was not subject to disbar- ment or suspension. Id. Schedule to the Constitution, 33 (Buim's Ed. 482), providing that all attorneys licensed to practice in any court of Oklahoma Territory, or in the United States courts for Indian Territory, or in any court of the Five Civi- lized Tribes, shall be eligible to practice in any court of the state without examination, does not preclude an inquiry by the Supreme Court into any act or conduct of an attorney preceding the adoption of the Constitution and his disbarment therefor. In re Mosher- 102 P. 705, 24 Okl. 61, 24 L. R. A. (N. S.) 530, 20 Ann. Cas. 209. A complaint alleging that an attorney who had been disbarred in Indiana practiced a fraud upon the court by securing his admission to practice here on a certificate issued by an Indiana court, prior to judgment disbarring him, states facts sufficient to disbar an attorney. Dean v. Stone, 35 P. 578, 2 Okl. 13. One who sought admission to practice, and had himself enrolled without disclosing previous disbarment in another jurisdiction, was guilty of such a fraud on the court as required disbarment. In re Mosher, 102 P. 705, 24 Okl. 61, 24 L. R. A. (N. S.) 530, 20 Ann. Cas. 209. 40 State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A. 1915D, 1218; State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A. 1915D, 1218. 41 State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A. 1915D, ]218. 195-196 COURTS AND COURT OFFICERS (Ch. 1 195. Defenses Limitations ; An attorney is exonerated from charges of unprofessional con- duct, in applying for a continuance because of absence of material witnesses, who were actually present, where, though they were present, he did not know it and presented the application in good faith believing they were in fact absent. 42 In action by an administratrix of attorney to recover on his con- tract for services in advising client in securing location of a depot by order of the state corporation commission, the fact that plaintiff, to have the depot so located, had to pay part of purchase price of the lot was no defense. 43 In a proceeding for disbarment upon charges of the publication of a pamphlet disrespectful to the court, the statute of limitations is not available as a defense, especially where the pamphlet remains in circulation until a time within what would be the limitation pe- riod if the statute of limitations be construed to apply. 44 196. > Proceedings How commenced : "The proceedings to suspend or remove an attorney may be commenced by the direction of the court or on motion of any indi- vidual. In the former case, the court must direct some attorney to draw up the accusation ; in the latter case, the accusation must be drawn up and sworn to by the person making it." 45 The sufficiency of the verification of the charges in disbarment proceedings must be determined by an inspection of the verifi- cation, and the evidence of affiant cannot be received to show that he had no personal knowledge as to the charges. No verification of the charges is necessary in disbarment proceedings brought by the state bar commission by order of the Supreme Court. 46 A defendant in a disbarment proceeding is not entitled to the 20 days' time allowed to answer an ordinary summons, but may be cited to appear within aay time that gives him a reasonable oppor- tunity to be heard. 47 42 In re Champion, 103 P. 600, 24 Okl. 154. 43 Campbell v. House (Okl.) 176 P. 913. 44 State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A. 1915D, 1218. 45 Rev. Laws 1910, 253. 46 State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A. 1915D, 1218. 47 In re Brown, 39 P. 469, 2 Okl. 590. (104) Art. 2) OTHER COURT OFFICERS 197-198 197. Trial Judgment "To the accusation he may plead or demur, and the issues joined, thereon shall in all cases be tried by the court, all the evidence being reduced to writing, filed and preserved." 48 "If the accused plead guilty or fail to answer, the court shall pro- ceed to render such judgment as the case requires." * 9 In a disbarment proceeding the attorney is presumed to be inno- cent of the charges preferred, and to have performed his duty as an officer of the court iinaccordance with his oath. 50 The evidence in support of the charges must satisfy the court to a reasonable cer-. tainty that the charges are true. 51 A referee in a disbarment proceeding is an officer of the court, and the court has full authority to supervise and control his report by setting it aside, or confirming or modifying it as the facts and the law require. 52 ' 198. Attorney and client in general In construing a contract between a lawyer and one depending on him for advice, every presumption is rendered against the law- yer, 63 and he has the burden of showing fairness. 5 * If he receives ^s Rev. Laws 1910, 254. * 9 Rev. Laws 1910, 255. so in re McNabb, 76 Okl. 253, 185 P. 431. 51 Transcript of evidence in a disbarment proceeding based on charge that defendant employed) to represent a guardian in a proceeding to sell lands of his minor children and wards received and kept purchase price without an order of court and made a conveyance to minors of certain land owned by him in lieu of money received, made false statements in preparing guard- ian's report, kept other moneys belonging to petitioner, and had been convict- ed of a misdemeanor involving moral turpitude, etc-, examined, and held to support findings of referee which with his conclusions of law would be cpn- firmed and the proceeding dismissed. In re McNabb, 76 Okl. 253, 185 P. 431. Guilt must be shown by more than a preponderance of the evidence. In fe Simpson, 79 Okl. 305, 192 P. 1097. 52 The report of a referee appointed to take evidence and report his find- ings of fact and conclusions of law in a disbarment proceeding is not con- clusive as to either the findings or conclusions, but is accorded every reason- able presumption of correctness, and the burden is on party attacking it; but it is to be freely set aside by the court if found to be incorrect. In re McNabb, 76 Okl. 253, 185 P. 431. 53 Barker v. Wiseman, 51 Okl. 645, 151 P. 1047. 54 Board of Com'rs of Okfuskee County v. Hazlewood, 79 Okl. 185, 192 P. 217, 11 A. L. B. 709. (105) 198 COURTS AND COURT OFFICERS (Ch. 1 benefits under the contract, he is presumed to exert undue influ- ence. 55 An attorney's knowledge that the case in which he is employed has been set for trial, and that a judgment has been rendered there- in, is imputed to the client, in the absence of fraud. 56 Where the purchaser of land from purchasers at a guardian's sale intrusted approval of title to an attorney for loan companies, who performed such services without additional charge, the rela- tion of attorney and client existed between such attorney and the purchaser, and he was bound by such notice as was acquired by the attorney in passing upon the title. 57 An attorney is bound to act with entire good faith toward his client, and the latter is entitled to act on the attorney's informa- tion and advice as against information received from others. Where an attorney induced his client to assign her claim against the estate of her guardian to a business associate of the attorney for less than its value by false representations, that the client may have had information from other sources that her claim would be paid in full did not relieve the attorney from the consequences of his fraud, nor is the fact that in the client's original statement of the claim she asked that it be preferred notice to her that it would be paid in full, so as to relieve the attorney from the consequences of a letter fraudulently written thereafter to induce her to assign the claim for less than its value. 58 The rights and remedies of attorneys existing before the Re- vised Laws of 1910 became effective were not affected by its adop- tion. 59 55 Hunter v. Battiest, 79 Okl. 248, 192 P. 575. 5 Bigsby v. Eppstein, 39 Okl. 466, 135 P. 934. Where attorney acting for indorsee of note had actual knowledge of in- firmity, such knowledge will be imputed to indorsee. Lambert v. Smith, 53 Okl. 606, 157 P. 909. "Pyeatt v. Estus (Okl.) 179 P. 42, 4 A. L. R. 1570. 58 Mohr v. Sands, 44 Okl. 330, 133 P. 238. 59 Culver v. Diamond, 64 Okl. 271, 167 P. 223; Allen v. Shepherd (Okl.) 169 P. 1115. (106) Ch. 2) ARBITRATION, COMPROMISE, AND SETTLEMENT 199 1 CHAPTER II ARBITRATION, COMPROMISE, AND SETTLEMENT Sections 199-200. Article I. Arbitration. 201-202. Article II. Compromise and settlement. ARTICLE I ARBITRATION Sections 199. In general. 200. Forms. 199. In general '/Arbitration" is the submission of some disputed matter to se- lected persons and the substitution of their decision for a judgment of court. It is recognized at common law, which, in the absence of statute, controls. 1 The settlement of disputes by arbitration te favored by the courts. Submission to arbitration may be by parol, where an oral agreement with respect to the matter submitted would be enforceable. 2 An award, though made upon a mere common-law arbitration, is prima facie conclusive between the parties as to all matters sub- mitted to the arbitrators ; and such award is generally a bar to an action on the original claim, and this notwithstanding defend- ant has failed to comply with its requirements. Arbitrations ought to be encouraged, and an award of arbitrators, if unimpeached for fraud or mistake, should be sustained. 3 An x award has the same force as a judgment of a court of com- petent jurisdiction, and a controversy thus adjusted cannot be re- tried, unless the pleadings state facts sufficient to avoid the award.* 1 Deal v. Thompson, 51 Okl. 256, 151 P. 856. 2 Deal v. Thompson, 51 Okl. 256, 151 P. 856. Unless an agreement to sub- mit to arbitration otherwise provides, the award may be by parol. Id. s Groat v. Pracht, 3 P. 274, 31 Kan. 656. Controversies respecting any estate in lands may be made the subject of arbitration. Finley v. Funk, 12 P. 15, 35 Kan. 668. 4 Scrivner v. McClelland (Okl.) 168 P. 415. Where the plaintiff's claim is for money due for materials and labor, and the matters were submitted to arbitrators, who made an award that defend- (107) 199 ARBITRATION, COMPROMISE, AND SETTLEMENT (Ch. 2 Where the parties agree that no oaths shall be administered to arbitrators, and that the testimony of witnesses unsworn shall be received, neither of them can make the omission to administer oaths a ground of objection to the award. 5 Irregularities of arbitrators, to whom is submitted a contro- versy, and who act in good faith, which are not prejudicial to the complaining party, will not avoid an award. 6 An award of arbitrators will not be set aside because the arbi- trators have drawn incorrect conclusions from the facts before them. 7 But an award is not binding when it is the result of a misapprehension on their part of the language used in denning the matter submitted to their decision. 8 Where an agreement is made to submit a controversy to two ar- bitrators, they to select a third, to act if they cannot agree, an award made by "the third arbitrator and one of the others is bind- ing. 9 A party to an arbitration who, before an award, knew of the in- eompetency of one of the arbitrators, cannot set the award aside on that ground. 10 An arbitrator is the agent of both parties concerned, and, where he proceeds as if he was the special agent of one, his decision is not binding, however honest his motives. 11 ant give a check for a certain amount, surrender a certain note, and receipt two accounts, one against the plaintiff and one against his father-in-law, such award is a bar to an action on the original claim. Groat v. Pracht, 3 P. 274, 31 Kan. 656. While the statutes of Oklahoma do not provide for arbitration, an arbitra- tion may 1 be had under the common law. Burke Grain Co. v. Stinchcomb (Okl.) 173 P. 204. o Russell v. Seery, 35 P. 812, 52 Kan. 736. s Anderson v. Burchett, 29 P. 315, 48 Kan. 153. 7 Russell v. Seery, 35 P. 812, 52 Kan. 736. s Swisher v. Dunn, 131 P. 571, 89 Kan. 412, 45 L. R. A. (N. S.) 810, rehear- ing denied 132 P. 832, 89 Kan. 787, 45 L. R. A. (N. S.) 813. Fish v. Vermillion, 78 P. 811, 70 Kan. 348. 10 Anderson v. Burchett, 29 P. 315, 48 Kan. 153. 11 Lantry Contracting Co. v. Atchison, T. & S. F. Ry. Co., 172 P. 527, 102 Kan. 799. (108) Art. 1) ARBITRATION 200 200. Forms AGREEMENT TO SUBMIT TO ARBITRATION (Caption) Whereas, there are certain matters in dispute between A. B., C. D., and E. F. ; and whereas it is the desire to settle said differ- ences : Now, therefore, witnesseth : That we, A. B., C. D., and E. F. have agreed, and by these pres- ents do hereby agree, to arbitrate all matters of dispute between us, and for that purpose have selected W. X. and Y. Z. as arbitra- tors, and we hereby agree to abide by the decision of said arbi- trators ; And it is further agreed, that if said arbitrators cannot agree, they are to select a third person, whose decision shall be final in the premises, subject to all lawful and legal objections; And it is further agreed, that the award of such arbitrators be made a rule of the district court of county, Oklahoma ; said arbitration to be according to the laws of the state of Oklahoma, and to be held at , in county, Oklahoma, on the day of , 19 , or at such time and place as said ar- bitrators shall agree upon. Witness our hands, this day of , 19 . 12 (Signatures.) OATH OF ARBITRATORS (Caption) We, W. X. and Y. Z., do solemnly swear that we will, to the best of our ability, hear and determine all matters of dispute be- tween A. B., C. D., and E. F., and a true award make according to our best knowledge and ability. (Signatures.) Subscribed and sworn to before me this day of , 19. My commission expires . (Signature,) 12 Weir v. West, 27 Kan. 650. is Weir v. West, 27 Kan. 650. Notary Public. 13 (109) 200-201 ARBITRATION, COMPROMISE, AND SETTLEMENT (Ch. 2 AWARD OF ARBITRATORS (Caption) We, the undersigned, the duly appointed arbitrators of the mat- ter in controversy between A. B., C. D., and E. F., as appears more fully in the agreement hereto attached, having taken the oath also hereto attached, do hereby certify that we notified each of said parties in writing of bur first meeting, and that in pursu- ance to such notice we met at , in county, Oklahoma, on the day of , 19 (include and set out adjourn- ments, if any), and proceeded to hear the allegations, evidence, proofs, and arguments of the said parties, and, after due delibera- tion, do hereby find, adjudge, award, determine, and order as follows: (Set forth conclusion of arbitrators.) Witness our hands this day of , 19 . (Signatures.) ARTICLE II COMPROMISE AND SETTLEMENT Sections 201. In general. 202. Construction. 201. In general A "compromise" is an agreement between two or more persons, who, to avoid a lawsuit, amicably settle their difficulties on such terms as they may agree upon. 14 "Settlement" of a debt is the same as "payment." 15 The law encourages the compromise and settlement of contro- versies in order to discourage litigation. 16 A settlement agreement, impossible of performance, is not bind- ing. 17 Where the amount of the claim is in good faith disputed a com- n City of Anadarko v. Argo, 128 P. 500, 35 Okl. 115. is Roniger v. Mclntosh, 137 P. 792, 91 Kan. 368. 10 Pacific Mut. Life Ins. Co. of California v. Coley, 62 Okl. 161, 162 P. 713; St. Louis & S. F. R. Co. v. Chester, 138 P. 150, 41 Okl. 369. IT A stipulation for settlement conditioned on all parties in interest agree- ing to its terms within 60 days, held void, where it was not binding on minor defendants and was impossible of performance. Whiteley v. Watson, 145 P. 568, 93 Kan. 671. (110) Art. 2) COMPROMISE AND SETTLEMENT 201 promise agreement by parties is sufficient consideration to uphold settlement, and bars further recovery, 18 though the demand was unfounded, 10 or one of the parties made an error in calculation, 20 or the amount agreed to be paid may be much less than is actu- ally due, 21 and though the final issue be different from that an- ticipated and other than what the court would have decreed,- 2 providing the settlement is not procured by fraud, misrepresen- tation, 23 or duress. 24 is Jarecki Mfg. Co. v. Cimarron River Oil & Gas Co. (Okl.) 170 P. 252; Mar- sant v. Marsant, 57 P. 958, 60 Kan. 859 ; Finley v. Funk, 12 P. 15, 35 Kan. 668. Acceptance of part of claim against county, which commissioners in good faith claimed to have been barred by limitations, in consideration of release in full, held to prevent recovery of remainder. Nolan v. Board of County Com'rs of Ellis County (Kan.) 168 P. 326. Bona fide dispute between heir and school and church, whether the latter had acquired interest in property by will, constituted sufficient consideration for compromise in good faith. Shellberg v. McMahon, 157 P. 268, 98 Kan. 46. Agreement to give a credit upon note, made in good faith without mistake, undue influence, or fraud, based on settlement of a disputed claim, is valid and enforceable. Hollister v. Smith, 62 Okl. 191, 162 P. 706. A compromise of a disputed claim on sufficient consideration, with knowl- edge of the facts on which an alleged defense is based, is a surrender of such defense, when the adverse party has executed the terms of settlement on his part. Logsdon v. Hudson, 112 P. 118, 83 Kan. 500. Where defendant, in settlement of existing liability, contracted to pay plain- tiff $3,000 if well proposed to be drilled on land leased to defendant was a paying well, and sold the lease to a purchaser, who developed a paying well, defendant was liable to plaintiff for payment of $3,000. Gem Oil Co. v. Cal- lendar (Okl.) 173 P. 820. .Where two parties in the settlement of a controversy agree on the amount due, and the debtor executes a note therefor, the compromise is binding upon the parties. Kiler v. Wohletz, 101 P. 474, 79 Kan. 716, L. R. A. 1915B, 11. Where there has been a valid agreement to compromise, it is not admissible to go back of the settlement to determine who was right in the original con- tention. Id. i Lewis v. Gove County Telephone Co., 147 P. 1122, 95^ Kan. 136, Ann. Cas. 1916B, 1035. 20 Brooks v. Hall, 14 P. 236, 36 Kan. 697. 21 Minor v. Fike, 93 P. 264 ; 77 Kan. 806. Receipt of a sum less than that claimed will, where the claim is unliqui- dated or disputed, be treated as a satisfaction. Sherman v. Pacific Coast Pipe Co., 60 Okl. 103, 159 P. 333, L. R. A. 1917A, 716. 22 Sango v. Parks, 44 Okl. 223, 143 P. 1158. 23 The law favors compromise and settlement of disputes, and when par- ties without fraud enter into an agreement settling and adjusting a dispute, 24 See note 24 on following page. (Ill) 201-202 ARBITRATION, COMPROMISE, AND SETTLEMENT (Ch. 2 A defendant in an action without merit may compromise the litigation without making himself liable in any way to any third party. 25 202. Construction A settlement agreement will be given a reasonable construction to carry out the intentions of the parties, 26 and the usual rules of evidence apply. 21 neither is permitted afterward to deny it. Lewis v. Kimball, 173 P. 279, 103 Kan. 173. Agreement based on a good consideration, settling amount to which plaintiff was entitled for services in finding a purchaser for defendant's land, made without fraud or concealment, is binding, regardless of the merits of controversy. Id. If there is a bona fide controversy, and a compromise thereof, such settle- ment, in the absence of fraud or mistake, is binding upon the parties there- to, as an original contract. Schmidt v. Demple, 52 P. 906, 7 Kan. App. 811. A railroad employe who made a settlement under misrepresentations by the company's physicians as to the extent of his injuries held entitled to relief, whether they were innocently or intentionally false. Chicago, R. I. & P. Ry. Co. v. Roger's, 60 Okl. 249, 159 P. 1132. In an action to set aside a settlement as obtained by fraud, it was found by the referee that the settlement should be set aside and opened as to three particular! items, and that the rest should stand, and this finding was ap- proved by the court, and there was evidence tending to support it. Held, that the findings as to the three particular items, and as to the balance of the set- tlement, not being contradictory, the district court was authorized to correct the particular wrong and leave the settlement otherwise undisturbed. Reid v. Beyle, 18 P. 614, 39 Kan. 559. 2-t The fact that a creditor insisted that a larger amount was due than the creditor admitted, and that he threatened to enforce his claim by a civil ac- tion, does not constitute duress. Kiler v. Wohletz, 101 P. 474, 79 Kan. 716, L. R. A. 1915B, 11. The fact that a creditor insisted that a larger amount was due, and that he threatened a civil suit, does not constitute fraud. Id. 25 Avery v. Howell, 172 P. 995, 103 Kan. 31. 26 A written contract, settling all items of indebtedness existing between parties thereto on the day it is signed, includes existing debts, but not those thereafter arising. Ryan v. Myers, 101 Kan. 261, 167 P. 1043. An agreement between an officer and stockholder of a corporation and a pur- chaser of his stock that such officer is "to be given his salary including to day. If it is overdrawn he to pay back. On sale he is to have no claim on anything, credits, supplies or other assets of Co. & the differences are then considered adjusted," held, not an adjustment of the officer's salary, so as to 27 in an action on a note given in consideration of a contract of settlement between joint owners of property, evidence as to matters settled by the agree- ment held properly excluded. Harn v. Hare, 48 Okl. 3, 151 P. 615. (112) Art. 2) COMPROMISE AND SETTLEMENT 202 preclude him from claiming the full salary due him. Keating v. Mutual Laun- dry Co., 133 P. 152, 90 Kan. 24. Where the parties made a contract of settlement concerning their dispute about the title to certain land, and executed the same, and, to carry the same into effect, delivered their respective deeds for portions of the land, they were bound by such agreement of settlement, notwithstanding the deeds did not sufficiently describe the land to' convey the legal title. Anderson v. Canter, 63 P. 285, 10 Kan. App. 167. Plaintiff made a written offer to compromise his claim if paid within 10 days. Defendant's letter accepting the offer, and inclosing a check, did not reach plaintiff until twelve days thereafter. The plaintiff cashed the check, and retained the proceeds, but sent no receipt as requested, and later sued for a balance. Held, that, although time was of the essence of the proposi- tion made, the plaintiff, by retaining the part payment, produced the same effect as if defendant's letter had been an original offer of compromise which the plaintiff accepted, and which was fully complied with by the payment of the stipulated amount. Hutchinson & S. R. Co. v. Wallace, 52 P. 458, 7 Kan. App. 612. Defendant, in an action for damages for wrongfully withholding possession of land, conveyed his interest in the land to another, and entered into an agreement with plaintiffs pursuant to which he paid to them a sum of money in settlement of all claims for the detention of the land up to the time of the conveyance, and the suit was consequently dismissed. This agreement pro- vided that it should not cover any claim against defendant's grantee for tak- ing possession of the land, nor any right which plaintiff might have against such grantee. A contemporaneous agreement was entered into between plain- tiffs, defendant, and defendant's grantee, which provided for the substitution of the grantee in lieu of defendant in the action which was then pending against defendant and in all subsequent proceedings relating thereto. Held, that the compromise between defendant and plaintiffs did not operate as a satisfaction of plaintiffs' claim against defendant's grantee, nor preclude the maintenance of an action by plaintiffs against defendant's grantee for dam- ages for the wrongful withholding of the possession of the land from the date of the conveyance. Meriwether v. Howe, 82 P. 723, 72 Kan. 645. Where, on a creditors' bill being brought to assert title to land conveyed to the debtor's wife, a settlement is made, and the action is dismissed on the debtor giving his note, the land conveyed to the wife cannot be attached in a subsequent action on the note. Lanphear v. Ketcham, 37 P. 119, 53 Kan. 799. . HON.PL.& PBAC. 8 (113) 203 JURISDICTION (Ch. 3 JURISDICTION Sections 203-216. Article I. Nature, scope, elements, and exercise. 217-247. Article II. Original, concurrent, and appellate jurisdiction. ARTICLE I NATURE, SCOPE, ELEMENTS, AND EXERCISE Sections 203. Jurisdiction defined. 204. Basis and elements. 205. Original jurisdiction. 206. Scope, extent, and place of exercise. 207. Territorial extent. 208. Where parties reside or may be found. 209. Jurisdiction of subject-matter. 210. Trusts. 211. Consent and waiver. 212. Ancillary jurisdiction. 213. Rule of comity. 214. Shown by record. 215. Determination of jurisdiction. 216. Objections. 203. Jurisdiction defined Jurisdiction is the power to hear and determine the subject-mat- ter in controversy between parties to a suit, to adjudicate or ex- ercise any judicial power over them, and if the law confers pow- er to render a judgment or decree the court has jurisdiction. 1 It does not relate to rights of parties, but to the power of the court. - 1 Welch v. Focht (Okl.) 171 P. 730, L. R. A. 1918D, 1163 ; National Surety Co. v. S. H. Hanson Builders' Supply Co., 64 Okl. 59, 165 P. 1136; Antene v. Jensen, 47 Okl. 352, 148 P. 727; Model Clothing Co. v. First Nat. Bank of Gushing, 61 Okl. 88, 160 P. 450. It is the power of courts and judicial officers to take cognizance of and determine the subject-matter in controversy be- tween parties to a pending proceeding, and to exercise judicial power. Apache State Bank v. Voight, 61 Okl. 253, 161 P. 214. Jurisdiction is the authority by which courts and judicial officers take cog- nizance of and decide cases, so that, if a court has jurisdiction of the per- sons to the action, and the cause is the kind of a cause triable in such court, 2 Parmenter v. Ray, 58 Okl. 27, 158 P. 1183 ; Dickson v. Lowe (Okl.) 163 P. 523. (114) Art. 1) NATURE, SCOPE, ELEMENTS, AND EXERCISE 203~206 A court of competent jurisdiction is one having" power and au- thority of law at time of acting to do the particular act. 3 204. Basis and elements The jurisdiction of the several courts of this state and of the judges thereof is regulated by the Constitution and laws of the state. 4 The elements of jurisdiction are a court created by law, author- ity to hear and determine causes, the power to render judgment, authority over parties and the thing adjudicated, and authority to decide the question involved. 5 In the absence of seizure of property or debt of a nonresident defendant on which judgment is to operate, power to render judg- ment is lacking, and the fact that there is property within the ju- risdiction does not give the court jurisdiction. 6 205. Original jurisdiction The phrase "original jurisdiction" means the power to entertain cases in the first instance as distinguished from appellate juris- diction, and does not mean exclusive jurisdiction. A court of original jurisdiction is one in which an action has its origin. 7 206. Scope, extent, and place of exercise Where the court has jurisdiction over the persons to the action by legal service or voluntary appearance, and the cause is of a kind triable in such court, it has jurisdiction to render any right- ful judgment therein. 8 Courts possess inherent power to prevent any abuse of their process, 9 and to correct errors in their own proceedings. 10 The it has jurisdiction of the subject of the action, and has the power to render any rightful judgment therein. Parker v. Lynch, 56 P. 1082, 7 Okl. 631 ; Bock- finger v. Foster, 62 P. 799, 10 Okl. 488, judgment affirmed 23 S. Ct. 836, 190 U. S. 116, 47 L. Ed. 975. s Ex parte Adair, 115 P. 277, 5 Okl. Or. 374 ; Ex parte Justus, 104 P. 933. 3 Okl. Cr. Ill, 25 L. R. A. (N. S.) 483 ; In re Wilkins, 7 Okl. Cr. 422, 115 P. 1118. * In re Jewett, 77 P. 567, 69 Kan. 830. s Roth v. Union Nat. Bank of Bartlesville, 58 Okl. 604, 160 P. 505. e .Waldock v. Atkins, 60 Okl. 38, 158 P. 587. " Burks v. Walker, 109 P. 544, 25 Okl. 353. s Crutcher v. Block, 91 P. 895, 19 Okl. 246, 14 Ann. Gas. 1029. 9 Patterson v. Imperial Window Glass Co., 137 P. 955, 91 Kan. 201. 10 Todd v. Orr, 44 Okl. 459, 145 P. 393. (115) 206-208 JURISDICTION (Ch. 3 "district court" is a tribunal established to exercise definite ju- dicial powers at a designated time and place. The district judge constitutes the court only when performing the functions of the same at the time and place fixed by law, and the district judge, as contradistinguished from the court, cannot determine motions to vacate judgments or orders. 11 A judge cannot perform any judicial act while beyond the state. 12 207. Territorial extent The jurisdiction of the several district courts and of the judges thereof in civil matters is confined to their respective districts. 13 Not every action growing out of transactions concerning real property is local, and where the decree sought is to operate on the person, and not upon the real property, the location of the proper- ty indirectly affected is not material. 14 A surety on a guardian's bond executed in Arkansas may, on his removal to Oklahoma, be sued here for breach of the bond. 15 208. Where parties reside or may be found An action to set aside a conveyance for fraud may be brought in any jurisdiction where the guilty parties may be found, and the court will have authority, not only to declare the conveyance void, but to compel defendant to do the things necessary, according to the lex loci rei sitae, which they could voluntarily do, to give effect to the decree. 16 A city of another state which is operating a water plant in this state cannot be sued in this state for injuries sustained in that city through its negligence. 17 11 Eichoff v. Caldwell, 51 Okl. 217, 151 P. 860, L. R. A. 1917E, 359. izDunlap v. Humph, 43 Okl. 491, 143 P. 329. The parties to a proceeding in error cannot by agreement dispense with the necessity of the case-made being approved and signed by the judge while within the state. Dunlap v. Rumph, 143 P. 329, 43 Okl. 491. is In re Jewett, 77 P. 567, 69 Kan. 830. i* Continental Gin Co. v. Arnold (Okl.) 167 P. 613, L. R. A. 1918B, 511. Where a mere trespasser entered on land in Missouri, and removed sand therefrom to Kansas, where he converted it to his own use, the owner of the land could maintain an action 'in Kansas for the value of the sand, as such an action is transitory. McGonigle v. Atchison, 7 P. 550, 33 Kan. 726. is Hays v. King, 44 Okl. 180, 143 P. 1142. i Fuller v. Homer, 77 P. 88, 69 Kan. 467. IT Marshall v. Kansas City, 148 P. 637, 95 Kan. 548, L,. R. A. 1915F, 1025. (116) Art. 1) NATURE, SCOPE, ELEMENTS, AND EXERCISE 208-210 That defendants, with one exception, are nonresidents, and no personal judgment can be rendered against them, does not de- prive the court of jurisdiction, in an action to declare a deed a mortgage. 18 209. Jurisdiction, of subject-matter Jurisdiction of the subject-matter is the power to deal with the general subject involved in the action. 19 It is to be determined from the allegations of the petition, and, if the petition fails to disclose such facts as will authorize a court of equity to hear and determine the matter complained of, such court is without jurisdiction. 20 Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy is beyond the territorial jurisdiction of the court, and it has the power to compel defendant to do all things necessary, according to the lex loci rei sitse, which he could do voluntarily, to give full effect to the decree against him. 21 A district court having jurisdiction of the holder of a title to land has jurisdiction to render a judgment requiring him to make a conveyance of it and to enforce such decree by process against him, where the land is situated in another state. 22 210. Trusts The power to establish and enforce a constructive trust is a matter properly cognizable in a court of equity. 23 The rule which limits the jurisdiction of equity to cases where there is no ade- quate remedy at law does not apply. 24 Where court of general jurisdiction has secured jurisdiction of parties holding legal titles to land in another state, it may impress trust as to such land and order trustees to execute conveyance. 25 is Clark v. Shoesmith, 139 P. 426, 91 Kan. 797. 19 Glacken v. Andrew (Okl.) 169 P. 1096. 20 Myers v. Berry, 41 P. 580, 3 Okl. 612. 21 Gordon v. Munn, 106 P. 286, 81 Kan. 537, 25 L. R. A. (N. S.) 917. 22 People's State Bank v. T'Miller, 116 P. 884, 85 Kan. 272. asGoldrick v. Roxana Petroleum Co. (Okl.) 176 P. 932; McCoy v. McCoy, 121 P. 176, 30 Okl. 379, Ann. Cas. 1913C, 146. 24 Goldrick v. Roxana Petroleum Co. (Okl.) 176 P. 932. 25 Meador v. Manlove, 156 P. 731, 97 Kan. 706. When a district court has jurisdiction of the parties, it has jurisdiction to (117) 210-211 JURISDICTION (Ch. 3 The district court has jurisdiction of the subject-matter of an action to declare a resulting trust, where it has acquired jurisdic- tion of the parties thereto. 20 Equity will not permit a trust to fail for want of a trustee. 27 211. Consent and waiver Jurisdiction of the person may be conferred by consent, or the want thereof waived by voluntary appearance, 28 but parties cannot by consent or stipulation invest a court with jurisdiction not giv- en by law, and this rule applies to causes involving the necessary jurisdictional amount. 28 enforce trusts, although in so doing the title to land which does not lie with- in its territorial limits is incidentally affected. Manley v. Carter, 52 P. 915. 7 Kan. App. 86. 26 Boekfinger v. Foster, 62 P. 799, 10 Old. 488, judgment affirmed 23 S. Ct. 836, 190 U. S. 116, 47 L. Ed. 975. 27 Hill v. Hill, 49 Okl. 424, 152 P. 1122. as Hobbs v. German- American Doctors, 78 P. 356, 14 Okl. 236. Where the district court had original jurisdiction of the subject-matter, and the case comes into that court improperly by appeal, and both parties appear and go to trial without objection, the question of jurisdiction as to the manner of getting in court is waived. School Dist. No. 94, Grant Coun- ty, v. Gautier, 73 P. 954, 13 Okl. 194. Where a trustee under a chattel mortgage brings an action to enforce his trust, he thereby confers on the court in which the action is brought jurisdic- tion over him in regard to the settlement of a counterclaim interposed by de- fendant concerning the same transaction, though such jurisdiction does not otherwise exist, under Code Civ. Proc. 55, providing that actions, with cer- tain exceptions mentioned, must be brought in the county where the defend- ants or some of them reside or may be summoned. Wyman v. Herard, 59 P. 1009, 9 Okl. 35. Where receivers of a railroad contest matters at issue in proceedings to en- force a lien against railroad property, they cannot be heard for the first time after an adverse decision to complain that the court was without jurisdiction, even though they were appointed by another court. Trocon v. Scott City Northern R. Co., 139 P. 357, 91 Kan. 887. Where jurisdiction of the person is lost by irregularities, it may be restored by the appearance or waiver of the defendants or failure to duly object. Hobbs v. German-American Doctors, 78 P. 356, 14 Okl. 236. Where local and nonresident defendants were jointly sued and nonresident defendant appeared generally without raising question of jurisdiction, his de- murrer to evidence and his motion to dismiss for want of jurisdiction were properly overruled. Makemson v. Edwards, 101 Kan. 269, 166 P. 508. As to appearance, see post, 506-511. 29 Model Clothing Co. v. First Nat. Bank of Gushing, 61 Okl. 88, 160 P. 450. The question of jurisdiction of the subject matter cannot be waived by the parties, and the court should, on its own motion, though the question be not (118) Art. 1) NATURE, SCOPE, ELEMENTS, AND EXERCISE 211~213 Filing a Demurrer to a petition and moving to make it more definite is not a request for affirmative relief, such as will waive defendant's objection to jurisdiction over his person. Where de- fendant's objection to the court's jurisdiction of his person has been overruled, he may defend 'without waiving his objection ; but where he asks affirmative relief after his objection to jurisdic- tion over his person has been overruled, he waives such objection. 30 212. Ancillary jurisdiction A court having possession of property may determine all ques- tions relative to title, possession, and control of same. 31 213. Rule of comity Where actions are properly brought and are pending in differ- ent jurisdictions, the rule of comity does not influence the proceed- ings of the court to which jurisdiction first attaches. 32 The laws of another state will not be given force in this state as a matter of comity, where it would be, in effect, to overturn the policy of this state with respect to such cases, or be in violation of our express statute. 83 Comity does not require that the courts of Oklahoma uphold foreign contracts violative of the penal statutes or public policy of Oklahoma, regardless of the validity of such contracts in the state where they were made. 34 But t,he rule that a penal statute will not be enforced outside the territorial jurisdiction of the Leg- raised" by the parties, inquire into its jurisdiction. Apache State Bank v. Voight (Okl.) 161 P. 214. Where the statute confers on the road viewers and the board of county r-ommissioners power to determine whether or not a proposed public road is of public utility, the parties to proceedings for laying out a road cannot by agreement confer on the court the power to determine such question on ap- peal from an award of damages made by the commissioners after determining the question in the affirmative. Van Bentham v. Osage County Com'rs, 30 P. Ill, 49 Kan. 30. so Commonwealth Cotton Oil Co. v. Hudson, 62 Okl. 23, 161 P. 535. si Darrough v. First Nat. Bank of Claremore, 56 Okl. 647, 156 P. 191. The ancillary jurisdiction of a court to determine all questions as to rights in property of which it has taken possession, may be exercised by federal courts, though not authorized by statute. Id. 32 Missouri, K. & T. Ry. Co. v. Bradshaw, 132 P. 327, 37 Okl. 317. ss Mackey v. Pettijohn. 49 P. 636, 6 Kan. App. 57. a* Coffe & Carkeuer v. Wilhite, 56 Okl. 394, 156 P. 169. (119) 214 JURISDICTION (Ch. 3 islature enacting it applies only to statutes entirely penal, and not to those which are in part compensatory. 35 214. Shown by record The county court, while of limited jurisdiction, is a court of record, and not an inferior court in the sense that its judgment may be disregarded because jurisdictional facts do not appear on the face of .its proceedings. 36 The general rule that the silence of the record of an inferior tribunal on a jurisdictional point is fatal applies in cases of col- ss Great Western Machinery Co. v. Smith, 124 P. 414, 87 Kan. 331, 41 L. R. A. (N. S.) 379, Ann. Cas. 1913E, 243. Rev. St. Mo. 1909, 3151, making railroads responsible for loss by fire, be- ing compensatory and remedial, may be enforced in an action in Kansas. Hollinger v. Missouri, K. & T. Ry. Co., 146 P. 1034, 94 Kan. 316, Ann. Cas. 1916D, 802. A contract of purchase made in Missouri contrary to Rev. St. 1899, 8965, 8966 (Ann. St. 1906, pp. 4150, 4152), relating to pools, trusts, and monopolies, subject to be defeated when sought to be enforced in that state by section 8970 (page 4153), providing that such purchasers shall not be liable for the price, but may treat the violation of the statute as a defense, when sought to be enforced in Oklahoma, is subject to the same defense under the laws of com- ity between different states ; the provisions of section 8970 not being contrary to the public policy of the state. Wagner v. Minnie Harvester Co., 106 P. 969, 25 Okl. 558. A cause of action accrued in Kansas under Laws Kan. 1907, c. 281, 1, mak- ing every railroad liable for damages to any employ^ in consequence of negli- gence of its agents, or by any mismanagement of its engineers or other em- ployes. Const. Okl. art. 9, 36, concurs in holding that the act complained of under the Kansas statute gives a right of action. Held, that the Kansas stat- ute 4s not against the public policy of Oklahoma, and, although the right of action exists by statute, and not by the common law, it may be enforced in the courts of Oklahoma. Chicago, R. I. & P. Ry. Co. v. Mclntire, 119 P. 1008, 29 Okl. 797. A Nebraska statute, providing that an attorney who was guilty of fraud and deceit shall forfeit treble damages, imposes a penalty, and is not enforceable in Oklahoma. Mohr v. Sands, 44 Okl. 330, 133 P. 238. so Rogers v. Duncan, 57 Okl. 20, 156 P. 678. County courts are entitled to the sarae presumption of jurisdiction as dis- trict courts. Ex parte Brown, 105 P. 577, 3 Okl. Cr. 329. In proceedings properly before the probate court and within its jurisdiction, it is not necessary that its judgment should contain a recitation of the facts on which the jurisdiction of the court depends. Greer v. McNeal, 69 P. 891, 11 Okl. 519, judgment affirmed 69 P. 893, 11 Okl. 526; Cooper v. Newcomb (Okl.) 174 P. 1029 ; Holmes v. Holmes, 111 P. 220, 27 Okl. 140, 30 L. R. A. (N. K.) 920. (120) Art. 1) NATURE, SCOPE, ELEMENTS, AND EXERCISE 215-216 lateral attack to those jurisdictional facts only which the law di- rects the tribunal to enter on its record. 37 215. Determination of jurisdiction Courts have inherent power to inquire into their jurisdiction. 38 Where the jurisdiction of the court depends on a fact which it is required to ascertain and decide, its judgment determining that fact does exist is conclusive evidence of jurisdiction until set aside or reversed by direct proceedings. 39 While superior, courts will construe the proceedings of inferior tribunals with regard to mere irregularities with great liberality, so as to uphold such proceedings, yet they will also rule strictly with regard to matters of jurisdiction, for the purpose of keeping such inferipr tribunals strictly within the limits of their jurisdiction. 40 216. Objections When the court has no jurisdiction of the subject-matter, either party to the suit may avail himself of the objection at any stage, and the court on its own motion will refuse to proceed further, and dismiss the case when its attention is called to the fact. 41 37 Gehlenberg v. Hartley, 165 P. 286, 100 Kan. 487. Presumptions. An action was commenced in the district court to reform a real estate mortgage and to foreclose the same. Service of summons was obtained by publication. From the affidavit for service it appeared that de- fendant had removed from the county and resided in the region of the coun- try known as Pike's Peak, and that service of summons could not be made on defendant. The date of the filing of the affidavit was not shown. Held that, in the absence of any showing to the contrary, it would be presumed that the district court had jurisdiction to render a judgment reforming and foreclosing the mortgage. Carey v. Reeves, 5 P. 22, 32 Kan. 718. Where judgment is rendered by the district court under Laws 1877, c. 39, relating to the collection of delinquent taxes on land bid in by counties at tax sales, etc., and a sheriff's deed founded thereon, and an admission of the par- ties that the files of the court are lost and cannot be found, are in evidence, they are sufficient, aided by the presumption that jurisdiction was rightfully assumed, to show jurisdiction to render the judgment, if nothing to the con- trary is shown. English v. Woodman, 21 P. 283, 40 Kan. 752: Circuit courts in Ohio are presumed to be courts of general jurisdiction. Poll v. Hicks, 72 P. 847, 67 Kan. 191. ss Adair v. Montgomery (Okl.) 176 P. 911 ; Washburn v. Delaney, 30 Okl. 789, 120 P. 620. 39 In re Wallace, 89 P. 687, 75 Kan. 432. 40 State v. Horn, 9 P. 208, 34 Kan. 556. 41 Myers v. Berry, 41 P. 580, 3 Okl. 612. (121) 217 JURISDICTION (Ch. ARTICLE II ORIGINAL, CONCURRENT, AND APPELLATE JURISDICTION Sections 217. Concurrent jurisdiction. 218. Personal injuries. 219. Appeals From police judges and justices of the peace. 220. From town jiistice court. 221. From county commissioners. 222. How taken. 223. State and federal courts. 224. Transfer of causes. 225. Transfer to state courts. 226. County courts Jurisdiction Judge pro tempore. 227- Amount involved. 228. Probate jurisdiction Sessions. 229. Title involved. 230. Bastardy proceedings. 231. Appellate jurisdiction. 232. District courts. 233. Special cases. 234. Amount involved. 235. Appeals from county court. 236. Appeals in probate cases. 237. Indians and Indian lands. 238. Indian lands. 239. Misconduct in office. 240. Taxes and assessments. 241. Public lands. 242. Vested when Exemption from taxation. 243. Equity. 244. Foreclosure. 245. Superior courts. 246. Supreme Court. 247. Appeals from county court. 217. Concurrent jurisdiction Concurrent jurisdiction means the jurisdiction of several different tribunals, each authorized to deal with the same subject-matter. 4 - Where proceedings are commenced relative to the same subject-- matter in two courts having equal concurrent jurisdiction, the court which first issued its process will be deemed to have been the first to take jurisdiction of the subject-matter, and hence entitled to retain possession of the proceedings to the exclusion of the other 42 Oklahoma Fire Ins. Co. v. Phillip, 111 P. 334, 27 Okl. 234. (122) Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE 217-219 court, though the process of the latter was served before that of the former. 43 Between courts of equal authority, that one which first obtains jurisdiction will be permitted to pursue it to the end U> the exclu- sion of all others, and will not permit its jurisdiction to be subvert- ed by resort to some other tribunal. 44 The rule that possession of property of which one court has taken jurisdiction cannot be interfered with by a court of concurrent jurisdiction merely protects the immediate possession of the first court, and does not deprive another court of jurisdiction to deter- mine controversies over the same property. Thus a state court's jurisdiction to cancel a deed conveying a right of way to a rail- road company is not ousted by the pendency of a former suit in federal court to foreclose a mortgage given by the railroad company on its right of way. 45 218. Personal injuries "The right of action to recover damages for personal injuries not resulting in death arising and occurring in hazardous employments, * * * except the right of action reserved to the State Industrial Commission for the benefit of an injured employee, * * * is * * * abrogated, and all jurisdiction of the courts of this state over such causes, except as to the causes reserved to the State In- dustrial Commission for the benefit of injured employees, * * * is * * * abolished." 4G 219. Appeals From police judges and justices of the peace "In addition to the jurisdiction and powers conferred upon dis- 43 Chicago, K. & W. R. Co. v. Harris, 21 P. 1071, 42 Kan. 223. 44 Ewing v. Mallison, 70 P. 369, 65 Kan. 484, 93 Am. St. Rep. 299. As between courts of concurrent jurisdiction, that court first acquiring ju- risdiction may draw to itself all the pertinent issues between the parties, and enjoin other courts from interfering. Juhlin v. Hutchings, 135 P. 598, 90 Kan. 18, judgment affirmed on rehearing 136 P. 942, 90 Kan. 865. As a general rule, a court which first acquires the custody and control of property and assets by the appointment of a receiver will retain such con- trol until the end of the litigation, to the exclusion of interference by other courts of concurrent jurisdiction. Missouri Pac. Ry. Co. v. Love, 59 P. 1072. 61 Kan. 433 ; Martin v. Harnage, 110 P. 781, 26 Okl. 790, 38 L. R. A. (X. S.) 228 ; Lanyon v. Braden, 48 Okl. 689, 150 P. 677. 45 Brown v. Stuart, 133 P. 725, 90 Kan. 302. 4 11 St. Louis & S. F. B. Co. v. Yount, 30 Okl. 371, 120 P. 627. 12 Brawley v. Smith, 54 P. 804, 8 Kan. App. 411. is Mathews v. Sniggs, 75 Okl. 108, 182 P. 703. i* Phelps, Dodge & Palmer Co. v. Halsell, 65 P. 340, 11 Okl. i. (164) Art. 1) IN GENERAL 279-280 for the specific recovery of goods and chattels, or for damages or other redress for breach of contract or other injury of whatever description; the specific recovery of lands only excepted. "Mixed actions," included in common-law actions,, were such as appertain- ed in some degree to both real and personal actions, and therefore reducible to neither of them; being brought both for the specific recovery of lands, and for damages for injuries to such property. 15 Where a cause of action which does not exist at common law is created by the statute of another state or territory, such cause of action, when presented to the courts, will be held to consist, not merely of the right given, but also of all the conditions and limita- tions attached thereto by the statute of the place where it was created. 18 280. Tort and contract The statute does not abolish the distinction between an action for tort and an action on contract. 17 Whether an action is ex contractu or ex delicto is to be determined by the pleadings. 18 is Ma thews v. Sniggs, 75 Okl. 108, 182 P. 703. IB Swisher v. Atchison, T. & S. F. Ry. Co., 90 P. 812, 76 Kan. 97. IT Robinson v. Oklahoma Fire Ins. Co., 55 Okl. 52, 155 P. 202. is Union Pac. Ry. Co. v. Shook, 44 P. 685, 3 Kan. App. 710; Atchison, T. & S. F. R. Co. v. Long, 47 P. 993, 5 Kan. App. 644. Actions ex delicto. Petition claiming title to purchase money for land sold by plaintiff's agent and deposited in defendant's bank held to show that ac- tion was for relief on ground of fraud. Fix v. Rose, 64 Old. 113, 166 P. 145. A passenger's action for injuries from collision with a switch engine held an action sounding in tort. Martin v. Chicago, R. I. & P. Ry. Co., 46 Okl. 169, 148 P. 711. Where the effects of a passenger which are damaged by the negligence of the carrier are accepted and retained by the passenger, an action for the damages should be in tort, and not on account. Atchison, T. & S. F. R. Co. v. Wilkinson, 39 P. 1043, 55 Kan. 83. Action to recover a part of the consideration of a contract alleged to have been paid by reason of the fraudulent representations of defendants as to the amount due thereon is an action for relief on the ground of fraud, and not an action on the contract Ottawa Condensing Co. v. Dawkins, 120 P. 356, 86 Kan. 312. A petition alleging that defendant railroad company, by its agents and servants, after having sold plaintiff a ticket, refused to allow him to remain on the train without payment of additional fare, and wrongfully, forcibly, and unlawfully ejected him, to his damage in a certain sum, declares on .a cause of action ex delicto. Atchison, T. & S. F. R. Co. v. Long, 47 P. 993, 5 Kan. App. 644. Actions ex contractu. An action by a grand lodge against a bank to recov- (165) 280 REMEDIES AND RIGHTS (Ch. 5 Where the relation between the parties to an action has been established by contract, express or implied, if the law imposes cer- tain duties because of the existence of the relation, a violation of the contract obligations may be waived and an action in tort brought for any violation of such duties. 19 Where one person wrongs another for his own benefit, the la\V ( may imply a contract by the wrongdoer to pay to the party injured the full value of the benefits resulting. 20 A person injured from a neglected duty imposed by law, by rea- er the amount of an overdraft by a defaulting treasurer of the grand lodge is an action on implied contract and not in tort for relief on the ground of fraud. Washbou v. Linscott State Bank, 125 P. 17, 87 Kan. 698. A petition stating a contract of carriage and charging a violation of duty, in an action against a carrier, states a cause of action in tort rather than contract. Ft. Smith & W. R. Co. v. Ford, 126 P. 745, 34 Okl. 575, 41 L. R. A. (N. S.) 745. Where an action against a carrier for damages sounds in tort, the allegation of a contract of carriage is a mere inducement to show the right to sue as a passenger. Id. Where a passenger is entitled to damages for breach of the carrier's duty, the remedy is in tort. Id. In a suit against a common carrier for breach of duty in carrying passenger beyond his sta- tion, the action is one in tort, unless a special contract clearly appears. Id. It was agreed that an agent should receive a stated commission for the sale of machinery ; that commissions should be paid on cash payments only ; and that no commission was to be paid or retained on sales made to irre- sponsible parties, nor where the debts for which the machinery was sold were uncollectible. The agent under this contract sold machinery which was to be paid for at a future time, and represented that the notes taken were good, and would be paid at maturity. The principal, relying on these state- ments, paid the commission in full, and afterwards it was found that the purchasers who gave the notes were insolvent, and only a small part of the purchase price was paid. Held, that an action brought by the principal to recover the difference between the commission which was paid and the amount actually earned by the agent under the terms of the contract was an action arising on contract, and was not barred by the two-years statute of limitations. Frick & Co. v. Lamed, 32 P. 383, 50 Kan. 776. Where a mortgagee sends through a bank part of the money loaned to a contractor, to be paid by the receiving bank to a creditor having a claim against the property mortgaged, and the receiving bank applies it to a debt owing it by the contractor, an action for such misapplication is an action on an implied contract, and not in tort. Winfleld Nat. Bank v. Railroad Loan & Savings Ass'n, 81 P. 202, 71 Kan. 584. i Hobbs v. Smith, 115 P. 347, 27 Okl. 830, 34 L. R. A. (N. S.) 697. In action for alleged wrongful taking of valuable fossil from plaintiff's land and converting it, petition held to show waiver of tort and reliance on im- plied promise to pay value of property. Garrity v. State Board of Adminis- tration of Educational Institutions, 162 P. 1167, 99 Kan. 695. 20 Weems v. Melton, 47 Okl. "706, 150 P. 720. An owner whose property has been converted to the use of another may (166) Art. 1) IN GENERAL 280-281 son of a relation created by contract, may either sue on the con- tract or bring an action ex delicto. 21 In an action of tort by a passenger for a wrongful expulsion from a train before he reached the station for which he had pur- chased a ticket, he cannot recover as for a breach of contract to convey him to the station ; 22 but where he has complied with the rules of procedure as to the form of action and his pleading, he cannot be precluded from recovering for humiliation because of a doubt as to whether his suit was ex contractu or ex delicto. 23 281. Illegal transactions One cannot maintain an action based on his own turpitude, 24 or to aid in effecting a wrong or fraud upon the defendant. 25 As a general rule, an action which grows out of and is founded waive the tort, and bring his action on implied contract for the value of the property. Altman v. Phillips County Bank, 122 P. 874, 86 Kan. 930. Where a person takes and sells the property of another, the owner may elect to waive the tort and sue upon the implied contract for the value of the same ; and whether he has so elected, and the nature of the action, are to be determined by the court from the pleadings. Smith v. McCarthy, 18 P. 204, 39 Kan. 308. Where a bank clerk appropriates the money of a bank, it may waive the tort and sue on an implied contract that the clerk would be honest and faith- ful. Lipscomb v. Citizens' Bank of Galena, 71 P. 583, 66 Kan. 243. Where a commission merchant receives mortgaged cattle for sale without the knowledge or consent of the mortgagee and in violation of the terms of the mortgage, and pays the proceeds, less his commission, to the consignor, without notice of the mortgage, he does not derive such a benefit from the transaction as to authorize the mortgagee to waive the tort and recover on an implied contract. Greer v. Newland, 78 P. 835, 70 Kan. 315, 70 L. R. A. 554, 109 Am. St. Rep. 424, judgment, 77 P. 98, 70 Kan. 310, 70 L. R. A. 554, 109 Am. St. Rep. 424, reversed on rehearing. 21 Chicago, R. I. & P. Ry. Co. v. Harrington, 44 Okl. 41, 143 P. 325. 22 Noble v. Atchison, T. & S. F. R. Co., 46 P. 483, 4 Okl. 534. 23 St. Louis & S. F, R. Co. v. Yount, 30 Okl. 371, 120 P. 627. 2* A litigant cannot found his action on his own violation of the law. Friedman & Co. v. State, 131 P. 529, 37 Okl. 164. Where the owner of land deeded it to R. who did not record his deed, and afterwards the holder of a void tax deed quieted his title against a defendant of the same name as the grantee, and such title was purchased for $800 by defendant, who improved the land, and where by deceit C. then procured from the original owner a deed for $15, the maxim that "one cannot maintain 2s The bringing of an action to recover personalty, by one having no inter- est therein within Code Civ. Proc. 25 (Gen. St. 1909, 5618), or the excep- tions thereto, at the instance of an outsider to aid him in effecting the wrong, is a fraud on defendant. Burdett v. Surdez, 146 P. 1025, 94 Kan. 494. (167) 282-285 REMEDIES AND EIGHTS (Ch. 5 upon an illegal transaction, where the plaintiff and defendant are in equal guilt, cannot be maintained. 26 282. Injury without liability A railway company operating within the scope of its power has the right to the use of its property and the lawful enjoyment thereof ; and if, in the enjoyment of this right, a loss occurs to an- other, it is a wrong for which there is no liability. 27 283. Tenders "When a tender of money is alleged in any pleading, it shall not be necessary to deposit the money in court when the pleading is filed, but it shall be sufficient if the money is deposited in court at trial, or when ordered by the court." 28 284. Right of action Warrantee Costs and expenses "If a warrantor or other person bound by a warranty shall fail to appear and defend after due notice" as provided by law, "the warrantee may defend the action and recover in a separate suit all sums expended the same as he might do in the same suit." 29 285. Action on surveyor's bond "Any person who may think himself injured by the neglect or misconduct of any county surveyor, or any of his deputies, may institute suit on the bond executed by such county surveyor and his sureties, and in case the party for whose benefit such suit may be brought shall obtain a judgment for any damage or loss by him sustained, he may sue out an execution on such judgment as in an action based on his own turpitude" barred C. from recovering in an ac- tion to eject defendant. Chandler v. Austin, 132 P. 1004, 90 Kan. 62. A contention that a note against decedent should not be allowed against his estate because it had not been returned for taxation is not meritorious, since, in order to obtain judgment on the note, plaintiff did not have to claim under any unlawful act, nor was the court required to pass on any violation or attempt to -evade the law on plaintiffs part. Brewster v. Light, 65 P. 248, 63 Kan. 882. 26 Hinnen v. Newman, 12 P. 144, 35 Kan. 709. Whenever it appears during the trial that the cause of action on which plaintiff relies arose out of an unlawful conspiracy, the court should imme- diately refuse aid to either party. Patterson v. Imperial Window Glass Co., 137 P. 955, 91 Kan. 201. 27 st. Louis & S. F. R. Co. v. Burrous, 118 P. 143, 29 Okl. 378. 2 s Rev. Laws 1910, 4782. 2 Rev. Laws 1910, 1168. (168) Art. 1) IN GENERAL 286~289 other cases and the bond may be sued on in like manner by each and every person aggrieved." 80 286. Surety against principal "A surety may maintain an action against his principal, to com- pel him to discharge the debt or liability for which the surety is bound, after the same has become due. "A surety may maintain an action against his principal, to ob- tain indemnity against the debt or liability for which he is bound, before it is due, whenever any of the grounds exist, upon whicli, by the provisions of this Code, an order may be made for arrest and bail, or for an attachment. "In such action the surety may obtain any of the provisional remedies mentioned in articles 8, 9 and 10, upon the grounds and in the manner therein prescribed." 31 287. Money received Where one has money of another which he in good conscience has no right to retain, an action will lie to recover it. 82 288. Conditions precedent Warranty "In all cases where an action is brought against a grantee to recover real estate conveyed to him by warranty deed, he must notify the grantor or person bound by the warranty that such suit has been brought, at least twenty days before the day of trial, which notice shall be in writing and shall request such grantor or other person to defend against such action; and in case of fail- ure to give such notice there sjiall be no further liability upon such warranty, except when it is clearly shown that it was impossible to make service of such notice." 33 289. Death pending action "If an action is pending against the decedent at time of his death, the plaintiff must in like manner present his claim to the executor or administrator, for allowance or rejection, authenti- so Rev. Laws 1910, 1727. 31 Rev. Laws 1910, 5307, 5308, 5309. 32 Helm v. Mickleson (Okl.) 170 P. 704; Allsman v. Oklahoma City, 95 P, 468, 21 Okl. 142, 16 L. R. A. (N. S.) 511, 17 Ann. Gas. 184. as Rev. Laws 1910, | 1166. (169) 290-293 REMEDIES AND RIGHTS (Ch. 5 cated as required in other cases; and no recovery shall be had in the action unless proof be made of the presentation required." 3 * 290. Claim against estate "No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator." 35 A claim for a fund wrongfully misappropriated by a guardian need not be presented to the administrator of the guardian's sure- ty, before action therefor. 36 291. Usury Before any suit can be brought to recover usurious interest, the party bringing such suit must make written demand for return of such usury. 37 292. Claim against municipality That a claim against a city for unliquidated damages arising out of a tort is not itemized, verified, and filed does not prevent a suit being maintained thereon, but merely precludes the plaintiff from recovering costs. 38 Where a party having sustained a personal injury for which he claims that a city is liable, presents his bill therefor to the city council for allowance, which is by such council disallowed, he may thereafter sue for and recover all the damages sustained, though such damages exceeded the amount claimed in the bill. 39 293. Offer Demand Notice No failure to make an offer of performance can be insisted on as a bar to an action, where that offer would have been rejected. 40 An offer to restore or do equity is necessary only when the court s* Rev. Laws 1910, 6348. 35 Rev. Laws 1910, 6346. se Asher v. Stull, 61 Okl. 320, 161 P. 808 ; Donnell v. Dansby, 58 Okl. 165, 159 P. 317. 87 Rev. Laws 1910, 1005. s s Town of Sallisaw v. Hitter, 142 P. 391, 42 Okl. 626, Rev. Laws 1910, 603. 39 City of Oklahoma City v. Welsh, 41 P. 598, 3 Okl. 288. 40 St. Louis & S. F. R. Co. v. Richards, 102 P. 92, 23 Okl. 256, 23 L. R. A. (N. S.) 1032. (170) Art. 1) IN GENERAL 293 would otherwise be powerless to give defendant whatever relief he may be entitled to against plaintiff. 41 No demand is ordinarily necessary before commencing suit for *iA minor Creek on attaining her majority may sue to cancel a void deed executed during her minority, without offering to restore the consideration, where it never reached her hands, or was immediately paid over to one with whom she was illegally cohabiting, and was never returned to her. Blake- more v. Johnson, 103 P. 554, 24 Okl. 544. In a suit in equity by a minor Creek freedman to cancel a deed executed by her during minority, it is unnecessary to formally allege an offer to do equity by returning the consideration received by her during minority. Ste- vens v. Elliott, 30 Okl. 41, 118 P. 407. In a suit in equity to cancel a void deed, made by a minor Creek freedman during minority, the court has full power to impose as a condition to the can- cellation of such deed the return of the consideration received, or such part thereof as the minor may have in his or her possession upon attaining ma- jority, and an offer to do equity or return such consideration is an unnec- essary pleading. Stevens v. Elliott, 30 Okl. 41, 118 P. 407. In a minor Creek freedman allottee's action to set aside a void deed, plain- tiff need not plead formal tender to restore consideration. McKeever v. Carter, 53 Okl. 360, 157 P. 56. A return of the consideration held not a necessary prerequisite to the can- cellation of a deed executed to Indian lands in violation of section 16 of the Supplemental Creek Agreement of June 30, 1902. Oates v. Freeman, 57 Okl. 449, 157 P. 74. In action to set aside void conveyance of lands of Indian minor allottee, it is not necessary for plaintiff to plead formal tender and offer to return con- sideration as condition precedent to action. Bell v. Fitzpatrick, 53 Okl. 574, 157 P. 334. That minor Indian allottee in her own name brought suit to set aside void conveyance of allotted lands, executed after May 27, 1908, and permitted suit to be dismissed with prejudice, did not bar subsequent suit on attaining majority to cancel deed and have it removed as cloud on title. Id. Guardian of Indian minor allottee cannot, by commencing action and enter- ing into compromise and settlement, divest title of minor to lands or create estoppel against allottee thereafter asserting invalidity of conveyance. Id. Insured seeking to rescind contract substituting life insurance policies and accompanying loan agreement held not required to offer compensation for time he had protection of policy issued under contract induced by insurer's fraud. Myler v. Fidelity Mut. Life Ins. Co. of Philadelphia, 64 Okl. 293, 167 P. 601. In suit to declare deed a mortgage and to enforce lien, plaintiff's failure to tender reconveyance of land did not defeat relief, as court of equity, to do justice between the parties, might compel plaintiff to do equity before granting him any relief. Huff v. Lynde-Bowman-Darby Co. (Okl.) 175 P. 250. Where under invalid proceedings in probate court lands of minor citizen of Choctaw Nation were disposed of, held that minor was not bound to return consideration received in absence of showing that she had in her possession any of such consideration. Bridges v. Rea, 64 Okl. 115, 166 P. 416. Where minor citizen of Choctaw Nation sues to set aside void guardian- ship sale of his land and alleges that he has received no part of considera- (171) 294 REMEDIES AND RIGHTS (Ch. 5 conversion, 42 nor is it always necessary that notice be given to sureties on an employe's bond of the employe's default. 43 294. Taxes Where a tax levy is void, tender of a portion thereof is not a con- dition precedent to a taxpayer's right to enjoin the collection of same. 44 tion, he need not tender or pay back such consideration as a prerequisite to maintenance of suit. Winters v. Oklahoma Portland Cement Co. (Okl.) 164 P. 965. An action to recover entire purchase money when due held not maintain- able, unless plaintiff should offer to convey or tender a deed on full payment. Dubois v. Andrews, 57 Okl. 227, 152 P. 440. Where it appears from contract to sell land that it was intention of par- ties that payment of price should precede delivery of deed, or time for payment was fixed, and no time for conveyance, offer to convey is not re- quired before action for price. Sooter v. Janes, 57 Okl. 368, 157 P. 282. Where the vendor took notes for the deferred payments, and the purchaser took possession, and the contract provided that, on the purchaser's default the vendor should keep any payments as liquidated damages, the vendor was not compelled to resort to specific performance before enforcing the notes. Shelton v. Wallace, 137 P. 694, 41 Okl. 325. Tender of deed is not condition precedent to action to enforce vendor's lien. Ames v. Milam, 53 Okl. 739, 157 P. 941. Notice by vendor of intention to declare future payments due was not essential prerequisite to action to foreclose vendor's lien. Id. 42 In a mortgagee's action for conversion, against the purchaser of mort- gaged chattels, demand and refusal need not be proven, where the purchaser knew of the mortgagee's rights or convert?': the property to his own use. Bank of Commerce of Ralston v. Gaskill, 44 Okl. 728, 145 P. 1131. An ab- solute sale by the chattel mortgagor, to the exclusion of the mortgagee, works a conversion of the chattels for which the mortgagee may sue with- out previous demand. Id. In a suit for conversion of a ring pledged as collateral to secure a no^e, no demand of pledgee for return of the property is necessary where the same has been sold by him pending the right to redeem. Clinton Nat. Bank v. McKennon, 110 P. 649, 26 Okl. 835. Where a sheriff, under a writ of attachment, seized and converted property to the possession of which a mortgagee had a prior right, no demand of the sheriff for the return of the property was necessary. Johnson v. Anderson, 57 P. 513, 60 Kan. 578. In action for conversion of a wagon shipped by defendant carrier, a formal demand and specific tender of the amount of freight held unnecessary. Atchi- son, T. & S. F. Ky. Co. v. Etherton, 45 Okl. 260, 145 P. 779. 43 Where an agent for the delivery of pictures and collection of the price makes reports as required by the contract of agency, in which reports his shortage appears, and where his conduct is not inconsistent with honesty, 4* Eakin v. Chapman, 44 Okl. 51, 143 P. 21. (172) Art. 1) IN GENERAL 294-295 A party seeking equitable relief against an assessment must him- self offer to do equity, and pay the amount of taxes which the facts show would have properly been charged against him under proper assessment. 45 295. Insurance The conditions precedent to suit, prescribed in a policy of insur- ance, must be complied with, 46 unless they be waived, 47 or become his employer is not required to notify the sureties upon his bond to the em- ployer, conditioned to account for pictures and frames shipped to him for delivery, of his default, as a condition precedent to its recovery upon the bond for either the first reported shortage, or shortage subsequent to the first. Chicago Crayon Co. v. Rogers, 30 Okl. 299, 119 P. 630. *5 Rogers v. Bass & Harbour Co. (Okl.) 168 P. 212. 46 Examination. Refusal to comply with a requirement that insured sub- mit before action to an examination under oath, will preclude recovery on the policy. Connecticut Fire Ins. Co. of Hartford, Conn., v. George, 52 Okl. 432, 153 P. 116. Where, during the examination provided for in a fire insur- ance policy, insured refused to answer material questions, he could not re- cover on the policy, though at the close of his testimony at such examination he stated that he would not refuse to answer any reasonable question. Id. That the examination was not conducted in good faith, held not to excuse plaintiffs failure to answer material questions. Id. While in an examina- tion of insured the insurer cannot inquire into a proposition having no legiti- mate bearing on the question at issue, the examination should be liberal in scope to reach the end intended. Id. Where insured refused to state on -his examination whether he had executed certain mortgages on the insured property in excess of the amount stated in his application, he was thereby precluded from recovering on the policy. Id. Proof of loss. Where a fire insurance policy provides that in case of loss the insured shall give notice of loss and within 60 days make verified proof of loss in writing and that a compliance with this provision is a condition precedent to an action, the right of action does not mature till the provision has been complied with or waived. Commercial Union Assur. Co., Limited, of London, England, v. Shults, 130 P. 572, 37 Okl. 95. A policy provided for proof of loss in writing within 60 days after a fire, and that no action on the policy should be sustained until compliance with such requirement. Held, that an action brought before proof of loss ren- dered was prematurely brought. Nance v. Oklahoma Fire Ins. Co., 31 Okl. 208, 120 P. 948, 38 L. R. A. (N. S.) 426. 47 Where a policy provides for an appraisement, and such appraisement is a condition precedent to an action where no appraisement is requested by either party, and the company denies liability, the insured is not precluded from recovering for failure to demand an appraisement. Oklahoma Fire Ins. Co. v. Mundel, 141 P. 415, 42 Okl. 270. Failure of fraternal association to comply with by-laws as to disapproval of death claims excuses beneficiary from compliance with provision requiring claims to be submitted to proper tribunals within order before suit on certifi- cate. Haskew v. Knights of Modern Maccabees, 58 Okl. 294, 159 P. 493. 296 REMEDIES AND RIGHTS (Ch. 5 wholly unnecessary or futile, 48 or be contrary to law or public policy. 49 ARTICLE II ELECTION OF REMEDIES Sections 296. Necessity. 297. Effect. 298. What constitutes. 296. Necessity A party is not bound in all cases to make an election. The holder of a note held as collateral cannot be compelled to elect whether he will enforce the principal or the collateral obligation. After the debt falls due, he has the option to make the debt out of the proper- ty pledged, or to pursue his remedies against the pledger as though the pledge had not been made. 50 In an action for damages for wrongful attachment, plaintiff's right to treat such attachment as a conversion and to recover full value of the property depends on his timely election to do so. 51 ^s it is not necessary to tender amount received in settlement of cash sur- render value of policy over a loan before suit on the policy, where it is cer- tain that tender will be refused. Jones v. New York Life Ins. Co., 122 P. 702, 32 Okl. 339. Appraisement. Where there was a total loss under a policy, no appraise- ment was necessary, though made by the policy a condition precedent to suit. Springfield Fire & Marine Ins. Co. v. Homewood, 122 P. 196, 32 Okl. 521, 39 L. R. A. (N. S.) 1182. Provisions of a policy for appraisal on disagreement as to amount of loss, and making loss payable 60 days after its ascertainment, including an award by appraisers, when appraisal has been required, do not make appraisal a condition precedent to an action on the policy. American Ins. Co. of New- ark, N. J., v. Rodenhouse, 128 P. 502, 36 Okl. 211. Under a provision for an appraisement, it is as much the duty of the in- surer as the insured to demand an appraisement; and such demand by the insured is not a condition precedent to an action on a policy. Rochester German Ins. Co. of Rochester, N. Y., v. Rodenhouse, 128 P. 508, 36 Okl. 378. Const, art. 23, | 9, prevents the abridging of the time within which rights under the law may be enforced and the requiring of any notice as condition precedent to maintaining of an action for breach of the duty imposed by law, but does not relate to acts that must be performed by the parties to an insurance policy as a part of the contract. Gray v. Reliable Ins. Co., 110 P. 728, 26 Okl. 592. so Ricks v. Johnson, 62 Okl. 125, 162 P. 476. si Wade v. Ray (Okl.) 168 P. 447, L. R. A. 1918B, 796. (174) Art. 2) . ELECTION OP REMEDIES 297~298 297. Effect Where the law gives several means of redress based on conflict- ing- theories, election of one and prosecution to final judgment is bar to adoption of any other. 52 However, the commencement of an action in ignorance of the facts does not necessarily constitute an election. Thus an action to rescind a contract for exchange of land will not prevent the recovery of damages on the ground of election of remedies, where when the action was brought the plaintiff did not know that the defendant had deeded the land conveyed to him to an innocent purchaser. 53 298. What constitutes Where the plaintiff sues one defendant, and by an amended pe- tition seeks additional relief against other defendants, to which he is not entitled as against the original defendant, the filing of the original petition was not an election of remedies estopping relief as against other defendants; no elements of estoppel being plead- ed or shown. 54 52 First Trust & Savings Bank of Chicago, 111., v. Bloodworth (Okl.) 174 P. 545. Where application for loan was forwarded by agent of applicant and amount of mortgage loan was paid by mortgagee to it, action by mortgagor to recover amount of loan from his agent held an election of remedies bar- ring defense to mortgage that consideration was not received. Id. 53 Speed v. McMurray (Okl.) 176 P. 506. s* Marks v. Baum Bldg. Co. (Okl.) 175 P. 818. (175) 299-300 ABATEMENT, SURVIVAL AND REVIVOB (Ch. 6 CHAPTER VI ABATEMENT, SURVIVAL AND REVIVOR Sections 299-310. Article I. Survival and abatement. 311-328. Article II. Revivor. ARTICLE I SURVIVAL AND ABATEMENT Sections 299. What actions survive. 300. Death or assignment. 9 301. Death of plaintiff. 302. Death of defendant. 303. Personal injuries. 304. Action for wrongful death. 305. Who may sue Amount of recovery. 306. Party in representative capacity Change. 307. Receiver. 308. Transfer of interest. 309. Where action does not survive. 310. Abatement Pendency of another action. 299. What actions survive "In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the per- son, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same." x The death of either party pending an appeal from a judgment denying a divorce abates the action, and where the record shows no property rights involved, the appeal will be dismissed. 2 300. Death or assignment "An action does not abate by the death or other disability of a party, or by the transfer of any interest therein, during its penden- cy, if the cause of action survive or continue. In case of the death or other disability of the party, the court may allow the action to continue by or against his representatives or successors in inter- 1 Rev. Laws 1910, 5279. 2 Bunger v. Bunger, 160 P. 976, 99 Kan. 22. (176) Art. 1) SURVIVAL AND ABATEMENT 301-302 est, upon such terms and in such time as may be just under the circumstances presented. In case of any other transfer of inter- ests, the action may be continued in the name of the original par- ty, or the court may allow the person to whom the transfer is made to be substituted in the action." 3 301. Death of plaintiff A cause of action for recovery of money on an appeal bond pass- es to the personal representatives of a deceased plaintiff. 4 An action for injuries caused by negligence does not abate on plaintiff's death. 5 Where the execution of a mortgage is procured by duress, the cause^of action therefor is not personal to the mortgagor, and his heirs may set up duress in an action to foreclose, or they may maintain an action for cancellation on such ground. 6 302. Death of defendant "No action pending in any court- shall abate by the death of ei- ther or both the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant." 7 An action for malicious prosecution abates on the death of the defendant, and the cause of action dies with him. 8 Death of defendant pending appeal in an action for libel abates the action, and the appeal will be dismissed. 9 When, in an action on a joint and several note, it is shown that one of the defendants has died since the action was filed and serv- ice had, the action abates only as to the deceased defendant, and on verdict returned against all the defendants the court may ren- der judgment against the surviving defendants. 10 Where a case is commenced against receivers, and the receivers a Rev. Laws 1910, 4695. * Zahn v. Obert, 60 Okl. 118, 159 P. 298. 5 Missouri Pac. Ry. Co. v. Bennett's Estate, 47 P. 183, 5 Kan. App. 231, judgment affirmed 49 P. 606, 58 Kan. 499. e Drake v. High (Okl.) 172 P. 53. 7 Rev. Laws 1910, 5280. s Loeser v. Loeser, 50 Okl. 249, 150 P. 1045. Loekett v. Tucker, 56 Okl. 552, 156 P. 323. 10 Gillespie v. First Nat. Bank, 95 P. 220, 20 Okl. 768. HON.PL.& PRAC. 12 (177) 302-304 ABATEMENT, SURVIVAL AND BEVIVOR (Ch. 6 die, and a receiver de bonis non is appointed, and no attempt is made to revive the action for more than a year, a motion to abate the action will be sustained. 11 An action by a wife for alienation of her husband's affections does not abate by her death while the action is pending in the Su- preme Court. 12 303. Personal injuries An action for personal injuries not resulting in death survives to the personal representatives. 13 The representative is entitled to have included in the verdict the same allowance for pain and suffering of the deceased as de- ceased would have had had he lived. 14 An action may be maintained by an injured person against the administrator of the wrongdoer's estate. 15 304. Action for wroingful death "When the death of one is caused by the wrongful act or omis- sion of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be com- menced within two years. The damages must inure to the exclu- sive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the de- ceased." 16 11 Hutchings v. Eddy, 50 P. 944, 6 Kan. App. 490. 12 Powers v. Sumbler, 110 P. 97, 83 Kan. 1. is Martin v. Missouri Pac. Ry. Co., 49 P. 605, 58 Kan. 475. The common-law right of action, which survives the death of the Injured person, is independent of the right of action given for the recovery of dam- ages for the benefit of the widow and next of kin. St. Louis & S. F. R. Co. v. Goode, 142 P. 1185, 42 Okl. 784, L. R. A. 1915E, 1141. The common-law right of action for personal injuries survives the death of the injured person and vests in his personal representative, though the death resulted from such Injuries. Id. i* Atchison, T. & S. F. R. Oo. v. Rowe, 43 P. 683, 56 Kan. 411. IB Casteel v. Brooks, 46 Okl. 189, 148 P. 158. i Rev. Laws 1910, 5281. A cause of action arising under St. 1893, 4313 (Rev. Laws 1910, 5281), for wrongful death, will survive the death of the beneficiary named therein, and may be revived and prosecuted by his administratrix. City of Shawnee v. Cheek, 137 P. 724, 41 Okl. 227, 51 L. R. A. (N. S.) 672, Ann. Cas. 1915C, 290. St. 1893, 4313 (Re-,\ Laws 1910, 5281), authorizing recovery for wrong- (178) Art. 1) SURVIVAL AND ABATEMENT 304-305 In the absence of a statutory or constitutional provision an ac- tion cannot be maintained for the wrongful death of another; 17 for at common law the death of a human being, though clearly in- volving pecuniary loss, was not a ground of an action for dam- ages. 18 The provision of the Constitution that the right of action to re- cover damages for injuries resulting in death shall never be ab- rogated, and the amount recoverable shall not be subject to any statutory limitation, does not change the method of procedure in such cases. 19 ' 305. Who may sue Amount of recovery "In all cases where the residence of the party whose death has been caused as set forth in the preceding section, is at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the wid- ow, or where there is no widow, by the next of kin of such de- ceased." 20 In an action under the statute for the wrongful death of a spouse, ful death, confers upon the beneficiary thereof a property right in the pecun- iary value to him of the decedent's life, and gives him a new cause of action for the pecuniary loss which he has sustained from such death. City of Shawnee v. Cheek, 137 P. 724, 41 Okl. 227, 51 L. R. A. (N. S.) 672, Ann. Cas. 1915C, 290. Comp. Laws 1909, 2881, 2882, held not to give a right of action for wrongful death; such right being conferred alone by Wilson's Rev. & Ann. St. 1903, 4611, 4612. Shawnee Gas & Electric Co. v. Mbtesenbocker, 138 P. 790, 41 OKI. 454. Civ. Code, 422, does not change a pending action for injuries brought by the deceased in his lifetime into an action for wrongful death. Missouri Pac. Ry. Co. v. Bennett's Estate, 47 P. 183, 5 Kan. App. 231, judgment affirmed 49 P. 606, 58 Kan. 499. Laws 1889, c. 131, supplementing Civ. Code, 422, giving an action for wrongful death, does not, by providing that a cause of action given by sec- tion 422 shall not be lost because of nonresidence of the deceased or non- appointment of a representative, create a new cause of action, or impose any limitation on an existing one. Atchison, T. & S. F. R. Co. v. Napole, 40 P. 669, 55 Kan. 401. IT City of Eureka v. Merrifield, 37 P. 113, 53 Kan. 794. is Missouri, K. & T. Ry. Co. v. Lenahan, 135 P. 383, 39 Okl. 283. i Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454. v. Laws 1910, 5282. (179) 305 ABATEMENT, SURVIVAL AND REVIVOB (Ch. 6 parent, or child, the plaintiff is limited in damages to the pecuniary loss sustained by the wrongful death. 21 21 Blunt v. Chicago, R. I. & P. R. Co. (Okl.) 173 P. 656 ; Missouri, K. & T. Ry. Co. v. West, 38 Okl. 581, 134 P. 655. In an action for the wrongful killing of plaintiff's child, unless the evi- dence shows a reasonable expectation that the child would have contributed to the support of his parents after majority, the damages are limited to the amount which will compensate for loss of the child's services to his major- ity. Muskogee Electric Traction Co. v. Hairel, 46 Okl. 409, 148 P. 1005. In an action for the benefit of dependent children, the measure of damages, under federal Employers' Liability Act (U. S. Comp. St. 8657-8665), is such an amount as deceased would reasonably be expected to have contributed to their support and education. Kansas City, M.I & O. Ry. Co. v. Roe, 50 Okl. 105, 150 P. 1035. The measure of damages for the wrongful death of the husband and father was the pecuniary loss suffered by the widow and minor children by being deprived of his care and support, as determined by his age, physical condi- tion, occupation, earning capacity, and the use made by him of his earnings. Big Jack Mining Co. v. Parkinson, 137 P. 678, 41 Okl. 125. In action for wrongful death of son, where there is evidence of parent's dependency and a reasonable expectation of ^ntribution from son, the meas- ure of damages is the amount compensating parent for loss sustained by son's death. Lusk v. Phelps (Okl.) 175 P. 756. In action for wrongful death of their son, dependent parents may recover damages on account of contributions he would probably have made. We- leetka Cotton Oil Oo. v. Brookshire (Okl.) 166 P. 408. In an action by the administrator of a deceased minor, it is within the province of the jury to estimate the damages with reference to the pecun- iary injury, present or prospective, resulting to next of kin, from the facts proved, in connection with their own knowledge and common experience, and it is not necessary that any witness should have expressed an opinion of the amount of such loss. Union Pac. Ry. Co. v. Dunden, 14 P. 501, 37 Kan. 1. In an action to recover damages for the services of a minor son killed by the alleged negligence of defendant, and to recover the benefits which plain- tiffs expected to receive from him by way of support after he reached his majority, plaintiffs' right to recover for such expected benefits is limited to their lives, and is not the amount they might have expected to receive from the son after he reached majority and during the time he had continued to live. Fidelity Land & Improvement Co. v. Buzzard, 76 P. 832, 69 Kan. 330. An action under Civ. Code, 422, providing for the recovery of damages for wrongfully causing a death, is for pecuniary loss to those entitled to the recovery, and, when brought in behalf of the next of kin to whose support the deceased was under no legal obligation to contribute, it can be main- tained for substantial damages only by proof that he was in the habit of contributing to their support or education, and might be reasonably expected to continue such habit, or by proof of declarations, acts, conduct, or relevant circumstances reasonably tending to show an intention on his part to make such contributions of support or education ; and hence where a case lacks such proof a verdict for $5,000 damages for the death cannot be sustained, Atchison, T. & S. F. Ry. Co. v. Ryan, 64 P. 603, 62 Kan. 682. In an action by nonresident alien partent to recover for the death of their (180) Art. 1) SURVIVAL AND ABATEMENT 305 Thus, loss of society and protection, 22 the mental anguish and suffering of the deceased, 23 and the mental anguish and suffering of the widow are not proper items of damage in such action. 2 * minor son, proof as to the value of actual services rendered or which might have been rendered by the minor son is not indispensable, but there must be evidence to justify a reasonable expectation of pecuniary benefit to his parents in the continuance of his life. Atchison, T. & S. F. Ry. Co. v. Fa- jardo, 86 P. 301, 74 Kan. 314, 6 L. R. A. (N. S.) 681. In a suit to recover damages for the death of a minor, under Civ. Code, 422, the fact that the parents had released to such minor his time and serv- ices during his minority may be considered in determining the amount of recovery- St. Joseph & W. R. Co. v. Wheeler, 10 P. 461, 35 Kan. 185. In an action for death, it appeared: That decedent was 21 years old, un- married, of normal physique, and in good health ; that he was industrious, steady, and without bad habits ; that his relations with his parents were most pleasant ; that he had been away from home since he was 19, and dur- ing that time his parents had made no claim to his earnings ; that, though they were neither old nor indigent, he contributed to their support, the last occasion being shortly before he was killed ; that altogether he had sent home $35, and at time of death was earning $1.75 a day ; that his motive for leaving home was to see something of the world ; and that arrangements had been made for him to go home and help his father run two farms, which would have been mutually advantageous. Held, that the father and mother had the right to expect to receive pecuniary benefits from his continued life and suf- ficient data appeared from which damages sustained by his death could be computed. Pittsburg Vitrified Pav. & Bldg. Brick Go. v. Fisher, 100 P. 507, 79 Kan. 576. Amounts held not excessive. See L. R. A. 1916C, 820. A recovery of $15,000 for death of an employe who had earned as much as $160 a month and was 30 years old, sober and healthy, and who left a wife and small child, held not excessive in view of Const, art. 23, 7 (Williams' Const. 356), providing that the damages for wrongful death shall not be subject to any statutory limitation. St. Louis & S. F. R. Co. v. Long, 137 P. 1156, 41 Okl. 177, Ann. Cas. 1915C, 432. The recovery of $15,000 for the death of the husband by his widow, suing for herself and minor children, held not excessive. San Bois Coal Co. v. Resetz, 143 P. 46, 43 Okl. 384. A recovery of $15,000 for wrongful death of the husband and father held not excessive, where he was 38 years of age, In good health, and earning $83.33 per month at the time of his death, with a steadily increasing earning capacity, and it appeared that such amount was just one-half of his cash 22 Missouri, O. & G. Ry. Co. v. Lee, 175 P. 367. 23 In an action by the \vidow and children of decedent under Rev. Laws 1910, 5281, for wrongful death, plaintiffs cannot recover for his mental anguish and suffering, any recovery therefor belonging to Ms estate. Smith v. Chicago, R. I. & P. Ry. Co., 142 P. 398, 42 Okl. 577. 24 Missouri, O. & G. Ry. Co. v. Lee (Okl.) 175 P. 367. (181) 305 ABATEMENT, SURVIVAL AND REVIVOR (Ch. G Nominal damages may be recovered, if it appears that the death was caused by the wrongful act or omission of the defendant, though no actual damages are shown. 25 probable earnings during his life expectancy. Missouri, K. & T. Ry. Co. v. West, 38 Okl. 581, 134 P. 655. An award of $3,000 for causing the death of a man 24 years old, unmarried, who had been in this country for two years, and was earning $30 a month besides his board and lodging, the recovery being for the benefit of his par- ents, aged 58 and 55, living in Russia, to whom he had sent money at dif- ferent times in amounts varying from $25 to $60, was not excessive. Cox v. Kansas City, 120 P. 553, 86 Kan. 298. A verdict of $4,500 for the death of a brakeman 34 years of age, with a life expectancy of 32 years, in favor of his mother, a widow 59 years of age, was not excessive, where intestate was a single man, earning $60 to $75 per month, and had resided with, and wholly supported, his mother for 10 years. St. Louis & S. F. Ry. Co. v. French, 44 P. 12, 56 Kan. 584. A verdict of $7,830 was not excessive for negligently causing the death of a miner 40 years old, of sound body and good habits, and capable of earning $42 per month. Atchison, T. & S. F. R. Co. v. Hughes, 40 P. 919, 55 Kan. 491. A judgment for $3,000 for the wrongful death of a minor, who was 11 years and 8 months old, intelligent, healthy, and promising, and left surviv- ing him a father, a poor man, working as an engineer, and having a wife and three children, held not grossly excessive. Union Pac. Ry. Co. v. Dun- den, 14 P. 501, 37 Kan. 1. In mother's action for damages for wrongful death of son, a verdict for $5,000 was not excessive, where deceased was 33 years of age, was in good health, able to earn $1,000 a year, and was accumulating property. Berry v. Dewey, 172 P. 27, 102 Kan. 593. Verdict for $4,000 for widow, $5,250 for four year old child, and $5,750 for two year old child of deceased railroad employs killed in interstate com- merce, who was 26 years of age, industrious, and had constant employment at from $2.50 to $3.50 per day, was not excessive. Griffith v. Midland Valley R. Co., 100 Kan. 500, 166 P. 467. Allowance of $1,250 to widow of deceased railroad employe 1 for estimated pecuniary loss from his death held not large enough to justify interference, although money sent to her by deceased during his absence of 13 years did not exceed $110. Forbes v. Atchison, T. & S. F. Ry. Co., 101 Kan. 477, 168 P. 314. An award of $12,000 for death of man 38 years old, with family, and 2 5 Atchison, T. & S. F. R. Co. v. Weber, 6 P. 877, 33 Kan. 543, 52 Am. Rep. 543. In an action for the benefit of the parents, to recover for the alleged negli- gent killing of their son, who was grown up, of full age, and living apart from them, but was unmarried, no proof was offered of the parents' financial condition, or that they had ever received any actual pecuniary benefits from the son during his lifetime ; nor was there any evidence showing a reason- able probability of pecuniary advantage to them from the continuance of the son's life. Held, that no more than nominal damages should have been re- covered. Cherokee & P. Coal & Mining Co. v. Limb, 28 P. 181, 47 Kan. 469 (182) Art. 1) SURVIVAL AND ABATEMENT 305-306 Financial benefits to the sole heir of a person who has lost his life by wrongful act of another cannot be deducted from damages sustained, and the verdict and judgment reduced by such benefits. 26 306. Party in representative capacity Change Proceedings in revivor are not necessary in substituting a new next friend for one who had previously acted in behalf of an in- earning about $75 per month, held not excessive, where the action was brought under the federal Employers' Liability Act (U. S. Comp. St. 8657- 8665), and the accident arose from a violation of the Safety Appliance Act as amended March 2, 1903 (U. S. Comp. St. 8613-8615). Thornbro v. Kan- sas City, M. & O. Ry. Co., 139 P. 410, 91 Kan. 684, Ann. Cas. 1915D, 314, rehearing granted 139 P. 1199, and judgment affirmed on rehearing 142 P. 250, 92 Kan. 681. A recovery of $8,000 for wrongful death of plaintiff's husband held not excessive. Corley v. Atchison, T. & S. F. Ry. Co., 147 P. 842, 95 Kan. 124. Amounts held excessive. See L. R. A. 1916C, 820. Verdict of $30,000 awarded widow of tool sharpener 35 years of age, em- ployed in and about drilling of oil well, killed by an explosion of escaping gas, who moved about following oil industry, and had once been a railroad fireman, was excessive, and would be reduced to $20,000, or a new trial granted. Slick Oil Co. v. Coffey (Okl.) 177 P. 915. Where deceased at the time of his death was 66 years of age, unmarried, a farmer living on leased land, who owned only a small amount of personal property, and plaintiffs in an action for his wrongful death were his nephews and nieces in comfortable circumstances and to whom he had made casual gifts, a verdict of $7,000 was excessive. Missouri, K. & T. Ry. Co. v. Mc- Laughlin, 84 P. 989, 73 Kan. 248. In an action for the death of plaintiffs son 19 years old and earning from $1.50 to $1.75 a day, a verdict of $10,000 will be reduced to $6,000. Aaron v. Missouri & K. Telephone Co., 131 P. 582, 89 Kan. 186, 45 L. R. A. (N. S.) 309. In an action for the death of plaintiffs' son, a railroad engineer, a verdict for $6,000 held excessive and reduced to $4,000. Denver v. Atchison, T. & S. F. R. Co., 150 P. 562, 96 Kan. 154, Ann. Cas. 1917A, 1007. In an action for the death of one killed on a railroad, the evidence as to the pecuniary value of the life of decedent was to the effect that she was 59 years old, the mother of five children ; that she was possessed of superior intelligence, and was active, vigorous, and in good health ; and that one son, 21 years of age, lived with her. There was no evidence as to the ages of the other children, whether they lived with decedent, or whether any of dece- dent's children were dependent on her for support. Held, that a verdict of $1,000 would be considered more than nominal damages, and, the evidence be- ing insufficient to show actual damage, the verdict would be set aside as ex- cessive. St. Louis & S. F. R. Co. v. Blinn, 62 P. 427, 10 Kan. App. 468. 26 Berry v. Dewey, 172 P. 27, 102 Kan. 593. In an action for wrongful death of plaintiff's son, an instruction that in considering damages the jury might consider the fact that plaintiff inherited an allotment belonging to the son is erroneous. Missouri, K. & T. Ry. Co. v. James, 61 Okl. 1, 159 P. 1109. (183) 307-308 ABATEMENT, SURVIVAL, AND REVIVOR (Ch. 6 fant. 27 Where a suit is brought by a guardian, and pending the ac- tion the wards became of age, the suit does not abate, the guardian is properly discharged, and revivor is neither necessary nor prop- er. 28 307. Receiver The rights and remedies of plaintiff to recover for wrongfully seizing his store, under a chattel mortgage against the stock, did not abate with the appointment of a receiver. 29 Where it appears from the action of a federal court in discharg- ing a receiver appointed by' it of an electric railway that the rail- way was taken out of the hands of the receiver and restored to the company, and that cases pending in the state courts against the receiver were turned over to the company to defend, and the com- pany ordered to save the receiver harmless from any judgment that might be entered against him in such cases, and, in the event of failure to do so, the property to be held responsible therefor, the order evidently contemplated a continuance of the cases in the name of the receiver, and it was not error to overrule a motion to dismiss an action in a state court on the ground that the receiver had been discharged by the federal court. 30 308. Transfer of interest In case of a transfer of a claim sued on, the action may proceed in the name of the original party, 31 though assigned by him upon certain conditions which afterwards fail, 32 or the assignee may be substituted. 33 ZT Missouri Pac. Ry. Co. v. Moffatt, 55 P, 837, 60 Kan. 113, 72 Am. St. Rep. 343. 28 Shattuck v. Wolf, 83 P. 1093, 72 Kan. 366. 20 Tootle v. Kent, 73 P. 310, 12 Okl. 674. so Peterson v. Baker, 97 P. 373, 78 Kan. 337. si Rev. Laws 1910, 4695. An action on an account does not abate because of a transfer of an inter- est therein. Werner v. Hatton, 38 P. 279, 54 Kan. 250. An averment in the answer that plaintiff had conveyed his interest in the land since the commencement of the action, which was not denied under oath, was not sufficient to bar a recovery by the plaintiff. Douglas v. Muse, 61 P. 413, 62 Kan. 865. 32 Crocker v. Ball, 59 P. 691, 10 Kan. App. 364. 33A right of action for unlawful and forcible detainer by one entitled to possession, in case of a transfer of the interest of plaintiff, continues in his (184) . Art. 1) SURVIVAL AND ABATEMENT 308-310 #A plaintiff in an action on a quantum meruit, who assigns dur- ing its .pendency a part of his interest therein, may recover in his own name the amount assigned. 34 Where a lessee after suing for possession surrenders his lease, it is proper to substitute the lessor as plaintiff. 85 309. Where action does not survive "Where one of several plaintiffs or defendants dies, or his pow- ers as a personal representative cease, if the cause of action do not admit of survivorship, and the court is of opinion that the merits of the controversy can be properly determined and the principles ap- plicable to the case fully settled, it may proceed to try the same as between the remaining parties; but the judgment shall not prej- udice any who were not parties at the time of trial." 36 310. Abatement Pendency of another action Where an action is brought in Oklahoma and jurisdiction ac- quired, and thereafter the action is brought in another state in which plaintiff in Oklahoma is there made defendant, and defend- ant in Oklahoma is served with a garnishment writ, the latter ac- tion cannot be pleaded in bar or abatement of the former. 37 Two creditors of an insolvent corporation may proceed concur- rently, to enforce the stockholders' liability; the pendency of pro- ceedings by one being no bar to proceedings by the other. 38 The pendency of another suit between the same parties upon a judgment rendered by a court in Illinois upon a written instrument is a bar to the prosecution of another suit on the same instru- ment. 39 A pending action of forcible entry and detainer is no bar to an action of ejectment by the same landlord against the same tenant grantee. Leach v. Sargent, 55 Okl. 203, 154 P. 1143 ; Anderson v. Ferguson, 71 P. 225, 12 Okl. 307. s* McKnight v. Bertram Heating & Plumbing Co., 70 P. 345, 65 Kan. 859. as Leach v. Sargent, 55 Okl. 203, 154 P. ^143. 36 Rev. Laws 1910, 5284. 37 Missouri, K. & T. Ry. Co. v. Bradshaw, 132 P. 327, 37 Okl. 317, L. R. A. 1917F, 1013. SB Buist v. Citizens' Sav. Bank, 46 P. 718, 4 Kan. App. 700. Wester velt v. Jones, 52 P. 194, 7 Kan. App. 70. (185) 310 ABATEMENT, SURVIVAL AND REVIVOB (Ch. 6 for the same land, 40 nor is it any bar to an action for rent or use and occupation. 41 Where mandamus is pending in a state court to compel removal of a railroad bridge obstructing a river and flooding the neighbor- hood, a later proceeding in the federal court to. foreclose a mort- gage on the property does not abate the action in the state court nor oust its jurisdiction. 42 A plea in abatement, alleging the pendency of a prior suit on the same cause of action, was properly overruled where the prior ac- tion was dismissed upon filing of the plea. 48 An action which stands dismissed on motion of plaintiff is no bar to an action by the successor in interest of defendant. 44 The pendency of garnishment proceedings in another state to subject the debt for which plaintiff sues constitutes no defense, where it appears that the court in which such proceedings are pending has no jurisdiction of the defendant. 46 40 Buettinger v. Hurley, 9 P. 197, 34 Kan. 585. 41 Hart v. Ferguson (Okl.) 176 P. 396. 42 Kaw Valley Drainage Dist. of Wyandotte County v. Missouri Pac. Ry. Co., 161 P. 937, 99 Kan. 188. 43 Warnock v. Moore, 137 P. 959, 91 Kan. 262. An action brought by the person in possession of an office prior to the commencement of the next regular term, for the purpose of enjoining a per- son claiming to be his successor from taking possession of the office, does not abate an action of quo warranto brought against such person after he has taken possession of the office, and been officially recognized, where it appears that such prior action has been dismissed before the trial of the quo warran- to case. Snow v. Hudson, 43 P. 260, 56 Kan. 378. 44 jay v. Zeissness, 52 P. 928, 6 Okl. 591. 45 Chicago, R. I. & P. Ry. Co. v. Campbell, 49 P. 321, 5 Kan. App. 423. (186) Art. 2) REVIVOR 311-312 REVIVOR Sections 311. Where action survives upon death of party. 312. Proceedings. 313. Who may move. 314. Consent or notice. 315. Notice by publication. 316. Death of plaintiff. 317. Death of defendant. 318. Limitation. 819. Amendment to petition. 320. Time of order. 821. Delay to revive. 822. Vacation of order. 323. Objections and waiver. 324. Action dismissed, when. 325. At instance of defendant. 326. Trial. 327. Death after judgment. 328. Revivor of judgment Forms. 311. Where action survives upon death of party "Where there are several plaintiffs or defendants in an action, and one of them dies, or his powers, as personal representative cease, if the right of action survive to or against the remaining parties the action may proceed, the death of the party or the cessa- tion of his powers being stated on the record." * 6 "When one of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survive in favor of or against his representatives or succes- sors, the action may be revived and proceed in their names." 47 Where a number of tenants in common of lands join in an ac- tion for the recovery thereof, and one of them dies during its pend- ency, surviving plaintiffs may continue the action for the recov- ery of their severable interests without a reviver. 48 312. Proceedings "The revivor shall be by an order of the court, if made in term, or by a judge thereof, if in vacation, that the action be revived in the names of the representatives or successor of the party who 46 Rev. Laws 1910, 5283. 47 Rev. Laws 1910, 5285. 48 Crane v. Lowe, 54 P. 666, 59 Kan. 606. (187) ,* 312-314 ABATEMENT, SURVIVAL AND EEVIVOB (Ch. 6 died, or whose powers ceased, and proceed in, favor of or against them." " Under this statute an application within a year from defendant's death to revive the action against his representative must be grant- ed as a matter of right. 50 313. Who may move "The order may be made on the motion of the adverse party, or of the representatives or successor of the party who died, or whose power ceased, suggesting his death or the cessation of his powers, which, with the names and capacities of his representatives or suc- cessor, shall be stated in the order." " 314. Consent or notice < "If the order is made by the consent of the parties, the action shall forthwith stand revived ; and, if not made by consent, notice of the application for such order shall be served in the same man- ner and returned at the same time as a summons, upon the party adverse to the one making the motion; and if sufficient cause be not shown against the revivor, the order shall be made." 82 Where a judgment was rendered for defendant, and before per- fecting appeal plaintiff died, and the cause was revived in plain- tiff's administrator's name, without consent and without notice, the revivor below was illegal. 53 No consent is necessary to revive action within one year from time order might have been first made, and, if made with consent, no notice is required. Where order to revive action is made within year from time when it might first have been made, without con- sent, notice and service required by Rev. Laws 1910, 5288, be- come jurisdictional and mandatory. An order of revivor, made by trial court within a year, but without notice and without consent, is absolutely void. 54 Appearance waives notice of application to revive an action. 55 49 Rev. Laws 1910, 5286. BoKilgore v. Yarnell, 103 P. 698, 24 Old. 525; Eoyes V. Masters, 114 P. 710, 28 Okl. 409, 33 L. R. A. (N. S.) 576. ci Rev. Laws 1910, 5287. 62 Rev. Laws 1910, 5288. es Olds v. Atchison, T. & S. F. Ry. Co. (Okl.) 175 P. 230, 54 Zahn v. Obert, 60 Okl. 118, 159 P. 298. 6 Crites v. City of Miami, 80 Okl. 50, 193 P. 984, . (188) Art. 2) REVIVOB 315-316 315. Notice by 'publication "When the plaintiff, shall make an affidavit that the representa- tives of the defendant, or any of them, in whose name it is desired to have the action revived, are non-residents of the State, or have left the same to avoid the service of the order or notice, or so con- cealed themselves that the order or notice cannot be served upon them, or that the names and residence of the heirs or devisees of the person against whom the action may be ordered to be revived, or some of them, are unknown to the affiant, a notice may be pub- lished for three consecutive weeks, notifying them to appear on a day therein named, not less than ten days after the publication is complete, arid show cause why the action should not be revived against them; and, if sufficient cause be not shown to the con- trary, the order shall be made." 58 316. Death of plaintiff "Upon the death of the plaintiff in an action, it may be revived in the names of his representatives, to whom his right has passed. Where his right has passed to his personal representatives, the revivor shall be in their names; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names." " Under this statute, an order of revivor of an action relating to personal property in the names of heirs of deceased party is a nullity. 68 Where plaintiff in replevin dies intestate, the action must be re- vived in the name of his administrator, and not of his heirs at law. 59 Where a judgment creditor dies pending appeal, the judgment will not be revived on application of assignees of his judgment who are strangers to record over objection of plaintiffs in error, who seek revivor in name of administrator, when the latter would not prejudice assignees or decedent's estate. 60 ee Rev. Laws 1910, 5289. 87 Rev. Laws 1910, 5290. es Zahn v. Obert, 60 Okl. 118, 159 P. 298. eaRexroad v. Johnson, 45 P. 1008, 4 Kan. App. 333. Schuber v. HcDuft'ee, 59 Okl. 253, 158 P. 895, (189) 317-318 ABATEMENT, SURVIVAL AND REVIVOR (Ch. 6 317. Death of defendant "Upon the death of a defendant in an action, wherein the right, or any part thereof, survives against his personal representatives, the revivor shall be against them ; and it may, also be against the heirs and devisees of the defendant, or both, when the right of ac- tion, or any part thereof, survives against them." 61 "Upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devi- sees, or both, and an order therefor may be forthwith made, in the manner directed in the preceding section of this article." 62 The court has discretionary power to revive, after death of de- fendant, an action to foreclose a mechanic's lien, and to carry same forward to final judgment. 63 318. Limitation "An order to revive an action against the representatives or -suc- cessor of a defendant shall not be made without the consent of such representatives or successors, unless in one year from the time it could have been first made, except as otherwise provided by law." 64 An order to revive against representatives or successors of a deceased defendant cannot, in the absence of exceptional circum- stances or special statute, be made without consent, unless made within one year after it could have first been made. 65 The time within, which an action may be revived against the representatives or successor of a deceased defendant, is a condi- tion of the right to revive, and a party seeking to avail himself of its benefits must strictly comply with its terms. 66 It does not de- prive the court of all discretion in the matter." i Rev. Laws 1910, 5291. 2 Rev. Laws 1910, 5292. 63 Glenn v. Payne, 48 Okl. 196, 149 P. 1151. * Rev. Laws 1910, 5293. es Adams v. Higgins, 47 Okl. 323, 147 P. 1011. ee Steinbach v. Murphy, 78 P. 823, 70 Kan. 487. 67 Glenn v. Payne, 48 Okl. 196, 149 P. 1151. Wilson's Rev. & Ann. St. 1903, 4624, fixing one year as the time within which an action may be revived in the names of the representatives or suc- cessors of the plaintiff, is not a mere limitation, but conditions the right to revive, and parties seeking to avail themselves of the benefits must comply with these terms. Glazier v. Heneybuss, 91 P. 872, 19 Okl. 316 S (190) Art. 2) REVIVOR 318-320 The fact that a district court, eight months after the time when an order reviving an action against the representatives or suc- cessors of a deceased defendant first could have been made, erro- neously decided that it had no jurisdiction, will not excuse a failure to revive within one year, when no attempt was made to prosecute an order of revivor before the jurisdiction given was determined. 68 Where executors of a plaintiff filed a motion to revive an ac- tion more than one year after the time when the order might have been made, the filing of a brief in the action by defendant was not a consent to a revivor. 69 The period of limitation commences to run, in a case where an administrator is the proper party to be substituted, not until an administrator has been appointed. 70 319. Amendment to petition When an action is revived in the name of the personal repre- sentative of the deceased plaintiff, the petition originally filed should be amended so as to allege, in an issuable form, his repre- sentative capacity, and the appointment or authority under which he proceeds ; and, failing in this, no right to maintain the action is shown, and an objection to the introduction of any testimony un- der the petition should be sustained. 71 An action to recover possession of real estate cannot be main- tained, after the death of defendant, without amending the petition by substituting the widow and heirs of deceased as parties de- fendant. 72 320. Time of order "An order to revive an action, in the names of the representa- tives or successor of a plaintiff, may be made forthwith, but shall not be made without the consent of the defendant, after the expira- tion of one year from the time the order might have been first made; but where the defendant shall also have died, or his pow- ers have ceased, in the meantime, the order of revivor, on both sides, may be made in the period limited in the last section : Pro- vided, that where the death of a party is not known or for other s Glazier v. Heneybuss, 91 P. 872, 19 Okl. 316. 6 Houghton v. Lannon, 40 P. 819, 1 Kan. App. 510. TO Rexroad v. Johnson, 45 P. 1008, 4 Kan. App. 333. 11 Central Branch U. P. Ry. Co. v. Andrews, 9 P. 213, 34 Kan. 563. 72 Douglass v. Galend, 76 P. 395, 69 Kan. 846. (191) 321-323 ABATEMENT, SURVIVAL AND EEVTVOB (Ch. 6 unavoidable reasons the 'court may permit the reviver within a reasonable time thereafter." 78 321. Delay to revive Where a party to an action has been dead for a period so long that the action cannot be revived without the consent of parties, which is not given, the action abates. 74 Where defendant in error dies, and no proceedings were had to revive the case in the name of the administrators, and they refuse to consent to a revivor, the proceedings will be dismissed. 78 322. Vacation of order The setting aside of an order of revivor for irregularities in pro- curing it was not a final determination of plaintiff administrator's right to revive, and left his motion to revive still pending. Where an administrator obtained an order of revivor, and defendant's mo- tion to vacate such order was sustained, and motion for new trial on motion to vacate was overruled, and plaintiff then served notice of motion to revive action, the vacation of the order of revivor was not a final determination of the right to revivor, and left the motion to revive pending. 76 323. Objections and waiver An objection that a case is not properly revived must be made before an appearance to the merits; such appearance constituting a waiver of any defect in the mode of revival. 77 Where a corporation, pending a suit against it, was consolidated with other corporations, and plaintiff filed a pleading against the consolidated company designated as an "Amended Petition," but in the form of an original petition, and process was issued and served as in an original action, it was too late to object in the an- swer for the first time that there had not been a formal revivor and substitution; defendant having in the meantime demurred to the T Rev. Laws 1910, 5294. An order to revive action cannot, without consent, be made at all more than one year from time it might first have been made. Zahn v. Obert, 60 Okl. 118, 159 P. 298. 7 * New Hampshire Banking Co. v. Ball, 48 P. 137, 57 Kan. 812. 78 Helfenstein v. Sage, 58 P. 243, 9 Kan. App. 889. i Chicago, R. I. & P. Ry. Co. v. Forrester (Okl.) 177 P. 593, 8 A. L. R. 163. 77 Pioneer Telegraph & Telephone Co. v. Davis, 116 P. 432, 28 Okl. 783. (192) Art. 2) REVIVOR 324-327 new pleading, and moved to strike it from the files, because it was for a new cause of action. 78 324. Action dismissed, when "When it appears to the court, by affidavit, that either party to an action has been dead for a period so long that the action can- not be revived in the names of his representatives or successors without the consent of both parties, or, when a party sues or is sued as a personal representative, that his powers have ceased, the court shall order the action to be dismissed at the costs of the plaintiff." 7 325. At instance of defendant "At any term of the court succeeding the death of the plaintiff, while the action remains on the docket, the defendant having giv- en the plaintiff's proper representatives, in whose name the action might be revived, ten days' notice of the application therefor, may have an order to strike the order from the docket, and for costs against the estate of the plaintiff, unless the action is forthwith revived." 80 326. Trial "When, by the provisions of the preceding sections, an action is revived, the trial thereof shall not be postponed by reason of the revivor, if the action would have stood for trial at the term the revivor is complete, had no death or cessation of powers taken place." 81 327. Death after judgment "If either or both parties die after judgment, and before satis- faction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as prescribed for reviving actions before judgment; and such judgment may be rendered, and execution awarded, as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party." 8a 78 Curry v. Kansas & C. P. Ry. Co., 48 P. 579, 58 Kan. 6. T Rev. Laws 1910, 5205. so Rev. Laws 1910, 5296. i Rev. Laws 1910, 5297. 82 Rev. Laws 1910, 5299. HON.PL.& PRAC. 13 (193) 328 ABATEMENT, SURVIVAL AND BEVIVOB (Ch. 6 328. Revivor of judgment Forms "If a judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment." 88 MOTION FOR REVIVOR OF JUDGMENT (Caption.) Comes now the plaintiff, A. B., and respectfully represents and shows to the court that heretofore, to wit ; on the day of , 19 , the above-named plaintiff obtained judgment in this court against the defendant, C. D., for the sum of dollars, to bear interest at the rate of per cent, per annum from the date of said judgment, and the costs of said action taxed at dollars, which said judgment is cited and made a part hereof. That said judgment remains due and wholly unpaid; that by operation of law the said judgment has become dormant. Wherefore plaintiff moves the court that said judgment be by the order of this court revived against the defendant, and for all other proper relief in the premises. X. Y., Attorney for Plaintiff. NOTICE OP MOTION FOR REVIVOR OF JUDGMENT (Caption.) To C. D., Defendant, and His Attorney of Record, G. H.t You will take notice that the plaintiff has filed in the office of the court clerk of the above named court his motion for a revivor of a certain judgment therein referred to and cited, a copy of which motion is hereto attached, and that the same will be called up for hearing on said motion on the day of , 19 , or as soon thereafter as the court can hear the same. X. Y., Attorney for Plaintiff. ORDER REVIVING JUDGMENT (Caption.) Now on this day of , 19 , this cause coming on to be heard on the motion of A. B., plaintiff, to revive the judg- ment heretofore entered herein, the plaintiff appearing by his at- torney, X. Y., and the said defendant, C. D., though duly served 88 Rev. Laws 1910, 53UQ. (194) Art. 2) REVIVOR 328 with notice of the filing and hearing of said motion, came not but wholly made default; and the court, having heard the evidence, and being fully advised in the premises, finds: That heretofore, to wit, on the day of , 19 , the above-named plaintiff obtained judgment in this court against the defendant, C. D., for the sum of dollars, to bear interest at the rate of per cent, per annum from the date of said judg- ment, and the costs of said action taxed at dollars; that said judgment is wholly unpaid, and that there is now due on said judgment from defendant to plaintiff the sum of dollars; that said judgment has become dormant by elapse of time, and that more than five years has elapsed since the rendition of said judgment, and that less than one year has elapsed since said judg- ment became dormant. It is therefore by the court ordered, adjudged, and decreed that said judgment be and the same is hereby revived for the sum of dollars, with interest at per cent, from : , 19 , and for the costs included in said judgment, $ , and for costs herein. , Judge. (195) 329-330 LIMITATIONS (Ch. 7 CHAPTER VII LIMITATIONS Sections 329-342. Article I Purpose, validity, and operation. 343-344. Article II. Commencement of action. 345-360. Article III. When statute begins to run. 361-378. Article IV Limitation periods. 379-391. Article V. Suspension and tolling of statute. 392-397. Article VI. Extension and waiver. 398-400. Article VII Contract limitations. ARTICLE I PURPOSE, 'VALIDITY, AND OPERATION Sections 329. Purpose and validity of statutes. 330. What law governs Foreign laws. 331. Construction and operation. 332. Retroactive operation. 333. Actions already barred. 334. As against state, municipality, or public officers. 335. Will contest. 336. As to defenses in general. 337. As to set-off or counterclaim. 338. Computation of time. 339. Bar absolute Operation in general. 340. Debt of husband and wife. 341. Replevin. 342. Foreclosure. 329. Purpose and validity of statutes Statutes of limitations are statutes of repose, the> object of which is to prevent fraudulent and stale actions from springing up after a great lapse of time. 1 A statute operating to extend the time for suing on causes of action which were not barred at its passage, is not for that reason invalid. 2 330. What law governs Foreign laws "Where the cause of action has arisen in another state or coun- try, between nonresidents of this state, and by the laws of the state 1 Adams v. Coon, 129 P. 851, 36 Okl. 644, 44 L. R. A. (N. S.) 624. 2 Schnell v. Jay, 46 P. 598, 4 Okl. 157. (196) Art. 1) PURPOSE, VALIDITY, AND OPERATION 330 or country where the cause of action arose, an action cannot be maintained thereon by reason of a lapse of time, no action can be maintained thereon in this state; and no action can be maintained in this state on any judgment or decree rendered in another state or country against a resident of this state, where the cause of ac- tion upon which such judgment or decree was rendered could not have been maintained in this state at the time the action thereon was commenced in such other state or country, by reason of lapse of time." 3 This statute applies only where the cause of action arose be- tween nonresidents of the state, which fact must be pleaded. 4 The words "when a cause of action has arisen" in a foreign state mean when the plaintiff has a right to sue the defendant in the courts of such foreign state, and have no reference to the origin of the trans- action out of which the cause of action arose. 5 3 Rev. Laws 1910, 4661. The limitations of the state apply unless the statute of another state or country is pleaded. Perry v. Robertson, 150 P. 223, 93 Kan. 703. An action to foreclose a mortgage given as security for the payment of notes executed by nonresidents of Kansas, payable in another state, and not barred by the five-year statute of limitations of Kansas will be controlled as to its limitation by the statute of the state where the mortgage and notes were ex- ecuted and are payable. Croocker v. Pearson, 21 P. 270, 41 Kan. 410. Under Civ. Code, 21 (Gen. St. 1909, 5614), where a cause of action ac- crues in another state between nonresidents of Kansas, and the obligor comes to Kansas before the action has been barred by the statute of the other state, the Kansas statute of limitations runs in his behalf, and unless interrupted within five years creates a bar. Perry v. Robertson, 150 P. 223, 93 Kan. 703. Indian Territory. Where note was executed and payable in Indian Terri- tory, limitations prescribed by Mansfield's Dig. Ark. 4483, and not the laws of Oklahoma Territory, extended over the state by Constitution, applied in an action in the state of Oklahoma. Patterson v. Rousney, 58 Okl. 185, 159 P. 636. Ten-year limitation prescribed by Mansf. Dig. Ark. 4487, applies to actions on judgment of United States court for Indian Territory. Davis v. Foley, 60 Okl. 87, 159 P. 646, L. R. A. 1917A, 187. An action in the state court on a judgment rendered in a United States com- missioner's court in the Indian Territory, is governed as to limitations by the laws in force when the judgment was rendered. Maine v. Edmonds, 58 Okl. 645, 160 P. 483. Where lessee claimed possession of lands under 99-year lease from an Indi- an dated January, 1902, executed in Indian Territory, where defendant had been in adverse possession March, 1907, lessee's action to recover possession November, 1915, was barred by limitations, for Mansf. Dig. 446, was in force in the territory in 1907, and the admission of the state did not operate to sub- stitute a different statute. Bilby v. Diamond (Okl.) 174 P. 758. * Croan v. Baden, 85 P. 532, 73 Kan. 364. 5 Bruner v. Martin, 93 P. 165, 76 Kan. 862, 14 L. R. A. (N. S.) 775, 123 Am. (197) 330-331 LIMITATIONS (Ch. 7 A cause of action on a contract made in Kansas barred by the statutes of Nebraska while defendant resided there, is not barred in Oklahoma, if not barred by the laws of Kansas or Oklahoma. 6 The law of the forum ordinarily governs in respect to limitation of actions. 7 331. Construction and operation Statutes of limitation, being statutes of repose, should be so con- strued as to advance the policy they are designed to promote. 8 The enumeration by the Legislature of specific exceptions to a statute of limitations excludes all others. 9 In construing a statute of limitations, it must, so far as it affects rights of action in existence when the statute is passed, be held, in the absence of a contrary provision, to begin when the cause of ac- tion is first subjected to its operation. 10 Where a cause of action arose in another state, the statute of limitations does not begin to run against it until the debtor becomes a resident of Oklahoma. 11 The right to sue to remove a cloud is a continuing one, to which the statute of limitations is not applicable. 12 St. Rep. 172, 14 Ann. Cas. 39. A cause of action on a note cannot be main- tained in Kansas where both plaintiff and defendant were nonresidents of Kansas when the cause of action accrued, and defendant resided in a foreign state until the cause of action was barred by the laws of that state. Id.; Keagy v. Wellington Nat. Bank, 69 P. 811, 12 Okl. 33 ; Stock Exch. Bank v. Wykes, 129 P. 1131, 88 Kan. 750. e Doughty v. Funk, 84 P. 484, 15 Okl. 643, 4 L. R. A. (N. S.) 1029. 7 Gaier & Stroh Millinery Co. v. Hilliker, 52 Okl. 74, 152 P. 410. An action on contract is generally governed by statute of limitations of the forum, and not by the lex loci contractus or the lex domicilii. Shaw v. Dick- inson (Okl.) 164 P. 1150. An action to enforce the individual liability of a stockholder in a national bank is governed by the statute of limitations of the state in which the action is brought. Rankin v. Barton, 77 P. 531, 69 Kan. 629, judgment reversed, 26 S. Ct. 29, 199 U. S. 228, 50 L. Ed. 163. s Atchison, T. & S. F. R. Co. v. Burlingame Tp., 14 P. 271, 36 Kan. 628, 59 Am. Rep. 578. Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 75 P. 1051, 68 Kan. 585, 1 Ann. Cas. 639, modifying judgment 70 P. 933, on rehearing. 10 Huber v. Zimmerman, 58 P. 737, 8 Okl. 573. 11 Richardson v. Mackay, 46 P. 546, 4 Okl. 328. The statute of limitations adopted from Nebraska for Oklahoma by the or- ganic act did not begin to run, as against causes of action existing at its adop- tion, until that event. Schnell v. Jay, 46 P. 598, 4 Okl. 157. 12 Cooper v. Rhea, 107 P. 799, 82 Kan. 109, 29 L. R. A. (N. S.) 930, 136 Am. St. Rep. 100, 20 Ann. Cas. 42. (198) Art. 1) PURPOSE, VALIDITY, AND OPERATION 331~332 A person cannot prevent the operation of the statute of limita- tions by delay in taking action incumbent upon him. 13 332. Retroactive operation Statutes of limitations are matters of procedure and not of sub- stantive "right," within the protection of Constitution, Schedule, 1, preserving existing rights. 14 A statute of limitation must, so far as affecting rights of action in existence when enacted, be held to begin when the right of action is first subjected to its operation. 15 Such statute is never given a retroactive operation, unless it appears clearly that such was the legislative intent. 16 A repeal of the statute and the enactment of a new statute, have the effect of renewing actions that have not expired before the new statute takes effect. 17 But a statute of limitations which repeals a former statute on the same subject does not revive an action which has been barred by the former statute, if it is apparent from a reading of the later statute that such was not the legislative in- tent. 18 is Glazier v. Heneybuss, 91 P. 872, 19 Okl. 316. i* Anderson v. Kennedy (Okl.) 152 P. 123. The two-year statute of limita- tions (Rev. Laws 1910, 4657), existing when an action for breach of warranty and based on fraud was commenced, controlled, and not the three-year lim- itation prescribed by the Indian Territory statute (Carter's St. 1899, 2945), which was in force when the cause of action accrued. Id. IB In re Mosher, 102 P. 705, 24 Okl. 61, 24 L. R. A. (N. S.) 530, 20 Ann. Gas. 209. IB Sess. Laws 1905, p. 328, c. 28, 3, art. 7, providing that set-off or counter- claim shall not be barred by limitations until the claim of the plaintiff is so barred, only affects set-off or counterclaim existing at the time of its passage, and did not revive a set-off already barred by a former statute. Theis v. Board of Beaver County Com'rs, 97 P. 973, 22 Okl. 333. IT Huber v. Zimmerman, 58 P. 737, 8 Okl. 573. St. 1893, c. 66, art. 3, 18, providing for the time in which actions must be brought, renews the causes of action which have hot expired under the 1890 statute of limitations, the legislature not having otherwise provided. South- gate v. Frier, 57 P. 841, 8 Okl. 435. is Fuller & Fuller Co: v. Johnson, 58 P. 745, 8 Okl. 601. Omission of Comp. Laws 1909, 267, fixing a limitation of one year for commencement of proceedings for disbarment, from Revised Laws of 1910, which became effective May 16, 1913, did not toll the statute of limitations as to disbarment of attorney for acts committed from May to September, 1912, since act approved March 3, 1911 (Laws 1911, c. 39), adopting Revised Laws of 1910, provided that running of statute of limitations should not be affected thereby. In re Huddleston, 75 Okl. 48, 181 P. 711.- (199) 333-335 LIMITATIONS (Ch. 7 333. Actions already barred "Any right of action, which shall have been barred by any stat- ute heretofore in force, shall not be deemed to be revived by the provisions of this article, nor shall the prior statutes of limitation be extended as to any cause of action which has accrued prior to the time this article shall take effect." 19 334. As against state, municipality, or public officers Limitations do not run against the state unless expressly so pro- vided by statute. 20 Limitations do not run against the state where the state, though not the real party to the record, is the real party in interest. 21 The maxim, "nullum tempus occurrit regi," extends to public rights, and applies to municipal corporations as trustees of the rights of the public, and protects from invasion the property of the municipality held for public use, no matter how lax the municipal authorities have been in asserting the rights of the public. 22 But a county's action for money illegally paid in excess of the salary of its county attorney is subject to the statute of limita- tions. 23 335. Will contest If one is prevented from contesting will at the probate thereof, IB Rev. Laws 1910, 4653. 20 White v. State, 50 Okl. 97, 150 P. 716; White v. State, 50 Okl. 104, 150 P. 718 ; State v. Dixon, 135 P. 568, 90 Kan. 594, 47 L. R. A. (N. S.) 905 ; State v. Moore, 136 P. 233, 90 Kan. 751; Board of Coin'rs of Douglas County v. Oity of Lawrence, 171 P. 610, 102 Kan. 656; State v. School District, 8 P. 208, 34 Kan. 237. 21 Anderson v. Ritterbusch, 98 P. 1002, 22 Okl. 761. 22 Foote v. Town of Watonga, 130 P. 597, 37 Okl. 43. The rule that statutes of limitations do not apply to actions by the state, unless a legislative intent that they shall do so is shown by express language or appears by the clearest implication, applies to subordinate political bodies, including municipal corporations with respect to any litigation to enforce governmental rights. City of Osawatomie v. Board of Coin'rs of Miami Coun- ty, 96 P. 670, 78 Kan. 270, 130 Am. St. Rep. 369. Where a county diverts to its own treasury a part of the money it has collected on taxes levied by city, no limitations run against an action by the city to recover the amount so wrongfully withheld. Id. 2 s Board of Com'rs of Woodward County v. Willett, 49 Okl. 254, 152 P. 365, L. R. A. 1916E, 92 ; Rev. L. 4657. (200) Art. 1) PURPOSE, VALIDITY, AND OPERATION 335-337 he may do so within one year after disability is removed, after which time the right is lost. 24 The statutes relieve an infant of the diligence required of adults under the prior section to contest the probate of a will within one year, or show that the evidence relied on was discovered since the probate of the will. 25 336. As to defenses in general Statutes of limitation are not applicable to mere defenses. 28 337. As to set-off or counterclaim A counterclaim pleaded as a defense, or a set-off pleaded for the purpose of liquidating the whole or a part of plaintiff's claim, is not barred by the statutes of limitations until the claim or the de- mand of the plaintiff is barred, 27 unless defendant's claim was completely barred before the claim of plaintiff was created. 28 24 Cooper v. Newcomb (Okl.) 174 P. 1029; Rev. Laws 1910, 6219, 6225.. 25 Scott v. McGirth, 139 P. 519, 41 Okl. 520. 1 26 Muckenthaler v. Noller (Kan.) 180 P. 453. Code Civ. Proc. 24 (Gen. St. 1915, 6914), providing that a barred right of action cannot be used as a de- fense, applies to set-off or counterclaim or affirmative relief, and not to mat- ters of pure defense. Id. An instrument or contract upon which an action or right is based may be attacked for fraud after time prescribed by Code Civ. Proc. 17 (Gen. St. 1915, 6907), if attacking party does so merely for defense, and seeks no affirmative relief. Id. Where verified answer admitted defendants' signature on note in suit to be genuine, and alleged that their sig- natures were obtained by fraud and asked no affirmative relief, a reply plead- ing statute (Code Civ. Proc. 17 [Gen. St. 1915, 6907]) limiting actions for relief for fraud to two years after its discovery is bad as directing limitation to a matter of pure defense. Id. 27 Stauffer v. Campbell, 30 Okl. 76, 118 P. 391; Rev. Laws 1910, 4662; Cooper v. Gibson (Okl.) 170 P. 220; Advance Thresher Co. v. Doak, 129 P. 736, 36 Okl. 532. Code Civ. Proc. 102 (Gen. St. 1909, 5695), allowing cross-demands, not- withstanding the statute of limitations, held not applicable to a set-off for damages, where a special contract prescribed conditions precedent to a claim for damages, and that a breach thereqf should bar recovery. Chicago, R. I. & P. Ry. Co. v. Theis. 152 P. 619, 96 Kan. 494. Under Civ. Code, 102 (Gen. St. 1909, 5695), held, that the statute of limita- tions was not a bar to a cross-demand and counterclaim setting up, in a bank's action on notes, false representations of plaintiff's cashier, false charges against defendant, and failure to credit defendant with deposits. Drovers' State Bank v. Elliott, 154 P. 255, 97 Kan. 64. Under Code Civ. Proc. 102 (Gen. St. 1909, 5695), where a defendant wrong- 28 O'Neil v. Eppler, 162 P. 311, 99 Kan. 493. 337r339 LIMITATIONS (Ch. 7 While a set-off barred by limitations may be legally pleaded as a set-off, an original action within one year after such set-off is pleaded cannot be maintained on such set-off, although the set-off is not disposed of upon its merits. 29 338. Computation of time Except where a different intention is manifest, in computing time from a certain date the first day is to be excluded and the last included. 30 A day, in legal consideration, is punctum temporis ; fractions of a day being disregarded in computations which include more than one day and involve no question of priority. 31 339. Bar absolute operation in general "When a right of action is barred by the provisions of any stat- ute, it shall be unavailable either as a cause of action or ground of defense, except as otherwise provided with reference to a counter- claim or set-off." 32 The statute of limitations can be pleaded only as a defense, and cannot be made the basis of a claim for affirmative relief. 33 Where a cause of action is barred against an official, it is barred against the sureties upon his official bond. 34 Book accounts which are barred by the statute of limitations are not legal, but moral, obligations. 35 fully withholding land is allowed a claim for mortgages paid by him, plaintiff, notwithstanding the statute of limitations, may set up a claim for the reason- able rental value. New v. Smith, 155 P. 1080, 97 Kan. 580. In action for shortage in land conveyed to plaintiff by defendant, wherein defendant counterclaimed for shortage in stock of merchandise traded to him for the land, Gen. St. 1915, 6994, prevented application of statute of limita- tions to counterclaim. McKenna v. Morgan, 102 Kan. 478, 170 P. 998. 2 Delzell v. Couch (Okl.) 173 P. 361. so Baker v. Hammett, 100 P. 1114, 23 Okl. 480. In computing the two-year period within which action to recover usurious interest paid must be brought under United States Usury Statute (U. S. Oomp. St. 9759) the first day of the period is excluded and the last day included. First Nat. Bank v. Drew (Okl.) 169 P. 1092. si Franklin v. State, 9 Okl. Cr. 178, 131 P. 183. 32 Rev. Laws 1910, 4664. as Corlett v. Mutual Ben. Life Ins. Co., 55 P. 844, 60 Kan. 134; Burditt v. Burditt, 64 P. 77, 62 Kan. 576 ; Johnson v. Wynne, 67 P. 549, 64 Kan. 138. 34 Allen v. State, 51 P. 572, 6 Kan. App. 915; Ryus v. Gruble, 3 P. 518, 31 Kan. 767. ss Balmer v. Long, 104 Kan. 408, 179 P. 371. Art. 1) PURPOSE, VALIDITY, AND OPERATION 339-340 On a petition in an action for procuring money by fraudulent representations respecting worthless patent-right territory pur- chased by plaintiff, he could recover for the fraud, though the ques- tion of value was barred by limitations. 36 The vendee's title under a contract of purchase will not be quiet- ed against the vendor where the consideration has not been paid, though the vendor has failed to enforce payment within the period of limitations. 37 Though cause of action on a judgment is barred by limitations, costs paid by the judgment creditor in the action within five years, owing to the failure of the judgment debtor to pay the same, are not barred. 38 While an action to enforce an arbitration award between the owner and the person holding realty as security for'a debt is barred after five years, a suit to quiet title to the realty on the ground that the debt has been paid is not barred. 39 A cause of action against a corporation, which accrues on the sus- pension of business by the corporation, and against which the stat- ute of limitation will run within three years thereafter, will be- come barred also as to a stockholder on his individual liability, not- withstanding the creditor cannot commence an action against the stockholder until after the expiration of one year from the time the corporation suspended business. 40 Where, in an action for reconveyance of property originally con- veyed to indemnify defendant on a recognizance, an allegation in the petition that six years had elapsed since judgment was obtained on the recognizance is not pleading the statute of limitations as a weapon of attack, but as limiting defendant's legal liability on the judgment. 41 340. Debt of husband and wife Where a mortgage on a homestead, the title to which is in the wife, is executed by the husband and wife to secure their note, se Berhenke v. Penfield, 94 Kan. 532, 146 P. 1187. 37 Berkley v. Idol, 136 P. 923, 91 Kan. 16. ss City of Topeka v. Ritchie, 102 Kan. 384, 170 P. 1003. s 9 Doty v. Shepard, 139 P. 1183, 92 Kan. 122, rehearing denied 141 P. 1013, 92 Kan. 1041. 40 Pacific Elevator Co. v. Whitbeck, 64 P. 984, 63 Kan. 102, 88 Am. St. Rep. 229. 41 Morris v. Hulme, 81 P. 169, 71 Kan. 628. (203) 340-342 LIMITATIONS (Ch. 7 limitations will not bar foreclosure, so long as an action to recover the debt may be maintained against the husband, though such an action is barred against the wife. 42 The refusal to foreclose a mortgage given to secure a note of a husband and wife, for the reason that the title to the mortgaged land was in her and that the debt as to her was barred, is error. 43 In an action commenced against a husband on a tax deed for the recovery of land, where, after the statute of limitations has run on the deed, the wife on her own motion is made a party to the ac- tion in order to resist the claim of plaintiff for a tax lien, she can plead the statute in her behalf, although the action was brought against her husband within the statutory time. 44 . 341. Replevin Limitations are not a bar to a recovery in -replevin by a mortgagee of the possession of the mortgaged property before the statute ran on the note, though the case was not tried until after the right of action had been barred on the note. 45 342. Foreclosure In an action to foreclose, the same limitation applies to the note as to the mortgage, and if an action is maintainable on the note, it is maintainable on the mortgage. 46 Where a grantee, who has assumed a mortgage debt, conveys the land, an action to enforce the mortgage lien is not barred until ac- tion against the debtor is barred. 47 t A suit to foreclose a mortgage having been brought within five years from maturity, the statute of limitations cannot be pleaded against it by the holder of a tax title, who intervenes after the five years have run, and asks that the title be quieted in him. 48 *2 Investment Securities Co. v. Manwarren, 6S P. 68, 64 Kan. 636. 43 Cooper v. Hay thorn, 71 P. 277, 66 Kan. 91. Where, on foreclosure to secure a joint and several note executed by hus- band and wife, the court find that limitations have run against he wife, but as to the husband the note is in force, it is error to award judgment against the husband alone, and refuse to foreclose the mortgage, because the property is that of the wife. Cooper v. Haythorn (Kan.) 68 P. 1069. 44 Richards v. Tarr, 22 P. 557, 42 Kan. 547. 45 McDonald v. Hutchinson Wholesale Grocer Co., 68 P. 1083, 65 Kan. 17. 40 Kirk v. Andrew, 97 P. 797, 78 Kan. 612. 47 Hendricks v. Brooks, 101 P. 622, 80 Kan. 1, 133 Am. St. Rep. 186. *s Ordway v. Cowles, 25 P. 862, 45 Kan. 447. (204) Art. 2) COMMENCEMENT OF ACTION 342~343 The holder of a tax title against mortgaged property cannot in- voke limitations as a defense to a suit to foreclose. 49 Where a guarantor of payment of a note secured by mortgage after purchase of the mortgaged premises at a tax sale thereof assigned the tax sale certificate, its assignee was its successor in relationship to the land, in privity with it, and could plead the de- fense of statute of limitations the same as it might have done. 50 Plaintiff, in an action to quiet title, may interpose the bar of limi- tations against a defendant mortgagee seeking to foreclose a mort- gage lien thereon. 51 A mortgage securing a note must stand or fall with the note, and, if the note cannot be legally collected, the mortgage cannot be en- forced." ARTICLE II COMMENCEMENT OF ACTION Sections 343. When action commenced. 344. Amendment. 343. When action commenced "An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a co-defendant, who is a joint contractor or otherwise united in interest with him. Where service by publica- tion is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly and dili- gently endeavors to procure a service ; but such attempt must be followed by the first publication or service of the summons within sixty days." BS 4 Gibson v. Rea, 140 P. 893, 92 Kan. 262 ; Gibson v. Ast, 94 P. 801, 77 Kan. 458. 50 Cones v. Gibson, 94 P. 998, 77 Kan. 425, 16 L. R. A. (N. S.) 121. si Hogaboom v. Flower, 72 P. 547, 67 Kan. 41. 52 Vanselous v. McClellan, 57 Okl. 742, 157 P. 923. 53 Rev. Laws 1910, 4659 ; English v. T. H. Rogers Lumber Co. (Okl.) 173 P. 1046. Under St. 1890, c. 70, art. 7, 1, providing that a civil action shall be com- (205) 343-344 LIMITATIONS (Ch. 7 Where the petition and affidavit for summons by publication and affidavit for attachment are filed, and order of attachment is issued and served immediately, though first publication was not made until later, the action was commenced, provided summons by publication was later duly completed. 54 Where a petition is filed and summons issued thereon, though service is not obtained, but an alias summons is issued and prop- erly served within 60 days, the action will be deemed to have been commenced when the petition was filed; 55 but where an alias sum- mons was issued and served more than 60 days after confession of a motion to set aside a summons, the action was not begun until the date of the alias summons. 56 Where certain defendants seek to enforce demands against a codefendant, the action will be deemed commenced as to such de- mands at the time the answers setting them up are filed. 57 An action prematurely brought prevents the running of the stat- ute of limitations. 58 344. Amendment An amendment of the petition ordinarily relates back to the date .of the commencement of the action, 59 particularly if the amendment menced by filing in the office of the proper clerk a complaint and causing a summons to issue thereon, and the action shall be deemed commenced from the time of issuing summons, where the statute of limitations was two years, and the complaint was filed September 30, 1890, and summons issued April 5, 1892, and served the same day, the action was not barred by the two years' limitation at the time it was commenced. Schnell v. Jay, 46 P. 598, 4 Okl. 157. Under the express provision of Comp. St. Neb. 1889, Code Civ. Proc. 19, an action was deemed commenced at the date of the summons which was served. Id. Under St. Okl. 1890, c. 70, art. 7, 1, adopted from Indiana, a civil action was deemed commenced from the time of issuing summons. Id. Actions for forcible entry and detainer are not to be deemed commenced until summons has issued, regardless of the date when the complaint was veri- fied, under St. 1893, p. 891, c. 67, art. 2, 9, providing that actions before jus- tices are commenced by summons, or by appearance and agreement of the parties without summons. Greenameyer v. Coate, 72 P. 377, 12 Okl. 452. 54 Richardson v. Carr (Okl.) 171 P. 476. 55 German Ins. Co. v. Wright, 49 P. 704, 6 Kan. App. 611. se Brock v. Francis, 131 P. 1179, 89 Kan. 463, 45 L. R. A. (N. S.) 756. 67 German Fire Ins. Co. v. Bullene, 33 P. 467, 51 Kan. 764. 58 St. Louis & S. F. Ry. Co. v. Kinman, 58 P. 1037, 9 Kan. App. 633. 59 An amendment of a petition substituting one party for another as plain- tiff relates to the institution of the action and suspends limitations as to the (206) Art. 2) COMMENCEMENT OP ACTION 344 is formal and not substantial, 60 though it involves the bringing in of new parties, 61 unless it sets up a new cause of action, 62 in which case, such new cause of action is barred. 63 substituted plaintiff from the time the action was begun and not from the date of the amendment. Harlan v. Loomis, 140 P. 845, 92 Kan. 398. Where a petition has been filed within proper time, the cause of action was not barred, though an amended petition not changing the cause of action was not filed until after two years from the discovery of the fraudulent acts complained of. Z. J. Fort Produce Co. v. Southwestern Grain & Produce Co., 108 P. 386, 26 Okl. 13. Where a cross-complaint filed within the period of limitations is not sign- ed by the attorneys until after the filing of a trial amendment, such amend- ment will relate back to the filing of the cross-complaint, and action is not barred by limitations. Anthony Inv. Co. v. Arnett, 64 P. 1024, 63 Kan. 879. A cause of action is not barred because an amendment of the petition was filed after the statute had run against the action, if the original petition was filed in time. Culp v. Steere, 28 P. 987, 47 Kan. 746. Where, in an action on a note, the court substituted the real owner of the note as plaintiff in place of the payee thereof, such substitution did not change the cause of action; and, since the amendment related back to the commencement thereof, the running of the statute of limitations was arrest- so Defendant was legatee and executor of testator's will, and the testator's sole heir at law filed a petition to set it aside within two years from the probate thereof, to which a demurrer was sustained because defendant was named as executor neither in the caption nor the body of the petition, al- though it clearly appeared from the averments of the petition that the suit was against him both in his own right and as executor; and over two years after the probate of the will an amended petition was filed, in which de- fendant was named as executor. Held, that the action was not barred by the two-years statute of limitations, since the amendment was formal and not substantial. Hoffman v. Steffey, 61 P. 822, 10 Kan. App. 574. i In an action to contest a will, a devisee who was friendly to contestant could be made a party to the suit two years from the time the will was pro- bated without affecting the statute of limitations. Lyons v. Berlau, 73 P. 52, 67 Kan. 426. 62 in an action against a railroad company for appropriating a street in front of plaintiff's lots by laying its track therein, stopping his ingress and egress, damages were claimed as for a quasi condemnation by the wrongful use of the street. After the action had been pending more than 10 years, plaintiff by amendment sought to bring in another railway company as de- fendant, charging it with conspiring with the first to appropriate the street. Held, that recovery against the new defendant was barred by limitations. Anderson v. Atchison, T. & S. F. R. Co., 80 P. 946, 71 Kan. 453. Amended cross-petition to foreclose mechanic's lien on lot on which build- ing was erected did not set up new cause barred by limitations where the original cross-petition sought foreclosure of lien against same lot and adjoin- ing lot. Moline Elevator Co. v. Loewen Real Estate & Investment Co., 57 Okl. 478, 157 P. 99. 83 See note 63 on page 210. (207) 344 LIMITATIONS (Ch. 7 Where an original petition states no cause of action whatever, it will not arrest the running of limitations, and an amendment made after the bar of the statute is complete must be treated as ed from the commencement of the action. Service v. Farmington Sav. Bank, 62 P. 670, 62 Kan. 857. An amendment to a petition seeking recovery on a fire policy, whereby the facts showing the fraud and mistake in description were set forth, and praying reformation and recovery, held not to change the cause of action, and hence limitations did not run from the time of amendment. Phenix Ins. Co. of Brooklyn, N. Y., v. Ceaphus, 51 Okl. 89, 151 P. 568. Where plaintiff sued on a note before it was barred by limitations, an amendment of the complaint after limitations had run merely for the purpose of correcting a recital that a copy of the note was attached to the complaint as Exhibit A so as to allege that the original instead of a copy was attach- ed did not state a new cause of action, and was therefore not barred. Brad- ley v. Pinney, 93 P. 585, 77 Kan. 763. Where an action to quiet title as against a tax deed was brought within the prescribed five years, and after the expiration of that period, by stipula- tion, the form of action was changed to ejectment, and amended pleadings were filed, and the proceedings thereafter were in ejectment, it did not oper- ate as a dismissal of the suit to quiet title and the commencement of an eject- ment. Hillyer v. Douglass, 42 P. 329, 56 Kan. 97. Where, in a suit for conversion, it appears that defendant did not in fact sell the property, but it was sold under his direction, plaintiff is permitted to amend his petition, so as to charge defendant with conversion, and such amendment is made more than five years after the cause of action accrued, still, as the amendment was in fact made and as the plaintiff's action was commenced less than two years after the original cause of action accrued, there is no room for claiming that the cause on which the plaintiff recovered was barred at the time by the operation of any statute of limitations. Empo- ria Nat. Bank v. Layfeth, 64 P. 973, 63 Kan. 17. Wrongful death. Amendment of petition to allow widow of one killed while under federal Employers' Liability Act (U. S. Comp. St. 8657-8665) so as to permit her to sue as his personal representative, instead of personally, was not commencement of new cause of action for purpose of applying two- year limitation provided by act. Missouri, K. & T. Ry. Co. v. Lenahan (Okl.) 171 P. 455. Filing of an amendment, under Rev. Laws 1910, 4790, adding the names of brothers and sisters as plaintiffs, in an action for death, held to relate back to the commencement of the action by the mother so as to defeat a plea of the statute of limitations, section 4692. Motsenbacker v. Shawnee Gas & Electric Co., 49 Okl. 304, 152 P. 82, L. R. A. 1916B, 910. In action for wrongful death under Rev. Laws 1910, 5281, 5282, by fa- ther of deceased child, where more than two years after death he amended by joining mother of deceased as other next of kin, the amendment related back to commencement of suit and arrested statute of limitations. Cowan v. Atchison, T. & S. F. Ry. Co. (Okl.) 168 P. 1015. Petition, in a widow's action for the negligent killing of her husband by a train, held sufficient to constitute a commencement of the action within the statute of limitations, though it failed to allege that deceased was a (208) Art. 2) COMMENCEMENT OF ACTION ' 344 filed at the time the amendment is made, and a cause of action stat- ed therein cannot escape the bar of the statute. 6 * nonresident and that by the laws of the state of his residency the widow was the only person entitled to bring the action. Robinson v. Chicago, R. I. & P. Ry. Co., 133 P. 537, 90 Kan. 426. Even after the expiration of the time within which an action for wrongful death may be brought, the petition in such an action may be amended by setting out the existence of a statute of the state where the wrongful act occurred, which authorizes recovery. Cunningham v. Patterson, 132 P. 198, 89 Kan. 684, 48 L. R. A. (N. S.) 506. . If, after a widow has brought an action for the death of her husband, she is appointed administratrix and amends the petition, her action as ad- ministratrix is not barred by the two-year statute of limitations. Mott v. Long, 132 P. 998, 90 Kan. 110. Even after the expiration of the time within which an action for wrongful death may be brought, the petition therein may be amended by setting out the existence of a statute of the state where the wrongful death occurred which authorizes recovery by plaintiff. Robinson v. Chicago, R. I. & P. Ry. Co., 133 P. 537, 90 Kan. 426. Ejectment. A petition in ejectment may be amended so as to change the description of the property sought to be recovered where there was no con- tention that limitations had expired between the beginning of the action and the amendment. Hinnen v. Artz, 163 P. 141, 99 Kan. 579. Damages. An amendment of a petition in an action for damages, by add- ing the name of a party plaintiff, made more than two years after the cause of action accrued, relates back to the date of the commencement of the action, and the cause of action is not for that reason barred by limitations. Huckle- bridge v. Atchison, T. & S. F. Ry. Co., 71 P. 814, 66 Kan. 443. An amended petition, which merely enlarged the claim for damages, held not demurrable because it showed that the claim was barred, since the amend- ed petition would relate back to the original filing and defeat the opera- tion of the statute. Armstrong v. May, 55 Okl. 539, 155 P. 238. Under Rev. Laws 1910, 4970, amendment Df complaint for personal in- juries after reversal, and after five years from accrual of cause of action, to allege negligent failure to provide safe fellow servants, was permissible. E. Van Winkle Gin & Machine Works v. Brooks, 53 Okl. 411, 156 P. 1152. A petition alleging negligence in general terms may be amended, so as to set forth definitely the alleged negligence, although the period of limita- tions has expired when the amendment is made. Missouri Pac. Ry. Co. v. Moffatt, 55 P. 837, 60 Kan. 113, 72 Am. St. Rep. 343. The petition, in a servant's personal injury action against a railway com- pany, charged that defendant's servants negligently pushed certain cars neg- ligently fastened together with a chain, so as to make them dangerous to handle and use, all of which was known to defendant, and while so push- ing and switching said cars negligently so operated the cars as to throw plaintiff off of one of said cars, etc. An amended petition charged that de- fendant negligently fastened two cars together with a chain, making the e* Missouri, K. & T. Ry. Co. v. Bagley, 69 P. 189, 65 Kan. 188, 3 L. R. A. (N. S.) 259 ; Powers v. Badger Lumber Co., 90 P. 254, 75 Kan. 687. HON.PL.& PBAC. 14 (209) 344 LIMITATIONS (Ch. 7 Though the statute provides that an action to foreclose a lien shall be brought within one year from the time of its filing, an cars dangerous; that defendant had knowledge of such defective coupling; that plaintiff had no knowledge of the dangerous condition of the cars, and was injured by a movement of the cars directed by defendant without proper regard for safety. Held, that the first petition charged negligence in the coupling of the cars, which was made the basis of the charge of negligence in the amended petition, so that the latter did not set up a new cause of action ; and hence the cause of action set up in~ the amended petition was not barred by limitation. Taylor v. Atchison, T. & S. F. Ry. Co., 68 P. 691, 64 Kan. 888. Where breaches of building contract constituted only a single cause of action, an amendment to petition more than five years after completion of work setting up additional items furnished under contract was not barred by statute of limitations. Lantry Contracting Co. v. Atchison, T. & S. F. Ry. Co., 172 P. 527, 102 Kan. 799. A petition alleging that defendant unlawfully carried away stone from land owned by plaintiff, and asking treble damages therefor, sufficiently states a cause of action under Gen. St. 1909, 9692, authorizing treble dam- ages against one who carries away stone from land in which he has no in- terest, so that after the lapse of limitations it may be amended to accord to the language of that act. Fox v. Turner, 116 P. 233, 85 Kan. 146 ; Green v. Same, 116 P. 234, 85 Kan. 877. 6 3 Where an amendment sets forth a new cause of action, limitation may be pleaded to the new matter. Thompson v. Beeler, 77 P. 100, 69 Kan. 462 ; Butt v. Carson, 48 P. 182, 5 Okl. 160. Amendment to count of petition in action for malicious prosecution to allege defendants' false testimony resulting in a conviction brought in a new cause of action, and, when filed more than one year after cause of ac- tion accrued, it was barred by Code Civ. Proc. 17, subd. 4 (Gen. St. 1915, 6907, subd. 4). Smith v. Parman, 172 P. 33, 102 Kan. 787. Where plaintiff, by amendment, sets up no new matter or claim, but mere- ly restates more specifically the cause of action set out in original declara- tion, there is no new suit, and statute of limitation will not avail for period between original and amended pleading. Continental Ins. Co. v. Norman (Okl.) 176 P. 211. Where original declaration states a cause of action im- perfectly and thereafter the defect is corrected by an amended declaration, the plea of statute of limitations will relate to time of filing of original decla- ration. Id. An action on a note containing an indorsement of a payment, commenced within five years after date of the indorsement, held barred by limitations, where the petition did not allege payment to remove the apparent bar under Code Civ. Proc. 23 (Gen. St. 1909, 5616), and the amended petition which made such allegation was not filed until more than five years after the date of the indorsement. Liphart v. Myers, 156 P. 693, 97 Kan. 686. In an action against a township for injuries from a defective highway, a petition failing to allege the notice essential to recovery cannot be cured by amendment after expiration of the limitation period. Higman v. Quin- daro Tp., 139 P. 403, 91 Kan. 673. Where an action is brought on two notes, and during the trial it is dis- (210) Art. 2) COMMENCEMENT OF ACTION 344 action is brought in time if brought within the year, though the original contractor, which by law must be made a party, is not made a party until after such year. 65 missed as to one of them without prejudice, and afterwards plaintiff amends his petition, and claims the same amount as balance due on a settlement, and the pleadings show the settlement occurred more than three years be- fore the petition was amended, the amendment does not relate back to the time of beginning suit, and the claim is barred by the three-years statute of limitations. Parsons Water Co. v. Hill, 26 P. 412, 46 Kan. 145. Where a servant commenced his action against a railroad company for injuries by the failure of defendant in its common-law duties towards him, and more than two years after the injury filed an amended petition contain- ing an additio'nal cause of action, that the injury was the result of the neg- ligence of a fellow servant, for which defendant would be liable only under Laws 1874, c. 93, the statute of limitations, as applied to such new cause, treats the action as commenced when the amendment was filed. Atchison, T. & S. F. R. Co. v. Schroeder, 44 P. 1093, 56 Kan. 731. Plaintiff, whose daughter was killed through the alleged negligence of defendants brought an action in which he stated a common-law liability for loss of services of his daughter, but the averments were wholly insufficient to constitute a statutory liability for her death. More than two years after the negligent injury, he asked and obtained leave to amend his petition, so as to state a cause of action for the recovery of damages for death under Civ. Code, 422. Held, that the' amendment constituted a new cause of action which did not relate back to the commencement of the action, so that the cause of action set up in the amendment was barred by limitations. City of Kansas City v. Hart, 57 P. 938, 60 Kan. 684; Simpson v. Same. Id. Amendments which only make more specific the averments of the original petition, or state the wrong suffered or the right relied on, are ordinarily permissible, and relate back to the beginning of the action, and, where an amendment sets forth a new and different cause of action, limitations con- tinue to run until the amendment is filed. Union Pac. R. Co. v. Sweet, 96 P. 657, 78 Kan. 243. In an action to recover damages for the negligent setting out of a fire which destroyed plaintiff's trees, the original petition alleged that the fire was set out at a certain time and place, and, after limitations had expired, plaintiff obtained leave to amend his petition to aver that the damage resulted from a different fire started five miles distant from the one originally relied on. Held, that the amendment set out a distinct tort, and a new cause of action, on which a recovery was barred by limitations. Id. Where, in an action for injuries to a licensee, there was no allegation that defendant was negligent in failing to light its depot platform, the petition could not be amended so as to charge such failure as a ground of negligence after limitations had run against it. Elrod v. St. Louis & S. F. R. Co., 113 P. 1046, 84 Kan. 444. Where an action is brought in Kansas, based upon a particular section of the Missouri statute, and afterwards an amended petition is filed, alleging a right of action under another section of the same statute, and the time in which the plaintiff had a right to bring said action expired before the amend- ed petition was filed, the bar of the statute of limitations is not tolled by the filing of the first petition. Walker v. Hester, 59 P. 662, 9 Kan. App. 201. e & Western Sash & Door Co. v. Heiman, 68 P. 1080, 65 Kan. 5. (211) 344-345 LIMITATIONS (Ch. 7 In an action to enforce a mechanic's lien, service of summons on the owner within the period of limitation prescribed by statute for the commencement of such an action does not preserve the lien as against other incumbrancers who are not made parties to such an action within the period of limitation. 06 The filing of a petition against one reciting facts which would authorize an action against one not made a defendant will not toll limitations as to latter if he is not made defendant until the statute has run. 67 ARTICLE III WHEN STATUTE BEGINS TO RUN Sections 345. Accrual of right or defense In general. 346. Real property. 347. Personal property. 348. Contracts in general. 349. Continuing contracts. 350. Severable contracts and installments. 351. Bonds. 352. Covenants Mortgage deed. 353. Municipal warrants. 354. Torts. 355. Guaranty. 356. Malfeasance in office. 357. Statutory liability. 358. Equitable actions. 359. Conditions precedent. 360. Trusts. 345. Accrual of right or defense In general The statute of limitations does not begin to run until an obli- gation is due, 68 but whenever one party to a contract may right- fully sue another thereon, a cause of action has accrued, and the statute begins to run. 69 Where, before the time fixed for performance, one of the parties 66 Wood v. Dill, 43 P. 822, 3 Kan. App. 484. 6? Garrity v. State Board of Administration of Educational Institutions, 162 P. 1167, 99 Kan. 695. ss Henshaw v. Smith, 171 P. 616, 102 Kan. 599. ea Patterson v. Bonner (Okl.) 175 P. 826; United States Fidelity & Guaranty Co. v. Fidelity Trust Co., 49 Okl. 398, 153 P. 195. (212) Art. 3) WHEN STATUTE BEGINS TO RUN 346 to a contract for the exchange of lands repudiates it, the other may immediately commence an action for specific performance. 70 346. Real property The right of action to recover real property does not accrue until there is a right vested in plaintiff and an adverse claim asserted or perfected. 71 TO Parks v. Monroe, 161 P. 638, 99 Kan. 368. 7i Limitations begin to run against a widow claiming under Gen. St. 1901, 2510, providing that one-half in value of all the realty in which a husband at any time during marriage had a legal or equitable interest which has not been sold on judicial sale, and is not necessary for payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, upon the death of her husband, if she survives him, when the husband makes a conveyance of such property without the wife joining therein and the grantee takes adverse possession thereof. Poole v. French, 111 P. 488, 83 Kan. 281. In an action of ejectment, both parties claimed title under tax deeds. The action was commenced more than nine years after the last tax deed (defend- ant's) was recorded. Held, that the action was barred by the statute of limita- tions. Campbell v. Stagg, 15 P. 531, 37 Kan. 419. In an action against the original owner for the possession of lands by the purchaser at a judicial sale, where it is shown that the lands remained un- occupied for more than five years after the recording of the sheriff's deed given to said purchaser at such sale, such original owner is barred from set- ting up his title as a defense to said action. English v. Woodman, 20 P. 262, 40 Kan. 412. When two grantees of a tax title holder are in the actual possession, each of the one undivided half of the land sold for taxes before the tax deed has been of record for five years, the statute of limitations does not operate in favor of either in an action between them for partition. Hamilton v. Redden, 24 P. 76, 44 Kan. 193. Where a mortgagee takes possession of real estate under an agreement with the mortgagor to collect the rents and apply them on the debt, limita- tions will not begin to run against the mortgagor's right to redeem until the mortgagee, with notice to the mortgagor, asserts title in himself. Hunter v. Coffman, 86 P. 451, 74 Kan. 308. Where minor remainderman executed deed to life tenant in 1898 and dis- affirmed it in 1901 after death of life tenant, her action in 1914 to recover property from life tenant's husband who claimed adverse possession from 1898 was not barred by Code Civ. Proc. 15, 16, since her cause of action did not accrue until death of life tenant. Ralph v. Ball, 164 P. 1081, 100 Kan. 460. The statute of limitations held not to run against an action to have a deed declared a mortgage while the grantor was making repeated demands for a reconveyance, and the grantee was promising to comply therewith. Clark v. Shoesmith, 139 P. 426, 91 Kan. 797. Where town lots were sold on March 16, 1897, at a foreclosure sale, which was confirmed June 7, 1897, and a sheriff's deed issued which was record- (213) 346-348 LIMITATIONS (Ch. 7 Where a mortgagee enters mortgaged premises under claim of title, and notice of possession and adverse claim is brought home to the mortgagor or his successor, the statute of limitations is set in motion as to an action to redeem. 72 The right of action in a forcible entry and detainer case between adverse claimants of a homestead accrues when the contest is finally adjudicated in the land office. 78 347. Personal property As to lost personal property, or as to such property in the hands of a thief, the statute of limitations begins to run from the wrong- ful taking of possession, if there is no fraud or attempt to conceal or remove from the court's jurisdiction. 74 348. Contracts in general Limitations did not begin to run against an attorney's right to a fee, contingent on his collection of a debt owed to the client, until the collection had been made. 75 ed August 11, 1897, held, that a suit brought August 1, 1911, was barred by the five-year limitations prescribed by Rev. Laws 1910, 4655. Group v. Jones, 44 Okl. 377, 144 P. 377. -2 Turk v. Page (Okl.) 174 P. 1081. 73 Cope v. Braden, 67 P. 475, 11 Okl. 291. -t Adams v. Coon. 129 P. 851, 3G Okl. G44, 44 L. R. A. (X. S.) 624; Torrey v. Campbell (Okl.) 175 P. 524. When personal property which has been lost or stolen is in notorious possession by one in whose possession it is found for two years from date of wrongful taking or possession, owner's right of action therefor is barred by limitations. Id. Limitations as to personalty in thief's hands do not begin to run until the owner has an opportunity to assert his title. Chilton v. Carpenter, 78 Okl. 210, 189 P. 747. Limitations (Mansf. Dig. 4478 [Ind. T. Ann. St. 1S99, 2945]) as to per- sonal property stolen run in favor of an innocent purchaser against the true owner from the time the property is taken possession of, and are a bar when the same has been held openly for three years. McGehee v. Alexander, 127 P. 480, 33 Okl. 699. Comp. Laws 1909, 3550 (Sess. Laws 1895, c. 39; Wilson's Rev. & Ann. St. 1903, 4216), provides that actions for specific recovery of personalty must be brought within two years. Held, that the statute as to personal property, though stolen, when held in good faith and for value, openly and notoriously runs in favor of such adverse possession, so as to bar a recovery by the true owner after expiration of two years, and after the statute be- gins to run. such subsequent purchaser may tack on such prior adverse hold- ing to complete the bar. Shelby v. Shaner, 115 P. 785, 28 Okl. 605, 34 L. It. A. (N. S.) 621. . .76 Joyce v. Miami County Nat. Bank, 136 P. 232, 90 Kan. 745. (214) Art. 3) WHEN STATUTE BEGINS TO RUN 348 When time fixed for payment of oral obligation is uncertain, but its maturity may arrive within one year and promisee has fully performed his part of obligation, the statute of limitations does not begin to run until obligation matures. 76 A real estate agent's commissions, consisting of the profits aris- ing from an exchange of his principal's land, were earned, and the right to commissions accrued, when the principal accepted a purchaser on terms satisfactory to him, and limitations began to run against the agent from such time. 77 An action for money had and received is not barred, where it appears that the money was not received more than three years before, though the wrong enabling defendant to receive the money was committed more than three years before. 78 A surety's right of action for contribution against a cosurety .accrues when he pays the debt of his principal, so that limitations do not begin to run against his cause of action until such pay- ment. 79 As against a claim for services under an implied contract to pay their reasonable value, limitations begin to run at the end of the services, in the absence of agreement as to the time of payment or the length, of time the services shall continue. 80 Where no time was fixed for the term of or payment for personal services continuing until the death of the employer, the ordinary rule is that limitations would not begin to run against a claim until the services ended, in the absence of a general usage to the con- trary. 81 Where a note and mortgage are executed and delivered to the mortgagee, the law implies, in the absence of an agreement to the contrary, that the money loaned thereon is at once due and payable to the mortgagor by the mortgagee, and an action therefor must .be brought within three years from such delivery. 82 TO Henshaw v. Smith, 171 P. 616, 102 Kan. 599. 77 Chamberlain v. Wagner, 144 P. 815, 93 Kan. 450. 78 Perry v. Smith. 2 P. 784, 31 Kan. 423. 7 Mentzer v. Burlingame, 97 P. 371, 78 Kan. 219, 18 L. R. A. (N. S.) 585. so Blake v. Pratt, 54 P. 806, 8 Kan. App. 486. si In re Jewell's Estate, 103 Kan. 381, 173 P. 923. In action for taking care of property for plaintiff's brother since deceased, a custom of real estate men as to monthly settlements was not controlling as to limitations, in view of character of services and relations of employer and employ^. Id. sz McBride v. Lombard Mortg. Co., 24 P. 428, 44 Kan. 351. (215) 348-349 LIMITATIONS (Ch. 7 When the grantee of mortgaged premises assumes and agrees to pay the mortgage debt, as a part of the price, without specify- ing time for payment, no cause of action accrues against him until the debt becomes due according to the contract of the original parties. 83 Where a note, payable in two years after date, with interest pay- able semiannually, was secured by a mortgage, providing that on default in the payment of interest or taxes the whole sum should become due and payable, a cause of action upon default in the pay- ment of interest or taxes did not accrue, ~o as to start the running of the statute. 84 No cause of action arises on a contract of an heir to assign his expectancy, until the death of his ancestor. 85 Where a landowner who had agreed to leave one-half of his farm to his son in consideration of services of the son sold the land, the son's right of action then accrued, and limitations began to run. 86 Where two persons jointly performed services for several years and were to be paid by the recipient "after she was through with her property," demand against her estate, if timely made, is not affected by the statute of limitations. 87 Limitations did not begin to run against an action on an agree- ment to live jn the family of another and perform services until the death of himself and his wife in consideration of his property at his death, upon a dismissal of the party who had agreed to perform the services prior to the other party's death, where she did not ac- cept such renunciation as a breach and treat the contract as then at an end. 88 349. Continuing contracts Where there is single hiring and term of service and time of compensation is not fixed, and service continues until death of em- ployer, limitations do not begin to run against claim for compen- sation until the services are ended. 89 ss Carnahan v. Lloyd, 46 P. 323, 4 Kan. App. 605. 84 Core v. Smith, 102 P. 114, 23 Okl. 909. 85Clendening v. Wyatt, 38 P. 792, 54 Kan. 523, 33 L. R. A. 278. so Engelbrecht v. Herrington, 172 P. 715, 101 Kan. 720, 103 Kan. 21, L. R. A. 191SE, 785. 87 Dubbs v. Haworth, 171 P. 624, 102 Kan. 603. ss Heery v. Reed, 102 P. 846, 80 Kan. 380. 8 Schaffner v. Schaffner's Estate, 157 P. 402, 98 Kan. 167; Grisham v Lee, 60 P. 312, 61 Kan. 533; Same v. Greer, 60 P. 312, 61 Kan. 533. (216) Art. 3) WHEN STATUTE BEGINS TO RUN 349~350 In an action for rent of property, based wholly upon a quasi contract arising by operation of law from the occupation of the premises, without any express or implied contract, no recovery can be had based on such occupancy for more than three years prior to the commencement of the action. 90 350. Severable contracts and installments Where a note provides that default in interest shall mature the debt at the option of the holder, and there is a default, and the holder does not exercise the option, limitations will not run until the time fixed for payment of the note. 91 Where a note payable five years after date provides that interest is payable semiannually, and, if not paid punctually, shall become a part of the principal, the installments of interest due more than five years before bringing the suit are not barred by the statute of limitations. 92 A mortgage by its terms provided that, if any coupon should not be paid when due, the debt secured by mortgage, at the option of the legal holder, might become due and payable without notice. On default in such coupons the mortgagee brought suit for foreclosure, declaring the whole debt due. Thereafter plaintiff died, and the action was dismissed. It was held that the election to declare the debt due was for all purposes, and limitations began to run against the debt from the time of the election, and not from the time the note was due according to its terms. 03 Where a note became due on default in the payment of interest for two successive semiannual periods, on payment of interest up to December, 1892, limitation would not begin to run until Decem- ber, 1893, and hence an action commenced in November, 1898, was not barred. 94 Where a mortgage securing a note due in five years gives the holder an option to declare the note due in advance of maturity, upon default by the maker, limitations do not begin to run until the holder exercises such option. 95 so Story v. McCormick, 78 P. 819, 70 Kan. 323. i Kennedy v. Gibson, 75 P. 1044, 68 Kan. 612. 2 Beeler v. Highland University Co., 54 P. 295, 8 Kan. App. 89. as Westcott v. Whiteside, 64 P. 1032, 63 Kan. 49. * Reed v. Gulp, 66 P. 616, 63 Kan. 595. 5 York-Ritchie Exch. & Inv. Co. v. Mitchell, 51 P. 57, 6 Kan. App. 317. (217) 351-353 LIMITATIONS (Ch. 7" 351. Bonds An action to recover damages on an attachment bond should be commenced within five years from the final determination of the district court that the order was wrongfully obtained. 96 Where a petition on a stay bond alleges no element of damage other than the suspension of the right to sue until the determination of the proceeding in error, the cause of action accrued on such de- termination. 97 352. Covenants Mortgage deed The covenants of seisin and of the right to convey, and that the land is free from incumbrances, are broken as soon as the deed is executed, if the title be bad; and a cause of action accrues at once. 98 One cannot come into court of equity and have a deed declared a mortgage, and then plead the statute of limitations against the mortgage, for in such case the statute begins to run only from date of decree converting deed into mortgage. 99 353. Municipal warrants Limitations do not run in favor of municipal or quasi municipal corporations upon its outstanding obligations, evidenced by war- rants, until the corporation has provided a fund out of which pay- ment of the sum may be made. 1 This rule does not apply to its ordinary bonded indebtedness represented by negotiable bonds and interest coupons. 2 90 Baker v. Skinner, 64 P. 981, 63 Kan. 83. 97 Cook v. Smith, 72 P. 524, 67 Kan. 53. 98 Jewett v. Fisher, 58 P. 1023, 9 Kan. App. 630. 99 Huff v. Lynde-Bowman-Darby Co. (Okl.) 175 P. 250. 1 Barnes v. Turner, 78 P. 108, 14 Okl. 284, 10 L. R. A. (N. S.) 478, 2 Ann. Cas. 391, judgment affirmed Duke v. Same, 27 S. Ct. 316, 204 U. S. 623, 51 L. Ed. 652, 9 Ann. Cas. 842; Hubbell v. City of South Hutchinson, 68 P. 52, 64 Kan. 645 ; City of Sulphur v. State, 62 Okl. 312, 162 P. 744. Where a warrant is issued by the officers of a quasi corporation, and the creditor accepts the same, relying on the ordinary modes of taxation to pay the obligation, the municipality cannot set up the statute of limitations with- out first showing that it has provided a fund for the payment of such in- debtedness. Board of Com'rs of Greer County v. Clarke & Courts, 70 P. 206, 12 Okl. 197. 2 Schoenhoeft v. Board of Com'rs of Kearny County, 92 P. 1097, 76 Kan. 883, 16 L. R. A. (N. S.) 803, 14 Ann. Cas. 100. (218) Art. 3) WHEN STATUTE BEGINS TO RUN 354 354. Torts A cause of action for tort accrues when the injury is actually done. 3 3 The cause of action for permanent injury to a riparian owner from a municipal sewer system constituting a nuisance arises, and the statute of limitations begins to run, when the municipality begins to operate the sys- tem and occasions the injury. City of Mangum v. Sun Set Field (Okl.) 174 P. 501. Action for damages caused by subsidence of surface of land due to min- ing coal therefrom is not barred by limitations until two years have elapsed after the subsidence. Walsh v. Kansas Fuel Co., 102 Kan. 29, 169 P. 219; Audo v. Western Coal & Mining Co., 162 P. 344, 99 Kan. 454. Cause of action for damages to land from a natural enlargement of a ditch rightfully dug by defendant on its right of way accrued when ditch invaded plaintiff's land and damages for permanent injury were recoverable, and was barred when not commenced within two years. Civ. Code Kan. 17, subd. 3 (Gen. St. Kan. 1909, 5610) ; Pever v. Atchison, T. & S. F. Ry. Co., 164 P. 159, 100 Kan. 266. An owner's right of action for permanent damages from the pollution of a rstream by operation of a sewer system and oil refinery held barred by limita- tions, where action was not brought within two years after the sewer system and refinery were in operation. McDaniel v. City of Cherryvale, 136 P. 899, 91 Kan. 40, 50 L. R. A. (N. S.) 388. An adjacent owner's action against a city for damages from overflow caus- ed by street improvements is barred by Code Civ. Proc. 17, subd. 3 (Gen. St. 1909, 5610), unless brought within two years. Beard v. Kansas City, 150 P. 540, 96 Kan. 102. An action for damages from an overflow caused by defective construction of railroad embankments is not barred by limitations until more than two years have passed since the injury, though the embankments were construct- ed more than two years before. Atchison, T. & S. F. Ry. Co. v. Eldridge, 139 P. 254, 41 Okl. 463. An action for personal injuries, being an action not arising on a contract, must under Comp. Laws 1909, 5550, subd. 3, be brought within two years after cause of action accrues. Waugh v. Guthrie Gas Light, Fuel & Improve- ment Co., 131 P. 174, 37 Okl. 239, L. R. A. 1917B, 1253. When the cause of injury to realty is not permanent, the statute of lim- itations does not begin to run until the injury is suffered. St. Louis & S. F. R. Co. v. Ramsey, 132 P. 478, 37 Okl. 448. The right of action against a city for injury from the flooding of property by the negligent construction of a sewer accrues when the property is flooded, and limitation runs only from that date. Kansas City v. King, 68 P. 1093, 65 Kan. 64. Where a railway held goods in its warehouse for a consignee, and was in- duced by wrongful acts of the consignor to deliver them to one not the own- er, limitations began to run on the cause of action against the consignor at the time his tortious act was committed, and not from the time when the company was compelled to pay to the consignee the value of the goods. Nash- ville, C. & St. L. Ry. v. Dale, 74 P. 596, 68 Kan. 108. Where a corporation enters on the building of another, and without his (219) 354-355 LIMITATIONS (Gh. 7 Where a city so grades and paves a street as to collect the sur- face water for a large area and discharge it on the property of plain- tiff, through a failure to provide suitable outlets for said water, the city has a legal right, and it is its legal duty, to terminate the cause of injury, "and the damage thereby caused is a continuing damage, and the statute of limitations does not begin to run so long as the damage so continues. 4 Limitations commence to run against an action against a city for damages for flooding of land owing to the negligence of the city in the paving and guttering of a street at the time of the flooding, and not at the time of the improvement causing the same. 5 A right of action against an abstractor for damages from im- perfections or error in an abstract accrues when the examination is reported, and not when the error is discovered, and the damages resulting therefrom have been paid. 6 In an action under the federal Employers' Liability Act (U. S. Comp. St. 8657-8665), the statute of limitations began to run from date of death, and not from date of accident. 7 355. Guaranty A guarantor who has become such at the request of the principal has the benefit of an implied promise of indemnity, and a new and independent cause of action arises thereon whenever he is com- pelled to make a payment, irrespective of the time of maturity of original debt. 8 consent fastens a telegraph wire to the roof, which does no injury to the property at the time, but thereafter, on account of additional wires being connected with the wire so fastened the building is greatly damaged, the right of action for such damage arises from the placing of the additional wires, and the statute of limitations begins to run only from that time. West- ern Union Tel. Co. v. Moyle, 32 P. 895, 51 Kan. 203. * City of Kansas City v. Frohwerk, 62 P. 432, 10 Kan. App. 120. e City of Kansas City v. Frohwerk, 62 P. 252, 10 Kan. App. 116. e Walker v. Bowman, 111 P. 319, 27 Okl. 172, 30 L. R. A. (N. S.) 642, Ann. Cas. 1912B, 839, reversing judgment 105 P. 649, on rehearing; Provident Loan Trust Co. v. Wolcott, 47 P. 8, 5 Kan. App. 473. 7 Lindsay v. Chicago, R. I. & P. Ry. Co.. 56 Okl. 234, 155 P. 1173. s Leslie v. Compton, 172 P. 1015, 103 Kan. 92, L. R. A. 1918F, 706. (220) Art. 3) WHEN STATUTE BEGINS TO RUN 356~359 | 356. Malfeasance in office A cause of action against a court clerk for moneys of litigants received in his official capacity accrues and limitation begins to run upon his conversion of such moneys. 9 357. Statutory liability That a cause of action is created by statute and did not exist at common law does not necessarily prevent the limitation as te time within which same may be brought from being subject to tolling provisions of statute. 10 Where a lien on the rents and profits of land was created by operation of law to pay the value of improvements, the statute of limitations would not run so long as the rents and profits were being applied to the extinguishment of the lien. 11 358. Equitable actions Limitations against a creditor's bill begin to run from return of an. execution on judgment nulla bona. 12 Limitations will not commence to run against a cause of action on an executory contract to enforce specific performance, while the grantor is receiving from the grantee payments on the contract as part performance thereof. 13 Where one sells land to others executing a bond for a deed, and they on their part execute, as a part of the purchase price, their promissory notes, and the owner conveys the land to plaintiffs by a warranty deed, in pursuance of a prior contract of sale, plaintiffs' right to be subrogated to the rights of the vendor on the notes of defendants accrues on the execution of their deed. 14 359. Conditions precedent The statute of limitations on a cause of action in the nature of a creditors' bill begins to run from the time an execution on the judg- ment is returned nulla bona, and not from the date of the fraudu- lent transfer of the property, sought to be subjected to the judg- ment. 15 Purcell Bank & Trust Co. v. Byars (Okl.) 167 P. 216. 10 Bean v. Rumrill (Okl.) 172 P. 453. 11 Silversmith v. Hart (Okl.) 173 P. 451. 12 Indian Land & Trust Co. v. Owen, 63 Okl. 327, 162 P. 818. is Burnell v. Bradbury, 74 P. 279, 67 Kan. 762. 14 Brown v. Pilcher, 58 P. 560, 60 Kan. 860. is Blackwell v. Hatch, 73 P. 933, 13 Okl. 169. (221) 359-360 LIMITATIONS (Ch. 7 Running of limitations in an action to subject property fraud- ulently conveyed cannot be indefinitely postponed by the delay of the creditor in -reducing" his claim to judgment. 16 Where a deed described a certain mortgage, "which grantee as- sumes and agrees to pay," limitations begin to run from, acceptance of the deed by the grantee. 17 Although during pendency of suit defendant conveys realty, of which plaintiff had knowledge limitations do not begin to run against plaintiff's right to subject the land to payment of his claim until judgment has been rendered in the original action, if pros- ecuted with reasonable diligence. 18 Where a deed is executed and delivered as an escrow, to take effect on the grantor's death, the consideration therefor is not due until then, and the cause of action for the consideration does not ac- crue, nor does the statute of limitations begin to run, until an ad- ministrator is appointed. 19 An action in the nature of a creditors' bill to set aside a fraud- ulent conveyance of land, and to subject the same to the payment of a judgment, must be brought within two years after the plaintiff is in position, by reason of his judgment, to maintain the suit. 20 360. Trust Limitations ordinarily do not commence to run against a trustee until he repudiates the trust or denies his liability, and it should appear that the beneficiary had, or ought to have had, knowledge of such repudiation or denial. 21 is Donaldson v. Jacobitz, 72 P. 846, 67 Kan. 244. i* Hendricks v. Brooks, 101 P. 622, 80 Kan. 1, 133 Am. St. Rep. 186. is Young v. Buck, 154 P. 1010, 97 Kan. 195, denying rehearing 154 P. 213, 97 Kan. 39. i Mills v. Mills, 23 P. 944, 43 Kan. 699. 20 Taylor v. Lander, 60 P. 320, 61 Kan. 588, judgment Lander v. Pollard, 46 P. 975, 5 Kan. App. 621, affirmed. 21 Oooley v. Gilliam, 102 P. 1091, 80 Kan. 278. The statute does not commence to run in favor of a trustee of land, as against the beneficiary, until a renunciation of the trust. Kansas City Inv. Co. v. Fulton, 46 P. 188, 4 Kan. App. 115. A suit to impress money as a trust, filed as an amended petition in 1911 to an action begun in 1907 for money paid by mistake, held barred by limita- tions, where the trust had been disavowed in 1903 with notice to all parties interested. Nicholson v. Nicholson, 146 P. 340, 94 Kan. 153. The act of a party in obtaining money in 1898, and refusing to return it in 1903, with full (222) Art. 4) LIMITATION PERIODS 360-362 Where a trust results by implication of law, a recognition by the trustee of the rights of the equitable owner tolls the running of limitations until the holder of the title disavows the trust. 22 Limitations against an action by a Grand Lodge against a bank for the amount of an overdraft by the defaulting treasurer of the lodge do not begin to run in favor of the bank until the beneficiary discovered the breach of trust. 23 ARTICLE IV LIMITATION PERIODS Sections 361. Application of statutes. 362. Real actions. 363. Other actions. 364. Fraud. 365. Foreign judgment Bonds, etc. 366. Action for recovery of estate sold by guardian. 367. Liens. 368. Liens against railroads. 369. Actions against notaries. 370. Rejected claim. 371. Vacancy in administration. 372. Action against sureties on bond. 373. Actions for wrongful death. 374. Assessments Suits to set aside. 375. Demand Tender. 376- Actions for usurious interest. 377. Tax deed. 378. Nonresident alien landowners. 361. Application of statutes Civil actions can only be commenced within the periods pre- scribed in this article, after the cause of action shall have accrued ; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation." 24 362. Real actions "Actions for the recovery of real property, or for the determi- nation of any adverse right or interest therein, can only be brought knowledge of all parties from the latter date, held such a denial of a claim that the money was a trust fpnd that suit should have been brought within the limitation period. Id. 22 Hunnicutt v. Oren, 114 P. 1059, 84 Kan. 460. 23 Washbon v. Linscott State Bank, 125 P. 17, 87 Kan. 698. z* Rev. Laws 1910, 4654. (228) 362 LIMITATIONS (Ch. 7 within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter: 25 "First. An action for the recovery of real property sold on exe- cution, brought by the execution debtor, his heirs, or any person claiming under him, by title acquired after the date of the judg- ment, within five years after the date of the recording of the deed made in pursuance of the sale. 20 "Second. An action for the recovery of real property sold by executors, administrators or guardians, upon an order or judgment of a court directing such sale, brought by the heirs or devisees of the deceased person, or the ward or his guardian, or any person claiming under any or either of them, by the title acquired after the date of the judgment or order, within five years after the date of the recording of the deed made in pursuance of the sale. 27 "Third. An action for the recovery of real property sold for taxes, within two years after the date of the recording of the tax deed. 28 25 The statute of limitations contained in St. 1893, 5668, relating to ac- tions to recover possession of realty, does not apply to an action to quiet title. Lowenstein v. Sexton, 90 P. 410, 18 Okl. 322. 26 The five-year statute of limitations (Code Civ. Proc. 15 [Gen. St. 1909, 5608]), against actions for recovery of real property sold on execution brought by the execution debtor or any person claiming under him by title acquired after the judgment, applies to all sales, void and voidable. James v. Logan, 108 P. 81, 82 Kan. 285, 136 Am. St. Rep. 105. 27 The purchaser of land at guardian's sale under order of probate court, after five years from record of deed, is not barred by Rev. Laws 1910, 4655, subd. 2, from bringing suit against one in possession for more than one year and claiming under a title having no relation to the guardianship proceed- ings. Drennan v. Harris (Okl.) 161 P. 781. The five-year statute of limitations (Civ. Code Kan. 15, subd. 2 [Gen. St. Kan. 1909, 5608]) held not to apply to an action to recover realty by one claiming title from a source paramount to an administrator's deed. Byerly v. Eadie, 148 P. 757, 95 Kan. 400, judgment modified 150 P. 523, 96 Kan. 137. An heir or devisee having title paramount to, and independent of, that claim- ed by decedent, may. sue to quiet title or to recover possession irrespective of the five-year statute (Civ. Code Kan. 15, subd. 2 [Gen. St. Kan. 1909, 5608]). Id. The five-year limitation prescribed by Gen. St. Kan. 1909, 5608 (Code Civ. Proc. Kan. 15), subd. 2, does not apply to an action to recover land sold by one as guardian, who was not so appointed. Harrison v. Miller, 123 P. 854, 87 Kan. 48. 2s Where the holder of a valid tax deed, before the two-year limitation has barred his right to recover possession under it, obtains the actual and peace- able possession of the land, the statute is satisfied, and, if he thereafter loses (224) Art. 4) LIMITATION PERIODS 362-363 "Fourth. An action for the recovery of real property not here- inbefore provided for, within fifteen years. 29 "Fifth. An action for the forcible entry and detention, or forcible detention only, of real property, within two years." 30 363. Other actions "Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards : "First. Within five years : An action upon any contract, agree- ment or promise in writing. 31 possession, his right to recover it continues until barred by the general stat- ute of limitations. Buckner v, Wingard, 115 P. 636, 84 Kan. 682. Plaintiff assigned a land certificate in blank and forwarded it to defend- ant in 1896, with authority to insert the name of a purchaser, but defendant inserted his own name as assignee, and had the assignment recorded in 1900 without paying any consideration therefor, and in 1899 paid certain deferred payments then due, preventing forfeiture, and obtained a patent in 1905. Plaintiff learned on February 9, 1900, that defendant held the land in his own name as his own, and brought an action in 1905 to recover the land on the ground of fraud in inducing him to assign the certificate in blank, where- by defendant was enabled to insert his own name as purchaser. Held that, if plaintiff had any cause of action to recover the land, it was barred by the two-year statute of limitations. Martin v. Cochran, 106 P. 45, 81 Kan. 602. 29 Action to cancel void conveyance is not barred by any lapse of time short of that sufficient to establish title by prescription, as fixed by Laws 1910, 4655, subd. 4. Burckhalter v. Vann, 59 Okl. 114, 157 P. 1148. Where primary purpose of action was to recover possession of land, though cancellation of deed was asked, the 15-year statute of limitations found in Rev. Laws 1910, 4655, subd. 4, applies. Campbell v. Dick (Okl.) 176 P. 520. Where primary purpose of an action is recovery of real property, and in- cidental relief is sought, Rev. Laws 1910, 4655, subd. 4, limiting time of bringing suit to 15 years, and section 4657, subd. 3, does not apply, notwith- standing the incidental relief sought is that deed obtained by fraud be de- clared a mortgage. Franklin v. Ward (Okl.) 174 P. 244. In an action to quiet title, defendant, by cross petition and answer, alleged that he was joint owner with plaintiff of the land, that plaintiff was in pos- session, and held the legal title in trust for him, and asked for a recovery, to have all adverse interest determined, and also for an accounting for taxes and improvements. Held, that defendant's main cause of action was for the recovery of real property, and the statutory limitation of 15 years was appli- cable. Reihl v. Likowski, 6 P. 886, 33 Kan. 515. so Rev. Laws 1910, 4655. 31 An action to recover damages on an attachment bond is an action on a written contract, and is not barred until the expiration of five years from the time the right of action accrues. Baker v. Skinner, 64 P. 981, 63 Kan. 83. An instrument acknowledging receipt of a sum of money, and stating that the party receiving it deducted the same from the purchase price of described HON.PL.& PRAC 15 (225) 363 LIMITATIONS (Ch. 7 "Second. Within three years: An action upon a contract ex- press or implied, not in writing ; an action upon a liability created by statute, other than a forfeiture or penalty. 32 land as commission for the sale, as the commission belonged to a third person and by agreement was to be deducted from the price is not an agreement, contract, or promise in writing upon which an action may be brought within five years, but is a mere receipt for the money. Lewis v. Norris, 103 P. 134, 80 Kan. 620. An instrument acknowledging receipt of a sum of money as belonging to a person named, but containing no statement of any fact from which the law implies an obligation or promise, is not an agreement, contract, or promise in writing upon which an action may be brought within five years. Id. Where one contracts in writing to drill gas wells to be paid for whenever a paying well has been drilled, and the other party refuses to make payment and the work is abandoned, an action for the work already done is an action upon the contract governed by five-year limitations. Bailey v. Fredonia Gas Co., 109 P. 411, 82 Kan. 746. A township warrant is such a promise in writing that an action may be brought thereon against such township at any time within five years from the date of its issue. Walnut Township v. Jordan, 16 P. 812, 38 Kan. 562. In an action on a note and mortgage securing the same, the limitations pre- scribed by Gen. St. Kan. 1901, 4446, apply, and not those of section 4444, relating to actions for the recovery of real property, and not for the recov- ery of money. Kirk v. Andrew, 97 P. 797, 78 Kan. 612. In an action on a note, wherein the defense was limitations, it was error to instruct that, unless a partial payment indorsed on the note was made on the date indorsed, plaintiff could not recover, and to refuse an instruction that the action would not be barred if payment was made at or near such date, and within the statutory period of limitation, though plaintiff testified that the payment was made on the date stated. Keener v. Lloyd, 133 P. 710, 90 Kan. 250. An action by a partner to enforce a constructive trust arising in his favor by acts of his copartner is barred in five years unless cause for the delay is shown. Hackett v. Pratt, 49 P. 100, 5 Kan. App. 586. 32 An action on a judgment held not an action on a contract, and therefore barred within three years under Rev. Laws 1910, 4657, subsec. 2. Wake- man v. Peter, 52 Okl. 639, 152 P. 455. Action to recover share of partnership losses, where alleged partnership agreement was oral, and where existence of partnership was denied, was an action to establish partnership agreement, based upon a "contract not in writing," and within the three-year limitation. Patterson v. Bonner (Okl.) 175 P. 826. An action to recover public money unlawfully received by a public officer is barred in three years. Shelton v. State, 62 Okl. 105, 162 P. 224. A suit by the guardian of a minor against a former guardian and sureties to recover the amount due to the ward was not barred when it was begun within three years from the date of former guardian's settlement in county court and during ward's minority. Driskill v. Quinn (Okl.) 170 P. 495. Kansas cases. A cause of action against a guardian for a balance due (226) Art. 4) LIMITATION. PERIODS 363 when the ward reached the age of majority accrues at that time, and is a liability created by statute, to which the three-year limitation applies, under Code Civ. Proc. 1909. 17, subd. 2 (Gen. St. 1909, 5610), though the action is on the guardian's bond. Hawk v. Sayler, 83 Kan. 775, 112 P. 602. A judgment was rendered against a corporation June 30, 1906. Execution issued February 15, 1907, and was returned unsatisfied for want of property on which to levy. Held, that the judgment creditor had three years there- after in which to begin an action to enforce the judgment against a stock- holder. Douglass v. Loftus, 119 P. 74, 85 Kan. 720, L. R. A. 1915B, 797, Ann. Cas. 1913A, 378. The liability of an officer to pay over money to the county treasurer, as required by law, is one created by statute; and an action thereon against the sureties on the bond can only be brought within three years after the cause of action has accrued. Board of Com'rs of Cloud County v. Hostetler, 51 P. 62, 6 Kan. App. 286. A civil action, brought under Gen. St. 1897, c. 18, 74, against bank offi- cers, for the recovery of deposits received by them when the bank was in a failing condition, is on a "liability created by statute," within Civ. Code, 12, subd. 2, requiring such action to be brought within three years. Seglem v. Yaeger, 56 P. 508, 8 Kan. App. 655. Under Code Civ. Proc. 17 (Gen. St. 1915, 6907), an action on a liability imposed by statute, including the statutes of Arkansas, is barred in three years after such statutory liability has accrued. Davis v. Drury, 105 Kan. 69, 181 P. 559. A civil action by the state to enforce a lien for fines and costs against the owner of real estate who has knowingly suffered a person to sell liquor there- on in violation of law is an action "on a liability created by statute," within the meaning of Code, 18, subd. 2, which provides that an action on a liabil- ity created by statute is barred in three years, and is not an action on a "statute for a penalty or forfeiture," within the meaning of subdivision 4, barring such actions in one year. State v. Pfefferle, 7 P. 597, 33 Kan. 718. An action under Acts 1881, 15, for damages by sale of intoxicating liq- uors, is purely statutory, and must be commenced within three years after the cause of action shall have accrued as prescribed by subdivision 2 of sec- tion 18 of the Code ; the action being on a liability created by statute other than a forfeiture or penalty. Durein v. Pontious, 8 P. 428, 34 Kan. 353. The three-year statute of limitation (Code Civ. Proc. 18, subd. 2), appli- cable to actions on liabilities created by statute, has no application to an original action in the supreme court, instituted by the attorney general in the name of the state, to compel the officers of a county to keep their offices at the county seat, and to determine its location ; it being but an exercise of the sovereign power of the state compelling obedience to its statutory man- dates. (1887) State v. Stock, 16 P. 106, 38 Kan. 154, rehearing denied (1888) 16 P. 799, 38 Kan. 184. An action on the official bond of a county clerk to recover fees wrongfully retained is an action on a liability created by statute, and barred by the three-year statute of limitations (Civ. Code, IS, subd. 2), and is not governed by section 18, subd. 5, providing that an action on an official bond can be brought only within five years after the cause of action accrues. Board of Com'rs of Graham County v. Van Slyck, 35 P. 299, 52 Kan. 622. The liability of an administrator for failure to pay over money of the es- (227) 363 LIMITATIONS (Ch. 7 tate to his successor when ordered to do so by the probate court is one cre- ated by statute, and an action thereon by the administrator de bonis non against the sureties upon the bond of the former administrator can only be brought within three years after the cause of action has accrued. Davis v. Clark, 49 P. 665, 58 Kan. 454. A civil action brought under Gen. St. 1897, c. 18, 74, against bank officers for the recovery of deposits received by them when the bank was in a failing condition, is upon a "liability created by statute," and is therefore governed by Civ. Code, 12, subd. 2, prescribing three years as the limit for bringing an action on such liability. Judgment Ashley v. Frame (1896) 45 P. 927, 4 Kan. App. 265, reversed. Frame v. Ashley, 53 P. 474, 59 Kan. 477. The three-year statute of limitations of Code Civ. Proc. div. 3, 18 (Gen. St. 1901, 4446), does not bar the issuance and enforcement of an execution under an order of court therefor, made pursuant to the statute relative to the double liability of stockholders in a corporation, as the issuance and enforce- ment of such an execution is not the bringing of a "civil action," within such section, and the execution is based on the order awarding it, and not on the statutory liability of the stockholder. Wheeler v. Chenault, 66 P. 1010, 63 Kan. 730. The obligation resting on a township, which is a legal successor of a coun- ty covering the same territory, and which has received the assets of such county, is not a statutory one, nor an implied obligation, as those terms are used in the statute of limitations, but is an obligation identical with that which rested upon the original county. Van Auken v. Garfield Tp., Finney County, 72 P. 211, 66 Kan. 594. The statute requiring actions to enforce a liability' created by statute to be brought within three years does not apply to suits brought to enforce tax liens. Whitney v. Board of Com'rs of Morton County, 85 P. 530, 73 Kan. 502. Where mother conveyed land to sons on oral agreement to care for her during her life, action by her daughter 22 years after mother's death to can- cel deed for nonperformance by grantees is barred by limitations. Wilson v. Highley, 157 P. 411, 98 Kan. 154. Where the joint maker of a note pays the same, and afterwards sues the other joint maker to recover the amount paid,, on the ground that plaintiff was only a surety, and there is no written agreement between the parties that plaintiff should be liable only as surety, his action is 011 a contract not in writing, and must be brought within three years after he pays the note, under Comp. Laws, 3811. Guild v. McDaniels, 23 P. 607, 43 Kan. 548. An action to recover rents for land wrongfully withheld is founded on an implied contract to which the three-year statute of limitations applies. Har- lan v. Loomis, 140 P. 845, 92 Kan. 398. A cause of action for rents and profits, although joined with one in the nature of ejectment, is founded on an implied contract, and therefore the three-year limitation provided in Civ. Code, 18, subd. 2, applies. Seibert v. Baxter, 12 P. 934, 36 Kan. 189. A claim against the assignee of an insolvent firm for a trust fund, which came into his hands with the assigned estate, is barred by the three-years statute of limitations, though the contract with reference thereto between the claimant and the assignor was in writing. The assignee's liability to ac- count as trustee for^he claimant is founded not on the contract, but on his (228) Art. 4) LIMITATION PERIODS 363 "Third. Within two years : An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud." 33 receipt of funds which in equity belong to the claimant. Burrows v. Johntz, 48 P. 27, 57 Kan. 778. Where a candidate for a state office was charged with misconduct as coun- ty clerk and requested, in writing, the county board to inform him whether he was indebted to the county, and agreed to be bound by their decision, and on their report .that he owed a certain sum, paid it, and subsequently brought suit to recover, claiming that the payment was under duress, his right of action, if any, was on the county's implied contract to restore the money, and not under a written contract ; and hence the statute of limitations applicable was the three-year statute, and not that of five years. Kelly v. Board of Com'rs of Miami County, 116 P. 477, 85 Kan. 38. An action against an abstracter of titles for damages for giving a wrong certificate of title is not one on the bond which he has given pursuant to statute, nor on an agreement in writing (Code Civ. Proc. 18, subd. 1), but on a contract not in writing (subdivision 2), and is hence barred in three years. Provident Loan Trust Co. v. Wolcott, 47 P. 8, 5 Kan. App. 473. Action for services and materials, begun three years and two months after they were, furnished, is barred by limitation. Wichita Water Co. v. City of Wichita, 158 P. 49, 98 Kan. 256. A passbook given by a bank to a depositor is not a written contract, but is a mere receipt for the amount deposited ; and an action thereon is barred by the three-year limitation. Civ. Code, 18. Talcott v. First Nat. Bank, 36 P. 1066, 53 Kan. 480, 24 L. R. A. 737. An action for the recovery of damages for a failure to comply with the terms of a written agreement to erect a house, and to furnish all labor and material therefor, is an action upon an agreement, contract, or promise in writing, and is not barred by the three-years statute of limitations. Lingren v. Fletcher, 56 P. 328, 8 Kan. App. 376. Where plaintiff and defendant agreed in writing to erect a building, each to pay one-half the cost, an action by plaintiff for a sum paid by him in ex- cess of his half was not barred in three years. Ross v. Wellington Lodge Xo. 133, I. O. O. F., 146 P 1003, 94 Kan. 528. ss Rev. Laws 1910, 4657. Actions for specific recovery of personal property must be brought within two years. Torrey v. Campbell (Okl.) 175 P. 524. Action for wrongfully killing cattle must be brought within two years. Missouri, K. & T. Ry. Co. v. Wilcox, 121 P. 656, 32 Okl. 51. Limitation of two years, not fifteen-year lynita-tion, applies to action in ejectment in form, but in substance for relief for fraud. Campbell v. Dick (Okl.) 157 P. 1062. In replevin, where plaintiff contended that he had acquired title to proper- (229) 363 LIMITATIONS (Ch. 7 ty by possession for two years, held that, tinder evidence, two-year statute of limitations was not applicable. Mc-Laughlin v. Dugan (Okl.) 166 P. 1069. Kansas cases. Under Civ. Code, 18, declaring that actions for taking, detaining, or injuring personal property must be brought within two years, and actions on the official bonds of sheriffs, etc., within five years, an action on a sheriff's bond for the wrongful levy on and sale of personal property must be brought within two years. Ryus v. Gruble, 3 P. 518, 31 Kan. 767. Under Civ. Code, 18, subd. 3, ah action against a city for injuries by a change of the channel of a stream by a permanent improvement must be brought within two years after such change. Parker v. City of Atchison, 4S P. 631, 58 Kan. 29. Under Civ. Code, 18, declaring that actions for taking, detaining, or in- juring personal property must be brought within two years, and actions on fhe official bonds of sheriffs, etc., within five years, an action on a sheriff's bond for the wrongful levy on and sale of personal property must be brought within two years. Ryus v. Gruble, 3 P. 518, 31 Kan. 767. Comp. Laws 1885, c. 66, 14, which provides that actions for damages by the erection of a milldam must be brought within two years after the erec- tion of the dam, applies only to permanent obstructions, and does not apply to actions for the recovery of damages, where the upper proprietor, who has actually built, and has in operation, a mill and milldam, seeks to have the dam of defendant abated or lowered as an obstruction, and has commenced, within two years after the completion of the dam, an action to abate or low- er it. Hardesty v. Ball, 23 P. 937, 43 Kan. 151, modifying judgment 22 P. 1095. A cause of action founded upon an allegation that the register of deeds "wrongfully, willfully, and negligently" recorded an instrument, and failed to insert in the record the correct description of the land conveyed, by rea- son of which the plaintiff was damaged, is "an action for injury to 'the rights of another, not arising on contract," and such action can only be commenced within two years after the cause of action accrues. Hatfield v. Malin, 50 P. 108, 6 Kan. App. 855. An employe's action for injuries from the master's failure to comply with the Factory Act (Laws 1903, c. 356, Gen. St. 1909, 4676, 4683) is not barred by Code Civ. Proc. 17, subd. 4 (Gen. St. 1909, 5610), providing that an ac- tion upon a statute for a penalty or forfeiture shall be barred within one year, but is an action for injury to the rights of another not arising on con- tract, which carries a two years' limitation. Slater v. Atchison, T. & S. F. Ry. Co., 137 P. 943, 91 Kan. 226, L. R. A. 1916F, 949. The tort statute of limitations has no application to an action on quasi contract to recover money paid by mistake. Kansas City v. R. J. & W. M. Boyd Const. Co., 120 P. 347, 86 Kan. 213. Code Civ. Proc. 18, subd. 3, declares that actions on liabilities created by statute shall be brought within three years. Section 18, subd. 2, declares that "an action for an injury to the rights of another, not arising on contract," shall be brought within two years. Held, that the limitation of two years applies to an action brought by a servant against his master to recover ur injuries caused by the negligence of the master, or from the negligence of a fellow servant. Atchison, T. & S. F, R. Co. v. King, 3 P. 565, 31 Kan. 708. An action for trespass through the permanent obstruction of the channel of a stream so as to divert its natural flow against the opposite bank, and (230) Art. 4) LIMITATION PERIODS 364 364. Fraud A cause of action for relief on the ground of fraud is barred by the two-year statute of limitations, if the fraud is discovered more than two years before the action is commenced. 34 thereby destroy a portion of plaintiff's land, held barred by the two-year statute of limitations. Taylor v. Newman, 139 P. 369, 91 Kan. 864. Where the complaint alleges the conversion of personalty in 1902, the ac- tion therefor in 1910 is barred, though there is a prayer for an accounting. Blackwell v. Blackwell, 129 P. 173, 88 Kan. 495. Where property had been seised on execution, interplea, alleging ownership and claiming the return thereof, comes too late after two years. Gardner v. Quick, 54 P. 1034, 8 Kan. App. 559. 34 Losch v. Pickett, 12 P. 822, 36 Kan. 216 ; Sherman v. Havens, 119 P. 370, 86 Kan. 99. A suit for fraud in exchange of property not commenced within two years after cause of action accrued was barred by the statute of limitations. Cor- nelssen v. Harman, 103 Kan. 624, 176 P. 141. An action for relief on the ground of fraud, not brought for eight years after discovery thereof, was barred by the two-year statute of limitations. Fix v. Rose, 64 Okl. 113, 166 P. 145. An action by a trustee in bankruptcy against bankrupt and insurance com- panies for fraudulent conspiracy in compromising and paying insurance pro- ceeds pending bankruptcy is barred after two years. Tripp v. English, 59 Okl. 225, 158 P. 912. A petition in tort action, showing on its face it was filed more than two years after date of the tort, is demurrable. Id. Where on exchange of property the deed to plaintiff expressly provided for assumption of mortgage, in suit to set aside mortgage as being placed on property to defraud plaintiff, he will be deemed to have notice of fraud with- in two-year statute of limitations when he accepted deed ; there being no showing of illiteracy. Ostran v. Bond (Okl.) 172 P. 447. Kansas cases. Any action by one defrauded of money, in which a recovery depends on proof 'of the fraud, unless begun within two years after its dis- covery, is barred by Gen. St. 1915, 6907, subd. 3, though, under subdivision 2, limitation for action on oral contract, express or implied, is three years. Orozem v. McNeill, 103 Kan. 429, 175 P. 633, 3 A. L. R. 1598. Civ. Code, 18, subd. 3, providing that a cause of action for relief on the ground of fraud shall not be deemed to have accrued until the discovery of the fraud, does not apply to an action founded on contract. Judgment (1903) 70 P. 933, modified. Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 75 P. 1051, 68 Kan. 585, 1 Ann. Cas. 639. An action to recover for violation of a verbal agreement in which there was a stipulation against discrimination accrues within 3 years from the violation of the agreement, and an averment that defendant concealed such discrimination until less than 18 months be- fore the filing of the petition shows no ground for postponing the operation of limitations. Judgment (1903) 70 P. 933, modified on rehearing. Id. Actions to ichich statute is applicable. Where a county clerk fraudu- lently draws county warrants for a sum in excess of the amount allowed by the board of county commissioners, the cause of action against him and his (231) 364 LIMITATIONS (Ch. 7 bondsmen does not accrue until discovery of the fraud. Allen v. State, 51 P. 572, 6 Kan. App. 915. Where an officer misappropriates money intrusted to him and fraudulently conceals his default, limitations will not begin to run until the discovery of the fraud and of the breach of the conditions of his bond. McMullen v. Win- field Building & Loan Ass'n, 67 P. 892, 64 Kan. 298, 56 L..R. A. 924, 91 Am. St. Rep. 236. When property is fraudulently sold, by the administrator of a partnership, to pay debts of the partnership, for which purpose he has in his hands other partnership assets, which he conceals and applies to his own use, such ad- ministrator is chargeable, with the rents and profits of such property from the date of sale ; such recovery not being barred by the three-years statute of limitations, concerning implied contracts, since the cause of action dates from the discovery of the fraud. Branner v. Nichols, 59 P. 633, 61 Kan. 356. An action to establish a partnership and plaintiff's interest therein, and for an accounting, held not an action for relief on the ground of fraud, and "hence not governed by the statute of limitations relating to actions for fraud. Holmes v. Culver, 133 P. 164, 89 Kan. 698. An attorney employed to collect a claim without authority from his client employed another attorney to assist him ; and they jointly collected part of it, and failed to account. The attorney originally employed notified the client that he had made the collection, and promised to pay over the money, and afterwards informed her of his employment of the other attorney to assist him. Held, that an action to recover the money collected, brought against the attorney not employed by plaintiff, four years after her attorney told her of his employment, was barred by limitations. Eaton v. Elliott, 57 P. 243, 9 Kan. App. 882. When a city's overpayments to a contractor by reason of fraudulent meas- urements were made, a cause of action against the contractor and the surety on his bond to recover them back accrued, and an action against the surety was barred in five years therefrom, irrespective of when the fraud Avas dis- covered. City of Topeka v. Ritchie, 102 Kan. 384, 170 P. 1003. An action for damages from inducing plaintiff to become a user of morphine in ignorance of its nature held not an action for relief "on the ground of fraud" within the statute of limitations. Gillmore v. Gillmore, 137 P. 958, 91 Kan. 293, 295, 51 L. R. A. (N. S.) 838, judgment modified on rehearing 139 P. 386, 91 Kan. 707, 51 L. R. A. (N. S.) 834. In an action by a wife against her husband and his brother to cancel and set aside a tax deed, plaintiff alleged that her husband, for valuable consid- eration, agreed to pay all taxes levied against her land ; that he failed to pay the taxes and permitted the land to be sold at tax sale ; that he caused certificates of sale and tax deeds to be issued and executed to such brother, who was a party to the wrong. Held, that the action was for relief upon the ground of fraud. Doyle v. Doyle, 7 P. 615, 33 Kan. 721. In an action recovery against a garnishee depended upon whether certain conveyances made to him were fraudulent, and this issue was developed by the evidence on the trial, and was the theory on which the garnishment pro- ceedings were conducted. Held, that such proceedings were "an action for relief on the ground of fraud.' 1 Nelson v. Stull, 6 P. 617, 65 Kan. 585, judg- ment affirmed 70 P. 590, 65 Kan. 585. In an action by a wife against her husband and his brother to cancel and Art. 4) LIMITATION PERIODS 364 set aside a tax deed, plaintiff alleged that her husband, for valuable consid- eration, agreed to pay all taxes levied against her land, that he failed to pay the taxes and permitted the land to be sold at tax sale, and that he caused certificates of sale and tax deeds to be issued and executed to such brother, who was a party to the wrong. Held, that the action for relief on the ground of fraud. Doyle v. Doyle, 7 P. 615, 33 Kan. 721. An action brought by the buyer of corporate stock to open up an account stated as to the amount of outstanding corporate liability assumed by him and to remake the account according to the agreement held not an action for relief on the ground of fraud, though he alleged that the account was not only incorrect, but was fraudulently made so by the seller. McCue v. Hope, 154 P. 216, 97 Kan. 85, 11 A. L. R. 581. An action to charge defendant for the amount of a debt owing plaintiff from one who gave defendant a chattel mortgage to secure debt, on property of more value than his debt, is an action for fraud, and barred by limitations of two years. Houghton v. Axelsson, 67 P. 825, 64 Kan. 274. Misconduct of an arbitrator in acting from motives of bias or partiality, or from a misconception of duty in making the award, arising from the belief that he was the representative of one of the parties thereto, does not consti- tute fraud, so as to cause a right of action or defense based on the illegality of the award to be barred by the two-year statute of limitations. Downey v. Atchison, T. & S. F. R. Co., 57 P. 101, 60 Kan. 499. An action to impose a trust on the entire assets of one who has wrongfully converted public funds must be brought within two years, under Civ. Code, 18, subd. 3, providing that an action for relief on the ground of fraud must be commenced within that time. City of Clay Center v. Myers, 35 P. 25, 52 Kan. 363. Deeds. An action to set aside a deed for fraud is ordinarily barred in two years after the filing of such deed for record in the office of the register of deeds of the county where the land is situated. Rogers v. Richards, 74 P. 255, 67 Kan. 706. Where defendant induced plaintiff to sign a deed of land to him, she sup- posing it to be a power of attorney, an action for relief is not barred until two years after the discovery of the deception. Kahn v. Klaus, 67 P. 542, 64 Kan. 24. In an action to set aside a deed on the ground of fraud, the cause of action will not be deemed to have accrued at the time of the delivery of the deed, but at the time of the discovery of the fraud by means of which the grantor was induced to execute and deliver the same. Brown v. Brown, 64 P. 599, 62 Kan. 666. - Defenses. The statute of limitations barring an action for relief on the ground of fraud in two years after the discovery of the fraud bars only the "right of action," and does not prevent one who has been injured by the fraud from pleading such fraud as a shield to protect himself from the ac- tion of another. Thomas v. Rauer, 64 P. 80, 62 Kan. 568. Under Civ. Code, IS, subd. 3, barring an action on the ground of fraud in two years after accrual of the cause of action, and declaring that the cause of action shall not be deemed to have accrued until after the discovery of the fraud, a defense in which it is sought to avoid a written agreement, and reform the same, on the ground of fraud, is barred after two years from. (233) 364 LIMITATIONS (Ch 7 discovery of the fraud. McCormick Harvesting Mach. Co. v. Hayes (Kan. App.) 49 P. 632. Limitations run only from the time of discovery, or from time when the defrauded party, with ordinary diligence, might have discovered the fraud. Farmers' State Bank of Ada v. Keen (Old.) 167 P. 207. The statute of limitations does not bar an action for fraud until two years after the fraud has been discovered. Mohr v. Sands, 44 Okl. 330, 133 P. 238. Plaintiff residing in New York was not charged with notice of fraud prac- ticed on her by her attorney in Nebraska, so as to start the statute of limita- tions because the records of the Nebraska courts would show fraud, where the attorney was acting for her in the matter concerning which the record was made, and she had no means of ascertaining what the records would show, except from her attorney. Id. In action for relief on ground of fraud, whether for rescission or damages, limitations do not commence to run until discovery of fraud. Gillies v. Lins- cott, 157 P. 423, 98 Kan. 78, judgment affirmed on rehearing 160 P. 213, 99 Kan. 215. The statute of limitations does not commence to run against an action for false representations of authority to contract until discovery of the fraud. Pierson v. Holdridge, 140 P. 1032, 92 Kan. 365. Where a casualty policy different from that applied for has been fraudu- lently .issued, reformation is not barred until two 3 r ears after the fraud is dis- covered. Hammond v. Western Casualty & Guaranty Ins. Co., 165 P. 291, 100 Kan. 582. In an action to set aside an order approving an administrator's final ac- count based on a release procured through fraud, limitations do not run until discovery of the fraud. Pickens v. Campbell, 159 P. 21, 98 Kan. 518. Diligence Constructive notice. To start limitations running against an ac- tion for fraud, the fraud is deemed to be discovered whenever it is discover- able by the exercise of diligence reasonably to be expected of one in the posi- tion of the person defrauded. Duphorne v. Moore, 107 P. 791, 82 Kan. 159. Fraud is deemed to be discovered, within the statute of limitations, when, in the exercise of reasonable diligence, it could have been discovered : and where a creditor knew of the execution of a deed, which he supposed named his debtor as grantee, reasonable diligence would have required an examina- tion of the record, which would have disclosed the fact that it was executed to the debtor's wife. Donaldson v. Jacobitz, 72 P. 846, 67 Kan. 244. An ac- tion to set aside a deed to a debtor's wife as fraudulent, and to subject the property to the payment of the debt, is barred in two years from the time, where the creditor knew of the execution of the deed when it was made, but supposed it named his debtor as grantee. Id. In action for relief on ground of fraud, constructive notice is sufficient to start the running of the statute of limitations, within the meaning of the Code provision that such an action is deemed to have accrued upon the "dis- covery of the fraud." Davis v. Heynes, 105 Kan. 75, 181 P. 566. In an action for damages from fraudulent representations as to irrigation rights, held, that the plaintiff had shown ordinary diligence to discover the fraud, and that the action was not barred, because not brought within two years from the time the fraud, if any, was discovered. Mateer v. Great West- ern Land Co., 137 P. 786, 91 Kan. 349. Where, in an action against defendants on the ground of fraud of the ad- (234) Art. 4) LIMITATION PERIODS 364 This statutory limitation only applies where the party against whom the bar is interposed is required to allege fraud in pleading his cause of action, or to prove fraud to entitle himself to relief. 35 It has no application to actions for relief on the ground of duress by threats. 36 The phrase "until discovery of the fraud," does not mean actual notice, as constructive notice is sufficient; and, where the means of discovery lie in public records required by law to be kept, they ministrator of an estate on whose bond they were sureties, it appeared that in 1882 under an order of the probate court the land of the decedent was sold, a sale was confirmed, and that the administrator filed an account at that time crediting himself with a number of .items, showing no balance in his hands as administrator, and that there were no debts requiring the sale of the land and that the items credited to the administrator were false, the action was barred ; the records of the probate court involving the transactions com- plained of being constructive notice of the alleged fraud sufficient to set in mo- tion the two-year statute of limitations. Walline v. Olson, 113 P. 426, 84 Kan. 37. Where an action for relief on the ground of fraud is brought by children against their mother, as administratrix of her husband and their guardian, eighteen years after the estate was settled, and eight years after the guard- ian's account was closed, a finding that the fraud was discovered by actual examination of the mother's accounts within two years from the date of the action is not a sufficient finding to remove the case from the operation of limi- tations. Black v. Black, 68 P. 662, 64 Kan. 689. Under Civ. Code, 18, par. 3, limitation of two years, in actions for relief against fraud, after "discovery of the fraud," is not to be determined by actual notice; and where the means of discovery lies in the public records required to be kept, and which involve the very transaction in hand, they are sufficient constructive notice to set the statute in motion. Id. The rule that, if an examination of the public records would reveal a fraud, the records are constructive notice sufficient to set limitations. in motion, does not obtain in favor of a vendee who procured his conveyance by fraudulent representations as to the state of the record on which the vendor relied. Hut- to v. Knowlton, 108 P. 825, 82 Kan. 445. The record of a deed executed to defraud creditors held not to give notice of the fraud. Underwood v. Fosha, 152 P. 638, 96 Kan. 549, Ann. Gas. 1917A, 265. 35 Logan v. Brown, 95 P. 441, 20 Okl. 334, 20 L. B. A. (N. S.) 298. The limitation of the time within which an action for relief on the ground of fraud must be commenced applies only when the party against whom the bar is interposed is required to allege fraud in pleading his cause of action, or to prove fraud, to entitle him to relief. Brown v. Cloud County Bank, 42 P. 593, 2 Kan. App. 352. se Eureka Bank v. Bay, 135 P. 584, 90 Kan. 506. (235) 364 LIMITATIONS (Ch. 7 are sufficient to set the statute in motion. 37 But one standing in a relation of trust is bound to disclose the real facts, and a defrauded party is not charged with constructive discovery of the fraud be- cause the facts are a matter of public record. 38 Where a statutory quitclaim deed, instead of a warranty deed, was fraudulently given, the grantee, who read and accepted it, was charged with notice of its character, and limitations began to run from the date of acceptance. 39 A record of a deed is not notice to the grantor of the fraudulent inclusion therein of land other than that intended to be conveyed, so as to start running of limitations. 40 Where the evidence, in an action by trustees for relief on ac- count of fraud, fails to show that such fraud was not known to one of the plaintiffs, or to their* predecessors, more than two years prior to the commencement of the action, plaintiffs cannot re- cover. 41 In an action by a creditor for relief on the ground of fraud of his debtor, it is necessary to establish ignorance of the fraud until the time within the period limited for the commencement of an action to remove the bar of limitations. 42 The statute of limitations does not begin to run against an agent, for misappropriation, until discovery by the principal of the defal- cation. 43 The limitation of time within which an action may be brought in form in ejectment, but in substance for relief on the ground of fraud, is two years after the discovery of the fraud, subject to being tolled as in other cases, and not the fifteen-year limitation. 44 An action for balance due from a guardian to his ward when the 37 Board of Com'rs of Garfleld County v. Renshaw, 99 P. 638, 23 Okl. 56, 22 L. R. A. (N. S.) 207. 38 Farmers' State Bank of Ada v. Keen (Okl.) 167 P. 207. Registration of deed procured from ignorant and illiterate grantor by false pretense that it was a rental contract, did not constitute constructive notice of fraud sufficient to set limitations in motion against grantor. Ford v. Perry (Okl.) 168 P. 221. so Jones v. Woodward, 50 Okl. 704, 151 P. 586. 40 Webb v. Logan, 48 Okl. 354, 150 P. 116. 41 Manley v. Robertson, 51 P. 795, 6 Kan. App. 921. 42 Fuller v. Homer, 77 P. 88, 69 Kan. 467. 43 Guernsey v. Davis, 73 P. 101, 67 Kan. 378. 4'4 New v. Smith, 119 P. 380, 86 Kan. 1. (236) Art. 4) LIMITATION PERIODS 364-365 latter reached the age of majority is not an action for relief for fraud, within the two-year statute of limitations though the petition contains allegations that certain charges against the ward in the annual accounts are erroneous. 45 An action by a trustee in bankruptcy to set aside conveyances made by a bankrupt with intent to defraud creditors is an action for relief on the ground of fraud. 46 Where one who is entitled to an accounting against another, and who has the express promise of such other to account, fails to insti- tute his action within the statute of limitations, he cannot take his case out of such statute by alleging a fraudulent conspiracy be- tween his adversary and a third person to refuse such accounting. 47 The fact that defendant, after defrauding plaintiff out of his prop- erty, absconded from the state, and that plaintiff was unable to discover her whereabouts, is not- equivalent to a failure by plaintiff to discover the fraud. 48 365. Foreign judgment Bonds, etc. "Fourth. Within one year: An action on a foreign judgment; an action for libel, slander, assault, battery, malicious prosecu- tion, or false imprisonment; an action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a dif- ferent limitation. 49 45 Hawk v. Sayler, 83 Kan. 775, 112 P. 602. 46 Harrod v. Farrar, 74 P. 624, 68 Kan. 153. 47 Rizer v. Board of Com'rs of Geary County, 48 P. 568, 58 Kan. 114. 48 Myers v. Center, 27 P. 978, 47 Kan. 324. 49 An action on a foreign judgment must be brought within one year from the time the right of action accrues. Bank of Stockham v. Weins, 71 P. 1073, 12 Okl. 502. Illustrations Kansas cases. A mortgage was executed and recorded, and afterwards paid and satisfied. On several occasions, the mortgagor demand- ed that the mortgagee should enter satisfaction of record, but the mortgagee failed, and after more than one year from the time of making the first de- mand, but within less than one year after making the last demand, the mort- gagor sued to recover the penalty provided for by section 8 of the act relat- ing to mortgages. Held, that plaintiff's cause of action was given by and his action founded on "a statute for a penalty," and, his action not having been brought within one year after his cause of action accrued, it was barred before his action was commenced. Joyce v. Means, 20 P. 853, 41 Kan. 234. A proceeding to amerce a sheriff under is governed by Code Civ. Proc. 18, subd. 4, prescribing the time within which actions on a statute for a pen- (237) 365 LIMITATIONS (Cll. 7 "Fifth. An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff or any other officer, or upon the bond or undertaking given in attachment, injunction, arrest or in any case whatever required by the statute can only be brought within five years after the cause of action shall have accrued. 50 alty or forfeiture must be begun. Fuller v." Wells, Fargo & Co., 22 P. 561, 42 Kan. 551. A petition against a railroad company alleged that defendant had charged plaintiff for the transportation of merchandise a greater rate than it charged other persons, and asked judgment for three times the amount of the over- charge. A demurrer having been sustained, an amended petition was filed, leaving out the demand for triple damages, and asking to recover actual dam- ages only. Held that, under the rule that when the language of a petition is of doubtful import, and it Is challenged before trial by a demurrer, the plead- ing must be construed against the pl&ader, on the ground that he should make his meaning clear, the petition must be construed as having been based, not on the common-law liability of the carrier for discrimination, but oil Gen. St. 1889, pars. 1333, 1342, making it unlawful for a railroad company to charge any person for transportation of property a greater sum than it shall charge any other person, and making it liable to the person so overcharged in three times the amount of damages ; and the action is therefore barred in one year, under Code, 18, subd. 4, requiring an action upon a statute for a penalty to be brought within one year. Beadle v. Kansas City, Ft. S. & M. R. Co., 29 P. 696, 48 Kan. 379. The action for a penalty for failure to discharge of record a mortgage that has been paid is barred in one year, where a demand for such discharge is not made within that time after payment. Wey v. Schofield, 36 P. 333, 53 Kan. 248. An action under Gen. St. 1889, par. 406, by a depositor against an officer for receiving deposits, knowing the bank to be insolvent, is an action for a pen- alty, barred in one year. Ashley v. Frame, 45 P. 927, 4 Kan. App. 265, judg- ment reversed Frame v. Ashley, 53 P. 474, 59 Kan. 477. The reciprocal demurrage act (Laws 1905, c. 345), provides that when a ship- per applies for cars, the carrier must furnish them within a specified time, subject to a forfeiture of $1 per day for each car failed to be furnished. Held, in an action under the act, that the one-year statute of limitations applies. Udall Milling Co. v. Atchison, T. & S. F. Ry. Co., 108 P. 137, 82 Kan. 256. An action under Gen. St. 1889, c. 25, 39, against a county commissioner for the Recovery of unauthorized fees, is an action on a statute for a penalty, within Gen. St. 1889, c. 80, 18, subd. 4, limiting the bringing of such actions to one year from the accrual of the cause of action. Roe y. Board of Com'rs of Elk County, 40 P. 1082, 1 Kan. App. 219. An action to recover for injuries sustained by a negligent shooting is barred within one year. Byrum v. Edwards, 71 P. 250, 66 Kan. 96. so The time within which an action may be brought against a guarantor for breach of a guaranty contained in a paving contract with a city for the con- tractor's failure to pay for material and labor is fixed by Rev. Laws 1'910, (238) Art. 4) LIMITATION PERIODS 365-367 "Sixth. An action for relief, not hereinbefore provided for, can only be brought within five years after the cause of action shall have accrued." 51 This provision applies to an action brought in district court to determine the title to a fund in county court, 52 to the time within which the purchaser at a tax sale may maintain an action against the county clerk to compel the issuance of a second tax deed, the deed first issued being invalid, 53 and to an action against a railroad company to recover compensation for all damages sustained by reason of the permanent taking and appropriation of the right of way, 54 but not to a proceeding in probate to sell real estate to pay debts. 55 366. Action for recovery of estate sold by guardian "No action for the recovery of any estate, sold by a guardian, can be maintained by the ward> or by any person claiming under him, unless it is commenced within three years next after the ter- mination of the guardianship, or when a legal disability to sue ex- ists by reason of minority or otherwise, at the time when the cause of action accrues, within three years next after the removal there- of." 56 367. Liens "A lien is extinguished by the mere lapse of the time within which, under the provisions of civil procedure, an action can be brought upon the principal obligation." 57 4657, limiting actions on bonds, not by section 3882. United States Fidelity & Guaranty Co. v. Star Brick Co., 54 Okl. 103, 153 P. 1122. Bond to state for use of lienors whose liens accrued under Laws Kan. 1909. c. 183, 1, in connection with contract for erection of public building, held a bond to supersede mechanics' liens, to which the general statute of limita- tion applies, and not the special statute. (Gen. St. Kan. 1915, 7570 [Code Civ. Proc. Kan. 662]). Capital Iron Works Co. v. Chicago Bonding & Surety Co., 171 P. 612, 102 Kan. 699. si Rev. Laws 1910, 4657. 52 Yockey v. Yockey, 148 P. 665, 95 Kan. 519. 53 Young v. Gibson, 105 P. 3, 80 Kan. 264, 81 Kan. 185. 54 Atchison, T. & S. F. R. Co. v. Lauterback, 54 P. 11, 8 Kan. App. 15. 55 Thomas v. Williams, 80 Kan. 632, 103 P. 772, 25 L. R. A. (N. S.) 1304. se Rev. Laws 1910, 6583. 57 Rev. Laws 1910, 3844. (239) 368-372 LIMITATIONS (Ch. 7 / 368. Liens against railroads Liens of mechanics, builders, artisans, workmen, laborers and other persons against railroads, "shall not be effectual unless suit shall be brought upon the claim within one year after it accrued." 58 369. Actions against notaries "No suit shall be instituted against any such notary or his se- curities more than three years after the cause of action accrues." 59 370. Rejected claim . "When a claim is rejected, either by the executor or adminis- trator, or the judge of the county court, the holder must bring suit in the proper court, according to its amount, against the executor or administrator, within three months after the date of its rejec- tion, if it be then due, or within two months after it becomes due, otherwise the claim is forever barred." 60 371. Vacancy in administration "The time during which there shall be a vacancy in the admin- istration, must not be included in any limitation herein pre- scribed," 61 372. Action against sureties on bond "No action can be maintained against the sureties on any bond given by a guardian, unless it be commenced within three years from the discharge or removal of the guardian; but if at the time of such discharge the person entitled to bring such action is un- der any legal disability to sue, the action may be commenced at any time within three years after such disability is removed." 62 ss Rev. Laws 1910, 3869. so Rev. Laws 1910, 4249. Cause of action against notary public and sureties on his bond for making false certificate of acknowledgment on June 8, 1909, accrued thea, and when not brought until July 31, 1915, was barred by three-year limitations. Okla- homa Farm Mortgage Co. v. Jordan (Okl.) 168 P. 1029. eo Rev. Laws 1910, 6344. 61 Rev. Laws 1910, 6347. 62 Rev. Laws 1910, 6582. (240) Art. 4) LIMITATION PERIODS 373-374 373. Actions for wrongful death An action for wrongful death must be commenced within two years. 03 374. Assessments Suits to set aside "No suit shall be sustained to set aside any such assessment, or to enjoin the mayor and council from making any such improve- ment, or levying or collecting any such assessment, or installment thereof, or interest or penalty thereon, or issuing such bonds, or providing for their payment," as authorized in chapter 10, article 12, providing for street improvements, "or contesting the validity thereof on any ground, or for any reason other than for the failure of the city council to adopt and publish the preliminary resolution provided for in cases requiring such resolution and its publication, and to give the notice of the hearing on the return of the apprais- ers, unless such suit shall be commenced not more than sixty days after the passage of the ordinance making such final assessment." 64 "No suit shall be sustained to set aside any assessment or cer- tificate issued in pursuance of any assessment or to enjoin the city council or town board from making any improvement, unless brought within sixty days after the passage of the ordinance mak- ing such assessment." 65 ss Rev. Laws 1910, 5281; Rodman v. Missouri Pac. Ry. Co., 70 P. 642, 65 Kan. 645, 59 L. R. A. 704 ; Harwood v. Chicago, R. I. & P. Ry. Co., 171 P. 354, 101 Kan. 215. 64 Rev. Laws 1910, c. 10, 644. GS Rev. Laws 1910, 471; Warner-Quinlan Asphalt Co. v. Smith (Okl.) 173 P. 516. Suit cannot be maintained to set aside assessment for street improvement, because amount includes an overpayment to contractor if suit is commenced more than 60 days after passage of ordinance making final assessment. Cross- lin v. Warner-Quinlan Asphalt Co. (Okl.) 177 P. 376. Though mayor and council adopt resolution for paving improvement during the 15 days from last publication of preliminary resolution of necessity with- in which protest may be filed, action to enjoin collection of special assess- ments, begun more than 60 days after final assessment ordinance, was barred by special statute of limitations (Rev. Laws 1910, 644). Bickel v. Warner- Quinlan Asphalt Co. (Okl.) 174 P. 537. Where mayor and council granted petition for paving purporting to be signed by requisite number of owners, and gave legal notice of hearing on appraisers' return, without protest as to sufficiency of petition, an action, begun more than 60 days after final assess- ment ordinance, to enjoin collection because petition was not signed by requi- site number of owners, was barred by special statute of limitations (Rev. Laws 1910, 644). Id. HON.PL.& PRAC. 16 (241) 374-376 LIMITATIONS (Ch. 7 This statute is not applicable as a bar to an action to enjoin col- lection of assessment when proceedings on which it is passed are void. 68 This statute does not deprive persons of property without due process of law, 67 or impair the obligation of contracts. 68 s 375. Demand Tender Where a demand is required to perfect a cause of action, it must be made within a reasonable time, and the statute of limitations cannot be extended by delay in making demand. 69 Where a contract binds the purchaser on demand to set apart and convey lots as part of the price, the statute of limitations does not begin to run until a demand and failure to comply therewith. 70 Where property is received by the provisional government of a city, and appropriated to its own use, and later is appropriated to the use of the incorporated city taking its place, the statute of limitations does not run, as against the owner of the property, until after a demand has been made therefor. 71 An action for specific performance of a contract to convey realty not fixing time for performance accrues when the purchaser within reasonable time tenders performance, and the vendor refuses per- formance, and the statute of limitations runs from that time. 72 376. Actions for usurious interest The action must be brought within two years after the maturity of the usurious contract, when brought under the statute providing in part that the taking, receiving, reserving or charging a rate of interest greater than is allowed by law "shall be deemed a for- feiture of twice the amount of interest which the note, bill or other 66 Southern Surety Co. v. Jay (Okl.) 178 P. 95; City of Muskogee v. Nichol- son (Okl.)'l71 P. 1102; Grier v. Kramer, 62 Okl. 151, 162 P. 490. A provision under the city charter prescribing the time within which ac- tion must be brought to secure relief against an assessment for street improve- .ments held not to apply in the case of a void assessment made against a lot. Flanagan v. City of Tulsa, 55 Okl. 638, 155 P. 542. 67 City of Chickasha v. O'Brien, 58 Okl. 46, 159 P. 282. es City of Chickasha v. O'Brien, 58 Okl. 46, 159 P. 282. 69purcell Bank & Trust Co. of Purcell v. Byars (Okl.) 167 P. 216. TO Kee v. Satterfield, 46 Okl. 660, 149 P. 243. 71 City of Guthrie v. T. W. Harvey Lumber Co., 60 P. 247, 9 Okl. 464. 72 Skidmore v. Leavitt (Okl.) 175 P. 503. (242) ' Art. 4) * LIMITATION PERIODS . 376-378 evidence of debt carries with it, or which has been agreed to be paid thereon. In case a greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover from the person, firm or corporation taking or receiving the same in an action in the nature of an action of debt twice the amount of the entire interest paid." 78 Under this statute an action to recover the forfeiture prescribed for usury must be brought within two years after the maturity of the usurious contract, or from maturity of last renewal note given on the contract. 74 If usurious interest has been paid, it can only be recovered in separate action brought therefor within two years. 76 377. Tax deed The statute providing that an action to avoid a tax deed shall be commenced within one year after the recording of the deed does not apply to an action to avoid a void tax deed. 76 378. Nonresident alien landowners "All nonresident aliens who may hereinafter acquire real estate in Oklahoma by devise, descent. or by purchase, where such pur- chase is made under any legal proceeding foreclosing liens in favor of such alien, may hold the same for five years from the date of so acquiring such title." 7T 73 Rev. Laws 1910, 1005, amended by Sess. Laws 1916, p. 24, 1. 74 First State Bank v. Pool (Okl.) 167 P. 760. 75 Daniels v. Bunch (Okl.) 172 P. 1086; First State Bank v. Pool (Okl.) 167 P. 760; Ardmore State Bank v. Lee, 61 Okl. 169, 159 P. 903. Const, art. 14, 3, and Rev. Laws 1910, 1005, 4660, intended that limita- tion prescribed within which action to recover twice the usurious interest paid must be brought be subject to same tolling provisions of statute applying to other actions for debt. Bean v. Rumrill (Okl.) 172 P. 452. 76 Union Savings Ass'n v. Cummins (Okl.) 177 P. 901 ; Rev. Laws 1910, 7419. 77 Rev. Laws 1910, 6648. (243) 379 LIMITATIONS (Ch. 7 ARTICLE V SUSPENSION AND TOLLING OF STATUTE Sections 379. Suspension of statute in general. 380. Disability. 381. Infancy. 382. Person of unsound mind. 383. Suspension of statute by death. 384. Absence or flight. 385. Nonresidence. 386. Concealment. 387. Of person. 388. Return. 389. Fraud or fault. 390. Ignorance, mistake, and duress. 391. Revivor. 379. Suspension of statute in general It will not suspend the running of the statute that the subject of an action is held in custodia legis in another action to which defendant is neither a party nor in privity with a party and over which he has no control, 78 or that an appeal is pending from the final order and judgment, of the district court to the Supreme Court, in the absence of a supersedeas, 79 or that a composition is effected, 80 or that the defendant ;s declared a bankrupt, where the plaintiff participated in the dividends. 81 Where legal proceedings restrain one party from exercising a legal remedy against another, the running of the limitations is postponed or suspended during such restraint. 82 78 Hawkins v. Brown, 97 P. 479, 78 Kan. 284. 79 Bank of Stockham v. Weins, 12 Okl. 502, 71 P. 1073. 80 Dobson v. Noyes, 18 P. 697, 39 Kan. 471. 81 Simpson v. Tootle, Wheeler & Hotter Mercantile Co., 141 P. 448, 42 Okl. 275, L. R. A. 1915B, 1221. 82 City of Hutchinson v. Hutchinson, 141 P. 589, '92 Kan. 518, 52 L. R. A. (N. S.) 1165. The running of the statute of limitations against a -judgment against a township will be suspended during the operation of a supersedeas bond in favor of the township staying the issuance of execution thereon. Ware v. Pleasant Grove Tp., 59 P. 1089, 9 Kan. App. 700. An order at chambers on a motion of a mortgagee discharging an attach- ment obtained by a creditor of a chattel mortgagor, and to reverse which pro- (244) Art. 5) SUSPENSION AND TOLLING OF STATUTE 379 The statute does not run during the pendency of an action, 83 if the causes of action are identical. 84 ceeding in error was brought, did not prevent the mortgagee from suing the creditor for conversion so as to suspend the running of limitations as against such action. McDonald v. Symns Grocer Co., 67 P. 1111, 64 Kan. f29. In order that the pendency of other proceedings may toll the statute of limi- tations the proceedings must be such as to prevent the enforcement of the remedy by action. Harrison v. Scott, 95 P. 1045, 77 Kan. 637. Limitations will run on a cause of action in favor of a stockholder of an insolvent cor- poration for contribution from his co-stockholders based on a claim in his favor against the corporation, notwithstanding an action against him on his double liability in which he seeks to set off the same cause of action. Td. A right of action accrues on plaintiff's undertaking in replevin when he fails to comply with the judgment rendered against him, and the statute be- gins to run from the rendition of the judgment even though plaintiff prosecutes a proceeding in error without giving a supersedeas bond to reverse the judg- ment. Delay v. Yost, 53 P. 482, 59 Kan. 496. 83 Where, before action on a judgment in favor of a corporation was barred by limitation, a receiver was appointed and brought an action on the judg- ment, which remained pending until his discharge, the statute of limitations does not run during the pendency of the action. Chicago & A. Bridge Co. v. Fowler, 39 P. 727, 55 Kan. 17. Where proceedings to enforce stockholders' liability and obtain executions against them are brought before the judgment against the corporation be- comes dormant, and are diligently prosecuted, no statute of limitations will run against the judgment creditor pending the litigation, and his right to proceed to the end will not be barred because more than six years have elapsed since the last execution on the judgment was issued. Steffins v. Gurney, 59 P. 725, 61 Kan. 292. Where a corporation which has purchased the business and assumed the liabilities of an individual is impleaded with the individual in an action to recover an indebtedness . growing out of the business and while such action, which finally results in a judgment against the corporation, is pending, the corporation resells to another corporation, which in turn assumes the liabili- ties of the former, the statute of limitations does not begin to run in favor of stockholders of the latter corporation so long as the creditor is prosecuting with reasonable diligence actions to establish the liability of the successive purchasers. Walterscheid v. Bowdish, 96 P. 56, 77 Kan. 665. Where a suit by a claimant to mortgaged premises brought in 1891 to quiet title and cancel the mortgage was removed to the United States court, and in 1897 remanded to the state court, and neglected for ten years, and where, in 1908, a grantee of the mortgagor procured judgment quieting title against plaintiff, but no judgment was taken against the mortgagee answering, held, that the right of the assignee of the mortgage to foreclose by cross-petition in 1910 was not barred by the five-year statute of limitations. City of Hutchin- son v. Hutchinson, 141 P. 589, 92 Kan. 518, 52 L. R. A. (N. S.) 1165. 84 An action for compensation for property destroyed by fire negligently set by railroad is not brought on same cause of action as one to recover amount agreed to be paid in compromise and pendency of action on such agreement 379-380 LIMITATIONS (Ch.7 The absence from the state of the principal do.es not suspend the running of the statute of limitations in favor of the sureties on an administrator's bond ; they are severally liable, and are severally entitled to the protection of the statute. 85 380. Disability "Any person entitled to bring an action for the recovery of real property, who may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability is removed." 86 Where disability to sue exists when the right of action accrues,, the statute of limitations does not begin to run during continuance of the disability. 87 But generally, the statute having once attach- does not suspend statute of limitations as against the action on the tort. Thompson v. Missouri, K. & T. Ry. Co., 171 P. 629, 102 Kan. 668. 85 Davis v. Clark, 49 P. 665, 58 Kan. 454. 86 Rev. Laws 1910, 4656. Where the purchaser of land at a void guardian's sale went into possession and he and those claiming under him remained continuously in possession thereafter an action by the minor to recover such land was barred, when not brought within five years after the recording of the guardian's deed, or within two years after removal of plaintiffs disability. Dodson v. Middleton, 3S Okl. 763, 135 P. 368. Plaintiff sued within two years after coming of age, on a single cause of action for ejectment, partition, and the recovery of rents and profits. A share of the land descended to plaintiff when he was a minor. Defendants, tenants in common, had long held exclusive possession under a claim of ab- solute ownership, and they and their ancestor had so held adversely to plain- tiff for more than fifteen years before suit. Held, that as the principal pur- pose of the action was to determine the title held by the adverse claimants, and the other grounds of relief asked are incidental, it falls within the stat- ute, which permits such action within two years after the disability of infancy is removed. Delashmutt v. Parrent, 18 P. 712, 39 Kan. 548. The statute provides that an action for the recovery of real estate, not thereinbefore provided for, shall be brought within fifteen years. The statute provides that any person entitled to bring an action for the recovery of real property, who may be under any legal disability when the cause of action ac- crues, may bring his action within two years after the disability is removed. Held, that an action by a minor to recover land sold fifteen years before by her guardian is barred, if the minor reached her majority two years before bringing the action. Howbert v. Heyle, 27 P. 116, 47 Kan. 58. A right of action in ejectment for the recovery of land sold by an adminis- trator, brought by an heir of a deceased person, is saved to a minor who may sue within two years after the disability of infancy has been removed. Thomp- son v. Burge, 57 P. 110, 60 Kan. 549, 72 Am. St. Rep. 369. s7 Title Guaranty & Surety Co. v. Cowen (Okl.) 177 P. 563. (240) Art. 5) SUSPENSION AND TOLLING OF STATUTE 380-381 ed, the period will continue to run without suspension by any sub- sequent disability, unless the statute so provides. 88 An adjudication in bankruptcy under the Bankruptcy Act of 1898, as amended (U. S. Comp. St. 9585-9656), does not put the creditor under a "legal disability," as to an action in a state court on a provable claim. 80 The phrase "under legal disability" includes a person imprison- ed. 90 "If a person entitled to bring an action other than for the recov- ery of real property, except for a penalty or forfeiture, be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one year after such disability shall be removed." 91 381. Infancy Under statutes of limitations, excepting persons under disabili- ties, but not specifically excepting infants, they are within the saving clause, though an infant has a guardian who might main- tain an action in his own name, where the right of action is in the infant. 92 A cause of action in favor of an infant, for personal injuries sus- tained, may be brought at any time during infancy, and will in no event be barred by the two-year limitation until one year after the disability of infancy has been removed. 93 Where an action is commenced by a Creek freedman allottee while still a minor, as defined by Act Cong. May 27, 1908, against a former guardian and surety for proceeds of sale of allotted lands, limitations have not been set in motion to bar the relief sought. 8 * Where a tenant in common with four others was a minor, and was ousted of his possession by the grantee of the four, who took 88 Overstreet v. Wichita Falls & N. W. R. Co. (Okl.) 175 P. 354. 89 Simpson v. Tootle, Wheeler & Motter Mercantile Co., 141 P. 448, 42 Okl. 275, L. B. A. 1915B, 1221. 90 State v. Calhoun, 32 P. 38, 50 Kan. 523, 18 L. R. A. 838, 34 Am. St. Rep. 141. 91 Rev. Laws 1910, 4658. 92 Hinton v. Trout (Okl.) 172 P. 450; Title Guaranty & Surety Co. of Scranton, Pa., v. Burton (Okl.) 170 P. 1170. 93 Missouri Pac. Ry. Co. v. Cooper, 45 P. 587, 57 Kan. 185. 94 Brewer v. Dodson, 60 Okl. 81, 159 P. 329; Brewer v. Ferryman, 62 Okl. 176, 162 P. 791. (247) 381-383 LIMITATIONS (Ch. 7 f all the rents and profits for several years, and, as soon as he ar- rived at the age of maturity, commenced an action for partition and for rents and profits, such action is not barred by the statute of limitations. 95 . Limitations do not begin to run against an action to set aside a void conveyance of Indian minor allottee, executed after May 27, 1908, until the minor has attained majority, as shown by en- rollment records of the Commissioner to thq Five Civilized Tribes. 96 382. Person of unsound mind Limitations will not run in favor of a person claiming under a deed made by one mentally unsound and under the undue influ- ence of the grantee. 97 An insane person is under disability, within the meaning of the statute of limitations, though the question of his sanity has never been adjudicated. 98 383. Suspension of statute by death The running of limitations in favor of an adverse possessor of land is not suspended by the death of the opposing claimant and descent of the cause of action to minor heirs. 99 As against heirs of a grantor of unsound mind, who so contin- ues until his death, limitations do not begin to run until such death. 1 The death of a debtor ordinarily suspends the running of the statute until the appointment of an administrator, 2 but the stat- ute will run on a demand against the estate after a reasonable time has elapsed after death, though no executor or administrator has been appointed, 3 and the death of a debtor does not amount to an indefinite suspension of the statute.* 90 Scantlin v. Allison, 4 P, 618, 32 Kan. 376. oe Bell v. Fitzpatrick, 53 Okl. 574, 157 P. 334. 87 Howard v. Carter, 80 P. 61, 71 Kan. 85; Jenkins v. Jenkins, 146 P. 414, 94 Kan. 263. 98 Lantis v. Davidson, 56 P. 745, 60 Kan. 389. Campbell v. Dick (Okl.) 157 P. 1062. 1 Jenkins v. Jenkins, 146 P. 414, 94 Kan. 263. 2 Nelson v. Herkel, 2 P. 110. 30 Kan. 456. 3 Black v. Elliott, 65 P. 215, 63 Kan. 211, 88 Am. St. Rep. 239. 4 The maker of a note secured by a mortgage removed from the state after (248) Art. 5) SUSPENSION AND TOLLING OF STATUTE 383-384 A cause of action for the foreclosure of a mortgage does not ac- crue on the death of the mortgagor and the allowance by the pro- bate court of the note secured by the mortgage, as a demand against the estate, without regard to the maturity of the mortgage debt, and it does not set limitations running aga'inst such action. 5 Under Federal Employers' Liability Act, 6 (U. S. Comp. St. 8662), limiting an action to two years from accrual of the cause, a personal representative appointed more than two years from the death of the employe cannot maintain an action. 6 384. Absence or flight "If, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period lim- ited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or con- cealed ; and if, after the cause of action accrues, he depart from the state, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period with- in which the action must be brought." 7 This statute applies to an action to recover twice the amount of interest paid on an usurious contract. 8 It applies to actions con- the maturity of the note, and was absent until his death. No administration was ever had on his estate, nor were any steps taken to enforce the collec- tion of the secured debt until about 10 years after his death, when an action to foreclose the mortgage was begun. Held, that the action was barred. Culp v. Gulp, 32 P. 1118, 51 Kan. 341, 21 L. R. A. 550. Under Gen. St. 1889, par. 2796, a creditor of a decedent having a claim which he wishes to establish against the estate, may, if the widow or next of kin refuse to take out letters of administration, obtain letters for himself or some other person, after 50 days from the death of decedent ; and he cannot, without any good cause or reason therefor, defer making such application until the statute o^ limitations has run, and then claim that all of the time from the death of the debtor to the appointment of the administrator the statute of limitations is suspended on account of the nonappointment of such administrator. Bauserman v. Charlott, 26 P. 1051, 46 Kan. 480. 5 Linn v. Ziegler, 75 P. 489, 68 Kan. 528. Giersth v. Atchison, T. & S. F. Ry. Go. (Kan.) 171 P. 591. ' Rev. Laws 1910, 4660. When a cause of action arises, limitations in the country where the obligor resides immediately begin to run, and, if in another country than the state of Kansas, an action on a contract is not barred by limitations in Kansas, un- less the bar of limitations has fallen in such other country. Hays Land & In- vestment Co. v. Bassett, 116 P. 475, 85 Kan. 48. 8 Bean v. Rumrill (Okl.) 172 P. 453. (249) 384 LIMITATIONS (Ch. T cerning real property as well as to personal actions, 9 provided the action is not strictly in rem and no personal service is required. 10 The fact of personal presence in the state, and not of domicile,. controls. 11 9 Chicago, K. & N. Ry. Co. v. Cook, 22 P. 988, 43 Kan. 83. The statute of limitations does not run on a cause of action for the re- covery of real property, while the person who claims title thereto is absent from the state. Corby v. Moran, 49 P. 82, 58 Kan. 278 ; Ard v. Wilson, 54 P. 511, 8 Kan. App. 471, judgment affirmed 56 P. 80, 60 Kan. 85fT. Code Civ. Proc. 15 (Gen. St. 1897), excluding the period of a defendant's absence from the state from the time of commencing actions against him, ap- plies to a defendant in ejectment claiming title by adverse possession, though he had possession through a tenant during such absence. Ard v. Wilson, 56 P. 80, 60 Kan. 857, affirming judgment 54 P. 511, 8 Kan. App. 471. The running of limitations, as against grantee assuming a mortgaged debt, may be suspended by the absence of the grantee from the state. Hendricks v. Brooks, 101 P. 622, 80 Kan. 1, 133 Am. St. Rep. 186. Limitation does not run against a mortgage foreclosure suit against a nonresident, though the plaintiff is in possession of the mortgaged premises as grantee of the mortgagor. Smith v. Perkins, 63 P. 297, 10 Kan. App. 577. Where the statute of limitations is pleaded as a defense to a mortgage fore- closure suit, and the court finds that the defendant left the state within two years after the execution of the mortgage, and remained a nonresident there- after, it is not error to refuse to make finding as to when the first default oc- curred, since the cause of action did not mature until the plaintiff declared the debt due, and the defendant's nonresidence prevented the running of limi- tations. Id. Where, in an action for the recovery of land, plaintiff claims under a tax deed, and contends that the irregularities in the proceedings are cured by the running of the statute of limitations after the recording of the deed, de- fendant may show that plaintiff, since the recording of the deed, has been ab- sent from the state, and therefore cannot invoke the protection of the stat- ute. Case v. Frazier, 3 P. 497, 31 Kan. 689. 10 Absence from the state on the part of a tax deed holder will not prevent the tax law from so operating as to bar any suit or proceeding brought against the tax deed holder, or his heirs or assigns, for the recovery of the property, or to defeat or avoid the tax deed, if such suit or proceeding is not commenced within five years from the time of the recording of the tax deed. Beebe v. Doster, 14 P. 150, 36 Kan. 666. The absence from the state of the owner of real estate upon which there is a mortgage, but lor which he is not personally liable, will not prevent the statute of limitations from running against the mortgage lien. Ho,gaboom v. Flower, 72 P. 547, 67 Kan. 41. 11 Investment Securities Co. v. Bergthold, 58 P. 469, 60 Kan. 813, following Hoggett v. Emerson, 8 Kan. 262 ; Tanselous v. McClellan, 57 Okl. 742, 157 P. 923; Dixon v. Windscheffel, 129 P. 938, 88 Kan. 824; Miller v. Baier, 72 P. 772, 67 Kan. 292. The residence out of the state which suspended the running of the Illinois statute of limitations was the fixed abode entered into with the intention to C250) Art. 5) SUSPENSION AND TOLLING OF STATUTE 385 f 385. Nonresidence The statute of limitations operates to bar all actions, except as against persons and corporations upon whom notice of the action cannot be served because of their being out of the state. 12 It does not run in favor of a nonresident until summons can be served within the state and a valid personal judgment had, which can be enforced as provided by law. 18 The statute does not run in favor of a nonresident corporation which neglects to comply with the laws of the state within which it is permitted to transact business, by reason of which neglect it is saved from service of process. 14 If notice of an action can be served during the whole of a pre- scribed period and a personal judgment obtained, which can be enforced as provided by law, then such person or corporation is not "out of the state," within the statute. 13 remain permanently at least for a time for business or other purposes. Fidel- ity & Deposit Co. v. Sheahan, 133 P. 228, 37 Okl. 702, 47 L. R. A. (N. S.) 309. To constitute a "residence out of the state" sufficient to suspend the running of the Illinois statute of limitations, it was not necessary that there should be an actual change of domicile in the strict legal sense, but it was necessary that a fixed and permanent abode or dwelling place out of that state should have been acquired at least for the time being. Id. 12 St. Louis & S. F. R. Co. v. Taliaferro (Okl.) 168 P. 788, L. R. A. 1918B, 994. Though one who assigns a mortgage note and guaranties payment within two years of maturity can stand in place of the maker, and, like him, invoke the statute of limitations, it is unavailing where the running of the statute has been' suspended by the continuous absence of the maker from the state from the time of giving the note. Spink v. Newby, 67 P. 437, 64 Kan. 883. 13 Bean v. Rumrill (Okl.) 172 P. 453. Where a nonresident purchases property after statement for mechanic's lien has been filed and her deed is duly recorded and no personal liability can be enforced against her, her absence from state does not extend time within which lien may be foreclosed. Bixeman v. Warren (Okl.) 173 P. 443. 14 Johnson & Larimer Dry-Goods Co. v. Cornell, 46 P. 860, 4 Okl. 412; Okla- homa Nat. Bank v. Chicago, R. I. & P. Ry. Co., 45 Okl. 707, 146 P. 716; St Louis & S. F. Ry. Co. v. Keiffer, 48 Okl. 434, 150 P. 1026 ; Hale v. St. Louis & S. F. R. Co., 39 Okl. 192, 134 P. 949, L. R. A. 1915C, 544, Ann. Cas. 1915D, 907; Williams v. Metropolitan St. Ry. Co., 74 P. 600, 68 Kan. 17, 64 L. R. A. 794, 104 Am. St. Rep. 377, 1 Ann. Cas. 6. 15 St. Louis & S. F. R. Co. v. Taliaferro (Okl.) 168 P. 788, L. R. A. 1918B, 994. In action by city against foreign company, surety on contractor's bond, surety at commencement of action held not an absent corporation within Code Civ. Proc. 20 (Gen. St. 1915, 6910), so as to be precluded from urg- (251) 385-386 LIMITATIONS (Ch. T \ The time defendant is out of the state after a cause of action has accrued against him cannot be computed as part of the period within which the action must be brought. 16 Where a defendant, against whom a cause of action for fraud accrues, is at that time absent in another state, limitations does not begin to run as to him until his return to this state. 17 386. Concealment A party who wrongfully conceals material facts, or the fact that a cause of action has accrued against him, cannot plead limita- tions. 18 However, mere failure to disclose that a cause of action exists will not prevent the running of limitations. There must be some actual artifice to prevent knowledge of facts, or some affirmative act of concealment. 19 One seeking to toll the statute of limitations by reason of the fraudulent cpncealment of the facts out of which his action arises must exercise reasonable diligence. 20 ing the statute of limitations as a defense. City of Topeka v. Ritchie, 102 Kan. 384, 170 P. 1003. An action of ejectment by a tax deed holder out of possession does not be- come barred by the two-year statute of limitation, while occupied by tenants, agents, or employes of a nonresident owner. Gibson v. Hinchman, 83 P. 981, 72 Kan. 382. 16 Ament v. Lowenthall, 35 P. 804, 52 Kan. 706. 17 Sherman v. Havens, 86 Kan. 99, 119 P. 370. 18 Oklahoma Farm Mortgage Co. v. Jordan (Okl.) 168 P. 1029; Weems v. Melton, 47 Okl. 706, 150 P. 720 ; Atchison, T. & S. F. Ry. Co. v. Atchison Gram Co., 70 P. 933, judgment modified 75 P. 1051, 68 Kan. 585, 1 Ann. Cas. 639; McMullen v. Winfield Building & Loan Ass'n, 67 P. 892, 64 Kan. 298, 56 L. R. A. 924, 91 Am. St. Rep. 236; Zinkeison v. Lewis, 66 P. 644, 63 Kan. 590; Stinson v. Aultman, Miller & Co., 38 P. 788, 54 Kan. 537 ; Stewart v. Bank of Indian Territory, 75 P. 1055, 68 Kan. 755 ; Gano v. Martin, 61 P. 460, 10 Kan. App. 384. The statute does not begin to run in favor of an agent, and against his principal, until the principal has knowledge of some wrong committed by the agent inconsistent with his rights as principal. Perry v. Smith, 2 P. 784, 31 Kan. 423 ; Same v. Wade, 2 P. 787, 31 Kan. 428. 19 Oklahoma Farm Mortgage Co. v. Jordan (Okl.) 168 P. 1029; Waugh v. Guthrie Gas, Light, Fuel & Improvement Co., 131 P. 174, 37 Okl. 239, L. R. A. 1917B, 1253. 20 Lewis v. Duncan, 71 P. 577, 66 Kan. 306. (252) Art. 5) SUSPENSION AND TOLLING OF STATUTE 387-390 387. Of person The provision that, when a cause of action accrues against a person who has "absconded or concealed" himself, the period lim- ited for the commencement of the action shall not begin to run while he is so absconded or concealed, does not apply to a cause of action arising in another state from which defendant absconded to this state, where she made no effort to conceal her whereabouts while within the state. 21 388. Return That, after^a debtor has moved from the state, limitations may run in his behalf during a temporary return, it is not necessary that such visit shall be made so as to give the creditor an oppor- tunity to serve summons on him, but he is entitled to credit for all the time spent in the state unless he conceals himself. 22 389. Fraud or fault In order to shorten the time within which an action must be brought, defendants cannot set up their own fraud, 23 or fault es- topping them from pleading limitations. 24 390. Ignorance, mistake, and duress For the purpose of determining the time when limitations com- menced to run against an action to correct a mistake in a deed, the record of the deed does not impart notice of the mistake. 25 21 Myers v. Center, 27 P. 978, 47 Kan. 324. Defendant absconded from Iowa, where the debt sued on was contracted, and came to Kansas, where he lived openly. His creditor thorugh reasonably diligent, had failed to discover his whereabouts. Held, that the word "con- ceal," as used in the Kansas statute of limitations, applied to acts of a party in Kansas. Frey v. Aultman, Miller & Co., 2 P. 168, 30 Kan. 181. 22 Baxter v. Krause, 101 P. 467, 79 Kan. 851, 23 L. R. A. (N. S.) 547. Before a debtor who is absent from the state when a cause of action accrue?, and who makes occasional visits to the state during the period of limitations, can set up a bar of the statute, the times of his temporary presence in the state must aggregate the statutory period. Gibson v. Simmons, 94 P. 1013, 77 Kan. 461. Where a debtor is out or the state when a cause of action accrues against him, limitations do not begin to run until he comes into the state, and it will continue to run so long as he remains in the state ; but if, after he comes into the state, he again departs from it, the running of the statute remains suspend- ed during his absence. Id. 23 People of State of New York v. Ettenson, 56 P. 749, 60 Kan. 858. 24 School Dist, No. 5 v. First Nat. Bank, 66 P. 630, 63 Kan. 668; Missouri, K. & T. Ry. Co. v. Pratt, 85 P. 141, 73 Kan. 210, 9 Ann. Gas. 751. 25 Jackson- Walker Coal & Material Co. v. Miller, 129 P. 1170, 88 Kan. 763. 390-392 LIMITATIONS (Ch. 7 While the lapse of time will bar equitable relief against a mis- take in describing land conveyed, limitations will not run till the discovery of the mistake, or the time at which, by reasonable dili- gence, it might have been discovered. 26 Limitations do not commence to run against an action for re- lief on the ground of duress by threats while the mind of the ag- grieved party continues to be dominated by the threats. 27 391. Reviver A mere order of revivor is sufficient to prevent the running of limitations. 28 Where an action is revived in due time after the death of plain- tiff, in the name of his administrator, but the petition is not amend- ed so as to show the death of plaintiff and the succession of the administrator to his rights for more than five years thereafter, the statute of limitations does not run during the interval between the revivor of the action and the filing of the amended petition. 29 ARTICLE VI EXTENSION AND WAIVER Sections 392. Failure otherwise than on merits. 393. Extension. 394. Acknowledgment. 395. Extension agreement. 396. Part payment. 397. Waiver of limitations. 392. Failure otherwise than on merits "If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for 26 Jackson- Walker Coal & Material Co. v. Miller, 129 P. 1170, 88 Kan. 763; Duvall v. Simpson, 36 P. 330, 53 Kan. 291. An action filed in August, 1907, to recover money paid by mistake in 1898. was barred by limitations, where the mistake was discovered in December, 1903. Nicholson v. Nicholson, 146 P. 340, 94 Kan. 153. 27 Eureka Bank v. Bay, 135 P. 584, 90 Kan. 506. 28 McLain v. Parker, 129 P. 1140, 88 Kan. 717, judgment affirmed on re- hearing 131 P. 153, 88 Kan. 873. 29 Kansas City, W. & N. W. R. Co. v. Menager, 54 P. 1043, 59 Kan. 687. (254) Aft. 6) EXTENSION AND WAIVER 392 the same shall have expired, the plaintiff, or if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure." 30 ' This statute applies to an action which has failed otherwise than on its merits, though the time limited had not expired at the time of such failure. 81 * For this statute to operate, a right of ac- 30 Rev. Laws 1910, 4662. Where a party sues for relief on the ground of fraud and on the trial, by leave, dismisses the action without prejudice, more than two years after his right of action accrued, and brings a second action within one year from the dismissal of the first, the bar of the statute is not let in. Wilson v. Wheeler, 115 P. 1117, 28 Okl. 726. Before the statute of limitations had run upon notes, an action thereon was begun, which was thereafter, and before trial, dismissed without prejudice. During the pendency of the action the notes were transferred to another. An action thereon was brought more than five years after maturity, but within one year after the dismissal of the former suit. Held, that the right of ac- tion thereon was not barred. Anthony Inv. Co. v. Law, 61 P. 745, 62 Kan. 193 ; reversing judgment 58 P. 1116, 9 Kan. App. 890. The holder of a note brought suit on it in a county wherein one of the mak- ers resided and served him. A summons was also sent to another county and served on another maker who resided there. The holder believed in good faith that he had a valid cause of action against the local maker who was not joined for the mere purpose of obtaining jurisdiction over the other maker. Pending further proceedings, the makers' attorney convinced the holder that the ac- tion against the one residing in the county wherein the note had been sued was barred by the statute of limitations, and the action was subsequently dis- missed as to that maker. Thereafter the maker in the other county moved that the summons and service on him be set aside, which was done, and the entire proceeding dismissed. Held, that the action was commenced, and that the holder of the note failed otherwise than on the merits. Parker v. Dobson, 96 P. 472, 78 Kan. 62. Where a demurrer to a petition was sustained on the ground of misjoinder of causes, and without other pleading a judgment was entered that defendant was the owner and entitled to the possession of the property in question, the plaintiff, having commenced his action in due time, failed therein otherwise than on the merits. New v. Smith, 119 P. 380, 86 Kan. 1. Where a plaintiff recovered judgment before a justice, and again on ap- peal to the district court, but such judgment was reversed and the action dis- missed by the supreme court, on the ground that the amount involved was be- yond the jurisdiction of the justice, the action "failed otherwise than upon the merits." Ball v. Biggam, 49 P. 678, 6 Kan. App. 42. 31 Swift & Co. v. Hoblawetz, 61 P. 969, 10 Kan. App. 48; Knox v. Henry, 55 P. 668, 8 Kan. App. 313. Where an action against a notary is commenced within three years and dis- missed without a hearing on the merits, a new suit commenced within one year on the same cause is not barred. Clapp v. Miller, 56 Okl. 29, 156 P. 210. Where a person sues to enforce a mechanic's lien while under a disability (255) 392 LIMITATIONS (Ch. 7 tion must have existed when the first suit was brought, 32 and must have been pleaded, 33 and the action not be for a cause of action which has accrued to the plaintiff subsequent to the causes set forth in his original action, 34 and summons must have been served. 35 The actions must be substantially the same. 36 This statute applies only when a party would be otherwise bar- red from action by the statute of limitations relating to the cause of action. 37 It has no application to revivor proceedings; and hence an unsuccessful attempt to obtain an order reviving a judg- ment does not operate to extend the time within which such an order may be made. 38 The plaintiff cannot, in new action brought within a year, in- graft causes that are barred upon causes pleaded in the first ac- tion that are not barred. 39 Where a party sues for services rendered, and a judgment in his favor is subsequently reversed, and the case dismissed with- out prejudice, a suit within one year to recover for the same serv- ices, where reliance is had solely on an oral contract, is not such a departure from the first action, setting up a contract partly oral and partly in writing, as to let in the statute of limitations. 40 depriving him of his right to sue because of failure to pay a city occu- pation tax, and then dismisses the suit without prejudice, after which he ob- tains a pardon, he may, within a year after such dismissal, institute a new suit on the same claim. Draper v. Miller, 140 P. 890, 92 Kan. 275, rehearing aenied 141 P. 1014, 92 Kan. 695. On the dismissal for want of a previous demand of an action brought to recover the penalty prescribed for refusal to release a chattel mortgage, a second action, brought within one year after dismissing the first, is not barred, though not brought within one year after demand made. Hall v. Hurd, 19 P. 802, 40 Kan. 374. An action to foreclose a mechanic's lien, which was commenced within one year alter the dismissal of a prior action without prejudice, was not barred by the statute, though more than one year had elapsed since the filing of the lien. Hobbs v. Spencer, 31 P. 702, 49 Kan. 769. 32 Smith v. Bourbon County Com'rs, 23 P. 642, 43 Kan. 619. 33 Becker v. Atehison, T. & S. F. Ry. Co., 78 P. 408, 70 Kan. 193. 34 Hatchell v. Hebeisen, 82 P. 826, 16 Okl. 223. 35 O'Neil v. Eppler, 162 P. 311, 99 Kan. 493. 36 McGlinchy v. Bowles, 75 P. 123, 68 Kan. 190. 37 English v. T. H. Rogers Lumber Co. (Okl.) 173 P. 1046. 88 Berkley v. Tootle, 64 P. 6zO, 62 Kan. 701. 80 Brice-Nash v. Hutchinson Interurban Ry. Co., 102 Kan. 36, 169 P. 189. 40 Myers v. First Presbyterian Church of Perry, 69 P. 874, 11 Okl. 544. (256) Art. 6) EXTENSION AND WAIVEE 392-394 Where the new action is dismissed more than one year after the first dismissal, there is no authority for the bringing of an- other new action. 41 Where in an action it was determined that plaintiff could not maintain the same, because of an oral agreement not to sue until other litigation was terminated, in an action after the termina- tion of such other litigation defendants could not plead that limita- tions had barred the action ; the decision in the first case suspend- ing limitations until the action was determined. 42 393. Extension "In any case founded on contract, when any part of the prin- cipal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or prom- ise must be in writing, signed by the party to be charged there- by." 43 394. Acknowledgment An acknowledgment, to bar the statute of limitations, must be unequivocal and without qualification, and a direct admission of a present existing liability. 44 It must itself be unqualified and 41 Denton v. City of Atchison, 90 P. 764, 76 Kan. 89. 42 Bendy v. Russell, 114 P. 239, 84 Kan. 377. 43 Rev. Laws 1910, 4663. A written acknowledgment of a balance due on a mortgage will extend the time within which the action might be brought for three years after the date of such acknowledgment. Cleveland Paper Co. v. Mauk, 54 P. 1035, 8 Kan. App. 562. 44 Durban v. Knowles, 71 P. 829, 66 Kan. 397. Sufficient acknoicledgment. The payee of a note who has assigned it as col- lateral security has such an interest therein that a written acknowledgment made to him by the debtor will toll limitations. Girard Trust Co. v. Owen, 112 P. 619, 83 Kan. 692, 33 L. R. A. (N. S.) 262. Where the grantee accepts a deed, and by a contract not set forth in the deed agrees to pay the grantor's debt secured by a mortgage on the land, ne is liable in an action by the mortgagee, though a recovery on the mortgage note would be barred by limitations but for such an acknowledgment of the debt by the mortgagor as tolled the statute as to him if such acknowledgment was made before the conveyance. Disney v. Healy, 85 P. 287, 73 Kan. 326. A statement to a cashier of a bank holding a note for collection, at the time payment was made by the person making such statement, that he is liable HON. Pi,. & PKAC. 17 (257) 394 LIMITATIONS (Ch. 7 for one-half of the note and interest, though he is neither the maker nor in- dorser of the note, is sufficient to toll the statute of limitations as to him. Miller v. McDowell, 77 P. 101, 69 Kan. 453. A postal card sent through the United States mail by the defendant, and directed to plaintiff, which read as follows: "I will turn you over Farmer's notes for the note you hold against me, the Frys' note. Let me hear from you" was an acknowledgment of an existing liability, debt, or claim, and the time for complete operation of the statute was extended for five years after that time. Pracht v. McNee, 18 P. 925, 40 Kan. 1. A letter written by defendant to plaintiff, in which he states : "I think you are a little mistaken about my notes amounting to over $800. Even at com- pound interest, they would not amount to that much. The whole amount, $600, on interest one year at 8 per cent., would only be $48, and for three years would be $144, making a grand total of $744" and assumes that the amount of the notes will be deducted from his share of an estate of which plaintiff is administrator, is a sufficient acknowledgment to stop the running of the statute of limitation. Clarke v. King, 38 P. 281, 54 Kan. 222. Where a petition on a note had letters attached which were alleged to have been written by one of the makers to the payee offering to deed land in con- sideration of the release of the note and mortgage and the return of the note, it is a sufficient acknowledgment of the debt to toll the statutes. Disney v. Healy, 85 P. 287, 73 Kan. 326. Insufficient acTcncncledgment. An answer acknowledging the execution and delivery of a certain note, without more, does not acknowledge that such note was then a subsisting obligation. McMillan v. Leeds, 49 P. 159, 58 Kan. 815. A surety having signed a note payable to the order of a bank, afterwards executed his own note to the bank for the full amount of the first note, across which the bank wrote, "Received of A., surety, $1,949.04 in full payment," and handed to the surety, to collect from the principal, with the agreement that he was to turn over the amount collected, and assign the judgment to the bank, upon doing which he was to receive his own note, which was held simply as security. Held, that the new note was not an acknowledgment of indebtedness for the first note, nor a promise by the surety to pay that. Gragg v. Barnes, 4 P. 276, 32 Kan. 301. The acknowledgment of liability by a city on a warrant issued in payment for a sidewalk built in front of a private lot was not shown by a recital, in a resolution authorizing an assessment against the lot for the sidewalk tax, that the warrant had been issued by the city for the cost of the walk and bore interest from date, since an acknowledgment must be of a subsisting lia- bility, and be made to the holder of the debt, or his representative. King v. City of Frankfort, 43 P. 983, 2 Kan. App. 530. Letter expressing regret at inability to pay account held insufficient to con- stitute acknowledgment of debt. Corbett v. Hoss, 157 P. 1195, 98 Kan. 290; Hamilton v. Beaubien, 142 P. 245, 92 Kan. 944. A letter written by the maker of a note and a mortgage securing it, stating that, if he could keep the land a year longer, he thought he could make a half payment in a year, and, if he could not, he would be glad to give up the land, and requesting that he be given a "show," is not an ac- knowledgment of- an . existing debt or liability which will toll the statute. Wood v. Merrietta, 71 P. 579, 66 Kan. 748. An acknowledgment in writing that a debt once existed, but which does not (258) I Art. 6) EXTENSION AND WAIVER 394-395 direct, and not dependent for its meaning on some other writing, or on a possible construction of its own language. 45 After such acknowledgment, the action is not brought upon the acknowledgment, but upon the original debt. 48 395. Extension agreement An express promise made by the grantee suspends the running of limitations against the foreclosure of a mortgage lien. 47 An extension agreement made with one having no interest in the mort- gage will not interrupt the running of the statute of limitations on the mortgage, as against a purchaser from the maker of the extension agreement. 48 Where a note has been extended by agreement, limitations will not commence to run against an action thereon until the expira- tion of the extension. 49 Where one of two makers procures an extension for payment of a note providing for its extension without releasing either, the contain an admission of a present subsisting debt on which the party is liable, is insufficient to remove the bar of limitation. Hawkins v. Brown, 97 P. 479, 78 Kan. 284. A letter written by the maker of two notes, due in 30 and 60 days, re- spectively, to the holder, in reference to a matter of "business" between them, in which he offered to give his note, payable in one year, for a sum less than one-half of the two notes, is not a sufficient acknowledgment of liability on the notes to remove the bar of the statute. Andrew v. Kennedy, 46 P. 485, 4 Okl. 625. A promise to pay a debt barred by the statute as soon as the debtor was able was not such an acknowledgment as would take the debt out of the statute. Dezell v. Thayer, 44 P. 686, 2 Kan. App. 587. A letter written by a defendant to plaintiff, wherein he states that he is bound that the plaintiff shall get his pay, but which does not describe the debt, or show that it is a subsisting debt, owing by defendant to plaintiff, will not operate to take the debt out of the operation of the statute of limitations. O'Riley v. Finigan, 58 P. 281, 9 Kan. App. 889. A writing stating that the writer had made a mortgage, and suggesting to the holder ways in which he might escape loss by taking care of the property mortgaged, is not such "an acknowledgment of an existing debt or liability" as to remove the bar of the statute. Haythorn v. Cooper, 69 P. 333, 65 Kan. 338, judgment reversed Cooper v. Haythorn, 70 P. 581, 65 Kan. 860. 45 Richards v. Hayden, 57 P. 978, 8 Kan. Apn. 816. 48 Cleveland Paper Co. v. Mauk, 54 P. 1035, 8 Kan. App. 562. 47 Neosho Valley Inv. Co. v. Huston, 59 P. 643, 61 Kan. 859. 48 Investment Securities Co. v. Bergthold, 58 P. 469, 60 Kan. 813. 49 Sedgwick v. Sanborn, 65 P. 661, 63 Kan. 884. (259) 396 LIMITATIONS (Ch. 7 statute of limitations runs from first maturity of the note in favor of the maker not a party to the extension agreement. 50 396. Part payment The statute is tolled by a part payment in money or its equiva- lent, or the giving of a note, 51 or the giving and acceptance of a credit. 52 The part payment may be only interest, 53 and written 50 Hurley v. Gray, 103 Kan. 345, 173 P. 919. 61 An action for a balance due on a note is not barred; there being a part payment made by him on the note within five years, by the giving of a second note. Pracht v. McNee, 18 P. 925, 40 Kan. 1. 52 A credit on a note, such as will toll the statute, must evidence a volun- tary payment. Berry v. Oklahoma State Bank, 50 Okl. 484, 151 P 210, L. R. A. 1916A, 731. A credit on a note of the proceeds of the sale of securities held not to toll the statute. Id. Credit of debt owing by creditor to debtor is sumcient to lift bar of limita- tions, when made with consent of debtor. Ross v. Lee (Okl.) 172 P. 444. A credit entered in a book of accounts by the creditor, after the account had been barred by the statute of limitations, is not sumcient to establish such a partial payment as will revive the account. Hamilton v. Coffin, 26 P. 42, 45 Kan. 556. A creditor cannot prevent the running of the statute of limitations by the arbitrary allowance of a credit on the debt of which his debtor had no knowl- edge and to which ne had not in some manner given his assent. Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 70 P. 933, judgment modified 75 P. 1051, 68 Kan. 5185, 1 Ann. Cas. 639. A receipt indorsed on a note, after action is barred by limitations, does not indicate part payment, which will revive liability. Liphart v. Myers, 156 P. 693, 97 Kan. 686 ; Easter v. Easter, 24 P. 57, 44 Kan. 151. It is the payment of a portion of a debt which tolls the statute of limita- tions, and not the actual indorsement of such payment on the instrument evi- dencing such debt. Hastie v. Burrage, 77 P. 268, 69 Kan. 560. Where a mortgagee of land in possession applies the rents therefrom to taxes and repairs, and indorses the balance as payments upon the mortgage note, with the mortgagor's consent, but without any direction to do so, or other authority than as implied from such facts, the indorsements will not remove the bar of the statute of limitations. Shanks v. Louthan, 99 P. 613, 79 Kan. 363, 131 Am. St. Rep. 294. The" action of plaintiff in voluntarily placing to the credit of a defunct partnership a sum collected will not interrupt in his own favor the running of limitations as to an action for a partnership accounting and settlement. Brooks v. Campbell, 159 P- 41, 97 Kan. 208, Ann. Cas. 1918D, 1105. An indorsement of a partial payment, without the knowledge or authority of the surety, from moneys derived from the sale of property pledged by the principal, does not take the note out of the operation of the statute of limi- tations as to the surety. Peru Plow & Wheel Co. v. Ward, 51 P. 805, 6 Kan. App. 289. 6a See note 53 on following page. (260) Art. 6) EXTENSION AND WAIVER 396 indorsement of the interest payment is not essential. 54 It may have been made by a natural guardian or parent for a minor, 55 or by a legal guardian 56 or trustee in bankruptcy, 57 or by an assignee for the benefit of creditors. 58 But the payment by the clerk of the distributive share of a scheduled creditor of a fund paid into court by an assignee for the benefit of creditors, after the dis- charge of the assignee, is not such part payment as to stop the running of limitations. 59 The running of limitations will not be interrupted by a pay- ment where there is any uncertainty as to the identity of the debt on which it was made. 60 A part payment, to toll the statute of limitations, must have been made as part payment by the obligor, or some one at his direction, and under such circumstances as to amount to an acknowledg- ment of an existing liability. 61 68 McLane v. Allison, 56 P. 747, 60 Kan. 441, reversing judgment 53 P. 781, 7 Kan. App. 263 ; Spink v. Newby, 67 P. 437, 64 Kan. 883. A mortgage is regarded as an incident to the note, and, where the note and mortgage are once barred, payment of interest on the note revives both the note and the mortgage so far as it affects the interests of the payers and con- tinues it a valid lien superior to the rights of subsequent lienors. Clark v. Grant, 109 P. 234, 26 Okl. 398, 28 L. R. A. (N. S.) 519, Ann. Gas. 1912B, 505. Where a person purchased land, and assumed the payment of a mortgage thereon, and paid interest on the mortgage debt for several years after it be- came due, such payments were sufficient to prevent the running of the statute of limitations on the debt. Woodruff v. Albright, 62 P. 250, 10 Kan. App. 113. 54 Topeka Capital Co. v. Merriam, 56 P. 757, 60 Kan. 397. 55 Perry v. Horack, 64 P. 990, 63 Kan. 88, 88 Am. St. Rep. 225. 56 First Nat. Bank v. Bangs, 136 P. 915, 91 Kan. 54, judgment affirmed on rehearing 140 P. 896, 92 Kan. 270, and objections to taxation of costs sus- tained 141 P. 1013, y2 Kan. 1031. 67 Simpson v. Tootle, Wheeler & Hotter Mercantile Co.. 141 P. 448, 42 Okl. 275, L. R. A. 1915B, 1221. 58 Letson v. Kenyon, 1 P. 562, 31 Kan. 301. 59 Smith-Frazer Boot & Shoe Co. v. White, 51 P. 790, 7 Kan. App. 11; White v. Smith-Frazier Boot & Shoe Co., 32 P. 632, 51 Kan. 34. Brock v. Corbin, 146 P. 1150, 94 Kan. 542. 61 Good v. Ehrlich, 72 P. 545, 67 Kan. 94. A payment made upon a note by a stranger thereto and without authority from the maker does not toll limitations. Kelsay v. Kelsay Land Co., 64 Okl. 291, 166 P. 173. Where a mortgagor was in default for nonpayment of the first of a series of notes, and for nonpayment of taxes, the running of limitations was not suspended by payment of the taxes by a subsequent purchaser from the mort- (261) 396 LIMITATIONS (Ch. 7 fi. part payment to a mortgagee who has made an unrecorded assignment is sufficient to toll limitations. 62 Partial payments by one debtor on a note will not suspend the running of the statute of limitations in favor of the other debtors thereon, although the party paying be the principal debtor and the others only sureties. 63 I gagor. Snyder v. Miller, 80 P. 970, 71 Kan. 410, 69 L. R. A. 250, 114 Am. St. Rep. 489. Husband and ^cife. A mortgage on a homestead was given by a husband and wife to secure the husband's note. The latter paid interest without tlie knowledge of the wife. Within five years after the last payment an action was brought to foreclose. Held, that the mortgaged land was subject to sale for payment of the note. Skinner v. Moore, 67 P. 827, 64 Kan. 360, 91 Am. St. Rep. 244. A husband and wife executed a mortgage note, and the husband died, hav- ing previously conveyed title to his wife, who rented the farm to her son-in- law, and thereafter died. The son-in-law and wife continued in possession. and within five years from maturity of the note made a small payment, and continued in possession until action to foreclose was brought, with the acqui- escence of the brothers and sisters of the wife, and he, with her consent, made several payments on the debt and paid the taxes from the proceeds of the crops raised on the land. No interval of five years elapsed between such payments. Held, that the payments prevented the running of limitations in favor of any of the heirs against the debt. Ellis v. Snyder, 112 P. 594, 83 Kan. 638, 32 L. R. A. (N. S.) 253. A husband and wife jointly executed a note, and secured the same by a mortgage on real estate belonging to the wife. The note became barred as to the wife by the statute of limitations, but not as to the husband, he having made payments which tolled the statute. Held, that the mortgage could be foreclosed, and the wife's land sold to pay the judgment rendered against the husband. Jackson v. Longwell, 64 P. 991, 63 Kan. 93. G. and his wife borrowed money from a loan company, and, to secure such loan, gave a mortgage on real estate owned by the wife ; the proceeds of such loan being used to pay off a mortgage held by M. upon such real estate. Prior to the execution and delivery of the mortgage given to the loan company, the wife had been adjudged insane, and the husband appointed as her guardian. The fact of the wife's insanity was fraudulently concealed from the company, and it had no actual notice of such insanity. Payments of interest were made upon the mortgage given to the loan company within less than five years prior 10 the commencement of foreclosure proceedings upon such mortgage. Held, that the payment of interest by G. was sufficient to toll the statute. Gano v. Martin, 61 P. 460, 10 Kan. App. 384. 62 Girard Trust Co. v. Owen, 112 P. 619, 83 Kan. 692, 33 L. R. A. (N. S.) 262. 63 Hurley v. Gray, 103 Kan. 345, 173 P. 919; McMillan v. Leeds, 49 P. 159, 58 Kan. 815. Partial payments made by one debtor on a note will not suspend the running of the statute of limitations in favor of the other debtors thereon. Wellington Nat. Bank v. Thomson, 59 P. 178, 9 Kan. App. 667. (262) Art. 6) EXTENSION AND WAIVER 396~397 Where one of two joint makers of a note makes a payment thereon after it is due as the agent of the other and with his mon- ey, and states that the money belongs to his co-obligor for whom he is paying it, it does not affect the operation of limitations as to himself. 64 When one of two partners sells out to the other who assumes the firm indebtedness, his part payment of a note given by partners prior to such sale for a partnership debt tolls the statute of lim- itations as to the other maker; the payee having had no notice of the dissolution. 68 Where land is purchased by a firm, which assumes a mortgage thereon, and title is taken in the individual names of the partners, and the partnership ceases to do business, and one partner at- tempts to convey an undivided one-half interest in the land, the other partner may pay a portion of the mortgage debt and thus extend the running of limitations on the mortgage as to the en- tire tract. 66 Where stockholders and officers of a corporation give a note for money for the corporation, and pay interest for nine years out of corporate funds, they cannot avail themselves of limitations on the theory that they are sureties, and have personally made no payments. 67 Where limitations have run against a claim, the payment of part of it by way of compromise and settlement, in consideration of release in full, does not remove the bar'of the statute as to re* mainder. 68 The payment dates from the time paid, and not from the time of indorsement when there is a difference. 09 397. Waiver of limitations The statute may be waived. Where a board of education en- tered into a valid agreement to apply the judgment fund to judg- ments in the order of entry, and complied therewith, it could not, after the expiration of the statutory period when the judgment 6 * Elrnore v. Fanning, 117 P. 1019, 85 Kan. 501, 38 L. R. A. (N. S.) 685. 65 Campbell v. Herrick, 104 Kan. 657, 180 P. 237. ee McKee v. Covalt, 81 P. 475, 71 Kan. 772 ; Bucher v. Same, Id. 6T Gordon v. Russell, 158 P. 661, 98 Kan. 537. cs Nolan v. Board of County Conrrs of Ellis County, 101 Kan. 513, 168 P. 326. 69 Benton v. Yurann, 55 P. 676, 8 Kan. App. 305. (263) 397-399 LIMITATIONS (Ch. 7 became dormant for failure to issue execution, plead limitations as a bar to those Judgments not yet reached for payment under the agreement. 70 Where default had commenced to run for nonpayment of a mort- gage note and taxes, a purchaser from the mortgagor did not waive the right to plead limitations by subsequently paying the taxes. 71 ARTICLE VII CONTRACT LIMITATIONS Sections 398. In general. 399. Insurance policy. 400. Mutual accident and sickness insurance 398. In general A provision of an interstate shipment contract that the shipper must bring his action within six months is reasonable, valid, and binding. 72 399. Insurance policy A provision in the standard form, of fire insurance policy, lim- iting the right to sue on a policy to one year, is enforceable, where no extrinsic facts excuse delay in commencing the action. The period of limitation begins to run against an action on such a policy from the day of the fire, though the policy provides the loss shall not become payable until 60 days after notice, ascertain- ment, estimate, and proof of loss have been received by the in- surer. 73 A provision of an insurance policy that no suit or action on the policy shall be maintainable unless commenced not later than six months, 74 is void; and as to causes of action arising before the 70 In re Board of Education of City of Perry, 130 P. 951, 35 Okl. 733. 71 Snyder v. Miller, 80 P. 970, 71 Kan. 410, 69 L. R. A. 250, 114 Am. St. Rep. 489. 72 St. Louis & S. F. R. Co. v. Pickens, 51 Okl. 455, 151 P. 1055; St. Louis, I. M. & S. Ry. Co. v. Bentley (Okl.) 176 P. 250. 7 3 Rev. Laws 1910, 3482; Wever v. Pioneer Fire Ins. Co., 49 Okl. 546, 153 P. 1146, L. R. A. 1918F, 507. 74 Rev. Laws 1910, 977; Oklahoma Fire Ins. Co. v. Wagester, 38 Okl. 291, 132 P. 1071. (264) Art. 7) CONTRACT LIMITATIONS 400 adoption of the standard policy in 1909, a limitation to twelve months after the fire, or loss, was void. 75 400. Mutual accident and sickness insurance Any mutual accident and sickness insurance company "may lim- it the time within which suit may be brought against it or any claim based upon its policies or certificates of membership, and after the expiration of the time thus limited, shall not be liable therefor: Provided, such limitation shall be incorporated in, and form a part of the contract between the corporation, association or society and the assured or its members, and provided further that such limitation shall not be limited to a period of less than one year from the time such right of action accrues." 76 Keys v. Phoenix Ins. Co., 132 P. 820, 37 Okl. 514; Keys & Keys v. Wil- liamsburg City Fire Ins. Co. of Brooklyn, N. Y., 132 P. 818, 37 Okl. 482; Same v. Mechanics' & Traders' Ins. Co. of New Orleans, La., 132 P. 819, 37 Okl. 480 ; Seay v. Commercial Union Assur. Co. Limited, of London, England, 140 P. 1164, 42 Okl. 83. Sess. Laws 1913, p. 230, 14. (265) 401 PARTIES (Ch.8 CHAPTER VIII PARTIES Sections 401-106. Article I. In general. 407-423. Article II. Plaintiff. 424-436. Article III. Defendant. 437-139. Article IV. Intervener. 440-443. Article V. Defects, objections, and amendments. ARTICLE I IN GENERAL Sections 401. Designation of parties. 402. Counties Dental board. 403. Married women. 404. Joinder .Necessary parties. 405. Where parties numerous. 406. Style. 401. Designation of parties The omission of or a mistake in an initial does not affect the ju- risdiction of the court, where the right party is served and has appeared. 1 One may, without abandoning real name and without fraudu- lent intent, adopt any name by which he may transact business, execute contracts, and sue and be sued. 2 One may lawfully change his name without resort to legal pro- ceedings, and for all purposes the name so assumed will consti- tute his legal name as if he had borne it from birth. 3 The law does not generally recognize a middle name, but looks rather to the identity of the individual, and when this identity is established, this is all that the law requires.* 1 Maine v. Edmonds, 58 Okl. 645, 160 P. 483. 2 Badger Lumber Co. v. Collinson, 156 P. 724, 97 Kan. 791. The sole owner and manager of a business may in good faith conduct his business under any name, and sue under such name for breach of contract. Robinovitz v. Hamill, 44 Okl. 437, 144 P. 1024, L. R. A. 1915D, 981. 8 Modern Brotherhood of America v. White (Okl.) 16S P. 794, L. R. A. 1918B, 520. * Maine v. Edmonds, 58 Okl. 645, 160 P. 483. (266) Art. 1) IN GENERAL 401-403 Ordinarily, identity of name is prima facie evidence of identity of person, and it devolves upon those who deny the identity to overcome the presumption by proof. 5 Two names, though spelled differently, if they sound alike or so nearly alike that the attentive ear finds difficulty in distinguishing them, are regarded as the same. 8 402. Counties Dental board A county may sue and be sued. 7 "The board of dental examiners may sue or be sued under the name of the state board of dental examiners of Oklahoma; and no suit shall abate by reason of any change of membership of the board." 8 403. Married women "A married woman may sue and be sued in the same manner as if she were unmarried." 9 "Woman shall retain the same legal existence and legal person- Bayha v. Munford, 49 P. 601, 58 Kan. 445. Maine v. Edmonds, 58 Okl. 645, 160 P. 483. The names "Mollie Brown" and "Mary Brown" are the same, and con- stitute only one name, and the administering of medicines and drugs to Mollie Brown was the administering of such medicines to Mary Brown ; it apppearing that no claim was made in the court below that Mollie Brown was not Mary Brown, and no question was raised in reference thereto. State v. Watson, 1 P. 770, 30 Kan. 281. Idem sonans. "Johnston" and "Johnson" are idem sonans. Miltonvale State Bank v. Kuhnle, 31 P. 1057, 50 Kan. 420, 34 Am. St. Rep. 129. "Barbara" and "Barbra" are idem sonans. State v. Haist, 34 P. 453, 52 Kan. 35. The names "Bert" and "Burt" are idem sonans. State v. Johnson, 79 P. 732, 70 Kan. 861. In ejectment against a defendant described as "Ned Armstead," in which plaintiff derives title through a judgment against one designated as "Ned Almstead" and "Ned Olmstead," thp testimony of the officer who served the summons in the action in which such judgment was rendered, that such serv- ice was made on the defendant in the ejectment action justifies treating "Almstead" and "Olmstead" as different spellings of the name "Armstead." Armstead v. Jones, 80 P. 56, 71 Kan. 142. ' Rev. Laws 1910, 1497. Where Rev. Laws 1910, 1497, requires action to be instituted in name of county, reference must be made to section 1500, requiring county to sue in name of "Board of County Commissioners of the County of ." Smith v. State, 13 Okl. Cr. 619, 166 P. 463. 8 Rev. Laws 1910, 6828. 9 Rev. Laws 1910, 4684. (267) 404 PARTIES (Ch. 8 ality after marriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man ; and for any injury sustained to her reputation, person, property, character or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or eq- uity for redress and protection that her husband has to appeal in his own name alone." 10 404. Joinder Necessary parties "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the pe- tition." 1X Where a firm of two attorneys bring action on an oral contract for services, refusal to bring in as a party another attorney who was in partnership with plaintiffs in another firm was not error. 12 The shipper of live stock, under a written contract obligating him to hold the carrier harmless for any damages it might be re- quired to pay the caretaker accompanying the stock, is not a nec- essary party to an action by the caretaker against the carrier for, personal injuries. 13 In order to obtain the rescission of a contract of sale, all parties interested in the property involved must be brought before the court. 14 10 Rev. Laws 1910, 3363. 11 Rev. Laws 1910, 4692. It was alleged that plaintiffs, LJ and husband, owned and resided on a homestead, and that the husband executed a conveyance of the same to EL, without consent of his wife ; that subsequently H. and his wife. Lydia, exe- cuted a deed with the usual covenants to P. The action to set aside both conveyances was brought against H. and P., without joining as a defendant Lydia H. Held, that she is a necessary party plaintiff in the action to cancel the deed in which she joined as grantor. Hill v. Lewis, 25 P. 589, 45 Kan. 162. 12 Grisso v. Crump, 61 Okl. 83, 160 P. 453; Rev. Laws 1910, 4696. 13 Missouri, K. & T. Ry. Co. v. Lynn, 62 Okl. 17, 161 P. 1058. 14 Constant v. Lehman, 34 P. 745, 52 Kan. 227. Where, in an action to set aside a deed on the ground of fraud, such deed was executed by husband and wife, and where the former died before the action was brought, a child born subsequent to the delivery of the deed is a proper party to such action, and may be joined with the widow as plaintiff therein. Brown v. Brown, 64 P. 599, 62 Kan. 666. (268) Art. 1) IN GENERAL 404-406 A judgment in ejectment is not void as to defendants in actual possession because the holder of the legal title, not in possession, was not made a party. 15 Where more than legal rate of interest has been paid on, note by one of joint and several makers, party by whom it has been paid may recover on account of usury, without joining other makers. 16 405. Where parties numerous "When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." 17 For example, where property is claimed by a church organiza- tion not incorporated, and the property is in dispute, any number of the members of such association or congregation may maintain an action for the benefit of the church. 18 406. Style "In a civil action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant." 19 Fulton v. Mathers, 90 P. 256, 75 Kan. 770. 16 Security State Bank v. Chandler, 64 Okl. 10, 166 P. 162. See Rev. Laws 1910, 1005, as to usury. 17 Rev. Laws 1910, 4693. is Fink v. Umscheid, 19 P. 623, 40 Kan. 271, 2 L. R. A. 146. Rev. Laws 1910, 4651. (269) 407 PARTIES (Ch. 8 ARTICLE II PLAINTIFF Sections 407. Real party in interest. 408. Joinder. 409. New party. 410. Capacity to sue. 411. Corporations. . 412. In particular cases. 413. Creditors. 414. Stockholders' suit. 415. Insurance. 416. Taxpayers Injunction. 417. Assignee and assignor. 418. Persons not personally interested. 419. Guardian. 420. Infants Wards. 421. Tenants in common. 422. Government and governmental agencies. 423. Action for death. 407. Real party in interest "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in this article; but this section shall not be deemed to authorize the assignment of a thing in action, not arising out of contract." 20 The test of whether one is the real party in suit is : Does he satis- fy the call for the person who has the right to control and receive the fruits of the litigation? 21 20 Rev. Laws 1910, 4681. Every action must be prosecuted in the name of the real party in inter- est. Maxia v. Oklahoma Portland Cement Co. (Okl.) 176 P. 907. Under Code Civ. Proc. p. 767, c. 66, 26, providing that every action must be prosecuted in the name of the real party in interest, if an action is pros- ecuted in the name of the government upon the relation of certain individuals, these individuals must be the real parties in interest. United States v. Choctaw, O. & G. R. Co., 41 P. 729, 3 Okl. 404. If the relief sought in an action brought in the name of the government on the relation of certain in- dividuals is merely for the protection of private rights, the relators must show some special interest, and their rights must clearly appear, since they are regarded as the real parties. Id. If the United States is the real party in interest in a proceeding brought on the relation of certain individuals, such relators are improperly joined. Id. If the object of a proceeding is to compel the performance of a public duty or to restrain the commission of a public wrong, the people are the real parties in interest, and the action must be - 1 Stinchcomb v. Patteson (Okl.) 167 P. 619. (270) Art. 2) PLAINTIFF 407-408 Plaintiff in ejectment is not the "real party in interest," entitled to bring action, unless he is a party who may be benefited or injured by the judgment. 22 The assignee of a lease contract is the real party in interest in ac- tion of ejectment. 23 Defendant has a right to insist that an action against him shall be brought by the real party in interest under the statute, but it is suffi- cient if defendant is not shut out from defenses and counterclaims, and is fully protected from any further liability. 2 * Where a widow brings suit in the name of her deceased husband, and the evidence discloses that since his death she has signed his name, instead of her own, in business transactions, and that she is known by that name as well as by her own, such suit is prosecuted in the name of the real party in interest, and the record sufficiently identifies her to bar a similar action between the same parties. 25 408. Joinder All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article. 20 brought in the name of the territory upon the relation of some member of the public who shows a personal interest in the result. Id. An informer cannot maintain an action for damages under the first pro- vision of Comp. Laws 1909, 7413, against a public officer for malfeasance in office, the right being given to innocent persons suffering special damage, as distinguished from those injured generally in common with others. McGuire v. Skelton, 129 P. 739, 36 Okl. 500. Abstracters. An abstracter's liability, under Wilson's Rev. & Ann. St. 1903. 1, is not confined to the person for whom he makes an abstract. Sackett v. Rose, 55 Okl. 398, 154 P. 1177, L. R. A. 1916D, 820. A person injured by in- completeness or error in an abstract of title is entitled to all damages prox- imately resulting. Id. Under Wilson's Rev. & Ann. St. 1903, 1, an abstracter is liable on his bond for defects in an abstract not only to the person ordering same, but to any one relying on same to his injury. Scott v. Jordan, 55 Okl. 708, 155 P. 498. Under Wilson's Rev. & Ann. St. 1903, 1, an abstracter vouches for the correctness of an abstract compiled and certified by him. Id. 2 2 Miller v. Grayson, 64 Okl. 122, 166 P. 1077; Jackson v. McGilbray, 46 Okl. 208, 148 P. 703. 23 McElroy v. Moose, 51 Okl. 173, 151 P. 857. 24 Rullman v. Rullman, 106 P. 52, 81 Kan. 521. 25 Deets v. Smith, 51 P. 581, 6 Kan. App. 601. 26 Rev. Laws 1910, 4690. This does not mean that all interested must join. Bissey v. City of Mar- ion, 104 Kan. 311, 178 P. 611. Plaintiff and two others were appointed by a city as a committee to super- (271) 408 PARTIES (Ch. 8 All parties united in interest as parties plaintiff in the subject- matter of the litigation must be joined as plaintiff. 27 Persons in whose favor an obligation exists must all join in an action thereon, unless the interest of each of the parties to be bene- fited is specially stated in the contract, or is determined by the character of the obligation. 28 Where two parties have joint interest in property, they must join in an action for injuries thereto. 29 Where two or more persons have a separate interest in property and sustain a separate damage thereto, they cannot join in the same action, though their several injuries were caused by the same act. 30 intend the construction of waterworks for the city, plaintiff being appointed because of his knowledge and experience as a civil engineer. Any two of the committee were authorized to act. They all entered upon the discharge of their duties under the appointment, but did not all do the same amount of work. The work for which they were appointed was all performed and com- pleted and was accepted by the city. Held, that plaintiff might thereafter maintain an action against the city for compensation for his individual serv- ices, without joining with him as plaintiffs the other members of the com- mittee, under Civ. Code, 35, providing that "all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs," and section 37, providing that) "of the parties to the action those who are united in interest must be joined as plaintiffs or de- fendants." City of Ellsworth v. Rossiter, 26 P. 674, 46 Kan. 237. Decedent, in consideration of a conveyance to him of land, verbally agreed to pay one-half of a mortgage on other land conveyed at the same time by his grantor to plaintiff, and thereafter verbally agreed with plaintiff to pay the same proportion of a mortgage given in renewal of said mortgage. On his dying seised of the land, without sufficient personalty to pay his share of the mortgage, and on his administrator's refusal to allow the claim based on said agreement against the estate, plaintiff sued the administrator, praying that the land be subjected to payment of the claim. Held, that there was no defect of parties plaintiff. McDowell v. Miller, 42 P. 402, 1 Kan. App. 666. Where the sureties on a sheriff's bond have paid the judgment rendered against him for making an illegal levy, the sureties paying the same must all be joined as plaintiffs in an action to recover the money paid from the orig- inal attachment plaintiff, since "united in interest," within Code Civ. Proc. 37. Burkett v. Lehman-Higginson Grocery Co., 56 P. 856, 8 Okl. 84. In all actions those between whom there is a unity of legal interest must be joined as plaintiffs. Id. Evidence in an action to recover the price of corporate stock, which plain- tiffs were fraudulently induced to buy, held to establish the right of plaintiffs to sue jointly, where it showed that the money paid for the stock came from a common fund. Ellsworth v. Trinkle, 153 P. 543, 96 Kan. 666. 27 Stinchcomb v. Patteson (Okl.) 167 P. 619. 28 Burkett v. Lehmen-Higginson Grocery Co., 56 P. 856, 8 Okl. 84. 29 St. Louis & S. F. R. Co. v. Webb, 128 P. 252, 36 Okl. 235. 3 St. Louis & S. F. R. Co. v. Dickerson, 118 P. 140, 29 Okl. 386. (272) Art. 2) PLAINTIFF 408-410 Where plaintiffs had severally stored grain in an elevator, under an agreement to pay storage thereon, and that each might remove his grain whenever he saw fit, they could not properly join as plain- tiffs in an action for conversion of tne grain. 31 An insurer may join with the insured as plaintiff to recover for the loss of property negligently destroyed by fire. 32 Mortgagees under mortgages delivered and filed at the same time may join in an action for the conversion of the mortgaged prop- erty. 33 A contract entered into and performed jointly by two or more persons, the compensation for the performance of which is separate and distinct as to each, may be sued upon separately by each to re- cover the amount due to him or the damages sustained by him. 34 Joint action may be maintained on a guardian's bond on behalf of two wards for an accounting- and settlement, where they have a joint interest in the fund or property. 35 One who, though not the judgment plaintiff, is the real owner of the judgment and of the note on which it is based, may sue on the constable's bond for his failure to pay over the proceeds of the exe- cution, without joining as plaintiff the judgment plaintiff. 88 In action on note, payee may be joined as plaintiff with another whojs beneficially interested. 37 409. New party "When, in an action for the recovery of real or personal property, any person having an interest in the property applies to be made a party, the court may order it to be done." 38 410. Capacity to sue The' capacity to sue is the right to come into court, and differs from a cause of action, which is the right to relief in court. 39 81 Central State Bank of Geneseo v. Walker, 53 P. 379, 7 Kan. App. 748. 82 Atchison, T. & S. F. R. Co. v. Neet, 54 P. 134, 7 Kan. App. 495. 33 Hays v. Farwell, 35 P. 794, 53 Kan. 78. 3* Curry v. Kansas & C. P. Ry. Co., 48 P. 579, 58 Kan. 6; Kansas & C. P. R. Co. v. Curry, 51 P. 576, 6 Kan. App. 561. ss Donnell v. Dansby, 159 P. 317, 58 Okl. 165. se Dodge v. Kincaid Bros., 1 P. 107, 30 Kan. 346. 87 Wade v. Hall, 64 Okl. 173, 166 P. 720. 38 Rev. Laws 1910, 4697. 89 Howell v. lola Portland Cement Co., 121 P. 346, 86 Kan. 450. HON.PL.& PBAC. 18 (273) 411-412 PARTIES (Ch. 8 411. Corporations No foreign corporation transacting business in the state, which shall fail to comply with the provisions of Article 10, chap. 15, Rev. Laws 1910, "can maintain any suit or action, either legal or equitable, in any of the courts of this State, upon any demand, whether arising out of contract or tort." * A foreign corporation engaged in interstate commerce may sue on a contract of employment entered into with a citizen of Okla- homa, though it has not filed a copy of its articles of incorporation, or appointed a service agent in the state, the appointment of an agent not constituting doing business in the state. 41 Where a national bank is placed in voluntary liquidation in charge of liquidating agent, it is capable of suing and being sued in its corporate capacity, until its affairs are settled. 42 412. In particular cases A principal may maintain in his own name an action upon a writ- ten contract made in the name of the agent. 43 An agent, who purchases a note with his principal's money and has it indorsed to himself, may sue thereon in his own name. 44 Where a building contractor's bond provided security for per- sons furnishing material or labor without regard to whether the claims were a lien on the building, one who furnished cement to be used in building could maintain a suit on the bond. 45 A person suing to abate a nuisance must bring himself within the statute authorizing the suit. 4 * 40 Rev. Laws 1910, 1341. 41 Kibby v. Cubic, Heimann & Co., 137 P. 352, 41 Okl. 116. A foreign corporation which had not complied with Rev. Laws 1910, 1335, 1336, held not entitled to sue on any demand, whether arising out of contract or tort. Goodner Krumm Co. v. J. L. Owens Mfg. Co., 51 Okl. 376, 152 P. 86. That plaintiff was a foreign corporation, and had not complied with the statute, by filing a copy of its charter, etc., held not to constitute a defense in an action on notes. Citizens' Life Ins. Co. v. Owen, 139 P. 516, 40 Okl. 446. 42 Oklahoma City Nat. Bank v. Ezzard, 58 Okl. 251, 159 P. 267, L. R. A. 1918A, 411. 43 Choate v. Stander, 61 Okl. 148, 160 P. 737 ; Schmucker v. Higgins-Rob- erts Grain Co., 116 P. 184, 28 Okl. 721. 44 Routh v. Kostachek, 81 P. 429, 15 Okl. 234. 45 Crudup v. Oklahoma Portland Cement Co., 56 Okl. 786, 156 P. 899. 46 Wilson's Rev. & Ann. St. 1903, c. 13, art. 10, 134, provides that it shall be unlawful to maintain a slaughterhouse within certain distances of lands platted into lots for residence purposes. Section 136 provides that the maintaining of any slaughterhouse in violation of the act shall be a nuisance, (274) Art. 2) PLAINTIFF 412 A public nuisance may be abated by a civil action brought by the state on the relation of the county attorney of the county in which such nuisance exists. 47 The grantor in a deed void as against defendants in adverse pos- session may maintain an action in his own name against those hold- ing adversely and his grantees to cancel void deeds to those in ad- verse possession. 48 One who owns an equitable title to real property and is in posses- sion may maintain an action for permanent injuries thereto. 49 and that any person owning real estate within the lands platted and set apart for residences may sue to abate such nuisance, and that sheriffs, constables, or other police officers may make complaint to abate the same. Held, that section 136 limits the persons authorized to sue to the owners of real estate as described therein, and one who is not such owner or officer must bring himself within the provisions of Wilson's Rev. & Ann. St. 1903, c. 56, en- titled "Nuisance." Weaver v. Kuchler, 87 P. 600, 17 Okl. 189. Comp. Laws 1909, 966 (Wilson's Rev. & Ann. St. 1903, 625), makes it unlawful to establish and use land for burial purposes which is less than three-quarters of a mile from land platted as an addition to a city or town, wherein lots have been sold in good faith before the cemetery was located, or within such distance of land platted into blocks for sale for resident pur- poses, wherein lots have been sold in good faith before the cemetery was lo- cated. Section 967 (626) makes such maintenance and use of a cemetery a nuisance, and provides that any person owning real estate within any such addition to a town or city or within the land platted to be sold for resident purposes may sue to abate such nuisance and enjoin its continuance. Held, that the last section limits the persons authorized to sue to owners of lands described therein, and another person seeking relief by way of abatement of the nuisance must bring himself within Comp. Laws 1909, 4751^1769 (Wil- son's Rev. & Ann. St. 1903, 3717-3735), relating to nuisances. Clinton Cem- etery Ass'n v. McAttee, 111 P. 392, 27 Okl. 160, 31 L. R. A. (N. S.) 945- Under Comp Laws 1909, 966, 967, making it unlawful for any person to maintain a cemetery located less than three-fourths of a mile from any platted land to be sold for residences, where lots may have been sold in good faith before the cemetery was located, and the facts show that plaintiff had pur- chased in good faith lots lying within such platted lands, he is entitled to a perpetual injunction . against parties maintaining such cemetery. Fursten- burg v. Brissey, 115 P. 465, 28 Okl. 591. 47 Balch v. State (Okl.) 164 P. 776. An action may be maintained in the name of the territory under the direct provisions of Wilson's St. 1903, 4440, to enjoin and suppress the keeping and maintenance of a common nuisance. Reaves v. Territory, 74 P. 951, 13 Okl. 396. 48 Burckhalter v. Vann, 59 Okl. 114, 157 P. 1148. 49 Foster Lumber Co. v. Arkansas Valley & W. Ry. Co., 95 P. 224, 20 Okl. 583, 30 L. R. A. (X. S.) 231, judgment affirmed on rehearing 100 P. 1110, 20 Okl. 583, 30 L. R. A. (N. S.) 231. (275) 413 PARTIES (Ch. 8 413. Creditors The presumption of invalidity of a transfer of merchandise in bulk may be taken advantage of by a creditor of the transferrer, though his debt existed before the transferrer acquired the stock, and though none of the consideration for the debt went into the stock. 50 A voluntary conveyance is good as against a subsequent creditor when not made with fraudulent intent to incur the debt, and where the creditor has not extended credit on faith of the grantor's owner- ship of the particular property conveyed. 51 A subsequent creditor, who extends credit after actual or con- structive notice of a fraudulent conveyance, cannot attack same. 52 A person having a claim growing out of a tort independent of con- tract is a "creditor," so as to entitle him to have canceled and set aside a conveyance of real estate made to defraud creditors. 53 A direct action cannot'be maintained against the purchaser by a creditor of one who has sold his entire stock of goods without com- plying with the bulk sales law. 54 To enable a creditor to assail the validity of a chattel mortgage executed by his debtor, he must not only obtain a judgment, but also a valid execution against the property of the debtor. 55 Where a mortgagee of chattels to enforce its lien seizes the mort- gaged chattels in the hands of a third person, claiming to be the owner, and such third person sues to recover their value, and the mortgagee defends on the ground that the mortgagor made a fraud- ulent transfer to such third party and executed the mortgage, but there was no change of possession, such mortgagee will be treated as an incumbrancer, and not as a creditor of the mortgagor, and must show that it became an incumbrancer in good faith subsequent to the fraudulent transfer. 66 80 Galbraith v. Oklahoma State Bank, 130 P. 541, 36 Okl. 807. 61 Van Arsdale v. Findley, 132 P. 135, 37 Okl. 425. 82 Rauh v. Morris, 137 P. 1174, 40 Okl. 288. 53 Shelby v. Ziegler, 98 P. 989, 22 Okl. 799. 54 Rogers' Milling Co. v. Goff, Gamble & Wright Co., 46 Okl. 339, 148 P. 1029. 88 Chandler v. Colcord, 32 P. 330, 1 Okl. 260. First Nat. Bank v. Yeoman, 78 P. 388, 14 Okl. 626. (276) Art. 2) PLAINTIFF 414-415 414. Stockholders' suit In an action by corporation upon a claim where a stockholder had no interest in the subject-matter of the suit, the corporation was the only proper party plaintiff." Where a corporation has ceased to do business and stock is own- ed exclusively by two, and the majority stockholder in charge of its property and affairs has converted all assets to his own use, the minority stockholder can maintain suit against him, where corpora- tion is made a party defendant, and obtain a judgment against ma- jority stockholder for aliquot part of funds due corporation. 58 Where corporate stock is held by assignment and delivery as se- curity for a debt, and the assignor, being the. president of the cor- poration procures a reissue of such stock to himself and assigns the reissued stock to a third person, and by the vote of such stock the corporation is reorganized under a different name, and the property and franchise rights af e sought to be invested into such reorganized company, the bona fide holder of such stock is not required to reduce his demand against his assignor to judgment before he may lawful- ly sue to have the original company reinvested with its corporate and franchise rights. 58 415. Insurance Under a "standard" mortgage clause in a fire policy providing that insurance shall not be invalidated as to the mortgagee by any act or neglect of the mortgagor, the mortgagee may maintain a suit in his own name, and the cause of action cannot be defeated by any act or neglect of the mortgagor. 60 Where the mortgage debt was less than the amount due on the 67 Burke Grain Co. v. Stinchcomb (Okl.) 173 P. 204. 58 Dill v. Johnston (Okl.) 179 P. 608. In suit by the minority stockholder against the majority stockholder where corporation has permitted majority stockholder to convert all its property to his own use, court may enter judg- ment directly in favor of minority stockholder for his aliquot part, without appointing a receiver or rendering judgment for corporation against majority stockholder. Id. In suit by the minority stockholder for a division of cor- poration's assets after their conversion by the 1 majority stockholder to his own use and after corporation had ceased to do business, evidence held suffi- cient to sustain the findings of the referee and judgment of court thereon in favor of the minority stockholder. Id. 69 First Nat. Bank v. Stribling, 86 P. 512, 16 Okl. 41. 60 Fidelity-Phenix Fire Ins. Co. v. Cleveland, 57 Okl. 237, 156 P. 638, (277) 415-416 PARTIES (Ch.8 insurance policy, the insured could sue on the policy in her own name though a mortgage clause was attached to the policy. 61 Where the insured conveyed property covered by the policy by a contract making the loss payable to the insured as its interest might appear, and the property was destroyed before the policy was assigned, the purchaser was not the owner with the right of ac- tion thereon. 62 416. Taxpayers Injunction An injunction will not lie at the suit of a private citizen to protect public interests. 63 The right to maintain a taxpayer's suit is determined by statute in many cases. 64 Where the bridge over a creek crossed by a city street is allowed to remain in a condition not open for traffic, the owner of a tract on one side of the street and both sides of the creek sustains a spe- cial injury, and may maintain an action for mandatory injunction against those responsible for the condition, though such action can- not be maintained by one owning a tract on a cross street opposite the termination of a street. 65 A taxpayer has no such interest in a suit to enjoin the holding of an election to recall a mayor as will entitle him to prosecute such suit. 06 i Liverpool & London & Globe Ins. Co. v. Cargill, 44 Okl. 735, 145 P. 1134. 02 Springfield Fire & Marine Ins. Co. v. E. B. Cockrell Holding Co. (Okl.) 169 P. 1060. 63 Ruthstrom v. Peterson, 83 P. 825, 72 Kan. 679. 64 An action may be maintained on relation of resident taxpayers against city officers who have allowed and paid claim pursuant to an unlawful or fraudulent contract, and against the person to whom the money is paid, to recover double such amount. State v. Oklahoma City (Okl.) 168 P. 227. Where city after written demand of ten resident taxpayers neglects to sue to recover money unlawfully paid by its officers; to railroad, any resident taxpayer may sue in the name of the state for the penalty ; one-half of recov- ery going to plaintiff as a reward, and remainder to city. State v. City of Muskogee (Okl.) 172 P. 796. When city neglects to sue for money unlawfully paid out by city officials after written demand by resident taxpayers, a tax- payer who sues to recover penalty under Rev. Laws 1910, 6777, 6778, has interest in cause of action not affected by city's subsequent suit. Id. Sure- ties on official bonds of city officials sued by resident taxpayers to recover penalty prescribed by Rev. Laws 1910, 6777, 6778, for misappropriation of moneys not being liable for such penalty, are not proper parties therein. Id. es Bissey v. City of Marion, 104 Kan. 311, 178 P. 611. 66 City Council of City of McAlester v. Milwee, 122 P. 173, 31 Okl. 620, 40 L. R. A. (N. S.) 576. (278) Art. 2) PLAINTIFF 416 In the absence of any statute so authorizing, a county attorney cannot sue in his official name to enjoin issuance of warrants for construction of bridges under a void contract. 67 A petition to enjoin the action of the state engineer and an ap- plicant for water rights is not subject to the charge of misjoinder of parties because there are joined therein all the parties claim- ing a right to the water along with the state engineer, and the relief asked against him is different from that asked against his codefendant. 68 A final injunction will not be granted, in the absence of a neces- sary and indispensable party to the action; and, until all those whose legal rights are to be directly affected by a permanent injunc- tion are made parties to the action, a perpetual injunction is rightly refused. 69 Where the record shows that defendants are only nominal parties, and that the real parties in interest have not been brought into court, and the relief sought would bar the absent parties from their day in court, the injunction should be denied, although the defend- ants before the court do not raise the question of a defect of parties, either by demurrer or answer. 70 7 Dolezal v. Postick, 139 P. 964, 41 Okl. 743. Under St. 1893, 1646, 1648, 1649, the territory of Oklahoma had sufficient interest to enable it to enjoin county officers from unlawfully expending county money. Id. A county officer, prior to statehood, was authorized to sue in the name of the terri- tory to enjoin the county clerk from issuing warrants for the misapplication of county funds. Id. 68 Gay v. Hicks, 124 P. 1077, 33 Okl. 675; Same v. Wallace, 124 P. 1082, 33 Okl. 687. 69 Jeffries-Ba Som v. Nation, 65 P. 226, 63 Kan. 247. In an action to perpetually enjoin a city and its officers and certain county officers from levying or collecting any taxes to pay interest on certain city bonds, and to have the bonds declared null and void, the bondholders are nec- essary parties, and the action cannot be maintained without making them parties. City of Anthony v. State, 30 P. 488, 49 Kan. 246. The board of railroad commissioners, under Laws 1887, c. 184, granted a railroad company the right to cross the roads of two other companies, and fixed the manner of crossing, and the compensation to be paid by the cross- ing company. From this order no appeal was taken. Four months later, and before the crossing was made, the companies over whose roads the crossing was allowed applied to the board of railroad commissioners for a rehearing, and to se-t aside the order allowing the crossing. Held, on application by the crossing company for an injunction to restrain the board from granting such rehearing, that the railroad companies which applied for the rehearing were necessary parties. Union Terminal R. Co. v. Board of Railroad Com'rs., 35 P. 224, 52 Kan. 680. 70 Walker v. Cambern, 47 P. 980, 5 Kan. App. 545. (279) 417 PARTIES (Ch. 8 417. Assignee and assignor "In the case of an assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or other de- fense now allowed; but this section shall not apply to negotiable bonds, promissory notes or bills of exchange, transferred in good faith and upon good consideration, before due." 71 One to whom a contract right has been transferred may maintain an action thereon, though he has no beneficial interest therein. 72 The assignee of an account may maintain action thereon, although the assignor is the party beneficially interested, 73 and it is immaterial to the debtor whether the account was given or sold to the assignee. 74 Where a written contract of sale of land was assigned as col- lateral security for faithful performance of a building contract by the assignor, the assignee could sue the original vendor for breach of the contract of sale, without making the assignor a party. 76 One to whom a claim for injuries to freight is assigned is entitled to maintain an action thereon ; the assignor not being a necessary party. 76 Where the assignee of a final foreign judgment which definitely fixed the liability of defendants under an indemnity bond released the judgment in consideration of the judgment debtors assigning the bond to him, the assignee, being absolute owner of the bond, could sue thereon. 77 The assignee of the payee of a note is entitled to sue thereon, though the payee was designated as guardian in the face of the note. 78 Where a* note in aid of railroad construction was delivered to a construction company and the railroad was duly completed and the receiver of the construction company assigned the note to the receiver of the railway company, and the assets of the railway were sold to a third party, who delivered the note to the plaintiff rail- road, plaintiff could maintain an action thereon. 79 71 Rev. Laws 1910, 4682. 72 Rullman v. Rullman, 106 P. 52, 81 Kan. 521. 78 Hull v. Massachusetts Bonding & Ins. Co., 120 P. 544, 86 Kan. 342. 74 Krapp v. Eldridge, 5 P. 372, 33 Kan. 106. 75 Marker v. Gillam, 54 Okl. 766, 154 P. 351. 76 Chicago, R. I. & P. Ry. Co. v. Bankers' Nat. Bank, 122 P. 499, 32 Okl. 290. 77 McFarlan v Adair, 46 Okl. 46, 148 P. 138. 7 s Bank of Welch v. Cabell, 52 Okl. 190, 152 P. 844. 79 Purcell Mill & Elevator Co. v. Canadian Valley Const. Co., 58 Okl. 629, 160 P. 485. (280) Art. 2) PLAINTIFF 417-419 A claim for money found to be due by the verdict of the jury in an action for the conversion of personalty may be assigned to a third person, so as 'to give the assignee the right to recover the same. 80 418. Persons not personally interested "An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by stat- ute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way." 81 A trustee of personal property for sale and to apply proceeds to payment of debts can maintain an action for the conversion of the property. 82 An action on a note is properly brought by the party holding the legal title to same, though there are other parties beneficially in- terested in the note. 83 Where, in an action on a note by an assignee against the maker, a third party intervenes, charging fraud of creditors and seeking to recover money alleged to be theirs, such creditors are necessary parties to the proceedings. 84 An action may be maintained on a contract for the benefit of a third party by the person in whose name the contract was made. 85 The assignee of a judgment, in whom is vested the legal title, and who is authorized to receive the amount of it, may sue on the supersedeas bond given upon an appeal from such judgment, with- out joining those to whom, by collateral agreement between him and his assignor, the proceeds of the judgment are to be paid. 86 419. Guardian The guardian of an insane woman cannot bring an action against her husband for divorce or for alimony. 87 80 Noble v. Hunter, 43 P. 994, 2 Kan. App. 538. 81 Rev. Laws 1910, 4683. 82 First Nat. Bank v. Hinkle (Okl.) 162 P. 1092. 88 Chaffee v. Shartel, 46 Okl. 199, 148 P. 686. 8 * Goodrich v. Williamson, 63 P. 974, 10 Okl. 588, 617. 85 Shellberg v. McMahon, 157 P. 268, 98 Kan. 46. 86 Walburn v. Chenault, 23 P. 657, 43 Kan. 352. 87 Birdzell v. Birdzell, 6 P. 561, 33 Kan. 433, 52 Am. Rep. 539, rehearing de- nied 11 P. 907, 35 Kan. 638. (281) 419-421 PARTIES (Ch. 8 The duly appointed acting guardian of minors may in her own name maintain an action for property of her wards without joining them as parties. 88 420. Infants Wards "The action of an infant must be brought by his guardian or, next friend. When the action is brought by his next friend, the court has power to dismiss it, if it is not for the benefit of the infant, or substitute the guardian of thp infant, or any person as the next friend." 89 Where the guardian of an infant is removed for failure to account, and no successor is appointed, an action on the bond for the bene- fit of the infant may be brought by the next friend. 90 A minor may sue by his legal guardian on the official bond of a former guardian, though the bond executed prior to statehood was made payable to the United States. 91 Where guardian dies without settlement in the county court, the former wards may maintain an action in the superior or district court against his personal representatives and sureties on his bond as guardian for such accounting and settlement. 92 421. Tenants in common One tenant in common may sue to recover realty from a third person; but his recovery is limited to such interest as he proves title in himself superior to that of defendants. 93 88 Kerr v. McKinney (Okl.) 170 P. 685. 8 9 Rev. Laws 1910, 4686. 90 First State Bank of Vinita v. Fay, 60 Okl. 132, 159 P. 505; Hill v. Reed, 103 P. 855, 23 Okl. 616. A minor may by his legal guardian sue on a former guardian's official bond. Lyons v. Fulsom, 54 Okl. 84, 153 P. 868. Where guardian dies without accounting and settlement, his former wards may maintain action against his personal representatives and sureties on his bond for such accounting and settlement. Donnell v. Dansby, 58 Okl. 165, 159 P. 317. Where father who had been appointed guardian made no charge for expenditures in behalf of minors, and obtained no authority from county court therefor, no credits can be allowed after his death in action against sureties on his bond. Id. 91 Title Guaranty & Surety Co. v. Slinker, 128 P. 696, 35 Okl. 128; Id., 128 P. 698, 35 Okl. 153. 92 Title Guaranty & Surety Co. of Scranton, Pa., v. Burton (Okl.) 170 P. 1170 ; Asher v. Stull, 61 Okl. 320, 161 P. 808. &s Moppin v. Norton, 137 P. 1182, 40 Okl. 284, Ann. Cas. 1915D, 1042. (282) Art. 2) PLAINTIFF 421-423 A joint tenant of land, can maintain ejectment against his co- tenant, who has ousted him or denied his interest in such land. 94 422. Government and governmental agencies The United States may sue to cancel a patent for fraud, where the government is the only part interested, where the land is not sub- ject to patent, but is erroneously patented, and where the land, though subject to patent, is patented to the wrong person, either through fraud, mistake, or inadvertence. 95 The United States, as plaintiff, has no superior rights, but is controlled by the same principles of law and rules of practice as a citizen. 96 The right of county to sue and be sued is purely statutory, and the mode prescribed by statute for prosecuting actions must be strictly followed. 97 Where the public are interested, and it is necessary to bring the action in the name of the state, such action can only be brought at the instance of the public officer authorized by statute. 98 An action cannot be commenced against a delinquent officer, ex- cept on order of the county commissioners, and the county attor- ney cannot appeal from a judgment against the county in such case without the consent and against the wishes of the commissioners. 98 423. Action for death The statutes giving an action for wrongful death, contemplate but one action, and the same death cannot be sued for in separate actions by the various individuals sustaining damages thereby. 1 If death results from personal injuries, an action cannot be main- 94 Jameson v. Goodwin (Okl.) 170 P. 241. 95 Lynch v. United States, 73 P. 1095, 13 Okl. 142. 96 Lynch v. United States, 73 P. 1095, 13 Okl. 142. 07 Smith v. State, 13 Okl. Cr. R. 619, 166 P. 463; Muskogee County v. Lan- ning & McRoberts, 51 Okl. 343, 151 P. 1054 ; Showers v. Caddo County, 77 P. 189, 14 Okl. 157. 98 Territory v. De Wolfe, 74 P. 98, 13 Okl. 454, writ of error dismissed 25 S. Ct. 794, 196 U. S. 643, 49 L. Ed- 632. The bare allegation in a petition that territorial officers have refused to bring the action is not sufficient to au- thorize the use of the name of the territory by a private individual. Id. 99 Kingfisher County v. Graham, 139 P. 1149, 40 Okl. 571 ; Same v. Down- ing, 139 P. 1153, 40 Okl. 580; Same v. Miles, 139 P. 1153, 40 Okl. 581; Same v. Woodwor'th, 139 P. 1153, 40 Okl. 581 ; Same v. Bowman, 139 P. 1153, 40 Okl. 582 ; Same v. Lindsey, 140 P. 434, 40 Okl. 607. 1 Cowan v. Atchison, T. & S. F. Ry. Co-, 168 P. 1015, L. R. A. 1918B, 1141. (283) 423 PARTIES (Ch. 8 tained by the personal representative of the deceased for the ben- efit of the estate, but may be brought for the benefit of the next of kin. 2 An action for wrongful death can be brought only by the par- ties designated in the statute. 8 The statute contemplates but one action, and the same death cannot be sued for in separate actions by the various individuals sustaining damage thereby. 4 The words "next of kin" as used in the statute relating to wrong- ful death mean those who inherit from the deceased under the statutes of descent and distribution. 5 2 Martin v. Missouri Pac. Ry. Co., 49 P. 605, 58 Kan. 475. 3 Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454. 4 Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454. 5 Bolinger v. Beacham, 106 P. 1094, 81 Kan. 746 ; Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454; Atchison, T. & S. F. Ry. Co. v. Ryan,. 64 P. 603, 62 Kan. 682. Where estate of deceased adult, leaving &. father and sister surviving, was not administered on, father is "next of kin," within Rev. Laws 1910, 8418, and may maintain an action for his wrongful death, where deceased contrib- uted to his support. Whitehead Coal Mining Co. v. Pinkston (Okl.) 175 P. 364. Where a person for whose death action is brought left neither widow nor children nor father surviving him, but left a mother and brothers and sis- ters, the mother, brothers and sisters are "next of kin" within the meaning of the statute making the "next of kin" necessary parties to the action. Motsenbocker v. Shawnee Gas & Electric Co., 49 Okl. 304, 152 P. 82, L. R. A. 1916B, 910. Where a minor leaves no issue, or wife, but leaves both father and mother, they are his only heirs and next of kin, who sue for his death under Rev. Laws 1910, 5281, 5282. Cowan v. Atchison, T. & S. F. Ry. Co., 168 P. 1015, L. R. A. 1918B, 1141. The surviving husband is, within Civ. Code, 422, next of kin to his wife and entitled to recover damages for her wrongful death. Atchison, T. & S. F. Ry. Co. v. Townsend, 81 P. 205, 71 Kan. 524, 6 Ann. Gas. 191. Under Code Civ. Proc. 422, nonresident alien parents, next of kin of a minor son whose death was wrongfully caused by the negligence of another, may maintain an action to recover for his death. Atchison, T. & S- F. Ry. Co. v. Fajardo, 86 P. 301, 74 Kan. 314, 6 L. R. A. (N. S.) 681. Where a deceased child leaves no issue, 'husband, or wife, but leaves father and mother, brothers and sisters of deceased should not be joined with the father and mother in an action for wrongful death. Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606. Where no personal representative is appointed, and the deceased left no widow, all the next of kin must join in the action. Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454. Where the person for whose death suit is brought left neither widow nor children nor father surviving him, but left a mother and brothers and sisters, the brothers and sisters are Art. 2) PLAINTIFF 423 No recovery can be had by a parent for the death of a child ex- cept in virtue of the statute. 6 A parent, to recover as next of kin for wrongful death of a minor child, a resident of the state, must prove that no personal represen- tative has been appointed. 7 An action for the wrongful death of a spouse may be maintained by the surviving spouse for the benefit of herself or himself and minor children, where there has been no administration of dece- dent's estate. 8 The right of recovery extends to all children of deceased, re- gardless of their ages ; but the recovery must be based on the rea- sonable expectancy of pecuniary benefit of which they were de- "next of kin" within the meaning of the statute, and must be joined in the action, though the mother alone has sustained any loss. Id. Siegrist v. Atchison, T. & S. F. Ry. Co., 137 P. 975, 91 Kan. 260. 7 Atchison, T. & S. F. Ry. Co. v. Judah, 62 P. 711, 10 Kan. App. 577. 8 Big Jack Mining Co. v. Parkinson, 137 P. 678, 41 Okl. 125. Where no personal representative has been appointed, an action for wrong- ful death may be maintained by the widow. Mott v. Long, 132 P. 998, 90 Kan. 110. Nonappointment of a personal representative of decedent is a condition precedent to the right of the widow to bring an action for wrongful death. Chicago R. I. & P. Ry. Co. v. Brooks, 57 Okl. 163, 156 P. 362. An action on a cause arising in state for death of plaintiff's husband resi- dent in the state, from defendant's wrongful act or negligence of another, where no personal representative had been appointed, was properly brought by widow in her own name- Blunt v. Chicago, R. I. & P. R. Co. (Okl.) 173 P. 656. Under Comp. Laws 1909, 5945, 5946, held that, where the petition in an action for death, failed to state that plaintiff's husband at the time of his death was a nonresident or was a resident, and that no personal representa- tive had been appointed, it was demurrable. Frederick Cotton Oil & Mfg. Co. v. Clay, 50 Okl. 123, 150 P. 451. A special administrator, appointed in another state where the deceased left property, held not entitled to sue to recover for the next of kin damages for the death of deceased whose residence and death were in the state. Me- trakos v. Kansas City, M. & O. Ry. Co., 137 P. 953, 91 Kan. 342. An admin- istrator appointed in another state may sue to recover for the death in Kan- sas of a resident of such other state. Id. An administrator appointed in another state cannot proceed under Code Civ. Proc. 419 (Gen. St. 1909, 6014), authorizing recovery for wrongful death where the law of his state prohibits him from maintaining an action there. Id. The widow of a non- resident whose death occurred in Kansas may recover as such widow under Code Civ. Proc. S 419 (Gen. St. 1909, 6014), authorizing recovery for wrong- ful death, though not entitled to recover as administratrix. Id. Alien par- ents may recover under Code Civ. Proc. 419 (Gen. St. 1909, 6014), au- thorizing recovery for wrongful death, for the death in Kansas of a minor son. Id. (2S5) 423-424 PARTIES (Ch. 8 prived by their father's death. 9 A child born after its father's death is a beneficiary, and entitled to damages for wrongfully caus- ing the death of the father. 10 An ancillary administrator in a foreign state may sue there for the death in this state of his intestate, who resided in a third state, where a domiciliary administrator had been appointed, but could not sue under the state laws. 11 Heirs of an Italian citizen were not prohibited by the treaty with Italy from suing for his wrongful death in the United States. 12 The widow of a deceased railway employe cannot bring in her own name the action for damages, given by Act Cong. April 22, 1908 (U. S. Comp. St. 8657), conferring the right of action on the "personal representative, for the benefit of the surviving wid- ow or husband and children of such employe." 13 Since the right of action for death is based entirely on statute, the action can be brought only in the name of the person to whom the right is given by statute. 14 ARTICLE III DEFENDANT Sections 424. Necessary and proper parties defendant. 425. Receiver. 426. Liens. 427. Joinder. 428. Defendants severally liable. 429. Infants. 430. Guardian ad litem. 431. Husband and wife. 432. State as defendant. 433. Change of parties and new parties. 434. Substitution Plaintiff. 435. Disclaimer. 436. Substitution of judgment creditor. 424. Necessary and proper parties defendant In ejectment involving only the right of possession, the person in actual occupancy is always a necessary party defendant. 15 9 Pressley v. Incorporated Town of Sallisaw, 54 Okl. 747, 154 P. 660. 10 Herndon v. St. Louis & S. F. R. Co.. 128 P. 727, 37 Okl. 256. 11 Robinson v. Chicago, R. I. & P. Ry. Co., 150 P. 636, 96 Kan. 137. 12 Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606. 13 Missouri, K. & T. Ry. Co. v. Leuahan, 39 Okl. 283', 135 P. 383. 14 Id. 1B Mullen v. Carter (Okl.) 173 P. 512. (286) An. 3) DEFENDANT ' 424 Persons not in possession, when claiming possessory rights, are proper, but not necessary parties defendant. 16 Where defendant sets up a deed to a third person before plain- tiff obtained title as a defense, the fact that plaintiff introduces evi- dence that the deed was made to defraud does not render such third person a necessary party. 17 In an action brought for the specific performance of a written contract to convey real estate, one to whom the vendor sold and conveyed the legal title, before the commencement of the action, is a necessary party. 18 One having a written contract for the purchase of real estate with a person having a similar contract from the owner may bring an action for specific performance against both parties. 19 Specific performance may be compelled by the purchaser in a recorded contract for the sale of land against one purchasing of his vendor after the contract was recorded, without making the vendor a party. 20 In an action for divorce on the ground of cruelty, where it is alleged that property has been fraudulently conveyed to a third person to defeat the collection of any alimony, and defendant and the party to whom the conveyance was made are both served, the grantee is not a proper party to a divorce proceeding, and it is not error to refuse to permit him to be heard on the question of di- vorce, but his defense extends only to the question of alimony and the validity of the conveyance. 21 Where an Indian allottee, after mortgaging his allotment, con- veyed same by warranty deed, he was not a necessary party to proceedings to foreclose the mortgage, when no personal judgment was prayed against him. 22 In a suit to cancel a patent, every person having an interest in the land included in the patent is an indispensable party. 28 16 Mullen v. Carter (Okl.) 173 P. 512. 17 Rauer v. Thomas, 55 P. 285, 60 Kan. 71. 18 Atchison, T. & S. F. R. Co. v. Benton, 22 P. 698, 42 Kan. 698. 18 Welch v. Mclntosh, 130 P. 641, 89 Kan. 47. 20 Topeka Water Supply Co. v. Root, 42 P. 715, 56 Kan. 187. 21 Bennett v. Bennett, 81 P. 632, 15 Okl. 286, 70 L. R. A. 864. 22 Freeman v. First Nat. Bank of Boynton, 44 Okl. 146, 143 P. 1165, Ann. Cas. 1918A, 259. 23 Lynch v. United States, 73 P. 1095, 13 Okl. 142. (287) 424-426 PARTIES (Ch. 8 In action to rescind a contract for the purchase of land and to recover advanced payment for failure of defendant to convey title, the only necessary defendant is the party against whom decree will operate. 24 In an action to enjoin collection of special assessments, officers charged with their collection are the proper parties defendants, and holders of certificates or bonds for payment of which assessments are levied are not necessary parties. 25 In a will contest, the refusal of the court to issue a citation for service on legatees and devisees residing without the state did not deprive the court of jurisdiction to proceed with the trial as to contestant and such defendants as had been served with citation. 26 The board of county commissioners is not a necessary party to an action against the county treasurer or sheriff, or both, to en- join the collection of an illegal tax or assessment. 27 425. Receiver Where a receiver has been appointed for a lessee who has pre- viously entered into a contract with the lessor, the receiver is not a necessary or proper party to an action by the lessor against the lessee for a violation of the contract. 28 Where a receiver is appointed in the federal court for an inter- state railroad, he may be made party defendant to an action in the state court to demolish a bridge belonging to such road and is bound by the judgment of the state court. 28 426. Liens The original contractor is a necessary defendant to an action by a subcontractor to enforce a materialman's lien ; but, if the return shows that service cannot be had on the original contractor, the subcontractor's lien may be enforced without obtaining a personal judgment against the original contractor. 30 24 Groves v. Stouder, 58 Okl. 744, 161 P. 239. 25 City of Muskogee v. Nicholson (Okl.) 171 P. 1102. 28 In re Land's Estate, 137 P. 246, 166 Gal. 538. 27 Rogers v. Bass & Harbour Co., 47 Okl. 786, 150 P. 706. 28 St. Louis & S. F. R. Co. v. Ravia Granite Ballast Co. (Okl.) 174 P. 252. 29 Kaw Valley Drainage Dist. of Wyandotte County v. Missouri Pac. Ry. Co., 161 P. 937, 99 Kan. 188. 30 New Home Lumber Co. v. Ryal, 56 Okl. 746, 156 P. 637. The original contractor is an indispensable party to an action by a sub- (288) Art. 3) DEFENDANT 426 Where a contractor for the erection of a building lets a subcon- tract for a portion thereof, and the subcontractor permits liens to be filed against the building, the contractor is not required to de- fend against the respective amounts of such liens, but it is the duty of the subcontractor and those claiming liens under him to defend against the allowance by the court of excessive or unjust claims. 31 A contractor for the erection of a building who lets a subcontract for a portion thereof may refuse to pay to any lien claimant under the subcontractor the amount of his lien until after he establishes the correctness thereof in court, and before an adjudication as to its correctness the contractor pays the same at his peril. 32 Where a mortgagee fails to make the mechanic's lien holder par- ty to foreclosure proceeding, a subcontractor, who has intervened within one year from the time he filed his lien statement, may make the contractors parties, after the expiration of one year, for the purpose of asserting^jind foreclosing his lien against the mort- gagee and other incumbrancers. 33 In the absence of exceptional facts alleged in the petition, the only proper parties defendant in foreclosure are the mortgagor and persons claiming an inferior interest. 3 * Where on foreclosure a grantee of the mortgagor appears and alleges an interest in the property, and a sale of one-half of such interest to a grantee named, such persons and their grantees are proper and necessary parties to the full determination of the ac- tion. 35 A grantee in possession of the mortgaged premises is a necessary party on foreclosure, where the petition alleges that the mortga- gors have conveyed to such grantee. 86 A junior incumbrancer is not a necessary party to a suit by a contractor or materialman to foreclose a lien against the owner's property. Eberle v. Drennan, 136 P. 162, 40 Okl. 59, 51 L. R. A. (N. S.) 68. In a suit on account by a subcontractor for materials furnished, the con- tractor, with all the lienholders, are indispensable parties. Union Bond & Investment Co. v. Bernstein, 139 P. 974, 40 Okl. 527. 31 Vandenberg v. P. T. Walton Lumber Co., 92 P. 149, 19 Okl. 169. 32 Id. 33 Blanshard v. Schwartz, 54 P. 303, 7 Okl. 23. 34 De Watteville v. Sims, 44 Okl. 708, 146 P. 224. 35 Gillett v. Romig, 87 P. 325, 17 Okl. 324. 36 Page v. Turk, 143 P. 104* 43 Okl. 667. HON.PL.& PBAC. 19 (289) 426-427 PARTIES (Ch. 8 senior mortgagee to foreclose in such a sense that his presence on the record is necessary to a valid decree. 37 In a suit to foreclose a mortgage, the heir of an intestate is not a necessary party, and is precluded by a decree of sale against the administrator. 38 Where no administrator of the estate of a deceased mortgagor was appointed, and a suit to foreclose was brought against all the heirs, and no judgment was rendered against the estate of the mortgagor, the decree of foreclosure was valid. 39 427. Joinder "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein." 40 In actions of equitable cognizance, the general rule is that all par- ties materially interested, either legally or beneficially, in subject- matter of suit must be made parties either as plaintiffs or defend- ants, so that a complete decree may be made binding upon all par- ties. 41 In a petition to enjoin a foreclosure sale under a mortgage on the ground of the mortgagee's breach of a contract to make releases to purchasers from the mortgagor, joinder of the sheriff ordered to make the sale and of purchaser from the mortgagor was not a misjoin- der of parties. 42 In an action by the administrator of a deceased trustee to recover the trust fund, which was wrongfully mingled by the trustee with his own property, it is not necessary to make all persons who may be interested in the estate parties. 43 In an action by the equitable owner of real estate to recover the legal title and for an accounting against a mortgage company, 37 McCredie v. Dubuque Fire & Marine Ins. Co., 63 Okl. 184, 163 P. 535. 88 McClung v. Cullison, 82 P. 499, 15 Okl. 402. 39 Brocker v. Stallard, 126 P. 781, 34 Okl. 612. 40 Rev. Laws 1910, 4691 ; Haynes v. City Nat. Bank of Lawton, 121 P. 182, 30 Okl. 614; Edmondston v. Porter (Okl.) 162 P. 692. 41 Southwestern Bell Telephone Co. v. State, 75 Okl. 42, 181 P. 487. 42 Nelson v. Hoskinson, 172 P. 993, 103 Kan. 46. 43 Hubbard v. Alamo Irr. & Mfg. Co., 36 P. 1053, 37 P. 625, 53 Kan. 637. (290) Art. 3) DEFENDANT 427~428 which has procured of the mortgagors the legal title for plaintiff, such mortgagors are not necessary parties. 44 When all the parties who enter into a promise receive some ben- efit from the consideration, whether past or present, the promise is presumed to be joint and several, and one or more may be sued thereon with or without uniting all in the same suit. 45 Though one of three defendants against whom a joint action is brought for damages is indemnified by one of the other defendants against any loss, such defendant is not a nominal, but is a substan- tial, party to the action. 40 Where the loss exceeds the insurance and the insurer has paid the assured, who refuses to sue the wrongdoer, the insurer may sue the wrongdoer in its own name, joining assured as defendant under proper allegations. 47 A constable a^nd the sureties on his official bond, which is joint and several, may be joined as defendants in an action for a breach of the condition of the bond. 48 428. Defendants severally liable "Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and indorsers and guarantors, may all or any of them be included in the same action, at the option of the plaintiff." 49 Where a guardian, besides the bond given when he was appoint- ed, gave two other bonds as additional security, all the sureties on i 44 Ross v. "Koble, 51 P. 792, 6 Kan. App. 361. 45 Schowalter v. Beard, 63 P. 687, 10 Okl. 454. 46 Choctaw, O. & G. R. Co. v. Hamilton, 95 P. 972, 21 Okl. 126. 47 Grain Dealers' Mut. Fire Ins. Co. v. Missouri, K. & T. Ry. Co., 157 P. 1187, 98 Kan. 344. * 8 Schilling v. Black, 31 P. 143, 49 Kan. 552. 49 Rev. Laws 1910, 4694. The holder of a note may, at his option, sue one only of several indorsers. Home v. Oklahoma State Bank of Atoka, 139 P. 992, 42 Okl. 37. The payee of a note may, at his option, sue one surety without joining the maker and other sureties. Miller v. State, 52 Okl. 76, 152 P. 409; Baker v. Gaines Bros. Co. (Okl.) 166 P. 159; Francis v. First Nat. Bank, 138 P. 140, 40 Okl. 267 ; Palmer v. Noe, 48 Okl. 450, 150 P. 462 ; Thompson v. Grider Im- plement Co., 128 P. 266, 36 Okl. 165. Under Rev- Laws 1910, 969, 4694, action may be maintained against surety for hire on a bond given pursuant to section 3881, without joining principal. Fidelity & Deposit Co. of Maryland v. N. S. Sherman Machine & Iron Works, 62 Okl. 29, 161 P. 793. (291) 428-431 PARTIES (Ch. 8 the several bonds can be joined in one suit to recover the amount due from the guardian. 50 Where a guardian attaches to his final account a certificate of a purported time deposit in a bank, which deposit was falsely issued, and the ward sued the surety on the guardian's bond, the bank was not entitled to be made a party. 61 429. Infants "The defense of an infant must be by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a county judge. The appointment cannot be made until after the service of the summons in the action, as di- rected in this Code." 52 430. Guardian ad litem "The appointment may be made upon the application of the in- fant, if he be of the age of fourteen years, and apply within twenty days after the return of the summons. If he be under the age of fourteen, or neglect so to apply, the appointment may be made up- on the application of any friend of the infant, or that of the plaintiff in the action." 53 A court has no jurisdiction to appoint a guardian ad litem for an infant defendant until after service of summons in the manner re- quired by statute. 54 On the failure of the guardian ad litem to properly discharge his duty, it is the duty of the court to protect the infant's rights. 55 431. Husband and wife "If a husband and wife be sued together, the wife may defend for her own right; and if her husband neglect to defend, she may de- fend for his right also." 56 60 Abraham v. Harry (Okl.) 165 P. 1154. 61 Southern Surety Co. v. Jefferson (Okl.) 174 P. 563. 52 Rev. Laws 1910, 4688. 53 Rev. Laws 1910, 4689. 54 Boiling v. Campbell, 128 P. 1091, 36 Okl. 671; Same v. Gibson, 128 P. 1093, 36 Okl. 678. s s Boiling v. Campbell, 128 P. 1091, 36 Okl. 671; Same v. Gibson, 128 P. 1093, 36 Okl. 678; In re Sanders' Estate (Okl.) 168 P. 197. so Rev. Laws 1910, 4685. (292) Art. 3) DEFENDANT 432 432. State as defendant Suits against officers of a state as representing it, in which the state is the real party in interest, and in which a judgment for plain- tiff, though nominally against defendants as individuals, will con- trol the action of the state, are suits against the state. 57 Mandamus brought to require the allowance of a disputed claim growing out of a private contract between the state and parties owning property occupied by state officials is an action brought against the state. 58 A state cannot be sued except by its consent granted by express legislative enactment. 59 The immunity of the Oklahoma State Banking Board from lia- bility to suit to control the administration of the depositors' guaran- ty fund cannot be waived by the unauthorized participation by the board in an agreed statement of facts. 60 A suit to mandamus the state banking board is a suit against the state. 61 A suit in mandamus to compel the bank commissioner and the banking board to pay a claim out of the depositors' guaranty fund, being in effect a suit against the state, cannot be maintained with- out the state's consent. 62 The Agricultural and Mechanical College, being a public or quasi corporation created and existing by virtue of the laws of Oklahoma, cannot be sued, since the statutes give no such authority. 63 . 67 Love v. Filtsch, 124 P. 30, 33 Okl. 131, 44 L. R. A. (N. S.) 212. 58 Id. 59 National Surety Co. v. State Banking Board, 49 Okl. 184, 152 P. 389. 60 Id. I 61 State Banking Board v. Oklahoma Bankers' Trust Co., 49 Okl. 72, 151 P. 566. A suit to mandamus the state banking board is a suit against the state, so that, without the state's consent, a judgment making the writ peremptory was error. State Banking Board v. Oklahoma Bankers' Trust Co., 63 Okl. 260, 164 P. 660. 62 Lovett v. Lankford, 47 Okl. 12, 145 P. 767. The state banking board and the state banking commissioner constitute a part of the state government and cannot be sued without the state's consent. Lankford v. Schroeder, 47> Okl. 279, 147 P. 1049, L. R. A. 1915F, 623. A suit to compel the state bank examiner to pay a debt out of the state guaranty fund or the bank's assets held not maintainable without the state's con- sent. Id. 63 Oklahoma Agricultural & Mechanical College v. Willis, 52 P. 921, 6 Okl. 593, 40 L. R. A. 677. (293) 433 PARTIES (Ch. 8 433. Change of parties and new parties "The court may determine any controversy between parties be- fore it, when it can be done without prejudice to the rights of oth- ers, or by saving their rights ; but when a determination of the con- troversy cannot be had without the presence of other parties, the court must order them to be brought in." 64 Where a determination cannot be had without presence of others not parties, and who are interested in the subject-matter, the court may of its own motion order them brought in. 65 In a legal action in which plaintiff seeks only a money judgment, he cannot be compelled to bring in and admit other parties than those whom he has chosen as defendants. 66 Where insured sues in her own name on a policy to which a mort- gage clause is attached, the court should by proper order protect the mortgagee's rights. 67 Plaintiff may amend his petition at any time before answer is filed by joining as coplaintiff, a party having an interest in subject- matter of action whether acquired before or after filing of original petition. 68 W^here the grantee of land, which, at the time of the conveyance, was in another's adverse possession, sued in his own name to re- cover same, it was not error to permit him to amend his petition so as to join his grantor as plaintiff. 69 Where judgment for defendant must be affirmed, a transfer of defendant's property subsequent to such judgment could not af- fect rights of plaintiff, and hence application for leave to make de- fendant's transferees additional parties defendant will be denied. 70 * Rev. Laws 1910, 4696. The statute authorizes courts to determine any controversy when it can be done without prejudice, and to order new parties to be brought in. Haynes v. City Nat. Bank of Lawton, 12i P. 182, 30 Okl. 614. 65 Simpson v. Hillis, 30 Okl. 561, 120 P. 572, Ann. Gas. 1913C, 227. ee Modern Woodmen of America v. Terry (Okl.) 171 P. 720. Where, in an action on a note, in which plaintiff seeks nothing but a mon- ey judgment, he cannot be compelled to bring in and to admit other parties than those whom he has chosen as defendants. Goodrich v. Williamson, 63 P. 974, 10 Okl. 588, 617. * 7 Liverpool & London & Globe Ins. Co. v. Cargill, 44 Okl. 735, 145 P. 1134. s Willis v. Cochran (Okl.) 168 P. 658. 09 Gannon v. Johnston, 140 P. 430, 40 Okl. 695, Ann. Cas. 1915D, 522. 70 Shaw v. Life & Annuity Ass'n, 165 P. 818, 101 Kan. 235. (294) Art. 3) DEFENDANT 433 Where a third person is made defendant by order of court, after the issues are joined, and such third party claims title to the prop- erty sought to be foreclosed, it is not error to overrule a demurrer to the petition filed by the newly made defendant. 71 Where the cause of action is not changed, and all parties submit to the jurisdiction of the court, and no showing is made for a con- tinuance, it is not error, upon a proper application, after the jury has been impaneled, to make one of a number of co-defendants plaintiff in the action. 72 Where one of several defendants files a supplemental complaint, showing that he has paid the note in suit, it is proper to order him to be subrogated to the rights of the payee, and to be made a party plaintiff. 73 The amendment of a petition in an action for damages by the ad- dition of the name of a party plaintiff does not substantially change the claim or defense. 7 * Where an action is regularly pending, and a necessary party to the full determination of the case has been made a defendant, and has been duly served, and enters an appearance, such defendant may not have the action dismissed as to himself on the ground of want of jurisdiction in the court granting the order making him a party defendant. 75 Since the statute requires one made a party defendant to an ac- tion to be notified in the manner provided for notifying original de- fendants, the court had no jurisdiction to enter a default judgment against one who was made a party defendant to a pending action by an order requiring him to be given but three days' notice to an- swer. 76 71 Simpson v. Hillis, 30 Okl. 561, 120 P. 572, Ann. Cas. 1913C, 227. 72 Keokuk Falls Imp. Co. v. Kingsland & Douglas Manuf'g Co., 47 P. 484, 5 Okl. 32. 7 sid. 74 Hucklebridge v. Atchison, T. & S. F. Ry. Co., 71 P. 814, 66 Kan. 443. 75 Redlon v. Fish-Keck Co., 54 P. 285, 7 Kan. App. 473. 76 Moore v. Donahew, 41 P. 579, 3 Okl. 396. (295) 434 PARTIES (Ch. 8 434. Substitution Plaintiff A trial court, in the furtherance of justice, may permit a new party to be substituted in the place of plaintiff. 77 Where the interests in the subject-matter of a pending suit are transferred, the court may substitute such party for the original party in the action. 78 The real parties in interest may be substituted as plaintiffs in an action previously brought in the name of the state upon an ex- ecutors bond. 70 Permitting a plaintiff to amend the petition, so as to charge de- fendant as a copartnership instead of a corporation as originally 77 Harper v. Hendricks, 31 P. 734, 49 Kan. 718; Gross v. Lincoln (Okl.) 196 P. 960. Where, in a suit to restrain execution of a judgment, on the ground that the land levied on was a homestead, the title thereto being at the time in the United States, but subsequently proven up, an amendment, striking out the name of plaintiff and substituting that of his wife, was properly allow- ed. Rader v. Gvozdanovic, 130 P. 159, 35 Okl. 421. Under Code, 40, providing that, where there has been a transfer of in- terest, an action may be continued in the name of the original party, or the person to whom the transfer is made may be substituted, one who acquired the entire interest in a judgment recovered by a plaintiff who thereafter died may, on a revival of such judgment, be substituted as plaintiff. United States Bldg. Co. v. Walker, 54 P. 1043, 59 Kan. 779. Code Civ. Proc. 3917, provides that, in actions against a sheriff for the recovery of property taken under an execution and replevied by the execu- tion debtor, the court may, on application of the defendant and of the par- ty in whose favor the execution issued, permit the latter to be substituted as the defendant; security for costs being given. Held, that an application for permission to be substituted was properly refused where it was unverified, and no security for costs was given, and the property had not been replevied by the execution debtor. Pierce v. Engelkenieier, 61 P. 1047, 10 Okl. 308. Under Act Cong. July 1, 1898, 70 (U. S. Comp. St. 9654), relating to vesting of bankrupt's property in his trustee, the latter is a proper party to sue on contracts or for injury to the property of the bankrupt, but he cannot be substituted as plaintiff in a pending suit for libel on the bankrupt, though the injuries occasioned by such libel may have been the cause of the bank- ruptcy. Epstein v. Handverker, 116 P. 789, 29 Okl. 337. 7 8 Anderson v. Ferguson, 71 P. 225, 12 Okl. 307; Purcell Mill & Elevator Co. v. Canadian Valley Const. Co., 58 Okl. 629, 160 P. 485 ; Bradford v. Bren- nan, 12 Okl. 333, 71 P. 655. On a transfer of real estate pending a litigation in connection therewith, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in his place. Gillett v. Romig, 87 P. 325, 17 Okl. 324. Hudson v. Barratt, 61 P. 737, 62 Kan. 137. (296) Art. 3) DEFENDANT 434-435 alleged, being within the discretion of the trial court, is not ground of reversal. 80 Where, during an action by an infant, by next friend, he attains his majority, he may continue the action in his own name. 81 Where all the parties are before the court, it is not error, in an action that should be prosecuted by the heirs of a decedent, to per- mit them to be substituted to prosecute such action in lieu of the administrator, who had no right to maintain it. 82 It is no abuse of discretion to refuse to permit the owner of a note to be substituted as plaintiff in an action thereon commenced in the name of another, and so continued for years after the at- torney for the owner knew thereof, no reason for the delay in the application being shown. 83 That an order was that a guardian be substituted for plaintiff instead of that the guardian be permitted to prosecute for her ward, was a mere formal irregularity not depriving the court of jurisdic- tion to proceed in the cause. 84 435. Disclaimer "Upon affidavit of a defendant, before answer, in any action up- on contract, or for the recovery of personal property, that some third party, without collusion with him, has or makes a claim to the subject of the action, and that he is ready to pay or dispose of the same, as the court may direct, the court may make an order for the safe keeping, or for the payment, or deposit in court or delivery of the subject of the action, to such persons as it may direct, and an order requiring such third party to appear, in a reasonable time, and maintain or relinquish his claim against the defendant. If such third party, being served with a copy of the order, by the sheriff, or such other person as the court may direct, fail to appear, the court 80 Farmers' & Merchants' Bank v. Bank of Glen Elder, 26 P. 680, 46 Kan. 376. Where defendant has been sued by a title as a corporation, and put in an answer alleging) a partnership, and giving the names of its members, it is proper to allow an amendment substituting their names. Anglo-American Packing & Provision Co. v. Turner Casing Co., 8 P. 403, 34 Kan. 340. 81 Webb v. Harris, 121 P. 1082, 32 Okl. 491, Ann., Cas. 1914A, 602; Johnson v. Alexander (Okl.) 167 P. 989. " Farrell v. Puthoff, 74 P. 96, 13 Okl. 159. 83 Switzer v. Eadie, 80 P. 961, 71 Kan. 859. 84 Jones v. Southwestern Interurban Ry. Co., 141 P. 999, 92 Kan. 809. (297) 435-437 PARTIES (Ch. 8 may declare him barred of all claim in respect to the subject of the action, against the defendant therein. If such third party appear, he shall be allowed to make himself defendant in the action, in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit or delivery thereof." 85 "The provisions of the last section shall be applicable to an ac- tion brought against a sheriff or other officer, for the recovery of personal property, taken by him under execution, or for the pro- ceeds of such property so taken and sold by him ; and the defendant in any such action shall be entitled to the benefit of those provi- sions against the party in whose favor the execution issued, upon exhibiting to the court the process under which he acted, with his affidavit that the property, for the recovery of which, or its proceeds, the action is brought, was taken under such process." 8a 436. Substitution of judgment creditor "In an action against a sheriff or other officer for the recovery of property taken under an execution and replevied by the plaintiff in such action, the court may, upon application of the defendant and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the cost being given." 87 ARTICLE IV IXTERVRNER Sections 437. Interplea Affidavit Trial. 438. Pleading. 439. Cases outside statute. 437. Interplea Affidavit Trial "Any person claiming property, money, effects, or credits attach- ed, may interplead in the cause, verifying the same by affidavit, made by himself, agent or attorney, and issues may be made upon such interpleader and shall be tried as like issues between plaintiff and defendant, and without any unnecessary delay." 88 85 Rev. Laws 1910, 4698. 87 Rev. Laws 1910, 4700. 86 Rev. Laws 1910, 4699. 88 Rev. Laws 1910, 4701. (298) Art. 4) INTERVENER , 437-438 Where a wife had recovered a judgment awarding her land as alimony she could intervene in a proceeding wherein husband's creditor had attached land. 88 In an action for divorce for adultery, the correspondent has no right to intervene to protect his reputation. 90 / In an action to enforce a landlord's lien, a petition for intervention was properly denied, where the intervener had no claim sustainable against either plaintiff or defendant. 91 In an action of strict interpleader, plaintiff must show conflicting claims against him for the same thing, and that he has no interest therein. 92 Where plaintiffs, who had offered a reward for the apprehension of a criminal, alleged that they were threatened with litigation by different parties claiming the reward, that some one or more of de- fendants were entitled to receive it, and asked that defendants be required to litigate their claims to the fund which was paid into court, an action in the nature of a bill of interpleader was proper. 93 - 438. Pleading An application for leave to intervene must show that the ap- plicant has been diligent in seeking the aid of the court. 8 * A petition in intervention is demurrable, where it fails to show that the petitioner has or claims an interest adverse to plaintiff, or that she is a necessary party to a determination of the issues. 95 g9 Germania Nat. Bank v. Duncan, 62 Okl. 144, 161 P. 1077. 90 Howell v. Herriff, 124 P. 168, 87 Kan. 389, Ann. Gas. 1913E, 429. 91 Reynolds v. Ryan, 59 Okl. 120, 157 P. 933. 92 Guaranteed State Bank of Durant v. D'Yarmett (Okl.) 169 P. 639. Under Code Civ. Proc. 43, providing that on affidavit of a defendant, in any action on contract, that some third party, without collusion with him, makes a claim to the subject-matter, and that he is ready to dispose of the same as the court may direct, the court may order the delivery of the sub- ject of the action to such person as it may direct, and require such third party to appear in a reasonable time and relinquish his 1 claim against de- fendant, where, in an action by the assignee of a note against the maker, a third party intervenes, claiming that the note was executed in fraud of cred- itors, and asking that the liability claimed in plaintiff's behalf be disallowed and the proceeds of the note awarded interpleader, and defendant, by affi- davit, admits liability to the extent of the indebtedness then due on the note, the court may order him to pay the amount into court and discharge him. from liability. Goodrich v. Williamson, 63 P. 974, 10 Okl. 588, 617. 93 Taft v. Hyatt, 105 Kan. 35, 180 P. 213. 94 Gibson v. Ferrell, 94 P. 783, 77 Kan. 454. 95 Stebbens v. Longhoffer, 44 Okl. 84, 143 P. 671. (299) 438-440 PARTIES (Ch. 8 A plea of intervention in the nature of a creditor's bill should con- tain all the necessary allegations within itself, and the interpleader should not be allowed to refer to, and make a part of his plea of intervention, portions of the original petition; but, where such reference is made and trial had on such pleadings, if the Supreme Court can determine that the judgment is right, it will not be dis- turbed. 96 In an action to foreclose by a mortgagee, a lienholder who is not made a party in the first instance is entitled to intervene at any time before final judgment, and, by answer in the nature of a cross- petition, ask to have the same foreclosed. 97 439. Cases outside statute The district court may, in cases not provided for by the Code, per- mit one not a party to a suit to intervene either before or after judg- ment for the protection of some right with reference to the subject- matter of the litigation. 98 However, in an action on a note brought by an assignee against the maker, a third party, claiming that the note was executed by the maker in fraud of creditors of whom inter- pleader was one, and asking that the liability claimed in plaintiff's behalf be disallowed and the proceeds of the note awarded inter- pleader, cannot be permitted to intervene without plaintiff's consent, since such proceeding is not one contemplated by statute. 99 ARTICLE V DEFECTS, OBJECTIONS, AND AMENDMENTS Sections 440. Want of interest or capacity. 441. Nonjoinder. 442. Misjoinder. 443. Amendment. 440. Want of interest or capacity "The due incorporation of any company, claiming in good faith to be a corporation under" the law authorizing the creation of cor- se Blackwell v. Hatch, 73 P. 933, 13 Okl. 169. 97 Blanshard v. Schwartz, 54 P. 303, 7 Okl. 23. 98 Gibson v. Ferrell, 94 P. 783, 77 Kan. 454. 9 Goodrich v. Williamson, 63 P. 974, 10 Okl. 588, 617. (300) Art. 5) DEFECTS, OBJECTIONS, AND AMENDMENTS 440 porations, "and doing business as such, or its right to exercise cor- porate powers, shall not be inquired into collaterally, in any pri- vate suit to which such de facto corporation may be a party ; but such inquiry may be had, and action brought, at the suit of the state, in the manner prescribed in civil procedure." x An objection that one has no legal capacity to sue goes to his right to maintain a suit at all, as that he is an idiot, insane, or a min- or, and does not include the objection that the action is not prose- cuted in the name of the real party in interest. 2 The want of authority in plaintiff to sue in his own name, in behalf of himself and others, cannot be taken advantage of by de- murrer, but must be raised by a motion. 3 If plaintiff has no legal capacity to sue, the question goes to the sufficiency of his pleading to state a cause of action, and is not waived by failure to demur, answer, or plead a want of capacity. Where the petition of a widow, in an action for 1 wrongful death of her husband against a railroad company, failed to show that the injury occurred while decedent was engaged in interstate com- merce, and such fact was first alleged in defendant's answer and not denied in plaintiff's reply, an objection that plaintiff had no capacity to sue under the federal Employers' Liability Act (U. S. Comp. St. 8657-8665) was properly urged for the first time by a motion for judgment on the pleadings. Where plaintiff is a natural person under no legal disability to maintain actions, a failure to state a cause of action in her own favor goes to the sufficiency in substance of the petition, and not to her legal capacity to sue. 4 The objection that plaintiff has no legal capacity to sue is a ground of demurrer, and when not so raised, is waived. 5 "Want of capacity to sue," within the rule that a plea to the merits waives such want, refers only to some legal disability, such as infancy, illiteracy, or coverture. 6 In an action on a bond, the question of real party in interest did not concern defendants, not shown to have any defense. 7 1 Rev. Laws 1910, 1212. 2 Boyce v. Augusta Camp No. 7,429, M. W. A., 78 P. 322, 14 Okl. 642 ; Lo- gan v. Oklahoma Mill Co., 79 P. 103, 14 Okl. 402. 3 Martin v. Clay, 56 P. 715, 8 Okl. 46. 4 Missouri, K. & T. Ry. Co. v. Lenahan, 39 Okl. 283, 135 P. 383. 5 Binion v. Lyle, 114 P. 618, 28 Okl. 430. 6 Bailey v. Parry Mfg. Co., 59 Okl. 152, 158 P. 581. 7 Moore v. Leigh-Head & Co., 48 Okl. 228, 149 P. 1129. (301) 440-441 PARTIES (Ch. 8 Whether a party in whose name an action is prosecuted is the real party in interest may be raised by answer when such defect does not appear on the face of the pleadings. 8 The defendant not having taken any objections that plaintiff was not the proper party, or had no capacity to sue, either by demurrer or answer, is deemed to have waived the same. 9 The rule that a partnership has not a sufficient legal entity to sue in its own name, and must sue in the name of the individuals com- posing it, is for the benefit of and may be waived by the party sued. 10 By pleading to the merits a defendant admits plaintiff's ca- pacity to maintain the action. 11 In a suit to remove a sheriff from office for alleged malfeasance, an objection that the proceeding was instituted by members of the board of county commissioners as individuals, and not as a board, raised by demurrer, was not jurisdictional, and was waived by de- fendant filing his answer pending determination of the demurrer. 12 The want of a plaintiff's legal capacity to sue as a corporation where such fact does not affirmatively appear upon the face of the petition, must be raised by special plea in the nature of a plea in abatement, and not by motion for judgment upon the pleading or by objection to the introduction of evidence under the pleadings, and, if not raised by special plea, defendant, by pleading to the mer- its, admits plaintiff's capacity to sue. 13 441. Nonjoinder A nonjoinder of parties plaintiff, appearing on the face of the petition, is waived by a failure to demur on that ground. 14 On foreclosure of a mechanics' lien by a subcontractor, failure to make the original contractor a party is waived when not objected to by demurrer or answer. 15 8 Maxia v. Oklahoma Portland Cement Co. (Okl./ 176 P. 907. 9 Maelzer v. Swan, 89 P. 1037, 75 Kan. 496. 10 Kale v. Humphrey (Okl.) 170 P. 223. 11 Leader Printing Co. v. Lowry, 59 P. 242, 9 Okl. 89. 12 Meredith v. Choctaw County, 111 P. 197, 28 Okl. 531. 13 Jantzen v. Emanuel German Baptist Church, 112 P. 1127, 27 Okl. 473, Ann. Cas. 1912C, 659. 14 Foster v. Board of Com'rs of Lyon County, 64 P. 1037, 63 Kan. 43. 15 Eberle v. Drennan, .136 P. 162, 40 Okl. 59, 51 L. R. A. (N. S.) 68. (302) Art. 5) DEFECTS, OBJECTIONS, AND AMENDMENTS 441-442 In an action for damages for the location of a public highway, on appeal from the board of county commissioners, an objection made, after the trial has commenced, that the action could not be maintain- ed by the plaintiffs jointly, comes too late. 16 Where an action for an accounting of a partnership in which the estate is interested is brought by one executor, and the other execu- tors are made defendants, the failure to name them as plaintiffs is not fatal if objection is not taken before judgment. 17 The rule that all beneficiaries of the trust should be before the court in an action concerning it is one which has been established for the protection of the trustee, in order to avoid his repeated vex- ation by a multiplicity of suits ; and, if he waives the protection of this rule, he may dispense with other parties, where suit is brought by the trustee under a chattel mortgage against one of the bene- ficiaries of the trust, in which the defendant's rights as presented by a counterclaim may be protected without injury or injustice to other beneficiaries of the trust. 18 The statute requiring defects in petitions other than those which appear on their face and other than those of jurisdiction and in statements of fact to be set up by answer, does not apply to a petition by a partner who conceals the fact of partnership, and wrongfully brings suit in his own name for an injury to the partner- ship property; and hence in such case defendant, if ignorant of the partnership until disclosed on the trial, may then raise the objec- tion without the amendment of his answer. 18 442. Misjoinder The objection that there is a misjoinder of parties must be raised before trial, or it will be deemed waived. 20 16 Commissioners of Lyon County v. Coinan, 23 P. 1038, 43 Kan. 676. 17 Insley v. Shire, 39 P. 713, 54 Kan. 793, 45 Am. St. Rep. 308. 18 Wyman v. Herard, 59 P. 1009, 9 Okl. 35. 19 Atchison, T. & S. F. Ry. Co. v. Hucklebridge, 64 P. 58, 62 Kan. 506. 2 "Phillips v. Mitchell (Okl.) 172 P. 85, writ of error dismissed 248 U. S. 531, 39 S. Ct. 7, 63 L. Ed. 405 ; Schwartzel v. Karnes, 44 P. 41, 2 Kan. App. 782. Wtyere a municipal corporation sued by an incorrect name answered and went to trial without objection, and judgment was rendered against it in its proper name, it waived the misnomer. City of Kingfisher v. Pratt, 43 P. 1068, 4 Okl. 284. If one who is made a party to a cause of action appears and answers a (303) 442-443 PARTIES (Ch. 8 The statute forbidding change of title of a cause, does not con- flict with the statute authorizing amendment as to parties. 21 Where land is conveyed, by two persons jointly by a single deed for a joint consideration, the grantee, when sued for such considera- tion by the grantors jointly, waives any objection to the misjoin- der of plaintiffs by not raising the objection either by answer or de- murrer, though at the trial it appears that each of the grantors owned a separate portion of the land, since the Code has abrogated the common-law rule that a legal action brought by two or more persons jointly must entirely fail if the cause of action establish- ed at the trial is in favor of a part of the plaintiffs only. 22 An objection that an agent cannot be joined as defendant in an action against the principal unless his agency is coupled with an in- terest can only be made by the agent, but he is not in position to make it where he has filed a written offer of judgment. 28 443. Amendment Where an attaching officer sues on an indemnity bond for the use of a third person, who recovered judgment against him for a wrongful levy, he may amend so as to allege a cause of action in his own name. 24 The district court has power, in the furtherance of justice, to per- mit an amendment of a petition by striking out one given name of plaintiff, and substituting another when it is shown that the first name was used by mistake. 25 It was not an abuse of discretion to permit a plaintiff styled "In- terstate Switch Company of Missouri" to amend by striking out ther words "of Missouri," where those words were not a part of its cor- porate name. 26 cross-action against him without objection to being made a party or to mis- joinder of causes of action, he will be deemed to have waived all objections, except that the facts alleged are not sufficient to state a cause of action against him. State Exch. Bank of Elk City v. National Bank of Commerce of St. Louis, Mo. (Okl.) 174 P. 796, 2 A. L. R. 211; Same v. Traders' Nat Bank of Kansas City, Mo. (Okl.) 174 P. 799. 21 Zahn v. Obert, 60 Okl. 118, 159 P. 298; Rev. Laws 1910, 4768, 4790. 22 Hurd v. Simpson, 27 P. 961, 47 Kan. 372, affirming judgment 26 P. 465, 47 Kan. 245. 23 Gregg v. Berkshire, 62 P. 550, 10 Kan. App. 579. 24 Armour Packing Co. v. Or rick, 46 P. 573, 4 Okl. 661. 25 Weaver v. Young, 14 P. 458, 37 Kan. 70. 2 ? Maher v. Interstate Switch Co., 51 P. 286, 58 Kan. 817. (304) Ch. 9) COMMENCMENT OF ACTION 444-445 CHAPTER IX COMMENCEMENT OF ACTION Sections 411 450. Article I. Accrual of cause. 451-505. Article II. Process. 451 460. Division I. In general. 461-489. Division II. Service and return. 490-500. Division III. Service by publication. 501. Division IV. Exemption from service. 502-505. Division V. Objections and amendments. 506-511- Article III. Appearance. ARTICLE I ACCRUAL OF CAUSE Sections 444. Definition. 445- How action commenced 446. Effect Notice to third persons. 447. Premature actions. 448. Insurance. 449. Waiver. 450. Cure of defect. 444. Definition A cause of action accrues from the time the right to sue for the breach attaches. 1 , 445. How action commenced "A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon." 2 Where summons is served in due time, jurisdiction of the sub- ject-matter is acquired as of the date of the filing of the petition and issuance of summons. 3 1 Walker v. Bowman, 111 P. 319, 27 Okl. 172, 30 L. R. A. (N. S.) 642, Ann. Cas. 1912B, 839, reversing judgment 105 P. 649, on rehearing. 2 Rev. Laws 1910, 4703. Clerk of court held without authority to issue summons before petition is filed by plaintiff. Atchison, T. & S. F. Ry. Co. v. Lambert, 121 P. 654, 31 Okl. 300, Ann. Cas. 1913E, 329. s Drummond v. Drummond, 49 Okl. 649, 154 P. 514. HON.PL.& PBAC. 20 (305) ' 445-447 COMMENCEMENT OF ACTION (Ch. 9 Where a party temporarily hands a petition to a clerk of the court, that he may place his file mark thereon, and not for the pur- pose of allowing it to remain in his custody, or to issue summons thereon, the action is not commenced. 4 446. Effect Notice to third persons "When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject- matter thereof as against the plaintiff's title; but such notice shall be of no avail unless the summons be served or the first pub- lication made within sixty days after the filing of v the petition." 5 Except as to computation of interest and some other exceptional cases, the rights of parties, in the absence of supplemental plead- ings, are fixed as of the time of the commencement of the action. 6 447. Premature actions An action cannot be maintained on a debt before it is due. 7 A provision in a mortgage, securing a note payable two years after date that on default in any interest the whole interest should * Wilkinson v. Elliott, 23 P. 614, 43 Kan. 590, 19 Am. St. Rep. 158. 5 Rev. Daws 1910, 4732. e Robertson v. Howard, 112 P. 162, 83 Kan. 453. 7 Where plaintiff and defendant agreed to furnish equal sums and purchase segregated coal lands of Choctaw and Chickasaw Nations from Department of Interior in name of defendant for their joint use, and agreed on division of land, and certificate was issued to defendant, plaintiff's action for specific performance was prematurely brought, as title did not pass under certificate, and as defendant was not entitled to patent until full compliance with terms of sale. Mahar v. Ward (Okl.) 180 P. 859. A suit to restrain the publication under Rev. Laws 1910, 615, of a resolu- tion declaring that a necessity exists for paving, held premature. Pitser v. City of Pawnee, 47 Okl. 559, 149 P. 201. Where paving assessments against property owners had been ascertained and notice thereof given those who had filed their written objections thereto pursuant to charter of the city of Tulsa, art. 9, 7, an action brought there- after to enjoin the collection of such assessment after the objections were overruled was not premature. Arnold v. City of Tulsa, 38 Okl. 129, 132 P. 669. Under Rev. Laws 1910, 6777, 6778, taxpayers' right of action against city officers paying claim against city pursuant to unlawful or fraudulent con- ,tract and against party receiving money does not accrue until performance of conditions under section 6778. State v. Oklahoma City (Okl.) 168 P. 227. Where creditor's claim has been reduced to judgment and transcript there- of filed in county court, and administrator refuses to pay a claim, though or- dered to sell property to pay debts, the creditor may sue sureties on adminis- (306) Art. 1) ACCRUAL OP CAUSE 447 I become payable related alone to a foreclosure, and did not accel- erate time of payment of the note. 8 Where a note is executed in payment of corporate stock which is to be delivered upon the execution and delivery or upon payment of note, action will not lie thereon until the stock has been de- livered or tendered to the maker. 9 In an action involving separable claims, the right to try those on which a cause of action has accrued is not affected by the fact that the suit is prematurely brought as to the others. 10 Interest payable at an annual rate will be presumed to be pay- able annually. 11 Default in the payment of interest will authorize the exercise of the right given by an acceleration clause. 12 Where the devisee sued, before the will was probated, to set aside a deed of testator, alleged to have been procured while he was of unsound mind, and after the will was probated filed an amended and supplementary petition, on which the case was tried, the objection that the action was prematurely brought became immaterial. 13 tra tor's bond, though there has been no final accounting in county court, in view of Rev. Laws 1910, 6350. United States Fidelity & Guaranty Co. v. Clutter (Okl.) 179 P. 754. s Alwood v. Harrison (Okl.) 171 P. 325. 8 Cline v. First Nat. Bank (Okl.) 170 P. 472. Though, under the mechanic's lien law, a party is not liable to an action by the contractor until the expiration of 60 days from the completion of the work, yet, if the action is brought within the 60 days, and the defendant, in- stead of making objection by proper motion or plea which can be determined before the merits of the case are tried, presents issues on the merits, and in- cludes within his denial a counterclaim for damages, and also claims a set-off, and asks for a judgment, and proceeds to trial, he cannot thereafter be heard to assert 'that the action was prematurely brought. Fulkerson v. Kilgore, 64 P. 5, 10 Okl. 655. 10 Anthony v. Smithson, 78 P. 454, 70 Kan. 132. 11 F. B. Collins Inv. Co. v. Sanner, 142 P. 318, 42 Okl. 634. 12 Where a note provided for interest payable annually at 7 per cent, before maturity and 10 per cent, after maturity, the 7 per cent, being evidenced by coupon notes, and where the mortgage provided that on default the hold- er of the note and mortgage could declare the whole amount and interest due, failure to pay an interest coupon was a breach of the conditions of the mort- gage warranting foreclosure. Flesher v. Hubbard, 132 P. 1080, 37 Okl. 587; Jones v. Same, 132 P. 1082, 37 Okl. 592. Where a debt is evidenced by notes payable in one, two, and thvee years, iii- is Bethany Hospital Co. v. Philippi, 107 P. 530, 82 Kan. 64, 30 L. R. A. iN. S.) 194. (307) 447-448 COMMENCEMENT OF ACTION (Gl. 9 After a mortgagee's exercise of an option making the whole amount secured immediately due on default in principal or interest by filing an action of foreclosure, an offer by the makers of the notes and the mortgage, or purchasers from them, to pay the amounts in default, is not a lawful tender, sufficient to support a plea of tender, since the whole of the debt became due by the exer- cise of the option. 14 A mortgage provision that on default in the principal or interest the whole amount secured should be "immediately due" and payable at the holder's option means immediately upon or after holder's election, and does not bind him to elect immediately after default, and renders notes due for purpose of foreclosure and for all pur- poses, which option exists while default continues, and is not waived by mere delay not benefiting mortgagee nor detrimental to 'mortgagor. 15 Where a mortgage provides that the whole debt shall become due at the option of the mortgagee for default in payment of taxes, a tax sale of the mortgaged property does not entitle the mortgagee to foreclose, where all taxes and interest have been thereafter fully paid by the mortgagors and notice given to the mortgagee before suit. 16 448. Insurance When an insurance policy provided that the loss should not be- come payable until 60 days after proof and adjustment of loss, in- cluding an award of arbitration when arbitration has been required, suit cannot be brought until after 60 days after proof of loss was furnished. 17 In an action on a policy providing that the insurer shall not be liable until 60 days after notice and proof of loss, where a suit is brought within 60 days after such proof, and after the 60 days terest payable annually, and a mortgage provides that, on default of any part of the debt, the holder may sell the property on default in principal and inter- est on the first note and in annual interest on the others, the holder may fore- close. F. B. Collins Inv. Co. v. Sanner, 142 P. 318, 42 Okl. 634. i* Damet v. ^Etna Life Ins. Co. (Okl.) 179 P. 760, 5 A. L, R. 434. IB Damet v. ^Etna Life Ins. Co. (Okl.) 179 P. 760, 5 A. L. R. 434. is Fleming v. Franing, 98 P. 961, 22 Okl. 644, 22 L. R. A. (N. S.) 360, 132 Am. St. Rep. 658. if Dixon v. State Mutual Ins. Co., 126 P. 794, 34 Okl. 624, L. R. A. 1915F, 1210. (308) Art. 1) ACCRUAL OF CAUSE 449-450 plaintiff amends his petition, and the insurer files an answer, the action is maintainable on the amended petition. 18 449. Waiver Objection that suit is prematurely brought is waived unless presented to the trial court, either by demurrer or answer. 19 450. Cure of defect Nonexistence of a cause of action when suit is brought is a fatal defect which cannot be cured by accrual of cause while suit is pend- ing. 20 is Oklahoma Fire Ins. Co. v. Mundel, 141 P. 415, 42 Okl. 270. Where an action was brought before the expiration of 60 days allowed by the policy after proof of loss, but plaintiff thereafter amended his petition, stowing the presentation of proof of loss, and that the 60 .days had elapsed, and where the insurer then answered, denying liability, held that the action was maintainable on the amended petition, as against an objection that it was prematurely brought. Western Reciprocal Underwriters' Exchange v. Coon, 38 Okl. 453, 134 P. 22. is Egan v. Vowell (Okl.) 167 P. 205. The objection that the action is brought before the expiration of 60 days from the completion of the work is waived if defendant proceeds to trial on the merits. El Reno Electric Light & Telephone Co. v. Jennison, 50 P. JL44, 5 Okl. 759. 20 iBank of Chelsea v. School Dist. No. 1, Rogers County, 62 Okl. 185, 162 P. 809. (309) COMMENCEMENT OP ACTION (Ql. 9 ARTICLE II PROCESS Sections DIVISION I.-lN GENERAL 451. Definition. 452. Style of process. 453. Necessity and use of process. 454. Issuance of summons. 455. To another county. 456. Praecipe Form. 457. Form and requisites. 458. Indorsements. 459. Alias summons. ' 460. Abuse of process. DIVISION II. SERVICE AND RETURN 461. In general. 462. Indorsement. 463. Acceptance of service and appearance. 464. By whom served. 465. Service on only part of defendants. 466. Effect of judgment. 467. Manner of service. 468. Validity and effect of service. 469. Service out of state. 470. Service on corporation. 471. On foreign corporation. 472. On insurance company. 473. Insurance commissioner. 474. Insurance board. 475. On railroad company and stage line Agent. 476. Where no agent appointed. 477. Where personal service impossible. 478. Actions against counties. 479. Service on infant. 480. Service on sheriff. 481. On inmates of hospitals for insane. 482. Notice or process issued by state board of arbitration. 483. County court. 484. Return. 485. Fees. 48G. Collusiveness. 487. Entering return. 488. Evidence of service. 489. Forms. DIVISION III. SERVIQE BY PUBLICATION 490. In general. 491. Service by publication When authorized. 492. In what actions authorized. 493. On whom authorized. (310) Art. 2) PROCESS 451-453 Sections 494. Unknown heirs or devisees. 405. Affidavit Forms. 496. Divorce. 497. Order. 498. Publication notice Form. 499. Mailing with petition. 500. Proof of publication. DIVISION IV. EXEMPTION FROM SERVICE 501. Persons attending court Witnesses. DIVISION V. OBJECTIONS AND AMENDMENTS 502. Motion to Quash Form. 503. Amendment. 504. Where service by publication. 505. Waiver of objections. DIVISION I. IN GENERAL 451. Definition Process in its broadest sense comprehends all proceedings to the accomplishment of an end, including judicial proceedings. Fre- quently its signification is limited to the means of bringing a party into court. Jn the Constitution process which at the common law would have run in the name of the king is intended. In the Code process issued from a court is meant. 21 452. Style of process "The style of all process shall be: 'The State of Oklahoma.' It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it is issued." 22 453. Necessity and use of process Process is necessary to jurisdiction. It is indispensable, to give a court jurisdiction in attachment proceedings, that there should be personal service of the summons in the action upon the defendant, or that the order of attachment be levied upon property of the defendant, or that an order of garnishment should be served upon a garnishee having property in his possession belonging to the de- fendant, or who is indebted to such defendant, otherwise any pro- 21 McKenna v. Cooper, 101 P. 662, 79 Kan. 847. 22 Rev. Laws 1910, 5319. "The style of all writs and processes shall be The State of Oklahoma.' " Const. Okl. art 7, 19. 453-454 COMMENCEMENT OF ACTION (Ch. 9 ceedings taken in the cause are coram non judice and void, and the cause must be dismissed. 23 Defendants in a foreclosure proceeding are by the original sum- mons brought into court for every purpose connected with the case, and are bound to take notice of all following proceedings so that a summons on a cross-petition for foreclosure of a second mort- gage is unnecessary. 24 Where a prsecipe for summons and the petition were not signed by the party or his attorney, it is not necessary, on amendment; to issue new summons. 25 Where service is had by publication in an action to quiet a title founded upon a tax deed, filed with the petition, which is void on its face, it is error to allow amendment of the petition by sub- stituting a valid deed, without any notice to defendant, and then to render judgment against him as for default on the amended peti- tion. 26 454. Issuance of summons "All writs and orders for provisional remedies, and process of every kind, shall be issued by the clerks of the several courts, upon a praecipe filed with the clerk demanding the same.'V 7 "The summons shall be issued by the clerk upon a written prse- cipe filed by the plaintiff ; shall be under the seal of the court from which the same shall issue, shall be signed by the clerk, and shall be dated the day it is issued. It shall be directed to the sheriff of the county, and command him to notify the defendant or defend- ants, named therein, that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name, at a time stated therein, or the petition will be taken as true and judgment^ rendered accordingly ; and where the action is on contract for the recovery of money only, there shall be indorsed on the writ the amount, to be furnished in the prsecipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the de- 28 Central Loan & Trust Co. v. Campbell Commission Co., 49 P. 48, 5 Okl. 396, judgment reversed 19 S. Ct. 346, 173 U. S. 84, 43 L. Ed. 623. z* Lawson v. Rush, 101 P. 1009, 80 Kan. 262. ssManspeaker v. Bank of Topeka, 46 P. 1012, 4 Kan. App. 768. 26 Wood v. Nicolson, 23 P. 587, 43 Kan. 461. 27 Rev- Laws 1910, 5328. (312) Art. 2) PROCESS 454-455 fendant fail to appear, judgment shall not be rendered for a larger amount and the costs." 28 The statute does not require the summons, where personal serv- ice is had, to describe the real estate, nor what kind of judgment will be rendered. 29 It does not require summons in foreclosure suit, where personal service has been had, to advise defendant of nature of action and kind of judgment that will be rendered, nor is it necessary to indorse on the writ the amount for which, with interest, default judgment will be taken. 30 455. To another county "Where the action is rightly brought in any county, a summons shall be issued to any other county against any one^or more of the defendants, at the plaintiff's request." 31 To justify the issuance of a summons to a foreign county and the service of the same on a defendant residing or found there, the action must be rightly brought and the person sued must be rightly joined as a defendant. 32 If service of summons is not legally obtained 6n one of several defendants in the county where action is brought, a summons can- as Rev. Daws 1910, 4705. 29 Horton v. Haines, 102 P. 121, 23 Okl. 878. Endorsement is unnecessary, where suit is not for recovery of money only. Id. so Littlefield v. Brown (Okl.) 172 P. 643. si Rev. Laws 1910, 4706. Where action is rightfully commenced in any county, summons may issue to any other county and be there served on one or more defendants. Oklahoma City 'Nat. Bank v. Ezzard, 58 Okl. 251, 159 P. 267, L. R. A. 1918A, 411; Hem- brow v. Winsor, 125 P. 22, 87 Kan. 714. Where nonresident insurance company is sued in county where plaintiff re- sides, summons to another defendant held properly issued to any other coun- ty. Haynes v. City Nat. Bank of Lawton, 121 P. 182, 30 Okl. 614. In action against guardian for diversion of trust fund and to fix trust on land {purchased therewith in his wife's name, properly brought in county where land was, where jurisdiction was obtained on one defendant, a sum- mons could be served on other defendant in another county, warranting estab- lishment of a lien against land. Clingman v. Hill, 104 Kan. 145, 178 P. 243. Where an action is brought against several defendants, alleging that they are jointly liable for causing the illegal arrest and imprisonment of the plain- tiff, and summons is served upon one defendant in the county where the ac- tion is brought, a summons may be issued, to any other county against code- fendants residing therein. Reiffi v. Tressler, 120 P. 360, 86 Kan. 273. 32 Marshall v. Saline River Land & Mineral Co., 89 P. 905, 75 Kan. 445; Rull- man v. Hulse, 5 P. 176, 32 Kan. 598, rehearing denied 7 P. 210, 33 Kan. (313) 456 COMMENCEMENT OF ACTION (Ql. 9 not be issued thereon to any other county, and there be legally served on any one or more of the codefendants. 33 456. .Praecipe Form Defendant cannot object that summons was issued by the clerk without a prsecipe having been filed. 34 That a praecipe for summons and the petition were not subscribed by the party or his attorney does not oust the jurisdiction where summons was issued by the clerk, and personally served on de- fendant. 35 The issuance of a summons upon a prsecipe filed by a codefend- ant is not an error of which defendant can complain, nor will the jurisdiction of the court, after due service of the summons, be af- fected by reason thereof. 36 PR^CIPE FOR SUMMONS In the District Court of Tulsa County, State of Oklahoma. A. B., Plaintiff,- ] v. L No. . C. D., Defendant. J To the Clerk of Said Court: Issue summons in the above entitled cause, and direct the same to the sheriff of county, state of Oklahoma, for the defend- ant, C. D. Amount claimed, $ and interest from the day of , 19 , at per cent, per annum. Action brought for . Defendants required to answer on or before the day of 10 . iy . Make summons returnable day of , A. D. 19 . Dated this - - day of - , A. D. 19. X. Y., Attorney for Plaintiff. 670; Wells v. Pattern, 33 P. 15, 50 Kan. 732; New Blue Springs Milling Co. v. De Witt, 70 P. 647, 65 Kan. 665. 33 Bearman v. Hunt (Okl.) 171 P. 1124. 34 Manspeaker v. Bank of Topeka, 46 P. 1012, 4 Kan. App. 768. a Bid. se State Life Ins. Co. of Indianapolis, Ind., v. Oklahoma City Nat. Bank, 97 P. 574, 21 Okl. 823. (314) Art. 2) PROCESS 457-458 457. Form and requisites A paper purporting to be a summons which is not signed by the clerk of the district court is invalid, 37 as is one not authen- ticated by the seal of the court. 88 A summons is not fatally defective by reason of being entitled in the court of P. county, and directed to the sheriff of P. county, when the name of said county had recently been changed. 39 A summons, issued March 6th, returnable March 16th, in which defendant is required to answer March 26th, was in violation of the statute. 40 A summons issued and made returnable on a Sunday or a legal holiday does not limit the time in which the defendant may plead, as it is returnable on the day stated, and the effect of the statute is to give to the return upon the next business day the same validity as if made on the designated return day. 41 458. Indorsements The failure to indorse on the summons, regular in other respects, the amount for which judgment will be taken in case the defendant fails to appear, in an action for the recovery of money only, does not render the judgment rendered in such action void, so that its collection may be enjoined. 42 Such judgment is voidable only, and not absolutely void. 43 ST Lindsay v. Kearney County Cora'rs, 44 P.- 603, 56 Kan. 630. ss Kelso v. Norton, 87 Jt.184, 74 Kan. 442; McMurray v. Same, 87 P. 184, 74 Kan. 442. Where the paper purporting to be a copy of a summons, left at the usual place of residence of the defendant by the sheriff, fails to state the name of the plaintiff, the answer day, is not dated, does not have the name of -the clerk signed thereto, and has no indication of a seal thereon, it is not a sufficient notice to the defendant to give the court jurisdiction over his person. Jones v. Marshall, 43 P. 840, 3 Kan. App. 529. 39 Nix v. Gilmer, 50 P. 131, 5 Okl. 740. 40 state v. Parks, 126 P. 242, 34 Okl. 335. 4iHarn v. Missouri State Life Ins. Co. (Okl.) 173 P. 214. A summons fixing the answer day falling on Sunday is a valid .summons, since the statute fixes the time for filing answer on the succeeding Monday. Harn v. Amazon Fire Ins. Co. (Okl.) 167 P. 473. Under Rev. Laws 1910, 2937, whenever any act of a secular, nature, other than a work of necessity or mercy, is to be performed upon a particular day which falls upon a holiday, the act may be performed upon the next business day. Tucker v. Thraves, 50 Okl. 691, 151 P. 598. 42 Tootle v. Ellis, 65 P. 675, 63 Kan. 422, 88 Am. St. Rep. 246. A petition and praecipe were filed, and a summons was issued by the clerk, 43 Dusenberry v. Bennett, 53 P. 82, 7 Kan. App. 123. (315) 458-461 COMMENCEMENT OF ACTION (Ql. & The statute is sufficiently complied with when the amount ap- pears on the face of the summons. 44 The indorsement of a summons need not necessarily be signed by the clerk, and attested with the seal of the court. 45 459. Alias summons "When a writ is returned 'Not summoned/ other writs may be issued, until the defendant or defendants shall be summoned; and when defendants reside, in different counties, writs may be issued to such counties at the same time." 46 Where a foreign corporation has been properly brought into court by service of a summons on its admitted agent for service, that an alias summons is unnecessarily issued and served on a person not its agent does not nullify the previous service. 47 460. Abuse of process A plaintiff in replevin, who does not pa/ticipate in a malicious abuse of the writ by the officer, is not liable for damages resulting from the officer's unlawful acts. 48 A sheriff who seeks to justify a seizure of property under process in an action brought against him by a stranger to the writ, wha claims title anterior to the levy, must show, if he acted under an execution, that it was issued on a valid judgment, and if a writ of attachment, that the party at whose suit it issued was a creditor of the defendant named therein. 49 DIVISION II. SERVICE AND RETURN 461. In general "The summons shall be served and returned by the officer to- whom it is delivered, except when issued to any other county than on which he failed to indorse the amount for which judgment would be taken if defendant did not answer. On the following day plaintiff caused a sum- mons, properly indorsed, to be issued and served. No answer or demurrer having been filed, plaintiff moved for judgment, when defendant objected be- cause the amount claimed was not indorsed on the original summons. Held, that if the first summons were void, the second was good, and judgment was properly entered. Simpson v. Rice, Friedman & Markwell Co., 22 P. 1019, 4& Kan. 22. 44 Thompson v. Pfeiffer, 56 P. 763, 60 Kan. 409. 45 Abbey v. W. B. Grimes Dry Goods Co., 24 P. 426, 44 Kan. 415. 4 Rev. Laws 1910, 4709. 47 Supreme Lodge of Heralds of Liberty v. Herrod, 141 P. 269, 42 Okl. 308. 48 Wurmser v. Stone, 40 P. 993, 1 Kan. App. 131. 49 Mills v. Talbott, 64 P. 964, 63 Kan. 14. (316) Art. 2) PROCESS 461-465 the one in which the action is commenced,' within ten days from its date ; and, when issued to another county shall be made return- able in not less than ten nor more than sixty days from the day thereof, at the option of the party having it issued." 60 The words "personal service" mean actual service by delivering to a person, and not to a proxy. 51 Statutes prescribing the manner of service of summons are man- datory and must be strictly complied with. 62 462. Indorsement "The sheriff shall indorse upon every summons, order of arrest, or for the delivery of property, or of attachment or injunction, the day and hour it was received by him." 33 463. Acceptance of service and appearance "An acknowledgment on the back of the summons, or the volun- tary appearance of a defendant, is equivalent to service." 5 * 464. By whom served "The summons shall be served by the officer to whom it is di- rected, who shall indorse on the original writ the time and manner of service. It may also be served by any responsible citizen of the county not a party to or interested in the action, appointed by the officer to whom the summons is directed or by the court in which the action is brought. The authority of such person shall be endorsed on the writ, and the return of service made by any person so appointed, or of any service made out of the state, shall be verified by oath or affirmation of the person making the serv- ice." 55 465. Service on only part of defendants "Where the action is against two or more defendants, and one or more shall have have been served, but not all of them, the plain- tiff may proceed as follows : "First. If the action be against defendants jointly indebted upon .contract, he may proceed against the defendants served, unless the court otherwise direct; and if he recover judgment, it may be BO Rev. Laws 1910, 4707. si Thisler v. Little, 121 P. 1123, 86 Kan. 787. 62 Sealey v. Smith (Okl.) 197 P. 490. 63 Rev. Laws ,1910, 5336. s* Rev. Laws 1910, 4714. 65 Rev. Laws 1910, 4710. (317) 465-467 COMMENCEMENT OF ACTION (Ch. 9 entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served; and if they are subject to arrest, against the persons of the defendants served. "Second. If the action be against defendants severally liable, he may, without pfejudice to his rights against those not served, pro- ceed against the defendants served in the same manner as if they were the only defendants." 66 i Where a principal and sureties on a note are sued jointly and the principal is not served, the action may proceed against such sureties as are served, without service on or dismissal as to the principal. 57 466. - Effect of judgment "Nothing in this code shall be so construed as to make a judg- ment, against one or more defendants jointly or severally liable, a bar to another action against those not served." 58 467. Manner of service "The service shall be made by delivering a copy of the summons to the defendant personally or by leaving one at his usual place of residence with some member of his family over fifteen years of age, at any time 'before the return day." 59 Leaving a copy at the defendants' usual place of business with his business manager is insufficient to confer jurisdiction of his person. 60 Service on defendant by leaving a summons at a house where he had household goods stored but where neither he nor his wife had ever lived, though his wife had once been there temporarily, was void because not at his residence. 61 66 Rev. Laws 1910, 4730. 57 Moorehead v. Daniels, 57 Okl. 298, 153 P. 623. 88 Rev. Laws 1910, 4731. 59 Rev. Laws 1910, 4711. Laws 1901, c. 392, 1, providing that summons shall be issued and served on defendants personally, if residents of the county, refers to personal serv^ ice on resident defendants, as distinguished from constructive service by pub- lication against nonresident defendants and service by leaving a copy of the summons at the usual place of residence of defendant is a service, within ttie meaning of the act. Board of Com'rs of Atchison County v. Challiss, 69 P. 173, 65 Kan. 179. eo Cohen v. Cochran Grocery Co. (Okl.) 173 P. 642. 6i O'Neil v. Eppler, 133 P. 705, 90 Kan. 314. (318) Art. 2) PROCESS 467-469 Service by delivering a copy of original process to the wife of a defendant, who had left the state, never intending to return, at his last place of residence within the state, did not give the court jurisdiction, since, after he has removed,, he has no "usual place of residence" within the state. 62 The word "service" means the reading thereof to the person to be served, or the delivery to such person of the original or a copy thereof, and the phrase "service of a notice," without qualification, means a personal service of a written notice. 63 468. Validity and effect of service Generally speaking, neither the process nor the action taken under it will be adjudged void when the very thing which ought to be done is specifically commanded, and only that thing is in fact done, 64 at least in the absence of fraud. 65 When original summons is served, defendants are in court for every purpose connected with the action, and those served are bound to take notice of the filing of a cross-petition by a codefend- ant. 66 469. Service out of state "In all cases where service may be made by publication, per- sonal service of summons may be made out of the state by the sheriff or his deputy of the county in which such service may be made. Such summons shall be issued by the clerk, under seal of the court, and directed to the defendant or defendants to be served, and shall notify him or them that he or they have been sued by the plaintiff or plaintiffs, naming him or them, and re- quiring him or them to answer the petition filed by the plaintiff or plaintiffs in the clerk's office of the court, which shall be named, within sixty days from the day of service, or the said petition will be taken as true, and judgment rendered accordingly: Provided, 12 Amsbaugh v. Exchange Bank, 5 P. 384, 33 Kan. 100. es Clemmons v. State, 113 P. 238, 5 Okl. Or. 119. 64 Merwin v. Hawker, 1 P. 640, 31 Kan. 222. es Where defendant's trip to Kansas City, Mo., where he was served with process, was not induced by any act of plaintiff, a mere statement by plaintiff's attorney that the contemplated action would be brought in Kansas did not show that the service in Missouri was fraudulent. McLain v. Parker, 129 P. 1140, 88 Kan. 717, judgment affirmed on rehearing 131 P. 153, 88 Kan. 873. a Littlefield v. Brown (Okl.) 172 P. 643. (319) 469-470 COMMENCEMENT OF ACTION (Ch. 9 that such service shall have the same force and effect as service ob- tained by publication, and no other or greater force or effect." 67 That such personal service may be had on a nonresident, it is essential that the requisite affidavit be filed, summons be issued, and served, and due proof of such service be made. 88 The state has full power over all persons and things within its jurisdiction, but cannot extend its process beyond its boundaries. 69 In action against nonresident to determine an interest in realty in the state, personal service out of state gives the court jurisdic- tion, not defeated because the petition unites another separate cause of action in which such service would not confer jurisdiction. 70 470. Service on corporation "A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer, or upon an agent duly appointed to receive service of process ; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof." 71 The prescribed statutory method of serving process upon a cor- poration is exclusive and must be followed. 72 Service on a corporation is limited to the class of officers and agents specified in this statute. 73 Where service is actually made on the proper officer or agent of a corporation a return, failing to show this fact, may be amended. 74 87 ReV. Laws 1910, 4727. es First State Bank of Addington v. La timer, 48 Okl. 104, 149 P. 1099; Adams v. Baldwin, 31 P. 681, 49 Kan. 781. 69 Howell v. Manglesdorf, 5 P. 759, 33 Kan. 194. TO Culver v. Diamond, 64 Okl. 271, 167 P. 223. 71 Rev. Laws 1910, 4715. 72 Shawnee Tecumseh Traction Co. v. Webster (Okl.) 174 P. 266. A service of summons upon a director of a. domestic corporation, other than the chairman of the board, is unauthorized by Comp. Laws 1909, 5604; it not appearing in the return that he occupied any office named in the section, though the return recites that the director was the highest officer of the de- fendant to be found in the county. Oklahoma Fire Ins. Co. v. baroer Asphalt Paving Co., 125 P. 734, 34 Okl. 149. A director is not a "chief officer" or "man- aging agent" of a domestic corporation, within Comp. Laws 1909, 5604, and service of summons cannot be made by delivery of a copy to him. id. 73 M. Rumely Co. v. Bledsoe, 56 Okl. 180, 155 P. 872. 74 Id. (320) Art. 2) PROCESS 470-471 When service is not made on one of the chief officers named, the return must show why the service was not so made. 75 It is not ordinarily required that the officer shall state the degree of dili- gence in attempting to find the chief officer of the defendant or execute process. 70 Where the service is not on the chief officer, the return must show that he could not be found in the county. 77 471. On foreign corporation "In all cases where a cause of action shall accrue to a resident or citizen of the state of Oklahoma, by reason of any contract with a foreign corporation doing business in this state, or where any liability on the part of such foreign corporation shall accrue in favor of any citizen or resident of this state, whether in tort or otherwise, and such foreign corporation has not designated an agent in this state upon whom process may be served or has not an officer continuously residing in this state, upon whom summons or other process may be served so as to authorize a personal judg- ment, service of summons or other process may be had upon the secretary of state, and such service shall be sufficient to give ju- risdiction of the person to any court in this state having jurisdic- tion of the subject-matter, whether sitting in the county where the secretary of state is served or elsewhere in the state." 78 75 St. Louis & S. F. R. Co. v. Reed, 59 Old. 95, 158 P. 399. 'e Levy v. Tradesmen's State Bank (Okl.) 176 P. 512. 77 Ozark Marble Co. v. Still, 103 P. 586, 24 Okl. 559. Under Rev. Laws 1910, 4715, return of service on domestic corporation, which shows that president was not found in county and that writ was serv- ed on managing agent, is sufficient. Colonial Refining Co. v. Lathrop, 64 Okl. 47, 166 P. 747, L. R. A. 1917F, 890. A return on a summons, showing date of its receipt and that the officer ex- ecuted the same "in my county," by leaving a true copy with the cashier of the defendant national bank, naming him, "President not in the county," held a sufficient return showing service, as required by Comp. Laws 1909, 5604. First Nat. Bank of Tishomingo v. Latham, 132 P. 891, 37 Okl. 286; Same v. Ingle, 132 P. 895, 37 Okl. 276. A summons in error against a corporation served on its secretary without any showing that the other chief officer could not be found in the county was invalid. Cunningham Commission Co. v. Rorer Mill & Elevator Co., 105 P. 676, 25 Okl. 133. 78 Rev. Laws 1910, 13b9. Statute held valid. Title Guaranty & Surety Co. v. Slinker, 143 P. 41, 42 Okl. 811. The phrase "transacting business" means the doing of a series of acts to secure livelihood, profit, or pleasure, not merely the doing of a single act. Ful- HON.PL.& PRAC.21 (321) 471 COMMENCEMENT OF ACTION (Ch. 9 The various methods provided by the statute for obtaining serv- ice on foreign corporations are cumulative. 79 Where a foreign corporation has appointed a service agent, service must be made upon such agent, and service on a local agent or manager is insuf- ficient. 80 The agent may be served either by delivering a copy of the sum- mons to him personally or by leaving the same at his usual place of residence. 81 Summons issued for defendant corporation and served upon the secretary of state, in the absence of a showing that defendant had either a service agent or an officer in the state upon whom process could be had, was sufficient. 82 Service of summons upon a fore- man of a pipe line company, a foreign corporation, is unauthorized by statute, and void. 83 The appointment of an agent to transact the company's business is not "doing business" within the meaning of the statute. 84 But ler v. Allen, 46 Okl. 417, 148 P. 1008. A contract to sell machines to be used or sold in the state by the purchaser, and to furnish other machines f. o. b. at the place of business of the seller, a foreign corporation, held not "transacting business" within the state, within Rev. Laws 1910, 1335-1339. Id. 79 Continental Ins. Co. v. Hull, 38 Okl. 307, 132 P. 657. so Waters Pierce Oil Co. v. Foster, 52 Okl. 412, 153 P. 169. Where a foreign corporation, other than a railroad or stage company, has complied with the statute and has appointed an agent in .this territory for service of process, with his office and principal place of business at an acces- sible point in the territory, service of process^must be made upon such agent and service on any other person is irregular. Bes Line Const. Co. v. Schmidt, 85 P. 711, 16 Okl. 429; Same v. Taylor, 85 P. 713, 16 Okl. 481. 81 State Life Ins. Co., of Indianapolis, Ind., v. Oklahoma City Nat. Bank, 97 P. 574, 21 Okl. 823. 82 Municipal Paving Co. v. Herring, 50 Okl. 470, 150 P. 1067. ss Gulf Pipe Line Co. v. Vanderberg, 115 P. 782, 28 Okl. 637, 34 L. R. A. (N. S.) 661, Ann. Cas. 1912D, 407. s* Verdigris River Land Co. v. Stanfield, 105 P. 337, 25 Okl. 265. Not "doing business." Where a domestic mercantile corporation contracts with a foreign manufacturing corporation to purchase the latter's goods, and to sell them within the state, it does not constitute "doing business" by the nonresident corporation, and service of summons on the domestic corporation is not service on the foreign corporation. Harrell v. Peters Cartridge Co., 129 P. 872, 36 Okl. 684, 44 L. R. A. (N. S.) 1094. The sending of traveling agents into the state by a foreign manufacturing corporation to advertise its goods and assist the agents of a domestic mercantile corporation in selling them does not constitute "doing business" within the state, and service of summons on the secretary of state is not a valid service on the foreign corporation. Id. A foreign corporation engaged in buying used automobiles and rebuilding and selling them, which contracted with a resident to canvass for purchasers anO forward orders to corporation at Pittsburgh to be filled by delivery f. o. b., (322) Art. 2) PROCESS 471-473 furnishing him with goods to be sold and which were sold in the state is "doing business" in the state. 85 Where a foreign surety company collected the premiums on bonds executed prior to statehood and continued such bonds in force, it was "doing business" in the state, within this statute. 80 A foreign corporation engaged in interstate commerce within the state with a resident thereof is not subject to this statute. 87 The prosecution of an action for debt by a foreign corpora- tion in a state court is not transacting business. 88 472. On insurance company "Where the defendant is an incorporated insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agen- cy." 89 473. Insurance commissioner "Every foreign insurance company shall, "by duly executed in- strument filed in his office, constitute and appoint the insurance commissioner, or his successor, its true and lawful attorney, upon whom all lawful processes in any action or legal proceeding against it may be served and therein shall agree that any lawful process against it, which may be served upon its said attorney, shall be of the same force and validity as if served upon the company, and that the authority thereof shall continue in force, irrevocable, as long as any liability of the company remains outstanding in this was not "doing business" in the state. Auto Trading Co. v. Williams (Okl.) 177 P. 583. Where a nonresident corporation contracted with a resident to sell and de- liver f. o. b. at a point outside the state certain proprietary njedicines to be shipped into the state and resold at retail, it did not incur the penalty prescrib- ed by Rev. Laws 1910, 1338. Dr. Koch Vegetable Tea Co. v. Shumann, 139 P. 1133, 42 Okl. 60. Nonresident corporation, which contracted with citizen of state, whereby its products were sold and delivered f. o. b. at point outside state, to be sold at re- tail within designated territory, held not doing business within state. J. R. Watkins Medical Co. of Winona, Minn., v. Coombes (Okl.) 166 P. 1072. ss Bailey v. Parry Mfg. Co., 59 Okl. 152, 158 P. 581. '** Title Guaranty & Surety Co. v. Sliuker, 143 P. 41, 42 Okl. 811. ST Hollister v. National Cash Register Co., 55 Okl. 214, 154 P. 1157; Fruit Dispatch Co, v. Wood, 140 P. 1138, 42 Okl. 79. ss j. p. Bledsoe & Son v. W. B. Young Supply Co., 44 Okl. 609, 145 P. 1125; Freeman-Sipes Co. v. Corticelli Silk Co., 124 P. 972, 34 Okl. 229. ss Rev. .Laws 1910, 4716. (323) 473 COMMENCEMENT OF ACTION (Oh. 9 state. Any process issued by any court of record in this state, and served upon such commissioner by the proper officer of the county in which said commissioner may have his office, shall be deemed a sufficient process on said company, and it is hereby made the duty of the insurance commissioner to promptly, after such service of process, forward by registered mail, an exact copy of such notice to the company; or, in case the company is of a foreign country, to the resident manager in this country; and also shall forward a copy thereof to the general agent of said company in this state. For power of attorney, each company shall pay a fee of three dol- lars, and for each copy of process, the insurance commissioner shall collect the sum of three dollars, which shall be paid by the plaintiff at the time of such service, the same to be recovered by him as a part of the taxable cost, if he prevails in his suit." 90 Every fraternal beneficiary association "now doing or hereafter admitted to do business within this state, and not having its prin- cipal office within this state, and not being organized under the laws of this state, shall appoint in writing the insurance commis- sioner and his successor in office to be its true and lawful attor- ney, upon whom all legal process in any action or proceeding against it must be served, and in such writing shall agree that any lawful process against it which is served on said insurance commissioner shall be of the same legal force and validity as if served upon said association, and that the authority shall remain in force as long as any liability against said association shall remain outstanding within this state. Copies of such certificate, certified by said insurance commissioner, shall be deemed sufficient evi- dence thereof, and shall be admitted in evidence with the same force and effect as the original thereof might be admitted. Serv- ice upon said insurance commissioner shall be deemed sufficient service upon such association: Provided, that such process shall not be returnable until thirty days after such service. When legal process against any such association is served upon the insurance commissioner he shall immediately notify the association of such service by registered letter, prepaid and directed to its secretary or its corresponding officer, and shall within two days after such service forward in the same manner a copy of the process served upon him to such officer. The plaintiff in the action upon which ao Sess. Laws 1910-11, p. 202, 1, amending Rev. Laws 1910, 3422. (324) Art. 2) PROCESS 474-475 such process was issued shall pay to the insurance commissioner at the time of such service a fee of three dollars which shall be re- covered by said plaintiff as a part of his taxable costs, if he pre- vail in his said action. The insurance commissidner shall keep a rec- ord of all processes served upon him, which record shall show the day and hour when such service was made, and when the notice hereinbefore provided for was given to the officers of such asso- ciation. In all suits in this state against any such association organized under the laws of this state, and having its principal officer in this state, service shall be had upon the chief executive officer or the secretary, or corresponding officer of such associa- tion." 91 474. Insurance board All individuals, partnerships and corporations of this state who shall enter into contracts, as provided by law, to exchange recip- rocal or inter-insurance with each other, "shall file with the state insurance board an instrument in writing, executed by him for said subscribers, conditioned that, upon the issuance of certificate of authority provided for" by law, "service of process may be had upon the state insurance board in all suits in this state arising out of such policies, contracts or agreements, which service shall be valid and binding upon all subscribers exchanging at any time re- ciprocal or inter-insurance contracts through such attorney. Three copies of such process shall be served, and the state insurance board shall file one copy, forward one copy to said attorney, and return one copy with his admission of service. For the copy of the original process accepted by the state insurance board as at- torney for service, a fee of three dollars shall be collected from the plaintiff." 92 475. On railroad company and stage line Agent "Every railroad company and every stage company doing busi- ness in this state or having agents doing business therein for such company, is hereby required to designate some person residing in each county into which its railroad line or stage route may or does run, or in which its business is transacted, on whom all process and notices issued by any court of record or justice of the peace of such county may be served." 83 i Rev. Laws 1910, 3490. es Rev. Laws 1910, 4717. 2 Sess. Laws 1915, p. 472, 4. (325) ' 475 COlUklEXCEMENT OF ACTION (Ch. 9 "In every case such railroad company and stage company shall file a certificate of the appointment and designation of such person, in the office of the clerk of the district court of the county in which such person resides; and the service of any process upon the per- son so designated, in any civil action, shall be deemed and held to be as effectual and complete as if service of such process were made upon the president or other chief officer of such company. Any railroad company or stage company may revoke the appoint- ment and designation of such person upon whom process may be served, as hereinbefore provided, by appointing any other person qualified as above specified, and filing a certificate of such appoint- ment as aforesaid; but every second or subsequent appointment shall also designate the person whose place is to be filled by such appointment." 94 a* Rev. Laws 1910, 4718. A railroad company ran a short branch of its line from L/., Kan., into B. county, for a distance of from four to six miles, for the purpose of taking up cattle from a cattle chute, which it had located at the end of the brand*. No station agent was located at the end of the line or at the cattle chute. The short piece of track was managed by the agent at L. Passengers were not carried for hire over the piece of track referred to. No freight charges were made for 1 carrying the cattle upon it. The trains ran irregularly, and only when trains of cattle were to be shipped from the territory; and these trains were billed and charged for from L,. No depot building was erected at the point ref erred io, and no shelter was provided for passengers or freight, and no other freight was carried upon the line except cattle received at the chute mentioned. The point is not referred to in defendant company's print- ed lists of stations or time schedules, and there is no evidence that the com- pany ever intended to establish a station there. Code Civ. Proc. 68c, au- thorizes service of process by leaving a true copy, at any depot or station of such company, with some person in charge thereof, or in the employ of such company. Held, that service on the conductor who has charge of the cattle train at the point in question is not such a service as will be deemed "complete and effectual." Chicago, R. I. & P. Ry. Co. v. Groves, 54 P. 484, 7 Okl. 315. An action against a railroad company for injury to property upon the line of the company may be brought in any county through or into which the road passes (Civ. Code, 50), and, when rightly brought, the summons may be issued to any other county of the state and there served upon the president of the company (Civ. Code, 60, 68). Newberry v. Arkansas, K. & C. Ry. Co., 35 P. 210, 52 Kan. 613. Civ. Code, 68a, provides that every railroad doing business in this state, or having agents doing business therein for the company, is required to desig- nate some person in each county through which its railroad runs or its business is transacted on whom process and notice may be served. Section 68c provides that, if the company shall fail to designate a person as required (326) Art. 2) PROCESS 475-476 The interests of a federal receiver of a railroad and of the rail- road company are not so adverse as to preclude the same per- son from acting as station agent for the purpose of serving sum- mons upon the railroad company pursuant to the laws while also acting for the receiver. 95 476. Where no agent appointed "If any railroad or stage company failed to designate or appoint such person, as provided and required in the preceding sections, such process may be served on any local superintendent of re- pairs, freight agent, agent to sell tickets, or station keeper, of such company, in such county or such process may be served by leaving a copy thereof, certified by the officer to whom the same is directed to be a true copy, at any depot or station of such company in such county, with some person in charge thereof, or in the employ of such company, and such service shall be held and deemed complete and effectual." 96 by the previous section, such process may be served on any local superintend- ent of repairs, freight agent, agent to sell tickets or station keeper of such company in the county in which the action is brought, or such process may be served by leaving a copy thereof at any depot or station of such company in such county, with some person in charge thereof or in the employ of such company. Defendant railroad company, after building a railroad, leased it to another company, which took entire charge thereof. Defendant company thereafter exercised no business relations in the state, except as lessor of such railroad. Held, that a summons left with a station agent of the lessee company in charge of the station of such railroad was insufficient, as the lessor company was not doing business within the state, within the meaning of the statute. Le Roy & C. V. A. L. R. Co. v. Sidell, 63 P. 509, 62 Kan. 349. A return upon a summons against a railroad company that it was "served by delivering a copy thereof, with the indorsements thereon duly certified, to Mr. Fish, agent of the within railroad company," is not sufficient evidence of service, as it fails to show that he is of that class of agents on whom service may be made under Comp. Laws, c. 80, 68, 68a, and chapter 81, 13. Dick- erson v. Burlington & M. R. R. Co., 23 P. 936, 43 Kan. 702. B Missouri, K. & T. Ry. Co. v.. Hudson (Okl.) 175 P. 743, 9 A. L. R. 223. 6 Rev. Laws 1910, 4719. In action against receivers of railroad, held, in view of Rev. Laws 1910, 4719, that where the track and a part of the depot platform were in Latimer county, while the depot building, in which the depot agent resided, was in Le Flore county, personal service on the agent while he was in Latimer coun- ty conferred jurisdiction on the court of that county. St. Louis & S. F. R. Co. v. Mobley (Okl.) 174 T. 510. Under Rev. Laws 1910, 4719, service of summons upon the superintendent of a railway company is not authorized, it not appearing that he was in (327) 477-479 COMMENCEMENT OF ACTION (Ql. 9 477. Where personal service impossible "In all cases where service of any process cannot be had per- sonally upon the person designated by such company, service may be made by leaving- a certified copy of such process at the usual place of residence of such person, or as in the last preced- ing section, and the same shall be deemed complete and effec- tual." 97 478. Actions against counties "In all legal proceedings against the county process shall be serv- ed on the county clerk as the clerk of the board of county commis- sioners, and whenever suit or proceedings shall be commenced, it shall be the duty of the clerk forthwith to notify the county attorney and lay before the board of county commissioners at their next meeting all the information he may have in regard to such suit or proceedings." 98 479. Service on infant "When the defendant is a minor, under the age of fourteen years, the service must be upon him and upon his guardian or father, or if neither of those can be found, then upon his mother, or the person having the care or control of the. infant, or with whom he lives. If neither of these can be found, or if the minor be more than fourteen years of age, service on him alone will be sufficient. The manner of service may be the same as in the case of adults." " If the service of summons be not made in strict compliance with the statute, the court has no jurisdiction to render judgment against the minor, and a judgment rendered against the minor, where the statute has not been strictly complied with, is void, and confers no rights upon the parties obtaining the same. 1 charge of a depot or station of the company. Shawnee Tecumseh Traction Co. v. Webster (Okl.) 174 P. 266. The service of a summons against a railway company, upon its section fore- man, as "a local superintendent of repairs," where it appears that the com- pany has not designated any person upon whom service could be made under section 68a, p. 613, Comp. Laws 1885, is valid. St. Louis & S. F. Ry. Co. v. De Ford, 16 P. 442, 38 Kan. 299. 97 Rev. Laws 1910, 4720. t 98 Rev. Laws 1910, 1501. 8 Rev. Laws 1910, 4723. i Sealey v. Smith (Okl.) 197 P. 490. (328) Art. 2) PROCESS 479-482 Service of process upon an infant defendant, as required by this statute, cannot be waived. 2 480. Service on sheriff "Every paper required by law to be served on the sheriff, may be served on him in person, or left at his office during his business hours." 8 481. On inmates of hospitals for insane "Any citation, order or process required by law to be served on an inmate of the hospitals shall be served only by the medical su- perintendent in charge thereof or by some one designated by him. Return thereof to the court from which the same issued shall be made by the person making such service, and such service and re- turn shall have the same force and effect as if it had been made by the sheriff of the county." * 482. Notice or process issued by state board of arbitration "Any notice or process issued by the state board of arbitration and conciliation shall be served by any sheriff or constable to whom the same may be directed or in whose hands the same may be placed for service." 5 - Condit v. Gondif (Okl.) 168 P. 456; Echols v. Reeburgh, 62 Okl. 67, 161 P. 1065. ; Service upon a minor under 14 must be upon him and upon his guardian or father, or upon his mother or the person having his care and control, jbut service upon a minor above 14 years is sufficient. Jefferson v. Gallagher, 56 Okl. 405, 150 P. 1071. An infant cannot waive the issuance and service of sum- mons, nor can his guardian, guardian ad litem, or attorney waive it for him, and no person can appear for an infant until he is brought into court accord- ing to law. Id. ; Boiling v. Campbell, 128 P. 1091, 36 Okl. 671 ; Same v. Gibson, 128 P. 1093, 36 Okl. 678. s Rev. Laws 1910, 1705. Gen. St. 1897, c. 88, 14, declares that every paper required by law to be served on the sheriff may be served on him in person or left at his office during his business hours. The return on a summons read as follows: "Re- ceived this writ July 15, 1893, and was commanded therein to summon the following persons, the defendants within named, at the time following, to wit, J. B. N., sheriff, June 24, 1893, by leaving a true certified copy of the within summons at the office of the said sheriff with the undersheriff of said county." Held that, while it did not affirmatively appear from the return that the summons was left at the sheriff's office in his business hours, the return was sufficient. Nipp v. Bower, 61 P. 448, 9 Kan. App. 854. 4 Sess. Laws 1917, p. 331, 36. 5 Rev. Laws 1910, 3710. (329) 483-484 COMMENCEMENT OF ACTION (Ch. !> 483. County court "All process issued by the county court shall be served in the same manner, and by the persons and officers as provided for the service of process of the district court with the same fees." 6 484. Return "In all cases the return must state the time and manner of serv- ice." "The officer or person to whom the summons is directed, must return the same at the time therein stated." 7 Where a summons is made returnable in nine days from the day of its issuance, and is served one day before the day upon which it is made returnable, and twenty-one days before the defendants are required to answer, neither the summons nor the service thereof, nor a judgment rendered thereon upon default by the defendants, are void or voidable because of the failure of the sheriff to return such summons and file the same with the clerk of the district court until the day after the return day. 8 A return of service, made and signed by a sheriff, when actually made by his deputy, is irregular, but not invalid. 9 A return reciting that summons was served on one defendant by delivering to him a true copy thereof and on another by leaving such a copy at his usual place of residence with a member of his family over 16 years of age, and purporting to-be signed by the sheriff by his deputy is sufficient. 10 Where a summons, directed to an officer of another county, and returnable in less than ten days from its date was served and re- turned within such time it was irregular, but where it gave defend- ant full statutory time to plead, and in no way prejudiced him, court properly refused to quash summons. 11 . 6 Rev. Laws 1910, 6191. i Rev. Laws 1910, 4712, 471.3. s Miller v. Forbes, 49 P. 705, 6 Kan. App. 617. Orchard v. Peake, 77 P. 281, 69 Kan. 510. 10 Bollenbach v. Huber, 46 Okl. 127, 148 P. 716. A return reciting that the officer "summoned the within-named S. by leav- ing a certified copy of the within summons, and the indorsements thereon, at the usual place of residence" on a certain day, shows that the copy was left at the usual place of residence of S., and is sufficient. Sextou v. Rock Island Lumber & Mfg. Co., 30 P. 164, 49 Kan. 153. 11 Continental Ins. Co. v. Norman (Okl.) 176 P. 21L, (330) Art. 2) PROCESS 485-486 485. Fees "When a summons is issued to another county than that in which the action or proceeding is pending, it may be returned by mail, and the sheriff shall be entitled to the same fees as if the sum- mons had issued in the county of which he is sheriff." 12 486. Conclusiveness A sheriff's return showing personal service of summons, though not conclusive, is prima facie evidence of its truthfulness, and re- quires clear and convincing proof to overcome it. 13 When an officer makes a false return of personal service on which judgment is rendered, such return is not conclusive evidence against the fact. 1 * is Rev. Laws 1910, 4708. is Jones v. Jones, 57 Okl. 442, 154 P. 1136; Humphrey v. Coquillard Wagon Works, 132 P. 899, 37 Okl. 714, 49 L. R. A. (N. S.) 600. . The return of an officer as to service of summons is not conclusive of the- facts therein stated, and defendant may appear specially on the return day,, and contradict the same. Jones v. Marshall, 43 P. 840, 3 Kan. App. 529. As between the parties to a suit and their privies, the general rule is ; that the return of the sheriff to process is conclusive. Warren v. Wilner, 60 P. 745, 61 Kan. 719 ; Goddard v. Harbour, 44 P, 1055, 56 Kan. 744, 54 Am: St.. Rep. 608. A return that personal service was had on defendant is not open to contra- diction or disproof by extrinsic evidence after judgment. Orchard v. ,Peake, 77 P. 281, 69 Kan. 510. A sheriff's return with respect to the service of original process may be impeached so far as it states jurisdictional facts, where the facts stated are not within the personal knowledge of the officer, but as to all matters stated in his return which are within the officer's personal knowledge the return is conclusive as between the parties to the action. Eastwood v. Carter, 61 P. 510, 9 Kan. App. 471. Evidence held insufficient to show fraud in procuring service on nonresident defendant. Van Arsdale-Osborne Brokerage Co. v. Jones, 156 P. 719, 97 Kan. 646. Return of sheriff reciting that certified copy of summons was left with defendant's wife at his usual place of residence makes out a prima facie case of residence. Jones v. Reser, 61 Okl. 46, 160 P. 58. An official return is sufficient pr6of of facts which the officer is authorized to certify. Cox v^ State, 61 Okl. 182, 160 P. 895. i< Ray v. Harrison, 121 P. 633, 32 Okl. 17, Ann. Cas. 1914A, 413. 487-489 COMMENCEMENT OF ACTION (Ql. 9 487. Entering return The clerk "shall, upon the return of every summons served, enter upon the appearance docket the name of the defendant or defend- ants summoned, and the day of the service upon each one. The en- try shall be evidence of the service of the summons, in case of the loss thereof." 15 488. Evidence of service Where the return of a sheriff that he has served a summons per- sonally is ambiguous and open to a construction that but one copy was delivered to both defendants, parol evidence is admissible to show that no service was had on one of the defendants. 18 Testimony of one on whom a summons was served as secretary of a corporation, tending to show that at the time of service of sum- mons he was not such officer, is admissible to impeach the return on the summons. 17 Where the original process in an action in the district court is lost, and the appearance docket recites that a summons was issued and returned "Served," the presumption arising therefrom that the return was regular, and the service valid, is not overcome by tes- timony of a deputy sheriff .that he made a service of the summons in the case, which was invalid, in the absence of a showing that no further service was made. 18 489. Forms SUMMONS (Caption.) The State of Oklahoma, to the Sheriff of . County Greetings : You are hereby commanded to notify that he (or she) Ha been sued by in the district court of county, Oklahoma, and that must answer the petition of said filed against in said court, in the city of , in said county, on or before the day of , 19 , or said petition will be taken as true and judgment rendered, accordingly. You will make due return on this summons on the day of , A. D. 19. IB Rev. Laws 1910, 5332. ie Jackson v. Tenney, 87 P. 867, 17 Okl. 495. IT Schnack v. Boyd, 52 P. 874, 59 Kan. 275. is Stunkle v. Holland, 46 P. 416, 4 Kan. App. 478, (332) Art. 2) PROCESS 489 In witness whereof, I have hereunto set my hand and affixed the seal of said court at , in said county, this day of , A. D. 19. , Court Clerk, By , Deputy. (Indorsements as follows:) Suit brought for . If the defendant fail to answer, plaintiff will take judgment for the sum of $ , with interest thereon at the rate of per cent, per annum from the day of , 19 , and costs of suit. , Court Clerk, By , Deputy. RETURN OF SUMMONS PERSONALLY SERVED State of Oklahoma," County of Received this writ , 19 , and, as commanded therein, I summoned the following persons of the defendant within named at the times following, to wit: A. B., ,19 C. D., , 19- by delivering to each of said defendants, personally, in said county, a true and certified copy of the within summons, with all of the indorsements thereon, and leaving the same with them. , Sheriff, By , Deputy. RETURN OF SUMMONS SERVED ON ADMINISTRATOR State of Oklahoma, County of Received this writ , 19 , and, as commanded therein, I summoned the within named defendant, A. B., as administrator of the estate of C. D., deceased, by delivering to said A. B., person- ally, in said county, a true and certified copy of the within sum- mons, with all of the indorsements thereon. , Sheriff, By , Deputy. (333) 489-490 COMMENCEMENT OP ACTION (Cll. 9* RETURN OE SUMMONS SERVED BY LEAVING COPY AT PLACE OE RESI- DENCE State of Oklahoma,' County of Received this writ , 19 , and, as commanded therein, I summoned the within named defendant, A. B., on the day of , 19 , by leaving for said defendant at his usual place of residence in said county, with C. B., wife (or child, etc.) of said defendant and a person over fifteen years of age, a true and cer- tified copy of the within summons, with all the indorsements thereon. , Sheriff, By -, Deputy. RETURN OE SUMMONS SERVED ON CORPORATION ss. : V Received this writ , 19 , and, as commanded therein, I summoned the within named defendant, A. B. & Co., on the day of , 19 , by delivering to C. D., secretary of said cor- poration, personally, in said county, a true and certified copy of the within .summons, with all of the indorsements thereon; the pres- ident, mayor, chairman of the board of directors, or trustees, or other chief officer, cashier, or treasurer, not being- found in said county. , Sheriff, By , Deputy. DIVISION III. SERVICE BY PUBLICATION 490. In general A state has power by statute* to provide for the adjudication of titles to real estate within its limits as against nonresidents who are brought into court only by publication. 18 The method of obtaining jurisdiction over a person not within the state must be as indicated by the statute. 20 i Gushing v. Cummings (Okl.) 179 P. 762. 20 First State Bank of Addington v. Lattimer, 48 Okl. 104, 149 P. 1099. (334) Art. 2) PROCESS 490-491 Service by publication is authorized only where plaintiff with due diligence is unable to serve defendant within the state. 21 A valid personal judgment cannot be rendered against a nonres- ident on publication. 22 491. Service by publication When authorized "Service may be had by publication in any of the following cases: In actions brought under sections 4671 and 4672, article 6, chapter 60 of the Revised Laws of Oklahoma, 1910, where any or all of the defendants reside out of the state, or where it is stated in the affidavit for service by publication that the plaintiff with due diligence is unable to make service of summons upon such defend- ant or defendants within the state ; in actions brought to establish or set aside a will, where any or all of the defendants reside out of the state; in actions brought to obtain a divorce or alimony or annulment of the contract of marriage, where the defendant resides out of the state ; in an action brought against a nonresident of the state or a foreign corporation having in this state property or debts owing them, sought to be taken by any of the provisional remedies, or to be appropriated in any way; in actions which re- late to, or the subject of which is, real or personal property in this ^state where any defendant has or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding him from any lien or interest therein, and such defendant is a nonresident of the state or a foreign corporation ; in all actions where the defendant, being a resident of this state, has departed therefrom or from the county of his residence, with intent to delay or defraud his creditors, or to avoid the service of summons or keep himself concealed therein with like intent; and, in any of the actions mentioned in this section, against a domestic corporation which has not been legally dissolved and has ceased to maintain an office with some person in charge thereof at the place in this state where, in its article of incorporation, it is stated its principal business is to be transacted, and its officers and agents, if any, upon whom service of summons against such corporation is authorized to be made by the laws of this state are either non- residents thereof or have departed therefrom or cannot, upon dili- 21 Richardson v. Howard, 51 Okl. 240, 151 P. 887. 22 Pettis v. Johnston, 78 Okl. 277, 190 P. 68L (335) 491-492 COMMENCEMENT OF ACTION (Ql. 9 gent inquiry, be' found therein, or where it is stated in the affidavit for service by publication, in such action, that the plaintiff with due diligence is unable to make service of summons upon such defendant within this state. "In any of the actions mentioned in this section wherein the un- known heirs, executors, administrators, devisees, trustees or as- signs or any of them, of any deceased person, or the unknown suc- cessors, trustees or assigns, if any, of any dissolved corporation, are made defendants; or wherein the plaintiff upon diligent in- quiry, is unable to ascertain the whereabouts of a person named as a defendant or whether he is living or dead, and if dead, is un- able to ascertain who are his heirs, executors, administrators, dev- isees, trustees or assigns, if any, or their whereabouts ; or wherein the plaintiff upon diligent inquiry, is unable to ascertain whether a corporation, domestic or foreign, named as a defendant, continues to have legal existence or not, or has officers or not, or their names and whereabouts, and if dissolved, is unable to ascertain the names or whereabouts of the successors, trustees or assigns, if any, of such corporation ; or wherein the plaintiff cannot ascertain whether a person named as a defendant is living or dead, or, if dead, the names of his heirs, executors, administrators, devisees, trustees or assigns, if any, or cannot ascertain whether a corporation has been dissolved or not, or if dissolved, the names of its successors, trus- tees, or assigns; publication service may be had upon such un- known party or in the alternative upon such person, if living, or corporation, or if dead, or dissolved, upon the unknown heirs, ex- ecutors, administrators, trustees, devisees and assigns, if any, of such deceased person, or the unknown successors, trustees, and assigns of such dissolved corporation." * 3 492. In what actions authorized In an action to quiet title to real estate, brought by one in actual possession against a person who is nonresident and out of the state, service of summons may be made by publication. 2 * Service of summons by publication on a nonresident is unauthor- ized in an action which joins claims only personal in their nature with claims affecting real estate situated within the state. 26 23 Sess. Laws 1919, c. 145, 1, amending Rev. Laws 1910, 4722. 24 Dillon v. Heller, 18 P. 693, 39 Kan. 599. 25 Zimmerman v. Barnes, 43 P. 764, 56 Kan. 419. (336) Art. 2) PROCESS 492-493 In an action for specific performance to convey land, no jurisdic- tion of a defendant could be obtained by publication. 28 In actions relating to real or personal property in state where any defendant has or claims a lien or interest actual or contingent there- in, or where the relief demanded consists in excluding him from any interest therein, and where such defendant is a nonresident or a foreign corporation, service by publication may be had. 27 An action against nonresident of territory of Oklahoma having property attachable therein is an action in which service of summons may be made on defendant by publication. 28 A temporary restraining order, while a provisional remedy, is not such a remedy as contemplated by the statute allowing service by publication in actions against nonresident having property in the state, sought to be taken by provisional remedies. 29 493. On whom authorized In civil actions against residents, jurisdiction must be acquired by personal service or voluntary appearance and cannot be obtained by publication service. 80 Service of process, under the statute providing for publication, where defendant, being a resident of the state, has departed with the intent tb avoid service, was not invalid because the defendant, at the time thereof, resided outside of the state. 81 In an action against a nonresident, to trace a trust fund into spe- cific property held by him in the state, with notice of the trust, service by publication is sufficient. 32 se Homer v. Ellis, 90 P. 275, 75 Kan. 675, 121 Am. St. Rep. 446. 27 Gushing v. Cummings (Okl.) 179 P. 762. 28 Richardson v. Carr (Okl.) 171 P. 476. - 29 Waldock v. Atkins, 60 Okl. 38, 158 P. 587. so Friedman v. First Nat. Bank, 39 Okl. 486, 135 P. 1069, 49 L. R. A. (N. S.) 548. Where a civil action is commenced against two residents in a county other than that of their residence, and a garnishment summons is issued upon a resident of the county where the action is commenced, and defendants are not served and make no appearance, and service by publication is attempted to be made upon them, a judgment rendered against them by default is void. Friedman v. First Nat. Bank, 39 Okl. 486, 135 P. 1069, 49 L. R. A. (N. S.) ~548. si Cole v. Hoeburg, 13 P. 275, 36 Kan. 263. 32 Reeves v. Pierce, 67 P. 1108, 64 Kan. 502. HON.PL.& PBAC. 22 (337) 494-495 COMMENCEMENT OF ACTION (Ch. 9 494. Unknown heirs or devisees "In actions where it shall be necessary to make the heirs or devisees of any deceased person defendants, and it shall appear by the affidavit of the plaintiff, annexed to his petition, that the name of such heirs or devisees, or any of them, and their residences, are unknown to the plaintiff, proceedings may be had against such unknown heirs or devisees, without naming them. In such ac- tions service may be had upon such defendants by publication and the notice shall be published as in other cases of service by pub- lication." 33 The term "unknown heirs," where the relief demanded is to ex- clude defendants from any interest in real property, means all kinds of heirs, including heirs of heirs of such defendants as well as the legatees of heirs. 3 * . In a suit to quiet title brought against unknown heirs of one erro- neously supposed to be dead, and unknown heirs of those from whom his right and title descended, where service was attempted by publication, such one is not a party to action, and court acquired no jurisdiction of him by such attempted service. 35 495. Affidavit Form "Before service can be made by publication, an affidavit must be filed stating that the plaintiff, with due diligence, is unable to make service of the summons within the state upon the defendant to be served by publication, and showing that the case if one of those mentioned in the preceding section. .When such affidavit is filed the party may proceed to make service by publication. "In actions against unknown heirs, executors, administrators, devisees, trustees and assigns, of any deceased person, or in the al- ternative against a person or his unknown heirs, executors, adminis- trators; devisees and assigns, or against a corporation or its un- known successors, trustees and assigns, the affidavit shall state that the plaintiff does not know and with diligence is unable to ascertain the names or whereabouts of any such heirs, executors, administrators, devisees, trustees or assigns, or successors, trus- s Rev. Laws 1910, 4729. s* Howell v. Carton, 108 P. 844, 82 Kan. 495. as Buck v. Simpson (OkL) 166 P. 146, L. R. A. 1918F, 604. (338) Art. 2) PROCESS 495 tees or assigns of a corporation, or with diligence is unable to ascertain whether a person named in the alternative is living or dead, or his whereabouts, and if he be dead, is unable to ascertain the names or whereabouts of his heirs, executors, administrators, devisees, trustees or assigns, or is unable to ascertain whether a corporation named in the alternative is legally existing or dissolved, and if not in existence, is unable to ascertain the names or where- abouts of its officers, successors, trustees or assigns, if any. When such affidavit is filed the party may proceed to make service, in such actions, by publication. Statements as to any and all kinds of defendants, natural or corporate, known or unknown, may be united in one affidavit for service by publication, and notice to all of them may be included in one publication notice." 8e Where publication is relied on to confer jurisdiction, the affidavit as well as the publication notice are jurisdictional matters, and both must, comply with the statute. 37 It is not necessary to allege in terms that the action is one of those enumerated in the statute, where the affidavit to obtain serv- ice by publication mentions sufficient grounds. 88 3 Sess. Laws 1919, c. 145, 2, amending Rev. Laws 1910, 4723. Under Code Civ. Proc. 72, enumerating the cases in which service may be had by publication, and section 73, requiring an affidavit for such service to show "that the case is one of those mentioned" by section 72, an affidavit stating that the action is one "to quiet title to real estate, as provided by section 72," does not sufficiently show that the case is "one of those men- tioned." Leavenworth, T. & S. W. Ry. Co. v. Stone, 55 P. 346, 60 Kan. 57. An affidavit for service by publication under Code Civ. Proc. 72, 73, in an action concerning real estate, must state the location of the land because it is a local action. Id. An affidavit for service by publication was entitled in the cause, but the venue was stated thus: "State of Kansas, County." Held sufficient. Baker v. Agricultural Land Co., 61 P. 412, 62 Kan. 79. ST Cordray v. Cordray, 91 P. 781, 19 Okl. 36. s s Chaplin v. First Bank of Hitchcock (Okl.) 181 P. 497; Lausten v. Union Nat. Bank of Bartlesville (Okl.) 173 P. 823. An affidavit for service by publication need not state that the action is one of those mentioned in Code Civ. Proc. 78 (Gen. St. 1909, 5671), or that it is one in which service by publication can be made, but should state facts showing that the action is one in which such service is authorized. Harvey v. Harvey, 118 P. 1038, 85 Kan. 689. An affidavit for service by publication which alleges that the action is brought to set aside a deed to plaintiff's homestead and to quiet title, that defendant is a nonresident, that personal service cannot be had, and that plaintiff has a just cause of action is sufficient as against an attack by a suit to set aside the judgment brought more than three years after judgment. Id. (339) 495 COMMENCEMENT OF ACTION (Ql. 9 If there is a total want of evidence upon a vital point in the affi- davit for publication, the court acquires no jurisdiction by pub- lication of the summons ; but where there is not an entire omission to stale some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable. 39 . Certain averments omitted from the affidavit may be inferred from facts alleged ; * but there must be some substantial allega- tion on which to base the inference, 41 and the facts showing due diligence to obtain personal service in the state should be set up, 42 39 Harris v. Olaflin, 13 P. 830, 36 Kan. 543. 40 Affidavit for summons by publication under Rev. Laws 1910, 4722, 4723, made in case specified in section 4722, and alleging inability to make summons, otherwise than by publication, held sufficient to support judgment based on such service as against attack on ground that defect in affidavit ren- dered judgment void, as averment omitted from affidavit would be inferred. Richardson v. Carr (Okl.) 171 P. 476. Under Gen. St. 1915, 6969, 6970, affidavit in action against railroad for damages to live stock in transit for service by publication, based on garnish- ment proceedings, held sufficient. Dye v. Denver & R. G. R. Co., 101 Kan. 666, 168 P. 1087. In an action to reform and foreclose a mortgage, service of summons by publication was obtained on affidavit that "defendant has removed from said county of Shawnee, and now resides in that region of country known as 'Pikes' Peak,' and that service of summons cannot be made on said defend- ant within this territory." Held that, when attacked in a collateral proceed- ing, the affidavit was sufficient, though it did not mention the reformation, nor directly state that defendant was a nonresident of Kansas. Carey v. Reeves, 5 P. 22, 32 Kan. 718. An affidavit to obtain service by publication, which inferentially states all material facts required by Gen. St. 1901, 4507, is not void because failing to state that plaintiffs were unable to make service "with due diligence," but is at most only voidable. Morris v. Robbins, 111 P. 470, 83 Kan. 335. The omission of an allegation in an affidavit for service by publication that service could not be had "by due diligence" is immaterial. Smith vJ United States Sugar & Land Co., 108 P. 860, 82 Kan. 539. 41 Ballew v. Young, 103 P. 623, 24 Okl. 182, 23 L, R. A. (N. S.) 1084. Where the affidavit for publication does not state directly, inferentially, or in any other way, that the action brought is one of those mentioned in Civ. Code, 72, the affidavit is fatally defective, and service by publication cannot be obtained thereon. Harris v. Claflin, 13 P. 830, 36 Kan. 543. An affidavit for publication is insufficient which does not state that the case is within Civ. Code, 72, enumerating the cases in which service by publication may be had. Grouch v. Martin, 27 P. 985, 47 Kan. 313. An at- tempted service of process by publication is insufficient, where the affidavit for publication does not state that plaintiff is unable to obtain personal service on defendant. Id. 42 Nicoll v. Midland Savings & Loan Co. of Denver, Colo., 21 Okl. 591, 96 Pac. 744. Affidavit for summons by publication, averring that whereabouts of de- (340) Art. 2) PROCESS 495 unless it is alleged that defendant is a nonresident; 48 mere conclu- sions or hearsay being insufficient. 44 An affidavit for service by publication that defendant is a non- resident of Oklahoma and a resident of another state, without show- fendants could not be known by affiant, that he had used due diligence and had made trips to find them, was insufficient, where facts as to due diligence used a? to service in the state were not set up. Rentie v. Rentie (Okl.) 172 P. 1083. Where an affidavit for notice by publication was fatally defective, the court obtained no jurisdiction over the person of defendants. Griffin v. Jones, 45 Okl. 305, 147 P. 1024. An affidavit filed for a notice of publication held insufficient, where it failed to allege any facts showing that defendants could not be served by the exercise of diligence, or that they 1 were not in the state. Id. Where an affidavit for service on a foreign corporation by publication did not show that such corporation had not complied with the laws relative to foreign corporations in appointing and designating agents on whom service might be had, nor state facts showing that due diligence had been used to obtain personal service a judgment rendered thereon was void. Nicoll v. Midland Savings & Loan Co. of Denver, Colo., 96 P. 744, 21 Okl. 591. Under Code Civ. Proc. 79 (Gen. St. 1909, 5672), which takes the place of section 73 of the old code, an affidavit for service by publication which wholly fails to show that plaintiff diligently inquired as to the residence of the defendants to be served by publication and was unable to learn same is void. Van Gundy v. Shewey, 133 P. 720, 90 Kan. 253, 47 L. R. A. (N. S.) 645. 4 3 An affidavit for service on nonresident by publication, otherwise suffi- cient, was not void or voidable because not stating facts showing that plaintiff in exercise of due diligence was unable to make service of summons. Con- tinental Gin Co. v. Arnold (Okl.) 167 P. 613, L. R. A. 1918B, 511. Where the element of nonresidence of defendant is absent, the affidavit for publication must either show proper active effort to find and serve him with- in the state or facts showing that such effort would be futile. Richardson v. Howard, 51 Okl. 240, 151 P. 887. Where defendant in a mortgage fore- closure is a nonresident, and plaintiff neither knows nor has reason to be- lieve that he may be served within the state, the affidavit for publication need not show active diligence to serve him within the state. Id. Where an affidavit for service by publication is otherwise sufficient, it is not void or voidable because 'facts are not stated therein showing that plain- tiff, by the use of due diligence, was unable to make service in the state. Harris-Lipsitz Co. v. Oldham, 56 Okl. 124, 155 P. 865. Affidavit that defendants are nonresidents, that plaintiff by due diligence 44 An affidavit for service by publication, which states that the defend- ant is a nonresident, as affiant is advised and informed, and that the de- fendant's last-known residence was Claremore, Okl., but that the defend- ant has left the said place, as affiant is informed and believes, is a mere hearsay declaration, insufficient as a basis for service by publication. Hol- land v. Holland (Okl.) 173 P. 1139. (341) 495 COMMENCEMENT OF ACTION (Ql. 9" ing that service could not be had on him in Oklahoma, is insuffi- cient. 45 An affidavit made some time after the petition is filed, which states that defendant resides out of the state and is a nonresident thereof is sufficient without relating back and averring that he was a nonresident at the time the petition was filed. 46 The affidavit may be made by an attorney. 47 AFFIDAVIT TO OBTAIN SERVICE BY PUBLICATION (Caption.) A. B., being duly sworn according to law, says: That he is the (agent, or attorney, for) above named plaintiff. That on the day of , 19 , he caused a summons to be issued in the above entitled cause against the above named is unable to make service of summons on them within territory, and that action is to quiet title to described land is sufficient to authorize service by publication. Gray v. Gray, 57 Okl. 667, 157 P. 730. An affidavit for service by publication that defendant is a nonresident 'of the state, and service cannot be had upon him therein, and otherwise suf- ficient, is valid, though not stating facts showing that service cannot be made by due diligence. Ballew v. Young, 103 P. 623, 24 Okl. 182, 23 L. R. A. (N. S.) 1084. Affidavit for service by publication held sufficient without stating the facts as to diligence used. Tolbert v. State Bank of Paden, 121 P. 212, 30 Okl. 403. An affidavit to obtain service by publication held to comply with the re- quirements of Rev. Laws 1910, 4722. Oates v. Freeman, 57 Okl. 449, 157 P. 74. Under Sess. Laws 1889, c. 107, 2, providing that an affidavit for service by publication must allege that plaintiff, with due diligence, is unable to make service of summons on defendant, an allegation that defendant is a nonresident of the state, and service cannot be had upon him within the state, is sufficient. Washburn v. Buchanan, 52 Kan. 417, 34 P. 1049. An affidavit for publication, alleging nonresidence, negatives a usual place of residence in the state where summons can be served, and personal ab- sence from the state precludes personal delivery of summons. Ennis v. Grimes, 102 P. 454, 80 Kan. 429. An affidavit for service of process by publication, filed on January 17, 1861, that defendant resided within the region of country known as "Pike's Peak," which was then within the territory of Kansas, shows on its face that de- fendant is not a nonresident of Kansas, and service on the ground of non- residence (Comp. Laws 1862, c. 26, tits. 4, 5; Code Civ. Proc. 1859) is un- authorized. Carey v. Reeves, 26 P. 951, 46 Kan. 571. 45 Fenton v. Burleson, 124 P. 1087, 33 Okl. 230. *6 Bogle v. Gordon, 17 P. 857, 39 Kan. 31. 47 Tolbert v. State Bank of Paden, 121 P. 212, 30 Okl. 403. (342) Art. 2) PROCESS 495-496 defendant C. D., but was unable with due diligence to make service of the same upon said defendant within said state. That the defendant, C. D., is a nonresident of the state of Okla- homa (or is a foreign corporation) having property in this* state, which plaintiff is seeking in this action to have taken by attach- ment (or, garnishment). That said defendant's last known place of residence was - (or, is unknown to this plaintiff). Affiant further says that this action is brought for (specify re- lief demanded), and that the said plaintiff wishes to obtain service on said defendant by publication ; v and further affiant saith not. A. B. Subscribed in my presence and sworn to before me this day of , 19 , Court Clerk, By , Deputy. 496. Divorce An affidavit for service by publication in divorce, that the where- abouts of defendant are unknown and her post office address can- not be ascertained by any means within affiant's control, carries a sufficient inference of diligent inquiry to save the affidavit from total insufficiency. 48 It is not necessary in a divorce case that the clerk of the district court should issue a summons, where service of summons is made by publication. 49 In a divorce case, where an affidavit is filed stat- ing that the residence of the defendant is unknown to the plaintiff, and cannot be ascertained by any means within the control of the plaintiff, in lieu of sending a copy of the petition and a copy of the publication notice to the defendant within three days after the date of the first publication, it is not necessary that the affidavit should be filed within the same period. 50 " Bell v. Bell, 156 P. 778, 97 Kan. 616. 4 Larimer v. Knoyle, 23 P. 487, 43 Kan. 338. sold. Code Civ. Proc. 640, provides that when, in a suit for divorce, service is made by publication, a copy of the petition with a copy of the notice attached shall be mailed to the defendant within three days after the first publica- tion, unless the plaintiff shall make and file an affidavit that the defendant's residence is unknown and cannot be ascertained. Held, that the affidavit need not be filed within three days after the first publication. Ensign v. Ensign, 26 P. 7, 45 Kan. 612. An affidavit for service by publication under Civ. Code Proc. 73 (Gen. (343) 497-498 COMMENCEMENT OF ACTION (Ql. 9 497. Order Where an affidavit was presented to obtain an order to serve defendants by publication which was granted and notice of publica- tion given, and a decree to quiet title was entered by default, the fact that 37 days intervened between the date when the affidavit was sworn to and when the order was made did not render the affi- davit stale in that the order should have been made on facts then shown to exist. 51 498. Publication notice Form "The publication must be made three (3) consecutive weeks in some newspaper authorized by ifiw to publish legal notices printed in the county where the petition is filed if there be any printed in such county, and if there be none, then in some such newspaper printed in this State' of general circulation in that county. It shall state the court in which the petition is filed, the names of the par- ties, or where unknown, shall describe them as the unknown heirs, executors, administrators, devisees, trustees and assigns of such person, or the unknown successors, trustees and assigns of such corporation and must notify the defendants thus to be served that he or they have been sued and must answer the petition filed by the plaintiff on or before a time to be stated (which shall not be less than forty-one (41) days from the date of the first publica- St. 1905, 4950), alleging that affiant was the plaintiff, that she had filed a petition against the defendant to obtain a divorce, that defendant was a nonresident of the state, and that plaintiff wishes to obtain service by publica- tion, is sufficient, and due publication of notice will confer jurisdiction to grant a divorce. Roberts v. Fagan, 92 P. 559, 76 Kan. 536. Civ. Code Proc. 73 (Gen. St. 1905, 4950), not requiring the residence of plaintiff to be stated in the affidavit for service by publication in divorce, such a statement is unnecessary. Id. An affidavit, in an action for divorce, as a basis for service by publica- tion, alleging that S. is the plaintiff and that defendant is not a resident of the territory, "but to the best of her knowledge and belief is a resident of , and that service of summons in this case cannot be had upon the said defendant in the territory," does not comply with Wilson's Rev. & Ann. St. 1903, 4377, and a judgment rendered thereon is void for want of juris- diction ; the affidavit failing to state what diligence was used, or the nature of the action, and that at the time of the making of the affidavit defend- ant was out of the territory. Cordray v. Cordray, 91 P. 781, 19 Okl. 36. o i Aherne v. Wa Keeney L,and & Investment Co., 108 P. 842, 82 Kan. 435. (344) Art. 2) PROCESS 498 tion), or the petition will be taken as true, and judgment, the na- ture of which shall be stated, will be rendered accordingly." ! A publication notice which advises defendant of the nature of the action and of his interest therein is sufficient. 53 A publication notice need not mention any of the defendants ex- cept those to be served by publication ; 5 J but the latter must be designated or described with reasonable certainty. 55 It is suffi- 52 Sess. Laws 1919, c. 145, 3, amending Rev. Laws 1910, 4725. A publication notice held to comply with the requirements of Rev. Laws 1910, 4725. Gates v. Freeman, 57 Okl. 449, 157 P. 74. A publication notice, which in its heading contains the name of the court and the county and state, which is attested by the clerk of the district court with the seal of the district court attached thereto, and which notice de- scribes the land as being in the same county named in the heading, when construed liberally, as required by Code, 4, is sufficient, so far as stating 4 the court in which the petition is filed, under the provisions of Code, 74. Townsend v. Burr, 60 P. 477, 9 Kan. App. 810. Newspaper. A newspaper published on each day of the week except Mon- day is a "daily newspaper." Alley v. City of Muskogee, 53 Okl. 230, 156 P. 315. Evidence held to show that a certain newspaper was a "newspaper of the county having general circulation therein." Hesler v. Coldron, 116 P< 787, 29 Okl. 216. Kansas rule. The notice required to obtain service by publication is not process within Const, art. 3, 17, or Code Civ. Proc. 700 (Gen. St. 1901, 5196), and need not bear the style "The State of Kansas," nor the seal of the court in which suit is pending, nor be signed or issued by the clerk. ; McKenna v. Cooper, 101 P. 662, 79 Kan. 847. That publication notices in divorce proceedings did not run in the name of the state did not render the divorces void. Gordon v. Munn, 125 P. 1, 87 Kan. 624, Ann. Cas. 1914A, 783, rehearing denied 127 P. 764, 88 Kan. 72, Ann. Cas. 1914A. 783. 53 Head v. Daniels. 15 P. 911, 38 Kan. 1. In an action to quiet title, a notice by publication which describes the real estate by the lot and block numbers of an addition to a city according to the recorded plat thereof, which plat designates the land by its proper gov- ernment subdivision, which had been of record for a number of years and recognized by the city and the public generally and acted upon by the author- ities for the purposes of taxation, sufficiently identifies the property affected to give the court jurisdiction as against defendant who might have impeached the plat as invalid. Oaldwell v. Bigger, 90 P. 1095, 76 Kan. 49. 54 Head v. Daniels, 15 P. 911, 38 Kan. 1. 55 Service of summons by publication on a married woman, who had borne the name of "Durham" for nearly 20 years, by her maiden name of "Morris," was invalid. Morris v. Tracy, 48 P. 571, 58 Kan. 137. In an action to quiet title, where the only attempt to obtain jurisdiction of Florence D. Whitney, an unmarried woman was by publication in which she was referred to as " Whitney, and Whitney, his wife, whose (345) 498-499 COMMENCEMENT OF ACTION (Cll. 9 1 cient, however, where the name contained in the notice aud the cor- rect name of the defendant are idem sonans. 58 PUBLICATION NOTICE (Caption.) The State of Oklahoma, to the Above Named Defendant, C. D. Greeting : You will take notice that you have been sued in the above named court by the above named plaintiff for (state relief asked for), and you must answer the petition filed therein by said plaintiff on or before the day of , 19 , or said petition will be taken as true and a judgment for said plaintiff will be rendered accord- ingly in the sum of dollars, and interest thereon at the rate of per cent, per annum from the day of , 19 , and costs, and in the attachment therein had and granted. , Court Clerk, By f Deputy. X. Y., Attorney for Plaintiff. 499. Mailing with petition "Where service by publication is proper a copy of the petition, with copy of the publication notice attached thereto, shall, within six days after the first publication is made, be inclosed in an envelope addressed to the defendant at his place of residence or business, postage paid, and deposited in the nearest post-office, unless the plaintiff shall make and file an affidavit that such residence or place of business is unknown to the plaintiff and cannot be ascertained by any means within the control of the plaintiff." 5T This statute is mandatory. 58 first names are unknown," without any other description, and where there was no appearance or waiver of summons, the court did not acquire juris- diction of her, and a judgment against her on such notice is void. Whitney v. Masemore, 89 P. 914, 75 Kan. 522, 11 L. R. A. (N. S.) 676, 121 Am. St. Rep. 442. ce A notice of publication of summons, describing a defendant whose name was Elizabeth D. Borthwick as Elizabeth D. Bothwick, was sufficient; the names being idem sonans. Barrel v. Neef, 102 P. 838, 80 Kan. 348. A default judgment quieting title based upon service made by publishing a notice which stated defendant's name as Joseph Remer is valid against Joseph Renner; the names being idem sonaus. Puckett v. Hetzer, 82 Kan. 726, 109 P. 285, 136 Am. St. Rep. 127. 57 Rev. Laws 1910, 4724. c s Rev. Laws 1910, 4724, requiring copy of petition with copy of nublica- (346) Art. 2) PROCESS 500 500. Proof of publication "Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in the preceding section; and such service shall be proved by the affidavit of the printer; or his foreman or principal clerk, or other person knowing the same. No judgment by default shall be entered on such service until proof thereof be made, and approved by the -court, and filed." 59 Where service is had upon a defendant by publication, and the affidavit of the printer does not show that the notice was published the requisite length of time before answer day, and the judgment founded upon such service is challenged for want of sufficient pub- lication, the court may examine copies of the newspaper in which the notice appeared, and also receive evidence of the publisher of the paper and other parties, to prove that the publication was had for a sufficient time to comply with the provisions of the statute. 60 An 'order approving service of publication on defendants after the evidence is submitted is not an abuse of discretion. 61 PROOF OF PUBLICATION (Caption.) G. H., of lawful age, being first duly sworn, on his oath, says : That he is the publisher (or editor) of the , a newspaper printed and of general circulation m county, state of Okla- homa, and that the notice by publication, a copy of which is hereto attached, was published in said paper for consecutive days (or weeks) the first publication thereof being on the day tion notice attached to be mailed to defendant's address within six days after first publication, unless plaintiff files affidavit that residence or place of business is unknown and cannot be ascertained, is mandatory. Stumpff v. Price TOkl.) 177 P. 109. Where there are iwo nonresident defendants, a copy of petition and publication notice addressed to them jointly at their place of residence does not comply with Rev. Laws 1910, 4724, as that shows service only on one defendant, and uncertainty to which makes pub- lication service prima facie void as to both, so that court did not acquire jurisdiction. Id. It is mandatory, and a condition precedent to the granting of a divorce. Rodgers v. Nichols, 83 P. 923, 15 Okl. 579. 59 Rev. Laws 1910, 4726. eo Robinson v. Hall. 5 P. 763, 33 Kan. 139. ei Earl v. Cotton, 96 P. 348, 78 Kan. 405. (347) 500-501 COMMENCEMENT OF ACTION (Ch. 9" of , 19 , and the last publication thereof being on the day of , 19. G. H. Subscribed and sworn to before me this day of , 19 .. X. Y., Notary Public. My commission expires , 19 . (Attach copy of publication notice.) DIVISION IV. EXEMPTION FROM SERVICE 501. Persons attending court Witnesses One attending court as a material witness or as a suitor in a coun- ty other than that of his residence is exempt from service of sum- mons in action brought in that county, though his attendance is not in obedience to a subpoena. 62 This exemption allowed a witness extends to the service of sum- mons on him in his representative capacity as managing officer or agent of a corporation. 63 * ezBearman v. Hunt (Okl.) 171 P. 1124; Rev. Laws 1910, 5064. A suitor who is in attendance, either in his own behalf or under process, outside the territorial judicial jurisdiction of his residence, is exempt from service of summons while in attendance on such court, or in going or re- turning therefrom. Bolz v. Crone, 67 P. 1108, 64 Kan. 570. Nonresident trustee in bankruptcy, appointed in Kansas, is exempt from service of summons while within the state to sell property under order of sale issued by referee in bankruptcy. Eastern Kansas Oil Co. v. Beutner, 101 Kan. 505, 167 P. 1061. A nonresident, while within the state to attend court as a witness and in actual attendance, is exempt from service of summons in a civil action. Gillmore v. Gillmore, 137 P. 958, 91 Kan. 293, 295, 51 L. R. A. (N. S.) 838, judg- ment modified on rehearing 139 P. 386, 91 Kan. 707, 51 L. R. A. (N. S.) 834. A resident of the state while in attendance on a federal court in a county other than that of his residence as a party is exempt from service of sum- mons in an action brought in that county. Underwood v. Fosha, 85 P. 564, 73 Kan. 408, 9 Ann. Cas. 833. A resident of the county while in attendance on a federal court in a coun- ty other than that of his residence as a material witness, though 'he is not under subpoena, is exempt from service of summons in an action brought in that county. Underwood v. Fosha, 85 P. 564, 73 Kan. 408, 9 Ann. Cas. 833. One who is in good faith attending court as a witness in a county other than that of his residence is exempt from service of summons in an action brought in that county, but if he is not a party to the litigation, and is not attending as a bona fide witness, he may be legally served with summons, and, where there is conflicting testimony as to whether he is attending court as a witness in good faith, the finding of the trial court that he did not da so is binding on him. Reiff v. Tressler, 120 P. 360, 86 Kan. 273. c3 Commonwealth Cotton Oil Co. v. Hudson, 62 Okl. 23, 161 P. 535. Officer of a foreign corporation, coming into state to testify in action (348) Art. 2) . PROCESS 501-502 Where defendant went voluntarily into another county on his private business, and was not going to, returning from, or attend- ing court under a subpoena, and was not in such county through any fraud or procurement of plaintiff, he was subject to service of summons in the county, in an action against him. 6 . 4 Nonresident plaintiffs who voluntarily come within the jurisdic- tion of courts to attend the trial of a suit commenced by them against citizens of the state are not exempt from service of sum- mons in an action by the defendants for relief connected with the suit when complete adjustment of rights of parties cannot be had in first action. 65 A nonresident, in the state to attend the taking of depositions in a cause to which he is party, is privileged from service of process, though he transacts other business; 66 but he loses his right to ex- emption if he transact other business, which was the controlling motive for his presence in state, and fails to leave within a reason- able time. 67 DIVISION V. OBJECTIONS AND AMENDMENTS 502. Motion to quash Form To contest the service of a summons, the proper motion is to set aside the service, not to dismiss the action. 68 wherein corporation is plaintiff, is privileged from service of summons in another action against corporation in county in which he is attending as wit- ness, although he is not subpoenaed. Lonsdale Grain Co. v. Neil (Okl.) 175 P. 823. Exemption allowed a witness, under Rev. Laws 1910, 5064, while actually attending court to testify, from service of summons in suit in a county in which he does not reside, extends to service of summons on him in his representative capacity as officer of a corporation. Id. Under Rev. Laws 1910, 5064, nonresident who in good faith comes into state to testify in cause is exempt from service of summons in civil action against him, or against corporation of which he is an officer, while coming, attending, and during a reasonable time for return. Id. e* Clark v. Willis, 44 Okl. 303, 144 P. 587. esLivengood v. Ball, 63 Okl. 93, 162 P. 768, L. R. A. 1917C, 905. ee Burroughs v. Cocke & Willis, 56 Okl. 627, 156 P. 196, L. R. A. 1916E, 1170. 67 Burroughs v. Cocke & Willis, 56 Okl. 627, 156 P. 196, L. R. A. 1916E, 1170. 68 Foster v. Markland, 14 P. 452, 37 Kan. 32. Where an action was begun by two and summons notified defendant of a suit by a named plaintiff and others, refusal to quash service of summons because of omission of name of other parties plaintiff was n v ot error. Kuy- kendall v. Lambert (Okl.) 173 P. 657. Under Code Civ. Proc. 701, providing that, when the sheriff is a party, the summons shall be directed to the coroner, a summons is irregular and (349) 502 COMMENCEMENT OF ACTION (Ch. 9 A summons issued before the petition is filed and service thereon should be quashed on motion. 69 Where it is shown without contradiction that defendant was a resident of the state, an affidavit for publication service should have been quashed ; 70 but a motion to quash service by publication should be overruled where plaintiff was entitled to make such serv- ice on a ground incidentally stated in the affidavit in terms not sufficiently specific as to facts. 71 A motion to set aside a service of summons by publication on a nonresident of the state, in an action which joins claims only per- sonal in their nature with claims affecting real estate situated in the state, will be sustained, if seasonably made. 72 Service by publication, based upon an affidavit which contains no reference to a defendant attempted to be served, will be set aside on motion of such defendant, subsequently made. 73 Where a person, by fraud and deceit, inveigles another into the jurisdiction of the court, for the purpose of suing him, and of ob- taining service of summons upon him in that jurisdiction, the sum- mons should be set aside. 74 A motion to quash, because defendant was given 22 days to an- swer, was properly overruled. 75 should be set aside on motion where it is directed to the sheriff but delivered to the coroner and served by him. Pelham v. Edwards, 26 P. 41, 45 Kan. 547. In a summons issued on a writ of error the names of the parties, "Patmor" and "Rombauer," were spelled "Palmer" and "Rambauer," respectively, but the summons was correct in other respects, was duly served on the attor- ney of record, and the errors were paused by no fault of plaintiff in error. Held, that the service will not be set aside on a motion filed more than four months afterwards, and more than one year after the rendering of the judg- ment complained of, and after the time for bringing a case to the Supreme Court has elapsed. Patmor v. Rombauer, 21 P. 284, 41 Kan. 295. Evidence as to the coming of one defendant into jurisdiction of county district court the commencement of action and service of process on him there, and subsequent service on other defendants in another county held not to show an abuse of judicial process. People's Nat. Bank of Kansas City v. Niquette, 103 Kan. 410, 493, 174 P. 581. 6Atchison, T. & S. F. Ry. Co. v. Lambert, 121 P. 654, 31 Okl. 300, Ann. Cas. 1913E, 329. TO Tolbert v. State Bank of Paden, 121 P. 212, 30 Okl. 403. 71 Richardson v. Howard, 51 Okl. 240, 151 P. 887. 72 Zimmerman v. Barnes, 43 P. 764. 56 Kan. 419. 73 Rawson v. Sherwood, 53 P. 69, 59 Kan. 776. 74 Van Horn v. Great Western Mfg. Co., 15 P. 562, 37 Kan. 523. 75 Armstrong v. May, 55 Okl. 539, 155 P. 238. (350) Art. 2) PROCESS 502-503 Where full hearing is given before trial on a motion to quash the service and the motion is overruled, it is not error to refuse to re- open the issue, and submit the question to the jury. 78 Where, upon a motion to set aside summons and service, evidence is offered, and judgment rendered "that such summons be, and the same is hereby, quashed and set aside, and declared null and void, at the costs of the plaintiff," and not objection or exception is made to the judgment, a motion for a rehearing thereof filed seven days after the adjournment of the term does not give the court jurisdic- tion to review such judgment; 77 but where a motion to set aside service on defendant is sustained, and a motion for rehearing is filed, the court, by continuing the hearing of that motion to the next term, may preserve jurisdiction to correct an error in its earlier rul- ing. 78 MOTION TO QUASH SUMMONS AND SERVICE AND RETURN THEREOF (Caption.; Special Appearance and Motion to Quash Service of Summons and Return Thereof Now comes the defendant, A. B., a corporation, and, appearing specially for the purposes of this motion only, moves the court to quash, set aside, and hold for naught the purported service of the summons and return thereof, upon this defendant, for the follow- ing reasons, to-wit : 1. Because said summons was not served and returned as re- quired by law. 2. Because said summons was not served upon any officer or agent of this defendant, or upon any other person upon whom service of summons might be lawfully made. , 'Attorneys for Defendant. For the'Purpose of This Motion Only. 503. Amendment Errors curable by amendment include clerical errors apparent by the record; 79 a return to a summons by a deputy sheriff in his own TO Conrath v. Johnston, 128 P. 1088, 36 Okl. 425. 77 Cannon v. Birney, 51 P. 298, 6 Kan. App. 188. 78 Dye v. Denver & R. G. R. Co., 101 Kan. 666, 168 P. 1087. 7 Summons was issued November 9, 1887. It designated the answer day to be the 9th day of December, 1887. It directed the sheriff to return it (351) 503-504 COMMENCEMENT OP ACTION (Ch. 9 name; 80 and the omission of the signature of the clerk from a summons otherwise regular. 81 Officers are allowed, with liberality, to amend their returns of service of process. 82 504. Where service by publication Where the jurisdictional facts exist, and the affidavit for publica- tion is defective in the statement of matters required by statute, it is amendable, even after judgment; but where there is a total want of an allegation in the affidavit of some material matter required by statute, the service is void, and 'the defect cannot be cured by amendment. 83 December 19, 1887, Instead of November 19, 1887. Held, that the summons was not void, but that the error which was apparent by the record could be corrected at any time. Alford v. Hoag, 54 P. 1105, 8 Kan. App. 141. 80 First Nat. Bank v. Ellis, 114 P. 620, 27 Okl. 699, Ann. Cas. 1912C, (587. si Aultman & Taylor Machinery Co. v. Wier, 74 P. 227, 67 Kan. 674. 82 Payne v. Long-Bell Lumber Co., 60 P. 235, 9 Okl. 683. A sheriff will be permitted to amend his return of process so as to make it conform to the facts. Jordan v. Johnson, 42 P. 415, 1 Kan. App. 656. Where an officer making return of service of summons inadvertently omits the date of service, the return may be amended by leave of court. Lee v. State, 47 Okl. 738, 150 P. 665. The summons directed the sheriff to summon James M. Hendry. The re- turn showed that he had duly served "James M. Dendry, the within-named defendant." Held, that the return could be amended, after the expiration of the sheriff's term of office, to show that he had in fact served the defendant, "James M. Hendry." Alford v. Hoag, 54 P. 1105, 8 Kan. App. 141. ss City Nat. Bank v. Sparks, 50 Okl. 648, 151 P. 225. Where jurisdictional facts necessary to warrant service by publication existed at commencement of action, and the affidavit for publication was defective only in stating inferentially or otherwise any matter required by statute to be alleged therein, it is amendable. Chaplin v. First Bank of Hitchcock (Okl.) 181 P. 497; Reister v. Land, 76 P. 156, 14 Okl. 34; Ham- merslough v. Hackett, 1 P. 41, 30 Kan. 57. Where defendants contended that an amendment to a proof of publication should be refused as not in furtherance of justice, on the ground that plaintiff had agreed to notify defendants' counsel of the time when suit would be brought, but the evidence failed to show any actual promise or refusal 1 of plaintiff to give such notice, it not being his duty to do so, held, that there was no ground for refusing the amendment Hackett v. Lathrop, 14 P. 220, 36 Kan. 661. An affidavit for service by publication, if voidable, may by leave of court be corrected after judgment by another affidavit showing that the requisite facts existed at the time of filing the original affidavit. Morris v. Robbins, 111 P. 470, 83 Kan. 335. Where the affidavit to procure notice by publication, under Code Civ. Proc. (352) Art. 3) APPEARANCE 505-507 505. Waiver of objections After presentation of a motion to dismiss because plaintiff im- properly named a resident of county as a defendant solely to give jurisdiction to serve movant, the real defendant, with summons in another county, it is too late to raise objection going merely to manner of service. 84 Defendant did not waive a fatal defect in the summons by con- fessing judgment on an interplea of a third party after his motion to quash the summons was overruled. 88 In trespass for abuse of legal process, subsequent irregularities in the action in which the process issued, for which the defendant was not responsible, cannot be considered to characterize the pre- vious wrongful acts. 88 ARTICLE III APPEARANCE Sections 506. For infant. 507. General appearance. 508. Special appearance. 509. Effect. 510. Waiver of process. 511. Objections Preservation and waiver. 506. For infant An infant defendant cannot waive issuance and service of sum- mons, nor can his guardian or any other person do so for him. 87 507. General appearance A general appearance is entered by any plea or proceeding which raises nonjurisdictional questions involving the merits, 88 regard- 74, is defective merely, the defect may be cured by amendment after pub- lication. Weaver v. Lockwood, 43 P. 311, 2 Kan. App. 62. See Appearance. s* Maynard v. State Bank of Lehigh, 105 Kan. 259, 182 P. 542. 85 State v. Parks, 126 P. 242, 34 Okl. 335. 88 Wurmser v. Stone, 40 P. 993, 1 Kan. App. 131. 87 Iowa Land & Trust Co. v. Dawson, 134 P. 39, 37 Okl. 593. Appearance cannot be made for an infant before service of process. Echols v. Reeburgh (Okl.) 161 P. 1065- 88 City Nat. Bank v. Sparks, 50 Okl. 648, 151 P. 225; Walton v. Kennamer, 136 P. 584, 39 Okl. 629; Haynes v. City Nat. Bank of Lawton, 121 P. 182, 30 Okl. 614 ; Kaw Life Ass'n v. Lemke, 19 P. 337, 40 Kan. 142, judgment af- HON.PL.& PRAC. 23 (353) 507 COMMENCEMENT OF ACTION (Oh. 9 less of the form of pleading as distinguished from the substance, 89 and though it be denominated a special appearance. 90 A general appearance is entered by an objection or filing of a motion based on both jurisdictional and nonjurisdictional grounds, 91 the filing of a motion before or after judgment, based on firmed 20 P. 512, 40 Kan. 661 ; Anderson v. Burchett, 30 P. 174. 48 Kan. 781 ; Wells v. Patton, 33 P. 15, 50 Kan. 732 ; Linney v. Thompson, 45 P. 456, 3 Kan. App. 718 ; Burnham v. Lewis, 70 P. 337, 65 Kan. 481 ; Burnham v. Lewis, 70 P. 337, 65 Kan. 481 ; Hanson v. Hanson. 122 P. 100, 86 Kan. 622. Where defendants appeared and submitted nonjurisdictional questions which could not be determined on special appearance, they recognized court's general jurisdiction and waived all irregularities in manner in which it ob- tained jurisdiction of their persons. Chicago, R. I. & P. Ry. Co- v. Austin, 63 Okl. 169, 163 P. 517. The defendant's presence and plea of not guilty gives the superior court jurisdiction of the person. Ripley v. State (Okl. Cr. App.) 190 P. 710. Where defendants summoned personally and those summoned by publica- tion service join in pleading] or motion raising questions of law and ques- tions of fact involved in general issue, general appearance is entered by all. Meador v. Manlove, 156 P. 731, 97 Kan. 706. Where in a will contest after probate, the contestants invoke the court's jurisdiction on the merits, this operates as a general appearance waiving right to attack the court's jurisdiction. In re Blackfeather's Estate, 54 Okl. 1, 153 P. 839. Where pending appeal to Supreme Court cause was transferred to district court pursuant to Laws 1913, c- 77, and Supreme Court's mandate was lodged in district court, and defendants appeared generally therein, they waived right to object to its jurisdiction, though chapter 77 was afterwards held un- constitutional. Chicago, R. I. & P. Ry. Co. v. Austin, 63 Okl. 169, 163 P. 517. A general appearance and plea to the merits give the court jurisdiction of the person of defendant. Anglo-American Packing & Provision Co. v. Turner Casing Co., 8 P. 403, 34 Kan. 340- 89 Lindley v. Hill, 58 Okl. 71, 158 P. 356; Hill v. Persinger, 57 Okl. 663, 157 P. 744; Edmondston v. Porter (Okl.) 162 P. 692. Where a defendant appears in court, and moves to dissolve the attach- ment on the merits of the proceedings, such as the insufficiency of the at- tachment affidavit, he enters a general appearance in the case. Raymond v. Nix, 49 P. 1110, 5 Okl. 656. 00 A defendant, who seeks to enter a special appearance in a cause by motion, and sets forth therein both jurisdictional and nonjurisdictional grounds for dismissal, makes a general appearance, and the fact that he called it a special appearance avails him nothing. Nichols & Shepard Co. v. Baker, 73 P. 302, 13 Okl. 1 ; Thompson v. Pfeiffer, 71 P. 828, 66 Kan. 368 ; St. Louis Cordage Mills v. Western Supply Co., 54 Okl. 757, 154 P. 640. ai Gorham v. Tanquerry, 48 P. 916, 58 Kan. 233 ; Ziska v. Avey, 122 P. 722, 36 Okl. 405. Where a defendant appears after judgment and moves to set same aside for want of jurisdiction, and because the petition failed to state a cause of (354) Art. 3) APPEARANCE 507 nonjurisdictional grounds; 92 also where he moves for and pro- cures a stay of execution after judgment, 93 the filing of a demur- action, and the action was not a proper .one for service by publication, it is, a general appearance. Willett v. Blake, 39 Okl.. 261, 134 P. 1109. Defendant corporation, by attacking a default judgment rendered against it by a petition for a new trial based in part on grounds not jurisdictional, thereby enters a general appearance, which waives any defect in the service of the summons. Neosho Valley Inv. Co. v. Cornell, 56 P. 475, 60 Kan. 282. A motion by defendant to set aside a judgment rendered against him which contains both jurisdictionai and noujurisdictional grounds constitutes a gen- eral appearance in the case. Barnett v. Holyoke Mut. Fire Ins. Co., 97 P. 962, 78 Kan. 630. A defendant who, in making a "special appearance to set aside the service of a summons," sets up and submits nonjurisdictional matters relating to the merits, thereby waives the service of summons and submits to the juris- diction. Frazier v. Douglass, 57 Kan. 809, 48 P. 36. Where a nonresident defendant, defectively served with notice, makes a special appearance challenging the jurisdiction, and invites an inquiry as to the sufficiency of a pleading on a matter involving the merits, he submits himself to the jurisdiction of the court, and waives any defect in the process. Thompson v. Pfeiffer, 71 P. 828, 66 Kan. 368- 02 By a general appearance to set aside a default judgment entered without jurisdiction of the person the judgment is validated. Welch v. Ladd, 116 P. 573, 29 Okl. 93. By a general appearance defects in service of summons are waived, though such appearance is only made on motion to vacate default judgment. Id. By a motion to set aside a default judgment not made on jurisdictional grounds but to let in a defense on the merits defendant enters a general ap- pearance. Welch v. Ladd, 116 P. 573, 29 Okl. 93. A defendant, who files a motion for new trial after judgment, based on nonjurisdictional grounds, enters a general appearance. Trugeon v. Gallamore, 117 P. 797, 28 Okl. 73. Action was tried March 12, 1906, before the United States commissioner acting as a justice of the peace. Judgment was not rendered till May 2, 1907 ; counsel urging him to render judgment from time to time. After its entry defendant filed an affidavit for appeal and caused the commissioner to trans- mit the transcript to the United States court, but failed to have the appeal docketed. November 15th it was docketed by plaintiff, and on its motion was affirmea, and judgment rendered against defendant. Held that, by appear- ing and filing affidavit for appeal and superseding the judgment, defendant entered appearance and could not complain of the jurisdiction of the com- missioner. Farmers' Nat. Bank of Vinita v. First Nat. Bank of Pryor Creek, 103 P. 685, 24 Okl. 140. Where on motion questions going to the jurisdiction are raised and also questions which can be raised only on a general appearance, the parties will be held to have entered the general appearance, so that defects in the service of the summons will be deemed waived, even though such appearance be made 3 Hahn v. Steinecke. 104 Kan. 660, 180 P. 204; Woodhouse v. Nelson Land & Cattle Co., 139 P. 356, 91 Kan. 823. (355) 507 COMMENCEMENT OF ACTION (Ql. 9 after judgment and on motion to vacate the same. Roger's v. McCord Collins Mercantile Co., 91 P. 864, 19 Okl. 115. A motion to set aside a sheriff's sale on foreclosure constitutes a person- al appearance in the foreclosure suit. Jones v. Standiferd, 77 P. 271, 69 Kan. 513. After decree entered against a defendant, based upon service by publica- tion, he appeared, and filed a motion to redeem the land in controversy from a lien fixed upon it in the judgment. Held, that this act was, in effect, an appearance in the suit, and that the validity of the judgment could not there- after be questioned in an action of ejectment by such defendant. Baker T. Agricultural Land Co., 61 P. 412, 62 Kan. 79. Where defendant objected to. a judgment by default being rendered on a supplemental petition, because no notice of the application for leave to file or of the filing of the supplemental petition had been given, and also because the supplemental petition did not state facts sufficient to constitute a cause of action, by challenging the sufficiency of the supplemental petition he made a general appearance to it; and, as no continuance or leave to plead was asked, the court did not err in rendering judgment. Carter v. Tallant, 32 P. 1108, 51 Kan. 516. A motion to vacate a judgment on nonjurisdictional grounds is general ap- pearance. Morgan v. Karcher (Okl.) 197 P. 433; First Nat. Bank of Newton v. Briggs, 50 P. 462, 6 Kan. App. 684 ; Lookabaugh v. Epperson, 114 P. 738, 28 Okl. 472 ; Kaw Xife Ass'n v. Lemke, 19 P. 337, 40 Kan. 142, judgment af- firmed 20 P. 512, 40 Kan. 661; Montgomery v. Wm. Cameron & Co., 49 Okl. 179, 152 P. 398 ; Pratt v. Pratt, 139 P. 261, 41 Okl. 577. Where an action against a decedent was revived in the name of his ad- ministrator, and the administrator thereafter asked to have a default set aside, held, that such appearance was a waiver of any right to insist that the court had no jurisdiction in the first instance over his decedent. Moses v. Hoffmaster, 67 P. 459, 64 Kan. 142. In an action on a note to foreclose a mortgage, the maker thereof having died, his administratrix and minor heirs were made parties and served. A decree was taken against the minors as on default. More than 12 years aft- erwards and 8 years after the youngest had reached majority, the heirs mov- ed to vacate the judgment, because they had not been legally served and the petition did not state a cause of action. Held, that the last ground of the motion constituted a general appearance, and cured any defective service of summons. Barnett v. Holyoke Mut. Fire Ins. Co., 97 P. 962, 78 Kan. 630. Where judgment was entered against defendants over whom the court did not have jurisdiction, and defendants voluntarily request the court-to open the judgment under Code Civ. Proc. 77 (Gen. St. 1901, 4511), With per- mission to plead, and the request is granted and pleadings are filed and issues made are rejected, all questions are waived, and the' parties are in court for all purposes. Aherne v. Wa-Keeney Land & Investment Co., 108 P. 842, 82 Kan. 435. Where, by the court's order, one is made a party to an action, and no prop- er summons is served upon him, his general appearance in an action to va- cate the judgment on nonjurisdictional grounds, as well as because of de- fects in the summons, waives all objection to the summons. Johnson Loan & Trust Co. v. Burr, 51 P. 916, 7 Kan. App. 703. (356) Art. 3) APPEARANCE 507 rer, 9 * the giving of a redelivery bond in replevin, 95 the giving of a bond to discharge garnishment, conditioned to pay any judgment against the defendant, 96 the giving of a bond for appeal to the dis- trict court in probate proceedings, 97 a request in court for an ex- tension of time or leave to plead or answer, 98 and an appearance to contest the right to the custody of children .in a divorce suit, 99 or to contest the right to amend the affidavit in attachment, 1 or to apply for a change of venue. 2 It is also entered where the de- fendant files a motion to make the petition more definite and cer- tain, joins in a stipulation that plaintiff may have time to amend, files a general denial, or files an answer to his codefendant's cross- petition. 3 A general appearance is not entered by the mere taking of depo- sitions not taken before the court. 4 An unauthorized appearance for a nonresident does not give ju- risdiction over him. 5 But where the attorney for the defendant in an action to quiet title enters an appearance for her without her 94 Kauter v. Entz, 61 P. 818, 8 Kan. App. 788. National Surety Co. v. Oklahoma Presbyterian College for Girls, 38 Okl. 429, 132 P. 652; Comp. Laws 1909, 5632; Fitzgerald v. Foster, 69 P. 878, 11 Okl. 558; Whitaker v. Hughes, 78 P. 383, 14 Okl. 510. 95 Fowler v. Fowler, 15 Okl. 529, 82 P. 923. Ferguson v. McKee, 125 P. 458, 33 Okl. 332; McCord-Collins Mercantile Co. v. Dodson, 121 P. 1085, 32 Okl. 561 ; T. D. Turner & Co. v. Same, 121 P. 1087, 32 Okl. 566. Bishop-Babcock-Becker Co. v. Hyde, 61 Okl. 250, 161 P. 172. 97 Where replevin is brought in the probate court, and defendant appeals to the district court on questions of law and fact, the district court then tries the case de novo and not as a court of review, and the giving of an appeal bond is an appearance waiving 1 any question as to jurisdiction over the person of defendant. Fowler v. Fowler, 82 P. 923, 15 Okl. 529 ; Deming Inv. Co. v. Love, 31 Okl. 146, 120 P. 635. 98 Anderson v. Burchett, 30 P. 174, 48 Kan. 781; Lookabaugh v. Epperson, 114 P. 738, 28 Okl. 472. 99 Abercrombie v. Abercrombie, 67 P. 539, 64 Kan. 29. 1 Burnham v. Lewis, 70 P. 337, 65 Kan. 481. 2 A defendant who appears in court and applies for a change of venue, and thereafter answers to the merits of the action, and goes to trial without ob- jection, cannot question the jurisdiction as to his person, even though a defense on that ground be included in his answer. Linney v. Thompson, 45 P. 456. 3 Kan. App. 718- 3 Wetmore State Bank v. Courter, 155 ,P. 27, 97 Kan. 178. 4 Bentz v. Eubanks, 4 P. 269, 32 Kan. 321 ; Bentz v. Eubanks, 4 P. 269, 32 Kan. 321. 5 Mortgage Trust Co. of Pennsylvania v. Cowles, 45 P. 605, 3 Kan. App. 660. (357) 507 COMMENCEMENT OF ACTION (Ch. 9 consent and judgment is rendered in her favor, either she or her grantee may ratify such appearance and become entitled to the benefits of the judgment in the absence of any previous repudiation by her of the unauthorized appearance. 6 Where an attorney is directed by his client to enter a special ap- pearance, yet in doing so he honestly pleads matter operating as a general appearance, the client is bound thereby. 7 An agreement to appear in an action and waive service of sum- mons does not confer jurisdiction, as by voluntary appearance, even where it was filed at the same time as the petition. 8 Defendants appearing by counsel, without specially limiting their appearance, to resist the granting of a temporary injunction, are in court for all purposes without the issuance of a summons. If a party to an action over which the court has obtained no ju- risdiction presents himself and becomes a party to the proceeding, he thereby waives the jurisdiction, but such appearance must be in some matter before the court. 10 Where a default judgment is rendered without summons or upon 6 Plummer v. Ash, 133 P. 157, 90 Kan. 40. 7 McNeal v. Gossard, 74 P. 628, 68 Kan. 113. 8 Prescott v. Farmers' Nat. Bank, 53 P. 769, 9 Kan. App. 886. An agreement signed by defendants 16 days prior to the filing of the pe- tition, "We hereby consent that this -tase may be tried in N. county district court, and accordingly enter our appearance in this case in said N. county district court, and waive the issuance of summons," and filed with the pe- tition, did not constitute an appearance, within the statute. Bradley, Wheel- er & Co. v. Harwi, 42 P. 411, 2 Kan. App. 272. 9 Arment v. Dodge City, 154 P. 219, 97 Kan. 94. 10 Hentig v. Redden, 16 P. 820, 38 Kan. 496. After the issues were joined in an action on a foreign judgment, defend- ant died, and plaintiff presented his claim to his executors who rejected the same. The court allowed plaintiff to amend his petition, and gave defend- ants 30 days in which to answer. The petition set up the death of the de- fendant, the appointment of the executors, and the presentation and rejec- tion of the claim. The executors filed a general appearance. Held, that such appearance was a submission to jurisdiction and waived a formal revivor. Brown v. Hillman, 116 P. 775, 29 Okl. 205. Where defendant enters a general appearance in the case without first at- tacking the service by publication, on the ground of the defect in the affi- davit for publication, he waives such defect. Raymond v. Nix, 49 P. 1110, 5 Okl. 656. The voluntary general appearance of the defendant is equivalent to the personal service of summons, and where it has been made by a nonresident defendant it is error to enter an ex parte order permitting him to withdraw (358) Art. 3) APPEARANCE 507-508 fatally defective process, defendant, during that term, may appear by motion and have the judgment vacated on that ground, and that the motion contains matters constituting a general appearance does not render order vacating the judgment erroneous. 11 Filing a suit constitutes submission to the jurisdiction for all purposes within the petition. 12 508. Special appearance Any plea or proceeding which raises jurisdictional questions only is a special appearance, 18 and will not give the court jurisdiction over defendant's person. 14 An appearance to be special must be shown to be such by proper designation. 15 Where a court has no jurisdiction and the defendant appears spe- cially to call attention to such irregularity and the court overrules his motion to such jurisdiction, he may save his exception, file his answer, and proceed to trial without waiving such error; and he his appearance. Insurance Trust & Agency v. Failing, 71 P. 826, 66 Kan. 336; Same v. Green, Id. A voluntary appearance, so as to be equivalent to a service of summons, is made by defendant signing a paper, entitled in the cause, waiving service of. summons and entering an appearance in the action, whether the same is tiled with the petition or afterwards, or in term time or vacation. Judgment 53 P. 769, 9 Kan. App. 886, reversed. Salina Nat. Bank v. Prescott, 57 P. 121, 60 Kan. 490. Fried v. First Nat. Bank (Okl.) 176 P. 909. 12 Humphreys v. Smith (Okl.) 197 P. 155. 13 City Nrit. Bank v. Sparks, 50 Okl. 648, 151 P. 225. A motion to set aside an order confiscating property held not a "general appearance." Bishop v. Fischer, 145 P. 890, 94 Kan. 105, Ann. Cas. 1917B, 450. A defendant who appears specially, and moves to dismiss an action against him on jurisdictional grounds, does not thereby enter a general appearance in the case. Thompson v. Greer, 64 P. 48, 62 Kan. 522. Where defendants merely move to dismiss the action on the ground that the court has no jurisdiction of them, because there has been no service of summons, and limit their appearance to the purpose of the motion, the ap- pearance is special, and gives the court no jurisdiction of the persons of defendants. Anglo-American Packing & Provision Co. v. Turner Casing Co., 8 P. 403, 34 Kan. 340. By moving to set aside a judgment on the ground that no proper service was had on defendant, the latter makes a special appearance only. Green v. Green, 22 P. 730, 42 Kan. 654, 16 Am. St. Rep. 510. For form, see Motion to Quash, ante, 502. 14 City Nat. Bank v. Sparks, 50 Okl. 648, 151 P. 225. Green v. Green, 22 P. 730, 42 Kan. 654, 16 Am. St. Rep. 510. 16 Drennan v. Warbul-ton, 122 P. 179, 33 Okl. 561. (359) 508-509 COMMENCEMENT OF ACTION (Ch. 9 may take advantage of such error on appeal ; 1S but, where he files a cross-petition and asks for affirmative relief, he submits his person to the jurisdiction of the court for all purposes of the entire ac- tion. 17 When a defendant files a plea in the nature of a plea in abate- ment, which questions the jurisdiction of the court over the per- son of the defendant, and such defendant, without requesting or ob- taining a ruling upon such plea, voluntarily obtains leave of court, and files his answer to the merits of the case, the filing of such an- swer waives the special plea to jurisdiction, and amounts to a gen- eral appearance in the case for all purposes. 18 A judgment having been entered against one of several defend- ants, who had not been served, and had not entered an appearance, a motion by him to modify and vacate the judgment as against him will not render the judgment valid as to him, though, in addition to stating that the court had acquired no jurisdiction of his person, the motion recites that the judgment was entered as it was by mis- take and inadvertence, and that the judgment actually rendered by the court did not affect the party moving for a modification of the entry. 19 509. Effect A general appearance by giving a bond to discharge a garnish- ment converts the action from one in rem to one in personam. 20 In a creditor's action against the state bank examiner, an appear- 18 Chicago Bldg. & Mfg. Co. v. Pewthers, 63 P. 964, 10 Okl. 724; Same v. Kirby, 63 P. 966, 10 Okl. 730 ; Jones v. Chicago Bldg. & Mfg. Co., 64 P. 7, 10 Old. 628; Mortgage Trust Co. of Pennsylvania v. Norris, 54 P. 283, 8 Kan. App. 699 r St. Louis & S. F. R. Co. v. Clark, 87 P. 430, 17 Okl. 562. 17 F. C. Austin Mfg. Co. v. Hunter, 86 P. 293, 16 Okl. 86; Thompson v. Greer, 64 P. 48, 62 Kan. 522. Where the attorney for a railroad company takes part in the trial of a case in which it is defended under protest, after his motion to quash the summons has been overruled, he having made a special appearance to test the validity of the service, there is no such appearance as will give th(. court jurisdiction of the person of defendant if the service is in fact invalid. Dick- erson v. Burlington & M. R. R. Co., 23 P. 936, 43 Kan. 702. 18 Winfield Nat. Bank v. McWilliams, 60 P. 229, 9 Okl. 493. 19 First Nat. Bank of Newton v. Wm. B. Grimes Dry-Goods Co., 26 P. 56, 45 Kan. 510. 20 Bishop-Babcock-Becker Co. v. Hyde, 61 Okl. 250, 161 P. 172. (360) Art. 3) APPEARANCE 509-511 ance by the commissioner to defend the suit did not make the state a party consenting to the action. 21 The application of the trustees under the will of a deceased per- son to be let in to defend will not render effective for any purpose a void judgment against such person rendered after his death. 22 510. Waiver of process A general appearance waives all defects in the summons and confers jurisdiction for all purposes. 23 No summons need be issued where a voluntary general appear- ance is entered. 24 Hence, where a motion to quash service of sum- mons is overruled and not excepted to, and upon application mov- ant files his answer, service of summons is waived and movant is properly in court. 25 Likewise, where no summons was issued by defendant on the filing of its motion to set aside the judgment, plaintiff's appearance at the hearing and his participation therein operated as a waiver of the issuance and service of summons. 26 511. Objections Preservation and waiver Where a defendant appears specially and objects to the jurisdic- tion, he may, when his motion is denied, file his answer without making a general appearance, unless in his answer he asks for af- firmative relief, in which case his appearance is general. 27 21 Lankford v. Schroeder, 47 Okl. 279, 147 P. 1049. 22 Morris v. Winderlin, 142 P. 944, 92 Kan. 935. 23 Hanson v. Hanson, 122 P. 100, 86 Kan. 622; Ziska v. Avey, 122 P. 722, 36 Okl. 405 ; Turk v. Mayberry, 121 P. 665, 32 Okl. 66. Where after judgment against a grantee on the warranty, and over against her grantor, the grantor moved for a new trial, he thereby entered a general appearance and validated the judgment regardfess of any defect in the proof of service of the notice to warrantor prescribed by Comp. Laws 1909. 1205, and in the absence of service of summons on him. Clarkson v. Washington, 38 Okl. 4, 131 P. 935. Where a defendant appears after judgment and moves to set same aside for want of jurisdiction, and because the petition failed to state a cause of action, and the action was not a proper one for service by publication, it is a waiver of his right to question the court's jurisdiction to render the judg- ment. Willett v. Blake, 39 Okl. 261, 134 P. 1109. Guardian cited to show cause why he should not be discharged by entering general appearance waives all defects in citation. In re Byrd, 122 P. 516, 31 Okl. 549. 24 Wetmore State Bank v. Courter, 155 P. 27, 97 Kan. 178. 25 Tracy v. State, 60 Okl. 109, 159 P. 496. 26 Continental Gin Co. v. Arnold (Okl.) 167 P. 613, L. R. A. 1918B, 511. 27 Shufeldt v. Jefcoat, 50 Okl. 790, 151 P. 595; Vann v. Missouri, K. & T.. (361) 511 COMMENCEMENT OF ACTION (Ch. 9 Where defendant appears specially to challenge the court's juris- diction over the person and saves exceptions to an adverse ruling, he may file his answer and proceed to trial without*waiving such error. 28 Where an objection to service by publication in a case begun by garnishment is properly overruled, jurisdiction to render a personal judgment against the defendant, after trial on the merits, is confer- red by his answer, notwithstanding right to review a ruling on ob- jection was preserved. 29 Any plea or proceeding which raises nonjurisdictional questions involving the merits waives all questions as to regularity of the service, 30 but does not waive any irregularities in the proceedings and judgment which may deprive them of a substantial right. 31 In action by a Seminole freedman to quiet title to her allotted lands, where, on suggestion of her death, the court, without notice to defendants, revived the action in the name of her father, enrolled as a Creek, who filed supplemental pleadings, the irregularity in making the order of revival was waived by defendants' general ap- pearance. 32 Ry. Co. (Kan.) 176 P. 652; Bes Line Const. Co. v. Schmidt, 85 P. 711, 16 Okl. 429; Bes Line Const. Co. v. Taylor, 85 P. 713, 16 Okl. 481. Where defendant, after the overruling of his objections to jurisdiction, voluntarily demands affirmative relief, he waives his objection. Win. Camer- on & Co. v. Consolidated School Dist. No. 1 of Kiowa County, 44 Okl. 67, 143 P. 182. Filing of answer claiming damages after overruling of special appearance held a general appearance waiving any error in overruling a special appear- ance. Hamra v. Fitzpatrick, 55 Okl. 780, 154 P. 665. Where a nonresident defendant in attachment, after denial of his motion to discharge the attachment, answered and filed cross-action, it thereby enter- ed a general appearance and waived its objection to the court's jurisdiction. Southwestern Broom & Warehouse Co. v. City Nat. Bank, 52 Okl. 422, 153 P. 204. Where defendant, after denial of motion to quash service, answered and ask- ed for affirmative relief, he waived any defect in the service of publication. Oates v. Freeman, 57 Okl. 449, 157 P. 74 ; Hill v. Persinger, 57 Okl. 663, 157 P. 744. 28 St. Louis & S. F. R. Co. v. Reed, 59 Okl. 95, 158 P. 399. 29 Dye v. Denver & R. G. R. Co., 101 Kan. 666, 168 P. 1087. 80 City Nat. Bank v. Sparks, 50 Okl. 648, 151 P. 225 ; Valley Abstract Co. v. Page, 141 P. 416, 42 Okl. 365. 31 Griffin v. Jones, 45 Okl. 305, 147 P- 1024. 32 Dickinson v. Abb (Okl.) 176 P. 523. (362) Ch. 10) CONTINUANCE AND DISMISSAL 512 CHAPTER X CONTINUANCE AND DISMISSAL Sections 512-526. Article I. Continuance. 527-539. Article II. Dismissal. ARTICLE I CONTINUANCE Sections 512. When granted Discretion. 513. Stipulation. 514. Grounds Illness of party. 515. Accident or mistake. 516. Amendment of pleading. 517. Absence of counsel. 518. Depositions. 519. Absence of witness. 520. Surprise at trial. 521. Admissions to prevent continuance. 522. Offer to confess judgment. 523. Application and affidavit Forms. 524. Time of making. 525. Further continuances. 526. Objections Waiver. 512. When granted Discretion "The court may, for good cause shown, continue an action at any stage of the proceedings -upon such terms as may be just; provided, that, if a party, or his attorney of record, is serving as a member of the Legislature, or of the Senate, sitting as a court of impeachment, or within ten days after an adjournment of a session of the Legis- lature, such fact shall constitute cause for continuance, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right. When a continuance is granted on account of the absence of evidence it shall be at the cost of the par- ty making the application unless the court otherwise order." x t i Sess. Laws 1915, p. 556, 1, amending Rev. Laws 1910, 5044, effective March 22, 1915 ; McMahan v. Norick, 69 P. 1047, 12 Okl. 125. For additional grounds for continuance, where a litigant or his attorney is (363) 512-513 CONTINUANCE AND DISMISSAL (Ch. 10 The granting or refusal of a motion for a continuance is ad- dressed to the trial judge's sound discretion, 2 and a continuance should be granted only when clearly in furtherance of justice. 3 Where facts and circumstances tend to cast doubt as to the truth of matters averred in affidavits supporting a motion for a continu- ance, or to raise a judicial suspicion that the motion was made for mere delay and to hinder the administration of justice, there is no abuse of discretion in denying the continuance. 4 The act of a trial judge in stating to counsel off the bench and be- fore a motion for a continuance has been presented that the motion would be overruled, while not commendable, is not sufficient to show an abuse of discretion in overruling the motion. 6 513. Stipulation Plaintiff's motion for a continuance founded upon an alleged oral agreement of counsel made out of court, but denied by defendant's counsel, is properly refused, the court not being bound by such agreements, especially where counsel differ as to what the agree- ment actually was. 6 Where there was an agreement between coun- sel that the testimony of certain witnesses in another case should be transcribed and used as a deposition in the present case, and the party in whose favor the testimony was given relied on the agree- ment and did not procure the attendance of the witnesses, such tes- timony should have been admitted, though objected to, or a contin- uance should have been granted. 7 a member of the Legislature, see Sess. Laws 1919, p. 374, amending Sess. Laws 1915, c. 236, 1. 2 Scott v. Iman (Okl.) 176 P. 81 ; Columbian Nat. Life Ins. Co. v. Wirthle (Okl.) 176 P. 406 ; Priest v. Quinton (Okl.) 171 P. 1113 ; Walton v. Kennamer, 136 P. 584, 39 Okl. 629 ; Fire Ass'n of Philadelphia v. Farmers' Gin Co., 39 Okl. 162, 134 P. 443. s Jennings Co. v. Dyer, 139 P. 250, 41 Okl. 468. * Economy Hog & Cattle Powder Co. v. Bilby, 104 Kan. 769, 180 P. 735. It is not error to refuse to continue a case on defendant's request, in the absence of any showing that he could not be ready for trial. Clark v. Elli- thorpe, 51 P. 940, 7 Kan. App. 337. s Crutchfield v. Martin, 117 P. 194, 27 Okl. 764. e Clark v. Dekker, 23 P. 956, 43 Kan. 692. 7 Cherokee & P. Coal & Mining Co. v. Wilson, 28 P. 178, 47 Kan. 460. (364) Art. 1) CONTINUANCE 513-514 STIPULATION FOR CONTINUANCE (Caption.) It is hereby stipulated and agreed by and between the parties to this action that this cause may be continued (at the cost of ), to the term of this court, subject to the approval of the court. G. H., Attorney for Plaintiff. X. Y., Attorney for Defendant. 514. Grounds Illness of party "A motion for a continuance, on account of the absence of evi- dence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be ; and if it is for an absent witness, the affidavit must show where the witness re- sides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. If thereupon, the adverse party will consent that on the trial the facts alleged in the affidavit shall be read and treated as the dep- osition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affi- davit, no continuance shall be granted on the ground of the absence of such evidence." 8 It was not error to refuse a continuance on the ground of defend- ant's sickness, which had already lasted a year, without a showing of probability that he could attend court within a reasonable time ; 9 nor was it error to refuse a continuance asked by one of two defend- ants sued as co-partners, where the only showing was that defend- ant, who was a nonresident of the state, desired to attend the trial, but was unable to do so on account of sickness. 10 Where an application for a continuance on the ground that the ap- plicant is prevented from attending on account of his sickness is supported only by the certificate of a physician, and no affidavit is filed by the physician, or any other person having personal knowl- s Rev. Laws 1910, 5045 ; Martin v. Hubbard, 121 P. 620, 32 Okl. 2. That the president of a corporation plaintiff was sick was not ground for a continuance. Jennings Co. v. Dyer, 139 P. 250, 41 Okl. 468. Cohn v. Clark, 48 Okl. 500, 150 P. 467, L. R. A. 1916B, 686. 10 Paulucci v. Verity, 40 P. 927, 1 Kan. App. 121. (365) 514-516 CONTINUANCE AND DISMISSAL (Ch. 10 edge that the party is unable to attend court, the ruling of the court refusing a continuance will not be reversed ; 1X but where an appli- cation for a continuance is made on the ground of an absence of a party to the action, and it is shown by the affidavit of a physician that she is unable to attend on account of serious sickness, and the .attorney for the party makes an affidavit showing that she is a ma- terial witness, and that her presence at the trial is necessary, it was an abuse of discretion to deny the application for a continuance. l2 515. Accident or mistake The denial of a continuance sought because of the absence of plaintiff, who was an important witness, was an abuse of discretion, where his absence was due to being informed by his counsel that the" case would be dismissed on his motion, which motion was de- nied. 13 A motion by plaintiff for a continuance when the case was called for trial in her absence should have been granted on a showing that plaintiff intended to be present, and that a failure to attend was due to the miscarriage of a letter written by her attorney. 1 * 516. Amendment of pleading "When either party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise", that the ad- verse party could not be ready for trial, in consequence thereof, a continuance may be granted to some day in term, or to another term of the court." 15 11 Harlow v. Warren, 17 P. 159, 38 Kan. 480. A postponement of a trial on account of the absence of defendant, who, it was alleged, was unable to attend by reason of personal injuries, was asked for by his counsel. In the affidavit for continuance the inability of defend- ant to attend was shown, and it was stated that no defense could be made without his personal attendance. There had been a previous trial, and it was not shown that defendant had a bona fide defense, or that he was a witness to any material fact, or possessed of any knowledge not shared by his coun- sel. Held, that the overruling of the motion was not such an abuse of discre- tion as to justify a reversal. Beard v. Mac-key, 32 P. 921, 51 Kan. 131. Evidence held to justify court's decision that the defendant's sickness, made the ground of an application for a continuance, was only feigned, and that the application was merely to hinder the administration of justice. Ladd v. Flato, 102 Kan. 312, 169 P. 958. 12 McMahan v. Norick, 69 P. 1047, 12 Okl. 125. is Cox v. Kirkwood, 139 P. 980, 41 Okl. 704. n Helm v. Veils, 49 P. 662, 58 Kan. 816. is Rev. Laws 1910, 4793. (366) Art. 1) CONTINUANCE 516 Where the issues are closed for ten days before the case is set for trial by the filing of a pleading or by the lapse of time by failure to plead, the statute ceases to operate, and the subsequent filing of amended pleadings not changing the issues or prejudicing the com- plaining party will not necessarily work a delay of the trial. 16 A cause may not be delayed by reason of an amendment except on good cause shown by the affidavit of the party asking the delay showing distinctly in what respect he has been prejudiced by the amendment. 17 A continuance on account of a formal amendment of the petition is not a matter of right. 18 The denial of a continuance sought because of an amendment to the petition is not error, in the absence of a showing of surprise, 19 or the need of unanticipated testimony to meet a new question. 20 Surprise is not sufficient ground for a continuance, unless the sur- prise is such as cannot be obviated by the exercise of ordinary care and due diligence on the part of the party asking for the continu- ance. 21 Where an amended petition was filed by leave of court, setting up additional claims for relief against defendants who had not answer- ed the original petition, it was error to refuse to continue as to said defendants for additional service, and to dismiss said action as to them, since the plaintiff was entitled to additional time in which to notify such defendants of the additional allegations against them. 22 is Ham v. Missouri State Life Ins. Co. (Okl.) 173 P. 214; Rev. Laws, 1910, 5043. i? Diebold Safe & Lock Co. v. Holt, 46 P. 512, 4 Okl. 479. is Union Pac. Ry. Co. v. Motzner, 55 P. 670, 8 Kan. App. 431; State Bank of Downs v. Abbott, 104 Kan. 344, 179 P. 326 ; Thompson v. Aultman & Tay- lor Mach. Co., 146 P. 1188, 94 Kan. 453. i Lewis v. Bandy, 45 Okl. 45, 144 P. 624 ; Parsons Water Co. v. Hill, 26 P. 412, 46 Kan. 145. 20 Chandler v. Parker, 70 P. 368, 65 Kan. 860. Where the plaintiff sues on various items of account and damage, and the defendant answers, admitting some of the claims, and denying others, and setting up various items of counterclaim, to which plaintiff replies with a gen- eral denial, and the parties go to trial, and, after the plaintiff has rested, the defendant is allowed to file an amendment setting up an entirely new item of counterclaim, the plaintiff should be allowed time to plead to said amend- ment, or to procure evidence thereon. Vale v. Trader, 48 P. 458, 5 Kan. App. 307. 21 Missouri, K. & T. Ry. Co. v. Horton, 119 P. 233, 28 Okl. 815. 22 Woodruff v. Albright, 62 P. 250, 10 Kan. App. 113. (367) 517-519 CONTINUANCE AND DISMISSAL (Ch. 10 517. Absence of counsel Absence of counsel is not a statutory ground for a continuance, and the grant or refusal of a continuance therefor is within the dis- cretion of the court. 23 518. Depositions On objection to depositions because not filed one day before trial, the court on its own motion may continue the cause. 2 * Where depositions are suppressed because when received through the mail, the envelope inclosing them was found torn open, it is error to refuse a continuance ; it appearing that the defective condition in which the depositions were received was not caused by any neglect of^the party taking the same. 25 519. Absence of witness The continuance of a case for the absence of a witness is in the discretion of the trial court. 26 After a case has been called for trial, and both parties have an- nounced themselves ready, and evidence has been introduced, an application for a continuance to send to another county to procure a witness is properly denied. 27 It is proper to overrule a,ri application for a continuance which 23 Pool v. Riegal, 46 Okl. 5, 147 P. 1193. Denial of a continuance, sought for absence of counsel, held not error, where the motion was unverified, and did not show that the absent counsel was the sole counsel, or the facts as to his absence, or effort made to procure other counsel. Id. Defendants' application for a continuance on the ground that one of their attorneys was a member of the Legislature and could not be present at the trial because the Legislature was in session was properly denied. Berry v. Dewey, 172 P. 27, 102 Kan. 593. Denial of motion for continuance, on ground of absence of counsel by rea- son of illness, held not an abuse of the trial court's discretion, where party was represented by two able lawyers present. Snyder Co-op. Ass'n v. Brown (Okl.) 172 P. 789. 24 Kepley v. Dingman, 130 P. 284, 36 Okl. 771. 25 Order of United Commercial Travelers of America v. Barnes, 82 P. 1099, 72 Kan. 293, 7 Ann. Cas. 809, affirming judgment 80 Pac. 1020. 26 Missouri Pac. Ry. Co. v. Haynes, 42 P. 259, 1 Kan. App. 586. A motion for a continuance, after the beginning of the trial, to procure wit- nesses to support movant's credibility, is addressed to the discretion of the court. McCann v. McCann, 103 P. 694, 24 Okl. 264. 27 Butt v. Carson, 48 P. 182, 5 Okl. 160. (368) Art. 1) CONTINUANCE 519-520 does not show that diligence has been exercised in endeavoring to procure the absent witnesses. 28 It is not an abuse of discretion to deny a continuance for the ab- sence of a witness whose deposition the applicant has not attempted to procure, though the witness was not amenable to or served with a subpoena but promised to appear and testify. 29 A motion for continuance for absent witnesses is properly over- ruled, where the proposed testimony shown is immaterial to the issues. 30 There was no abuse of discretion in refusing an application of a corporation defendant for a continuance to procure attendance of its president, who had absented himself with knowledge that the case had been set for trial. 31 520. Surprise at trial Denial of a continuance on the ground of surprise from a state- ment by plaintiff's counsel in examining jurors, which statement was claimed to disclose ground for removal to the federal court, was not error where plaintiff's attorney expressly denied the exist- ence of any such ground, and the undisputed evidence showed that no such ground existed. 32 Where on the trial of a civil action, one party introduces evidence tending to impeach the character for veracity of the other party, 28 Swope v. Burnham, 52 P. 924, 6 Okl. 736 ; Terrapin v. Barker, 109 P. 931, 26 Okl. 93 ; Standifer v. Sullivan, 30 OkL 365, 120 P. 624 ; Berry v. Dewey, 102 Kan. 392, 170 P. 1000 ; King v. King, 141 P. 788, 42 Okl. 405 ; Missouri, O. & G. Ry. Co. v. Vandivere, 141 P. 799, 42 Okl. 427 ; Clark v. Dekker, 23 P. 956, 43 Kan. 692. Where a sale was made on May 7th, and a motion to set it aside was filed October 1st, a continuance to allow the person making the motion to procure testimony was properly denied. McDonald v. Citizens' Nat. Bank of Con- cordia, 51 P. 289, 58 Kan. 818. 29 Wood v. French, 136 P. 734, 39 Okl. 685. There was no error in refusing an application for a continuance because of the absence of a witness living in another county, who, the application show- ed, was sick and unable to attend, where no effort had been made to procure the deposition of this witness until four days before the trial, and after the case was assigned for trial. Gill v7 Buckingham, 52 P. 897, 7 Kan. App. 227. so Standifer v. Sullivan, 30 Okl. ,365, 120 P. 624; Title Guaranty & Surety -Co. v. Slinker, 128 P. 696, 35 Okl. 128; Id., 128 P. 698, 35 Okl. 153. si Garner v. Dodge City Wholesale Grocery Co., 102 Kan. 5, 169 P. 219. 32 St. Louis & S. F. R. Co. v. Long, 137 P. 1156, 41 Okl. 177, Ann. Cas. 1915C, 432. HON.PI-.& PRAC. 24 521-523 CONTINUANCE AND DISMISSAL (Ch. 10 and the party sought to be impeached thereupon requests, and the court allows, a delay in the trial to enable the impeached party to obtain witnesses in rebuttal of such impeachment, and thereupon the other party, to save time, withdraws the impeaching evidence, and the court orally instructs the jury to disregard such evidence, it is not error for the court to revoke the order for (delay and to at once proceed with the trial. 88 521. Admissions to prevent continuance Where a party opposing a continuance asked for on ground of the absence of a material witness admits that the witness, if present, would testify as stated in the moving affidavit, the trial court com- mits no error in refusing the continuance. 34 Where the defendant's depositions were quashed, and he moved for a continuance, and filed an affidavit of diligence, and made the depositions which had been quashed a part of his affidavit, and plaintiff elected to go to trial and to admit the affidavit, the deposi- tions were as much a part of the affidavit as though they had been copied on the paper containing the balance of the affidavit. 35 A party who agreed that statements contained in an application for a continuance could be read as the deposition of an absent wit- ness, was not entitled to impeach such testimony by showing prior statements of the witness. 36 522. Offer to confess judgment The making of an offer to confess judgment shall not be a cause for a continuance of an action or a postponement of the trial. 37 523. Application and affidavit Forms "A motion for a continuance, on account of the absence of evi- dence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is ss Gulliford v. McQuillen, 89 P. 927, 75 Kan. 454. s* Chandler v. Colcord, 32 P. 330, 1 Okl. 260. See Rev. Laws 1910, 5045, post, 528; Sanford v. Gates, 16 P. 807, 38 Kan. 405. 35 Bell v. Lloyd, 74 P. 242, 67 Kan. 859. ' se National Council, Knights and Ladies of Security, v. Owen, 47 Okl. 464, 149 P. 231. 37 Rev. Laws 1910, 5302. (370) Art.l) CONTINUANCE 523 for an absent witness, the affidavit must show where the witness re- sides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. If thereupon, the adverse party will consent that on the trial the facts alleged in the affidavit shall be read and treated as the depo- sition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affi- davit, no continuance shall be granted on the ground of the absence of such evidence." 88 38 Rev. Laws 1910, 5045. Diligence. An application for a continuance for newly discovered evidence must show due diligence and that there is a probability of procuring the tes- timony of the witnesses within a reasonable time. Murphy v. Hood & Lum- ley, 73 P. 261, 12 Okl. 593 ; Crutchfield v. Martin, 117 P. 194, 27 Okl. 764 r Fisher v. State (Okl. Or. App.) 196 P. 724 ; Board of Regents of Kansas State Agricultural College v. Linscott, 1 P. 81, 30 Kan. 240; Kilmer v. St. Louis, Ft. S. & W. R. Co., 14 P. 465, 37 Kan. 84. Statement of facts. Where a continuance is sought because of an absent witness, the applicant must clearly show in the application where the witness resides, if he knows, the probability of procuring his testimony within a rea- sonable time, and that the facts affiant believes he will prove are true. St. Louis & S. F. R. Co. v. Cox, 109 P. 511, 26 Okl. 331 ; Terrapin v. Barker, 109 P. 931, 26 Okl. 93 ; Clouston v. Gray, 28 P. 983, 48 Kan. 31. Materiality. Affidavit on motion for continuance to procure additional evi- dence to rebut plaintiff's evidence, containing no statement of any material evidence which movant would have offered in view of movant's failure to in- troduce alleged evidence at the argument after a postponement, did not au- thorize a continuance. Columbian Nat. Life Ins. Co. v. Wirthle (Okl.) 176 P. 406 ; Terrapin v. Barker, 109 P. 931; 26 Okl. 93 ; Chas. T. Derr Const. Co. v. Gelruth, 120 P. 253, 29 Okl. 538. Belief of facts. He must show that he believes to be true the material facts which he believes the witness would prove. -Wood v. French, 136 P. 734, 39 Okl. 685. Probability of procuring evidence. The affidavit for continuance for the absence of material witnesses should contain a statement of the facts show- ing the probability of procuring the evidence of such witnesses. Creek Coal Mining Co. v. Paprotta (Okl.) 175 P. 235 ; Fisher v. State (Okl. Cr. App.) 196 P. 724. Verification. The denial of a continuance on the ground that applicant de- sired to attend the trial as a witness, but was prevented by sickness in his family, was not error, where no one with knowledge of sickness swore to ei- ther certificate or application. Berry v. Dewey, 172 P. 27, 102 Kan. 593. (371) 523 CONTINUANCE AND DISMISSAL (Ch. 10 MOTION FOR CONTINUANCE (Caption.) Comes now the plaintiff, A. B., and moves the court to grant him a continuance of the above-entitled cause until the next term of this court, for the reason that (set out reasons). And in support of this motion, the affidavit of is attached hereto, marked Exhibit A, and made a part hereof. X. Y., Attorney for Plaintiff. (Attach affidavits.) AFFIDAVIT FOR CONTINUANCE (Caption.) State of Oklahoma, County of A. B., being first duly sworn, upon oath says: That he is the plaintiff in this action; that C. D. is a material witness for this plaintiff, without the benefit of whose testimony de- ponent cannot safely proceed to the trial of said action ; that said witness is absent; that he has been duly subprenaed; that he resides in the county where the above case is pending; that his testimony is material ; that such witness is not absent by the per- mission, directly or indirectly, of this applicant; that he expects that he will be able to procure the testimony of such witness at the next term of this court ; that this application for a continuance is not made for the purpose of delay, but to enable him to procure the testimony of such absent witness ; that there is no other witness by whom he can prove the same facts ; that deponent expects to prove by said absent witness the following facts : (Stating same.) (Set forth any other material facts as to cause of absence of witness, etc.) Subscribed and sworn to before me this day of , 19. (Jurat.) JOURNAL ENTRY OF ORDER GRANTING CONTINUANCE (Caption.) Now on this day of , 19 , this cause comes on for hearing on the motion of plaintiff for a continuance of the above- entitled cause until the next term of this court, said cause having (372) Art. 1) CONTINUANCE 523~526 been heretofore regularly set for trial on this date, the plaintiff ap- pearing by his attorney X. Y., and the defendant appearing by his attorney, G. H., and the court, upon consideration of said motion and affidavits presented in support thereof and oral testimony heard, and being fully advised in the premises, finds that said plaintiff would be prevented from having a fair and impartial trial on ac- count of the absence of material evidence which he has used due diligence to obtain, and that it is probable that said evidence may be produced by plaintiff at the next term of this court; and the said defendant, having refused to consent that on the trial the facts alleged in the affidavit of plaintiff for a continuance might be read and treated as the deposition of the absent witness. It is therefore by the court ordered that this cause be and the same is hereby continued to the next term of this court, and that the costs of such continuance shall be taxed against said plaintiff. , Judge. 524. Time of making An application for continuance should be made without delay. 30 Where, by a rule of court, a party desiring the continuance of a cause is required to make his application therefor on the first day of the term, or show cause why he has not done so, it is not er- ror for the court to overrule such an application made during the term, if no such showing is made. 40 525. Further continuances The denial of a continuance was not an abuse of discretion, where the cause had been continued three times on practically the same grounds and it did not appear that a further continuance would be to any advantage. 41 526. Objections Waiver By withdrawing his answer and demurring to the petition and electing to stand on his demurrer after the overruling thereof, 30 in an action by an administrator, there was no abuse of discretion in re- fusing a postponement of the trial, in order that defendant might have a hear- ing upon his application to revoke the letters of administration; the applica- tion not having been filed in the probate court until the day of the trial, al- though the suit had been pending for nearly six months. Livermore v. Ayres, 119 P. 549, 86 Kan. 50. 40 Lesh v. Meyer, 66 P. 245, 63 Kan. 524. *,i Weems v. Melton, 47 Okl. 706, 150 P. 720. (373) 527 CONTINUANCE AND DISMISSAL (Ch. 10 a defendant waives the error in overruling his previous application for a continuance on account of the absence of witnesses. 42 ARTICLE II DISMISSAL Sections 527. Dismissal without prejudice. 528. Right Discretion. 529. Involuntary Discretion Grounds. 530. Process Pleadings Non-compliance with order. 531. Continuance. 532. Want of prosecution. 533. Forms Motion to dismiss Order. 534. Reinstatement, 535. Dismissal without order of court. 536. Parties. 537. Dismissal as to part of defendants. 538. Trial of Counterclaim after dismissal. 539. Jurisdiction subsequent. 527. Dismissal without prejudice "An action may be dismissed, without prejudice to a future ac- tion: "First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court. "Second. By the court, where the plaintiff fails to appear on the trial. "Third. By the court, for the want of necessary parties. "Fourth. By the court, on the application of some of the defend- ants, where there are others whom the plaintiff fails to prosecute with diligence. "Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action. "Sixth. In all other cases, upon the trial of the action, the deci- sion must be upon the merits." 43 42 Day v. Mooney, 41 P. 142, 3 Okl. 608. 43 Rev. Laws 1910, 5125. Dismissal of action under Rev. Laws 1910, 5125, is judgment, and requires order of court. Mullen v. Noah, 64 Okl. 181, 166 P. 742. Authority given plaintiff by Rev. Laws 1910, 5126, to dismiss without order of court does not deprive court of power to inquire into means by which motion was ob- tained. Id. Gen. St. 1897, c. 95, 393, provides that plaintiff may dismiss his action (374) Art. 2) DISMISSAL 528-529 528. Right Discretion The right of the plaintiff to dismiss his action without prejudice at any time before the final submission of the same is absolute. 4 * But, where the plaintiff has submitted his case by introducing evi- dence and filing a written brief, and the court has taken the case under advisement and has considered the merits, the plaintiff can- not as a matter of right dismiss his action without prejudice. 45 Where the evidence is closed, the jury have returned their find- ings, and the case is ready for judgment, there is a "final submis- sion" of the case. 46 After the trial court sustains a demurrer to the plaintiff's evi- dence, it is within its discretion to set aside such order and allow the cause to be dismissed by the plaintiff without prejudice. 47 529. Involuntary Discretion Grounds Whether it is an abuse of discretion to refuse to continue an ac- tion and to dismiss the case for want of prosecution and to refuse to without prejudice before the final submission of the case to the jury or to the court, where the trial is by the court. In actions to set aside a will, a jury acts merely for the purpose of advising the court, which may refuse to accept their findings. In such an action, the court submitted to the jury certain particular questions of fact, which covered part of the issues of the case. After the jury had answered the questions, plaintiff asked leave to dismiss the action without prejudice, which was denied. Thereupon the court pro- ceeded, after the jury was discharged, to hear testimony on another issue not passed on by the jury. Held, that it was error to refuse to permit a dismissal. Osborne v. Davies, 57 P. 941, 60 Kan. 695. 44 New Hampshire Banking Co. v. Ball, 48 P. 137, 57 Kan. 812. Under Rev. I>aws 1910, 5033, 5125, the refusal of the court to permit the plaintiff below, after the introduction of the evidence, to dismiss without prejudice, to which it excepted, was error. Boardman Co. v. Board of Com'rs of Atoka County (Okl.) 174 P. 272. *5 Warner v. Warner, 112 P. 97, 83 Kan. 548. 46 Dickerman v. Crane, 57 P. 305, 8 Kan. App. 795. *7 Hutchison v. Brown (Okl.) 167 P. 624. Where demurrer to the evidence was sustained, and the jury discharged, and a motion for new trial overruled, and judgment rendered against plain- tiff, the court had power thereafter, at the same term, on motion of plaintiff, to vacate the judgment and grant .plaintiff's motion to dismiss without prej- udice and render a new judgment against him for costs. Missouri Pac. Ry. Co. v. Berry, 98 P. 204, 79 Kan. 19. Where a court is considering a demurrer to plaintiff's evidence, and giving reasons why it will have to be sustained, it is error to overrule an application by plaintiff to dismiss without prejudice. Pugsley v. Chicago, R. I. & P. Ry. Co., 77 P. 579, 69 Kan. 599. (375) 529 CONTINUANCE AND DISMISSAL (Ch. 10 reinstate it depends on the particular facts, and is not governed by any general rule. 48 A motion for a nonsuit is available in cases tried to the court without a jury. 49 While the plaintiff has a right to dismiss without prejudice, a defendant, brought into court by summons, has no right to de- mand that the action be dismissed as to any proper party plaintiff. 5 * Where both parties claim to own and be in possession of real estate, the subject of an action to quiet title, and pray for judg- ment and introduce evidence presenting questions of law and fact, it is error to dismiss the action. 51 The trial court, in the exercise of its discretion, may dismiss an action without prejudice after it has sustained a demurrer to the evidence and heard and overruled a motion for a new trial. 62 When the question of jurisdiction was properly presented and it appeared that a local defendant was sued to subject a nonresident defendant to litigation in the county where the suit was brought, the nonresident was entitled to a dismissal. 53 In the absence of a showing of prejudice, a petition filed in the office of the clerk of the district court will not be dismissed because entitled in, and by the clerk given, the same docket number as a former case between the same parties which had been -finally closed in that court. 54 The question of the ownership of notes sued on cannot be raised by a motion to dismiss. 55 It is indispensable, to give a court jurisdiction in attachment pro- ceedings, that there should be personal service of the summons in the action upon the defendant, or that the order of attachment be levied upon property of the defendant, or that an order of gar- 48 Bane v. Cox, 88 P. 1083, 75 Kan. 184. 49 Lyon v. Lyon, 39 Okl. Ill, 134 P. 650. eo Roberts v. Tomlinson, 57 P. 1060, 9 Kan. App. 85. si Wilkinson v. Mears, 94 P. 136, 77 Kan. 273; Inman v. Same, 94 P. 136, 77 Kan. 853. 52 National Hotel Co. v. Crane Bros. Mfg. Co., 31 P. 682, 50 Kan. 49, fol- lowing Ashmead v. Ashmead, 23 Kan. 262. C3 Majkemson v. Edwards, 101 Kan. 269, 166 P. 508. P4 Allison v. Bryan, 109 P. 934, 26 Okl. 520, 30 L. R. A. (N. S.) 146, 138 Am. St. Rep. 988. 66 Waldock v. Winkler, 51 Okl. 485, 152 P. 99, (376) Art. 2) DISMISSAL 530-531 nishment should be served upon a garnishee having property in his possession belonging to the defendant, or who is indebted to such defendant, otherwise any proceedings taken in the cause are coram non judice and void, and the cause must be dismissed. 56 530. Process Pleadings Noncompliance with order An action will not be dismissed, on motion of defendant, because there was no service of summons on him within 60 days from the fil- ing of a petition. 57 In an original action in the supreme court, where the parties sub- mit the case on the pleadings, and the pleadings fail to disclose a right of recovery in plaintiff, a judgment of dismissal and for costs will be entered. 68 Where the court directs that plaintiff amend his petition by strik- ing out irrelevant and redundant allegations the court may, on plaintiff's refusal to so amend, dismiss the action. 58 Likewise, where the court properly sustained a motion to require three causes of action set out in a petition to be separately stated and numbered, on the refusal of the plaintiff to comply with the order, a dismissal of the action was not error. 60 An action against an agent and trustee for money for which he had not accounted after demand was properly dismissed on failure of plaintiff to comply with an order to make the petition definite by stating approximately the date of demand. 61 531. Continuance When a continuance is granted as to one member of a defendant partnership, and plaintiff refuses to proceed with the trial against the other and recover a separate judgment, there is no error in dis- missing the action as to him, without prejudice. 62 It is error for the district court to dismiss an appeal from a 56 Central Loan & Trust Co. v. Campbell Commission Co., 49 P. 48, 5 Okl. 396, judgment reversed 19 S. C. 346, 173 U. S. 84, 43 L. Ed. 623. ST Green v. McCracken, 67 P. 857, 64 Kan. 330. ss Territory v. Jacobs, 70 P. 197, 12 Okl. 152. 59 Drake v. First Nat. Bank of Ft. Scott, 7 P. 219, 33 Kan. 634. o Burdick v. Carbondale Inv. Co., 80 P. 40, 71 Kan. 121. i Null v. Potts, 157 P. 415, 98 Kan. 1. 62 Clark v. Dekker, 23 P. 956, 43 Kan. 692. (377) 532-533 CONTINUANCE AND DISMISSAL (Ch. 10 justice of the peace, because the record fails to show that a continu- ance for more than 90 days was with the consent of the parties. 03 532. Want of prosecution A case should be dismissed without prejudice where the plaintiff fails to appear, and defendant does not file a counterclaim or set- off. 64 Where specifications and charges for disbarment were' filed and a referee was appointed, who filed a report, and where the com- plainant, after the matter was called to his attention by the referee, took no action, the proceeding will be dismissed for want of prose- cution. 65 When an application for a writ of prohibition had been made, and time extended to the petitioner in which to file briefs, and the same are not filed within such time, the application may be dismissed for want of prosecution. 66 Where, after issue joined, the parties enter into and file a stipula- tion that the case shall be submitted to the court without a jury, to be decided upon documents then on file, and to be taken up by the court at its pleasure, without reference to the presence of attorneys of either party, and the court's attention is called to the stipulation, it is error for the court thereafter, in the absence of plaintiff's at- torney, to dismiss the action for want of prosecution. 67 533. Forms Motion to dismiss Order MOTION TO DISMISS (Caption.) Now comes the said defendant, and moves the court to dismiss the above-entitled action for want of prosecution for the reason that the plaintiff failed to appear at the time said cause had been regularly set down for trial, to wit, on the day of . 19. X. Y., Attorney for Defendant. es Rhyne v. Manchester Assur. Co., 78 P. 558, 14 Okl. 555. ** Kansas City, W. & N. W. R. Co. v. Walker, 32 P. 365, 50 Kan. 739. so In re Townsend (Okl.) 168 P. 218. ee Seargeant v. Cullison, 38 Okl. 154, 132 P. 345. c7 Lardner v. Windle, 45 P. 945, 4 Kan. App. 175. (378) Art. 2) DISMISSAL 533-534 ORDER (Caption.) Now on this day of , 19 , this cause comes on for hearing on the motion of the defendant to dismiss said action for want of prosecution, ,and it appearing to the court that said cause has heretofore been regularly set down for hearing on this date, and the plaintiff failing to appear on the trial to prosecute ' said cause, either in person or by attorney. It is by the court ordered and adjudged that said cause be and the same is hereby dismissed at the cost of plaintiff, without prejudice to a future action. , Judge. MOTION TO DISMISS FOR WANT OP JURISDICTION (Caption.) Now comes the said defendant for the purpose of this motion only, and not appearing herein for any other purpose, and moves the court to dismiss this action upon the ground that it has no jurisdiction of the defendant, for the reason that no service of sum- mons, either actual or constructive, has been made upon said de- fendant, and said defendant has not appeared herein except for the purpose of this motion. X. Y., Attorney for Defendant, For the Purpose of This Motion Only. 534. Reinstatement Within the term of court, the trial court or judge may vacate an order or judgment dismissing an action at plaintiff's cost, and may order the cause reinstated and grant time to file amended plead- ings. 68 If an order of dismissal has been entered, but is afterwards, at the same term, set aside, and the cause continued for a further hearing, the court does not thereby lose jurisdiction of the parties. 69 A cause may be reinstated after dismissal without service of a es Mulcahy v. City of Moline, 171 P. 597, 101 Kan. 532, 102 Kan. 531 ; Chinn v. Bretches, 22 P. 426, 42 Kan. 316. 6 Hutchinson Salt & Stock Yards Co. v. Baldridge. 36 P. 1005, 53 Kan. 522. (379) 534-535 CONTINUANCE AND DISMISSAL (Ch. 10 new summons, where the order of reinstatement is made at the same term and while the opposing counsel is in court. 70 Where the plaintiff's action is dismissed, but the case is continued as to defendant's counterclaim, the court has no authority, at a subsequent term, before the issues raised by the counterclaim have been tried, to reinstate plaintiff's action upon motion. 71 A motion to set aside a dismissal having been overruled, a court cannot, three months thereafter, set aside the order, and reinstate the case. 72 A cause having been dismissed for want of prosecution, and ap- plication filed to reinstate the cause for unavoidable casualty, the court should exercise a wise discretion, and where it clearly appears by affidavits that the party was unavoidably absent, that his de- fense was meritorious, that he appeared immediately after the time set for trial and before adjournment, and was unavoidably absent, the case should be reinstated. 78 Where a case has been set for trial, and the attorneys absent themselves from the courtroom, and during their absence the case is reached and dismissed for want of prosecution, and the only show- ing is that they left the room a short time before the noon adjourn- ment, believing the case on trial would last the remainder of that session, it is not error to refuse to reinstate the same. 74 If an action is dismissed and afterwards reinstated, and a trial thereof had, no error can be predicated on the dismissal. 75 535. Dismissal without order of court "A plaintiff may, on the payment of costs and without an order of court, dismiss any civil action brought by him at any time be- fore a petition of intervention or answer praying for affirmative relief against him is filed in the action. A plaintiff may, at any time before the trial is commenced, on payment of the costs and without any order of court, dismiss his action after the filing of a petition of intervention or answer praying for affirmative re- 70 Pierce v. Shelton, 144 P. 219, 93 Kan. 189. 71 Rumsey v. Kiowa Town Co., 53 P. 886, 7 Kan. App. 674. 72 Kauter v. Fritz, 47 P. 187, 5 Kan. App. 756. 73 Aultman-Taylor Machinery Co. v. Caldwell, 78 P. 319, 14 Okl. 472. 74 Kline v. Higday, 79 P. 774, 15 Okl. 137. 75 Howe v. Parker, 90 P. 15, 18 Okl. 282. (380) Art. 2) DISMISSAL 535 lief, but such dismissal shall not prejudice the right of the inter- venor or defendant to proceed with the action. Any defendant or intervenor may, in like manner, dismiss his action against the plain- tiff, without an order of court, at any time before the trial is be- gun on payment of the costs made on the claim filed by him. All parties to a civil action may at any time before trial, without an order of court, and on payment of costs; by agreement, dismiss the action. Such dismissal shall be in writing and signed by the party or his attorney, and shall be filed with the clerk of the district court, the judge or clerk of the county court, or the justice, where the action is pending who shall note the fact on the proper record : Provided, such dismissal shall be held to be without prejudice, un- less the words 'with prejudice' be expressed therein." 76 A dismissal complying with this statute becomes effective im- mediately on the filing of same, without an order of court." Before a motion by plaintiff to dismiss the cause can become ef- fective, it is necessary that all costs accumulated up to the time of the filing of the motion be paid. 78 76 Rev. Laws 1910, 5126; Davis v. Mimey, 60 Okl. 244, 159 P. 1112. Filing by defendants of motion to dismiss signed by plaintiff did not oper- ate as dismissal under Rev. Laws 1910, 5126, where on hearing trial court found that plaintiff did not understand effect of motion and wished to con- tinue action. Mullen v. Noah, 64 Okl. 181, 166 P. 742. In an action on an attachment undertaking by the assignee of defendant in the attachment for damages against the sureties, it appeared that the prin- cipal on the undertaking, who was not made a party, had a judgment against defendant in the attachment, obtained in the attachment action, greatly in ex- cess to the alleged damages, which was unpaid, and that defendant in the at- tachment was insolvent. Held that, after the principal had been made a par- ty and had filed an answer setting forth such facts, it was not error to refuse to allow plaintiff to dismiss his action against the principal, so that he might proceed against the sureties alone. Gerson v. Hanson, 9 P. 230, 34 Kan. 590. 77 Stuart v. Hicks, 52 Okl. 665, 153 P. 143; Davis v. Mimey, 60 Okl. 244, 159 P. 1112. A cause held effectively dismissed without prejudice on the date on which plaintiff filed a written dismissal thereof, though subsequent thereto defend- ant filed a stipulation of dismissal with prejudice obtained from plaintiff prior to dismissal by him. Stuart v. Hicks, 52 Okl. 665, 153 P. 143. 7 s Oklahoma City Land & Development Co. v. Patterson (Okl.) 175 P. 934; Davis v. Mimey, 60 Okl. 244, 159 P. 1112 ; Interstate Crude Oil Co. v. Young, 118 P. 257, 29 Okl. 465. In ejectment, and to clear title to land, where C. filed a cross-petition set- ting up his interest, and thereafter filed a written dismissal of cross-petition, but paid no part of costs, there w,as no dismissal as to him and the court did (381) 535-538 CONTINUANCE AND DISMISSAL (Ch. 10 VOLUNTARY DISMISSAL (Caption.) Comes now the above-named plaintiff and dismisses this action, at his cost, without prejudice to a future action. G. H., Attorney for Plaintiff. STIPULATION TO DISMISS (Caption.) It is hereby stipulated and agreed by and between the parties hereto, that the above-entitled action be dismissed, at the cost of plaintiff (or defendant) with (or without) prejudice to a future ac- tion. G. H., Attorney for Plaintiff. X. Y., Attorney for Defendant. 536. Parties Where the trustees of a church sue for specific performance, and two of them move to dismiss, contrary to the wishes of the members of the church, the court did not err in allowing the suit to proceed under the direction of the other trustees elected to their place. 78 537. Dismissal as to part of defendants Plaintiff can, before trial, dismiss as to one of the defendants without affecting the liability of the codefendants. 80 The filing of an amended petition omitting the name of one de- fendant and not referring to or adopting any part of the original petition operates as a dismissal as to the defendant omitted. 81 538. Trial of counterclaim after dismissal "In any place where a set-off or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his not err in overruling his motion to reinstate the case. Cowokochee v. Chap- man (Okl.) 171 P. 50. Plaintiff has the right, after payment of costs, to dismiss his action, with- out an order of court at any time before trial is commenced, but the filing of the preecipe without paying of costs is not a dismissal of the action. State v. Pitchford (Okl.) 171 P. 448. 7 Berry v. Second Baptist Church of Still water, 130 P. 585, 37 Okl. 117. so Edwards v. Kenstrom, 65 P. 249, 63 Kan. 883. si Rogers v. Bass & Harbour Co., 47 Okl. 786, 150 P. 706. (382) Art. 2) DISMISSAL 538-539 claim, although the plaintiff may have dismissed his action or failed to appear." 82 Where one filed a written dismissal, which the court refused to set aside, the rendering of a final judgment, without giving him his day in court as a defendant, and upon the issues joined upon the allegations of his answer and cross-petition was error. 83 When a defendant files a cross-petition against a codefendant, his right to have such cross-petition tried is not affected by the dis- missal of the petition by the plaintiff as to such codefendant. 84 In a suit to have two deeds adjudged mortgages and for an ac- counting, wherein judgment was entered declaring the deeds to be mortgages and the hearing on the accounting was continued, plaintiffs' motion to dismiss their action for accounting was proper- ly overruled, where it appeared that defendant had rights which should be determined in the action in which the deeds were de- clared to be mortgages. 85 An answer setting up limitations against the foreclosure of a mortgage, followed by a prayer for the cancellation of the mort- gage, and the quieting of defendant's title to the mortgaged premis- es, is not a set-off or counterclaim, so as to entitle the defendant to a trial notwithstanding the dismissal of the action by the plain- tiff. 86 539. Jurisdiction subsequent When a motion to dismiss is made by the plaintiff and called to the attention of the court, its jurisdiction over the parties and the subject-matter is at an end, except to render and enter a formal or- der of dismissal. 87 82 Rev. Laws 1910, 5127; Wyman v. Herard, 59 P. 1009, 9 Okl. 35. Where plaintiff in ejectment dismisses his cause of action after defendant has filed a counterclaim claiming an interest in the land and asking affirma- tive relief, defendant has a right to proceed to trial upon such counterclaim. Long v. Bagwell, 38 Okl. 312, 133 P. 50. ss Cowokochee v. Chapman (Okl.) 171 P. 50. s* Kolp v. Parsons, 50 Okl. 372, 150 P. 1043. 85 Holmes v. Holt, 136 P. 246, 90 Kan. 774, judgment affirmed on rehearing 139 P. 1030, 92 Kan. 254, and affirmed on second rehearing 142 P. 369, 93 Kan. 7. e Corlett v. Mutual Ben. Life Ins. Co., 55 P. 844. 60 Kan. 134. 87 N ew Hampshire Banking Co. v. Ball, 51 P. 899, 59 Kan. 55. (383) 540 PLEADINGS (Ch.ll CHAPTER XI PLEADINGS Sections 540-544. Article I In general. 545-553. Article II. Rules of pleading. 554-561. Article III. Rules for construing pleadings. 562-587. Article IV. Petition. 562. Division I. In general. 563-579. Division II. Contents, form, sufficiency, and construction. 580-585. Division III. Joinder, splitting, consolidation, and severance. 586-587. Division IV. Exhibits and prayer. 588-637. Article V. Answer. 588-602. Division I. Answer in general. 603-606. Division II. General denial. 607-615. Division III. Verified denial. 616-635. Division IV. Counterclaim and set-off. 636-637. Division V. Unauthorized pleas. 638-645. Article VI. Reply. 646-648. Article VII. Filing and subscribing. 649-660. Article VIII. Amended and supplemental pleadings. 661-664. Article IX. Defects and objections. 665-702. Article X. Motions and orders thereon. 665-673. Division I. Motions in general. 674-678. Division II Orders. 679-702. Division III. Particular motions. 703-721. Article XI. Demurrer. 722-733. Article XII. Issues, proof, and variance. 722-728. Division I. Issues. 729-732. Division II. Proof. 733. Division III. Variance. ARTICLE I IN GENERAL Sections 540. Defined. 541. Pleadings allowed. 542. Nature, how determined. 543. Caption Forms. 544. Counties. 540. Defined "The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses." x i Rev. Laws 1910, 4734. (384) Art. 1) IN GENERAL 541-543 541. Pleadings allowed "The only pleadings allowed are: "First. The petition by the plaintiff. "Second. The answer or demurrer by the defendant. "Third. The demurrer or reply by the plaintiff. "Fourth. The demurrer by the defendant to the reply of the plaintiff." 2 "All fictions in pleadings are abolished. 3 542. Nature, how determined The nature of a pleading is determined, not by the title, but by the subject-matter. A motion to dismiss, setting up defensive mat- ters, cannot be treated as a motion, but may be treated as an an- swer. 4 543. Caption Forms "The title of a cause shall not be changed in any of its stages." 6 CAPTIONS State of Oklahoma, ] L SS. I County of .J * In the Court of Said County and State. A. B., Plaintiff, v. C. D., Defendant. A. B., a Minor, by E. F., His Next Friend, Plaintiff, v. C. D., a Minor, Defendant. A. B., Sheriff of County, Oklahoma, Plaintiff, v. C. D., Defendant. A. B., C. D., and E. F., Partners as B., D. & F. Co., Plaintiffs, v. G. H. and I. J., Partners as H. & Co., Defendants. 2 Rev. Laws 1910, 4736. s Rev. Laws 1910, 4767. * State v. City of Muskogee (Okl.) 172 P. 796. s Rev. Laws 1910, 4768. HON.PL.& PBAC. 25 (385) 543-545 PLEADINGS (Ch. 11 A. B. C. Company, a Corporation, Plaintiff, v. C. D. Railroad Co., a Corporation, Defendant. A. B., Executor of the Will of E. F., Deceased, Plaintiff, v. C. D., Administrator of the Estate of G. H., Deceased, Defendant. A. B., as Assignee for the Benefit of the Creditors of E. F., Plaintiff, v. C. D., Defendant. 544. Counties "In all suits or proceedings by or against a county, the name in which a county shall sue or be sued shall be, 'Board of County Commissioners of the County of ,' but this provision shall not prevent county officers, where authorized by law, from suing in their official name fer the benefit of the county." 8 ARTICLE II RULES OF PLEADING Sections 545. Former rules abolished. 546. What must be pleaded. 547. Special matters. 548. Estoppel. 549. Pleading conclusions and law. 550. Pleading evidence. 551. Uncertainty in pleadifcgs. 552. Pleading in the alternative. 553. Pleading by reference. 545. Former rules abolished "The rules of pleading heretofore existing in civil actions are abolished; and hereafter, the forms of pleadings in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this code." T e Rev. Laws 1910, 1500. 7 Rev. Laws 1910, 4735. (386) Art. 2) RULES OF PLEADING 546~547 546. What must be pleaded It is not necessary to plead facts of which the court will take judicial notice. 8 There need be no direct allegation of a fact which otherwise sufficiently appears or of facts necessarily implied from averments in the petition. 9 547. Special matters A party relying on the defense of accord and satisfaction must both plead and prove the offer and acceptance by the parties. 10 Where the transferee of a note desires to avoid equities as be- tween the original parties, he must plead and prove that the note was transferred by indorsement. 11 The insurer should plead and prove its contention that insured's s French v. State Senate, SO P. 1031, 146 Cal. 604, 69 L. R. A. 556, 2 Ann. Cas. 756. By chapter 98, Laws 1893, the territory formerly known as "Garfield county, Kansas," was made a municipal township of Finney county for judi- cial purposes. Held, that in an action against the township to recover upon indebtedness created by the county the de facto existence of the county, the existence of the township of Garfield, the succession of the township to the county, and the liability of the township for the debts of the county are facts of which the court will take judicial notice, and need not be pleaded. Gar- field Tp. v. Dodsworth, 58 P. 565, 9 Kan. App. 752. 9 That a minor child's earnings have been relinquished to him will be im- plied, in an action brought by the father as such, and as next friend for the minor, for damages for decreased earning power, from averments in the peti- tion that the minor is entited tc recover in his own suit, though emancipa- tion of the minor is not specifically alleged, Revel v. Pruitt, 142 P. 1019, 42 Okl. 696. The use of the word "fratfd" in stating the conduct of a party sought to be charged for false representations is unnecessary where the facts stated are sufficient to show fraudulent conduct and resulting injury. Way v. Bronston, 138 P. 601, 91 Kan. 446. Where a petition though not using the word "dedication," alleges facts showing a dedication for a public highway by conduct of the owner and ac- ceptance and user by the public, dedication may be relied on. Kansas City v. Burke, 144 P. 193, 93 Kan. 236, denying rehearing 141 P. 562, 92 Kan. 531. In an action by a partnership an allegation of compliance with Rev. Laws 1910, 4469, 4471, requiring the filing of a certificate of the names of the partners where a fictitious name or designation is used, is not required, as it is presumed that the law has been complied with. Oklahoma Fire Ins. Co. v. Wagester, 38 Okl. 291, 132 P. 1071. 10 Deming Inv. Co. v. McLaughlin, 30 Okl. 20, 118 P. 380. 11 Gault v. Kane, 44 Okl. 763, 145 P. 1128. (3S7) 547-548 PLEADINGS (Ch. 11 death was due to a cause excepted from the accident policy sued on. 1 * When an action is brought against a nonresident of the state in the district court, which is a court of general jurisdiction, it is not necessary to allege in the petition that defendant may be found in the county where the action is brought, or that he has property in the county. 13 548. Estoppel Estoppel, to be available as part of a cause of action or defense, must be pleaded with particularity. 14 12 Union Accident Co. v. Willis, 44 Old. 578, 145 P. 812, L. R. A. 1915D. 358. is Bohart v. Republic Investment Co., 30 P. 180, 49 Kan. 94. i 4 Halsell v. First Nat. Bank of Muskogee, 48 Okl. 535, 150 P. 489, L. R. A. 1916B, 697; Tonka wa Milling Co. v. Town of Tonkawa, 83 P. 915, 15 Okl. 672 ; Nance v. Oklahoma Fire Ins. Co., 31 Okl. 208, 120 P. 948, 38 L. R. A. (N. S.) 426 ; Halsell v. First Nat. Bank of Muskogee, 48 Okl. 535, 150 P. 489, L. R. A. 1916B, 697 ; McKallip v. Geese, 30 Okl. 33, 118 P. 586 ; Fidelity Mut Life Ins. Co. of Philadelphia, Pa., v. Dean, 57 Okl. 84, 156 P. 304; Cooper v. Flesner, 103 P. 1016, 24 Okl. 47, 23 D. R. A. (N. S.) 1180, 20 Ann. Gas. 29; Insurance Co. of the State of Pennsylvania v. Harris, 49 Okl. 165, 152 P. 359 ; Bunker v. Harding (Okl.) 174 P. 749. A waiver relied upon as an estoppel against defendant to take advantage of a breach by plaintiff of the contract sued on must be specially pleaded. American Jobbing Ass'n v. James, 103 P. 670, 24 Okl. 460. For an estoppel or waiver of the conditions of a benefit certificate prohib- iting entering on hazardous occupations to be available to the beneficiary, it must be specifically pleaded. Modern Woodmen of America v. Weekley, 139 P. 1138, 42 Okl. 25. Waiver of conditions of policy, to be available, must be specifically pleaded. Edwards v. Sovereign Camp, Woodmen of the World, 61 Okl. 243, 161 P. 170. In action for freight, contract of consignor and consignee as to payment of freight cannot be pleaded as defense, in absence of plea raising estoppel, to which such contract was germane. Indiana Harbor Belt R. Co. v. Britton, 56 Okl. 750, 156 P. 894. The town council of an incorporated town is not estopped to rely on the invalidity of an ordinance amending another ordinance extending the time set in the ordinance amended for furnishing gas to the inhabitants of said town, where such estoppel is not pleaded, and the evidence fails to disclose that the grantee of said franchise or its assignee was misled to its injury Town of Sapulpa v. Sapulpa Oil & Gas Co., 97 P. 1007, 22 Okl. 347. In action to subject wife's separate property to payment of husband's debts, facts showing her estoppel by conduct must be specifically pleaded. Farm- ers' State Bank of Ada v. Keen (Okl.) 167 P. 207. Estoppel in pais against maker of instrument materially altered, to be available, must be pleaded. Wayne County Nat. Bank v. Kneeland, 61 Okl. 265, 161 P. 193. (388) Art. 2) RULES OF PLEADING 548~549 No intendments are indulged in favor of a plea of estoppel, and every essential element of estoppel must be averred. 15 If the facts constituting estoppel are in any way sufficiently pleaded, the pleader is entitled to the benefit of the estoppel though it is not formally pleaded. 16 549. Pleading conclusions and law It is neither necessary nor sufficient to plead mere conclusions, 17 or statements of law; 18 but a petition is not demurrable, though it IB Holt v. Holt, 102 P. 187, 23 Okl. 639. IB Jones v. S. H. Kress & Co., 54 OkL 194, 153 P. 655. 17 Where there is no averment of facts from which the conclusions of law are drawn, the same will have no force in a pleading. International Har- vester Co. of America v. Cameron, 105 P. 189, 25 Okl. 256. "Where the petition in an employees action for injuries states facts impl}'- ing that defendant has negligently failed to provide a reasonably safe place to work, it need not state the legal conclusion to that effect. Barnett v, United Kansas Portland Cement Co., 139 P. 484, 91 Kan. 719. Conclusions. The allegation that county commissioners have advertised for bids, and, unless interfered with, will let a contract for a bridge at a cer- tain point with a further allegation that the advertisement for the contract has not as they verily believe been posted as required by law, is, as to the latter, a statement merely of a legal conclusion, and the petition based there- on is demurrable. Smith v. Board of Com'rs of Rogers County, 110 P. 669, 26 Okl. 819. A petition in ejectment which sets forth in general terms the fact that ille- gal interest, penalties, and costs were charged against real property sold for taxes, and the deed was void because separate school taxes were assessed against the property, and that a special tax was illegally assessed against the property, the same being a part of the taxes, interest, and expenses for which the property is sold, does not, on demurrer, state facts sufficient to raise such questions; it being necessary to show wherein the tax was illegal or the ex- penses illegally charged. Jones v. Carnes, 87 P. 652, 17 Okl. 470. An allegation that a certain person is not now, and never has been, the legally appointed assignee for another person, is a mere conclusion. Smith v. Kaufman, 41 P. 722, 3 Okl. 568. Defendant's petition to vacate judgment, averring that he has a good de- fense, as shown by his answer on file in the cause, but not making such an- swer a part of the petition, is insufficient as stating a mere legal conclusion, Tracy v. State, 60 Okl. 109, 159 P. 496. The allegation of a petition that there was and is no high school in the county which has been established or created according to law, equivalent to- the allegation that the high school established was illegal, is a mere conclu- is A statement, in a petition in an action to vacate a judgment, which al- leges that no publication notice as required by law has been filed, is a state- ment of law, not a statement of fact. Townsend v. Burr, 60 P. 477, 9 Kan. App. 810. (389) 549-551 PLEADINGS (Ch. 11 states a conclusion of the pleader, where it states the facts on which such conclusion is based. 19 But it is a sufficient allegation of facts, if a petition sets forth such facts as are probative with reference to the issue to be estab- lished, and it is unnecessary to set out the evidentiary facts. 20 550. Pleading evidence It is not good practice to plead evidence and the granting of a motion to strike out the evidence when pleaded will not be dis- turbed. 21 In an action by a wife for the alienation of the. affections of her husband, a statement in the petition of the ultimate facts of the alienation and separation is enough without pleading the acts done and artifices used to accomplish the result. 22 551. Uncertainty in pleadings The essential facts of a cause of action or defense should be un- equivocally alleged. Where the averments of the pleading are con- ditional, contingent, and conjectural, it will be held insufficient. 23 sion of law, insufficient against direct challenge by demurrer. Houser v. Smith, 101 P. 1001, 80 Kan. 260. An answer which merely denies the debt sued on, without denying the facts on which it is ba'sed, where they are pleaded in the petition, is insufficient to raise an issue of fact. Jackson v. Green, 74 P. 502, 13 Okl. 314. Where petition alleges injury by negligence of defendant, a part of an an- swer, additional to a general denial, merely stating that the act of defendant was rightful, is demurrable. Murray v. Empire Dist. Electric Co., 150 P. 533, 96 Kan. 336. In action against city for personal injury, from alleged unsafe condition of street or sidewalk, a general allegation "that the plaintiff's negligence caused the injury" was a mere conclusion, and not a sufficient allegation of contrib- utory negligence. City of Gushing v. Bowdlear (Okl.) 177 P. 561. i Maple v. State, 142 P. 1182, 43 Okl. 277. Statements of fact. In a reply attacking tax deeds alleging that they fail to show the date of sale, that the notice of sale does not show by whom it was made or the place of sale, and other specifications of fact, a statement that no notice of final redemption was published as required by law will be regarded as a statement of fact. Wolf v. Wolf, 128 P. 374, 88 Kan. 205. 20 City of Guthrie v. Finch, 75 P. 288, 13 Okl. 496. 21 Cahill v. Pine Creek Oil Co., 136 P. 1100, 40 Okl. 176. 22 White v. White, 90 P. 1087, 76 Kan. 82. as Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 70 P. 933, judgment modified (1904) 75 P. 1051, 68 Kan. 585, 1 Ann. Cas. 639. A pleading should contain a positive statement of essential facts; and it must be held insufficient where it merely states that such facts are alleged to exist. Byington v. Saline County Com'rs, 16 P. 105, 37 Kan. 654. (390: Art. 3) RULES FOR CONSTRUING PLEADINGS 551~554 The allegations in a petition should be sufficiently certain to enable the court to understand, not only the wrongs complained of, but also the correct measure of redress. 24 Essential facts necessary to be shown to entitle a party to the relief demanded should be stated in the pleadings by allegation or averment, and not by way of recital. 25 552. Pleading in the alternative An alternative statement of facts, under either of which the op- posite party would be liable, may be pleaded, where it is impossi- ble for the pleader to know which of such statements are true. 26 553. Pleading by reference Allegations in another pleading in the same case may be made a part of a pleading by reference thereto and adoption thereof. 27 ARTICLE HI RULES FOR CONSTRUING PLEADINGS Sections 554. Liberal construction. 555. General and specific allegations. 556. Admissions. 557. Presumptions. 558. Surplusage. 559. Construction against pleader. 560. Construing allegations together. 561. Construed as of what time. 554. Liberal construction "In the construction of any pleading, for the purpose of deter- mining its effect, its allegations shall be liberally construed; with a view to substantial justice between the parties." 28 24 Midland Valley R. Co. v. Featherstone, 123 P. 1123, 32 Okl. 837. 25 Emmerson v. Botkin, 109 P. 531, 26 Okl. 218, 29 L, R. A. (N. S.) 786, 138 Am. St. Rep. 953. 26 Where an employe 1 is injured, either by the willful or intentional act of the employer, or the failure to exercise ordinary care on the part of such em- ployer, such employ6 or his representative may plead both in the alternative in one count. Chicago, R. I. &j P. Ry. Co. v. Mclntire, 119 P. 1008, 29 Okl. 797. -7 In action on notes, where answer and cross-petition set out execution and transfer of notes secured by chattel mortgage, the reply might refer to such allegation in cross-petition, and thereby make them a part of the reply. Lower v. Shorthill, 103 Kan. 534, 176 P. 107. 28 See note 28 on following page. (391) " 554 PLEADINGS (Ch. 11 Where the allegations of a petition clearly show that the plain- tiffs have no adequate remedy at law, it is unnecessary to so al- lege. 28 Under this statute averments of pleadings must be so construed that substantial justice may be done between the parties though es- sential averments lacking in a pleading need not be construed into it, or a necessary averment be supplied, unless it must necessarily be inferred from other pleadings. 30 A pleading will not be construed so as to defeat it by undue technicality. 31 It will be liberally construed on objection to the in- troduction of any evidence, 32 and on a demurrer to the evidence, 33 ^8 Rev. Laws 1910, 4766; Bank of Glasco v. Marshall, 47 P. 561, 5 Kan. App. 252. An allegation, in an employe's action for injuries, that defendant knew or should have known of a certain defect was an implied allegation that such defect existed. Roberts v. Pendleton, 142 P. 289, 92 Kan. 847. After a party has amended his petition three times, and a demurrer is again sustained to it, no presumption will be indulged in favor of the plead- ing. Schilling v. Moore, 125 P. 487, 34 Okl. 155. 29 Clark v. Frazier (Okl.) 177 P. 589. soWeatherly v. Sawyer, 63 Okl. 155, 163 P. 717; Emmerson v. Botkin, 109 P. 531, 26 Okl. 218, 29 L. R. A. (N. S.) 786, 138 Am. St. Rep. 953. si Smith v. McCarthy, 18 P. 204, 39 Kan. 308. * 2 Against an objection to the introduction of any evidence for plaintiff on the ground that the petition does not state a cause of action, the petition will be liberally construed, and, if possible, sus-tained. State v. School District No. 3, 8 P. 208. 34 Kan. 237 ; Burnette v. Elliott, 84 P. 374, 72 Kan. 624 ; Simmonds v. Richards, 86 P. 452, 74 Kan. 311; Mills v. Vickers, 50 P. 976, 6 Kan. App. 884 ; Carr v. Seigler, 52 Okl. 485, 153 P. 141 ; McKee v. Jolly (Okl.) 178 P. 656; Minnetonka Oil Co. v. Cleveland Vitrified Brick Cp., 48 Okl. 745, 150 P. 712 ; Barker v. Moodie, 141 P. 562, 92 Kan. 566. 33 Gregg v. Oklahoma State Bank (Okl.) 179 P. 613. Allegations of fraud and consequent damage in procuring credit for insol- vents, when tested by demurrer, are to be liberally construed. Blair v. Mc- Quary, 162 P. 1173, 100 Kan. 203, judgment modified on rehearing 164 P. 262, 100 Kan. 203. The allegations' of a petition, challenged by a general demurrer or objection to the introduction of evidence, based upon the insufficiency of the petition, must be construed liberally in favor of the pleader. Ruby v. Warrior (Okl.) 175 P. 355. In a suit for annulment of a marriage, an allegation that the wife had not been divorced from a former husband will be construed on demurrer to mean that the husband was still living. Browning v. Browning, 130 P. 852, 89 Kan. 98, L. R. A. 1916C, 737, Ann. Cas. 1914C, 1288. Where a contract is pleaded which is open to two interpretations, one that the contracting parties were honest and innocent in their purposes and ac- Art. 3) RULES FOR CONSTRUING PLEADINGS 554~555 particularly where no motion to make more definite and certain lias been made, 34 but doubtful language will be construed against the pleader. 85 If material allegations are omitted, it will be assumed, without application to amend, that facts to justify them do not exist. 36 A petition attacked for the first time on appeal on the ground that it does not state facts sufficient to constitute a cause of action will be liberally construed. 37 The same is true of a counterclaim. 88 555. General and specific allegations A specific statement of facts in a pleading will always control a general statement, whether that general statement is or is not re- garded as a mere conclusion of law. 39 tions, and the other that they were immoral and criminal, and the sufficiency of the pleading is challenged on demurrer, an interpretation will be given in favor of honesty and innocence, and which will uphold the validity of the - contract and the sufficiency of the pleading. Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 70 P. 933, judgment modified 75 P. 1051, 68 Kan. 585, I Ann. Cas. 639. s* vVhere a demurrer is filed to a petition on the ground that it does not state facts sufficient to constitute a cause of action, without first presenting a motion to have the allegations of the petition made more definite and cer- tain, the statements of such petition will be liberally construed in favor of the pleader. Upham v. Head, 85 P. 1017, 74 Kan. 17; Balmer v. Long, 104 Kan. 408, 179 P. 371. as Lusk v. Porter, 53 Okl. 294, 156 P. 224; Atwood v. Rose, 122 P. 929, 32 Okl. 355. After a motion to make certain allegations of a petition more definite and certain has been overruled, such pleading in respect to such allegations can- not be upheld as against a general demurrer, unless it fairly states a cause of action without resort to inferences or construction of doubtful language. Mergen v. Salina Northern R. Co., 104 Kan. 811, 180 P. 736. se Fretz v. City of Edmond (Okl.) 168 P. 800, L. R. A. 1918C, 405. 3?Wass v. Tennent-Stribbling Shoe Co., 41 P. 339, 3 Okl. 152? Hoehler v, Short, 140 P. 146, 40 Okl. 681 ; Cook v. State, 130 P. 300, 35 Okl. 653 ; Mis<- souri Pac. Ry. Co. v. Morrow, 13 P. 789, 36 Kan. 495; Kansas City & S. W. Ry. Co. v. Farnsworth, 18 P. 202, 39 Kan. 356. ss Where the sufficiency of the counterclaim is not challenged below, and the evidence taken thereon is not in the record, a judgment for defendant will not be disturbed because the averments of the counterclaim would have been subject to a motion to make more definite and certain. Brown Shoe Co. v. Cuff, 132 P. 1090, 37 Okl. 776. 3 Whi taker v. Crowder State Bank, 110 P. 776, 26 Okl. 786, A petition containing general averments of negligence, and stating that the negligence "hereinbefore complained of consisted in this," presents only such- (393) 556 PLEADINGS (Ch. 11 556. Admissions Where a party to an action makes solemn admissions* against his interest in a pleading in the absence of mistake on his part, or on the part of his counsel who inserted them in such pleading, a court, in passing on the sufficiency of a subsequent amended pleading filed by him should take such admissions into consideration, and treat them as admitted facts in the case. 40 A party should be bound by the allegations of his pleadings, de- liberately made, and should not be allowed to obtain benefits from issues as are found in the specific allegations. Chicago, R. I. & P. Ry. Co. v. Mclntire, 119 P. 1008, 29 Old. 797. In suit by abutting owner to enjoin ferry landing at end of public highway, general allegations that he would suffer irreparable injury unless landing is enjoined were negatived by his more specific allegations showing that relief was based upon mere fact of such landing. Hale v. Record (Okl.) 168 P. 420. Where a petition sets out a specific title followed by a general averment of ownership, it will be understood that this general averment refers to the spe- cific title, and the testimony will be limited to such title. Armour Bros. Banking Co. v. Riley County Bank, 1 P. 506, 30 Kan. 163. 40 Lane Implement Co. v. Lowder, 65 P. 926, 11 Okl. 61. Where a party to an action makes solemn admissions against his interest in. a pleading, they must be treated as admitted facts, and he cannot question the correctness thereof in the trial court or on appeal so long as they remain a part of the record. Rogers v. Brown, 86 P. 443, 15 Okl. 524. Where, in an action for injury to a shipment of live stock, plaintiff alleged that defendant issued bills of lading, he cannot thereafter claim that the con- tract of shipment was oral, though in his reply he alleged that the bills of lading were executed as a receipt and for the purpose of entitling plaintiff to return transportation. St. Louis & S. F. R. Co. v. Zickafoose, 39 Okl. 302. 135 P. 406. One who brought an action to cancel a deed on the ground that it was pro- cured by fraud, and who prays- an accounting with her grantee for moneys received for lots sold from land, cannot, at the conclusion of the trial, aban- don that theory and insist that the deed be deemed a mortgage, and recover the title to the lots from parties held to be innocent purchasers for value, and without notice. Herbert v. Wagg, 117 P. 209, 27 Okl. 674. In action for specific performance against a foreign executor, if the exec- utor plead the will to show that it contains no grant of power to convey, he cannot dispute its existence, authenticity, or terms. Niquette.v. Green, 106 P. 270, 81 Kan. 569. In an action of replevin against an officer to recover cattle levied upon by him, wherein the defendant answers, admitting possession, and justifies un- der a writ of execution, and denies the ownership of the plaintiff, it is error to permit him to prove that he was not in possession of the property at the commencement of the suit. Hursh v. Starr, 49 P. 618, 6 Kan. App. 8. (394) Art. 3) RULES FOR CONSTRUING PLEADINGS 556~558 contradictory and inconsistent allegations therein, even if made in separate counts. 41 Allegations in a petition which have been superseded by an amended petition complete within itself and not referring to the original petition are not conclusive upon plaintiff. 42 When the prayer of a petition asks for interest from a certain date, the plaintiff cannot recover interest from a prior date. 43 If allegations in the answer are inconsistent with each other, the defendant is bound by those allegations which are against him- self. 44 Where a copy of the note sued on is attached to the petition, and defendants admit the execution thereof, they cannot, on the intro- duction of evidence, be heard to say that the note was changed after its execution, as the admission is of the execution of the note in the very form pleaded. 45 557. Presumptions Considerable latitude of presumption is allowed in sustaining a petition, where issue is joined, and it is only attacked at the trial by an objection to evidence. 46 Where a petition avers facts of a continuous nature which would preclude recovery, they will be presumed to continue unless the pe- tition avers the contrary. 47 558. Surplusage Where a pleading, which is otherwise good, contains allegations which are not essential, such allegations may be disregarded* as sur- plusage. 48 41 Losch v. Pickett, 12 P. 822, 36 Kan. 216. 42 Letcher v. Maloney (Okl.) 172 P. 972; Reemsnyder v. Reemsnyder, 89 P. 1014, 75 Kan. 565. 43 Phenix Ins. Co. of Brooklyn r. Weeks, 26 P. 410, 45 Kan. 751. 44 Mitchell v. Ripley, 49 P. 153, 5 Kan. App. 818; Bierer v. Fretz, 4 P. 284, 32 Kan. 329. 45 White v. Smith, 98 P. 766, 79 Kan. 96. 46 Burnette v. Elliott, 84 P. 374, 72 Kan. 624. *7 Alexander v. Bobier (Okl.) 166 P. 716. 48 Where the facts are fully set out in a petition, and are followed by a formal statement of the pleader's conclusions, such conclusions, if erroneous, may be disregarded as surplusage. Lawton Pressed Brick & Tile Co. v. Ross- (395) 558-560 PLEADINGS (Ch. 11 The court may, in its discretion, order such matters stricken out, but such surplusage will not render a pleading subject to demur- rer.* 9 559. Construction against pleader Any pleading containing allegations made by the same party, both affirming and denying a particular thing, carries falsehood up- on its face ; and in such a case the court may consider as true such of the allegations as are against the pleader. 50 When the petition states a number of causes of action, and asks for a variety of relief, thereby comprising several of the pre-existing forms of action, its language will, on demurrer, be construed against the pleader. 61 560. Construing allegations together In determining whether any one or more of the counts of a peti- tion state a good cause of action, all the facts -stated will be consid- ered together. 52 / Kellar Triple Pressure Brick Mach. Co., 124 P. 43, 33 Okl. 59, 49 L. R. A. 8 Okl. 447. 7s Smith v. Gillis, 51 Okl. 134, 151 P. 869. (407) I 673 PLEADINGS '(Ch.II is a farmer by occupation, but is not the owner of land, but is the renter of land. 2. That on the day of , 19 , the said defendant, wickedly intending- to injure the plaintiff in his good name and reputation, accosted the said plaintiff in the village of , Ok- lahoma, in the presence of divers and numerous persons, and in their hearing falsely and maliciously did speak and publish of and. concerning the said plaintiff false and defamatory words as fol- lows: "Say, A. (meaning this plaintiff), do you (meaning this plaintiff) steal corn?" That when said defendant accosted your said plaintiff in that manner, your said plaintiff considered that the said defendant was joking, and that he thereupon jokingly re- plied: "Yes, I steal corn every day if I can." That the defendant thereupon continued, and your said plaintiff then observed that the said defendant was angry, and was not joking nor jesting in the manner as plaintiff first supposed. That said defendant there- upon said: "Well, we had some corn stolen (meaning thereby that he and his brother had had some of their corn stolen)." That your said plaintiff replied, saying: "Well, you (meaning defend- ant) don't mean to say that I stole your corn, do you ?" That de- fendant then replied to said plaintiff, saying: "I mean just what I say." To which your said plaintiff replied, saying to said de- fendant: "C. (meaning defendant), you (meaning! defendant) don't accuse me of that, do you?" That thereupon the said de- fendant replied, saying: "There is very strong evidence that you (meaning plaintiff) did." That all of this conversation and false and defamatory charges were made by said defendant of and con- cerning plaintiff in a public and angry and insolent manner, in the presence and hearing of divers persons, who understood the same, and that by the words aforesaid the said defendant then and thereby publicly charged the said plaintiff with stealing corn from their premises. That said charge was wholly false and unfound- ed, and was so spoken and published by the said defendant to the great and lasting injury of your said plaintiff. Wherefore plaintiff prays judgment for the sum of dol- lars, and for costs of this action, and all other proper relief. X. Y., Attorney for Plaintiff. 74 T< See Thorrnan v. Bryngelson, 87 Neb. 53, 127 N. W. 117. (408) Art. 4) PETITION 574 574. Construction and operation The nature of a suit is to be determined in the first instance by the allegations of the petition, and not from its caption. 75 All the facts pleaded will be considered in determining the suf- ficiency of a petition; 78 but the words "a corporation," in the caption, cannot be construed as an allegation of incorporation. 77 Where a petition states a good cause of action for breach of con- tract, the addition of words or averments appropriate to a cause of action for a wrong will not change the action from contract to tort. 78 Where it is doubtful whether a petition states a cause of action x contractu or ex delicto, he courts are inclined against constru- ing it as stating a cause of action ex delicto. 79 A corporation, in bringing suit, need not allege its incorporation, and its legal capacity to sue will be presumed until the contrary ap- pears. 80 In an action founded on either contract or tort, plaintiff is not re- quired to state on which he relies, and, if he should make such a statement and be mistaken, the statement would be immaterial. 81 75 Dodd-Lear Hardwood Lumber Co. v. Gyr, 44 Okl. 630, 146 P. 16. TO Where, in ejectment, the plaintiff in setting forth statutory requirements in addition thereto sets out the source of title of each of the parties, and a demurrer is filed to such pleading, all of the facts pleaded will be considered in determining its sufficiency. Jones v. Games, 87 P. 652, 17 Okl. 470. 77 The words "a corporation," appearing in the title of a case after the name of plaintiff, are descriptive of the plaintiff, and cannot be construed to be an allegation of incorporation. Boyce v. Augusta Camp. No. 7429, M. W. A., 78 P. 322, 14 Okl. 642. 78 Missouri, K. & T. Ry. Co. v. Hutchings, Sealy & Co., 78 Kan. 758, 99 P. 230. 7 9 Id. In determining whether a petition states a cause of action ex contractu or ex delicto, it must be considered in its entirety, but with special reference to its prominent and leading allegations. Delaney v. Great Bend Implement Co., 98 P. 781, 79 Kan. 326. Where the averments make it doubtful whether the action is on contract or in tort, every intendment must be made in favor of construing it as an action on contract. Id. The allegations and prayer of the pleadings should be looked to in deter- mining whether a claim for damages is based on contract or tort, and every doubt should be resolved in favor of it being based on contract. Stringer v. Kessler, 56 Okl. 50, 155 P. 867. so Leader Printing Co. v. Lowry, 59 P. 242, 9 Okl. 89. si Cockerell v. Henderson, 105 P. 443, 81 Kan. 335, 50 L. R. A. (N. S.) 1. (409) 574-575 PLEADINGS (Ch. 11 Plaintiff need not negative contingencies in a contract sued on, the happening of which would operate in defendant's favor. 82 A petition is sufficient where the facts alleged clearly negative ex- ceptions by inference alone and not specifically. 83 575. Requisites and sufficiency The rules of pleading become clearer from an examination of the illustrations contained in the notes, from which it appears that the courts have passed upon the sufficiency of allegations of numerous matters involved in actions of various character, such as: Negli- gence in maintaining bridges, 84 railroad embankments, 85 streets, 80 and nuisances, 87 and in providing for the safety of employes; 88 as- 32 Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 48 Okl. 745, 150 P. 712. ss Midland Valley R. Co. v. Hardesty, 38 Okl. 559, 134 P. 400. s* A petition stating that a town negligently permitted one of its bridges? to remain out of repair, in consequence of which an animal was injured, held to state a cause of action, though it did not state in terms that the city had actual or implied knowledge of the defects. Town of Sallisaw v. Ritter, 142 P. 391, 42 Okl. 626. SB A petition which alleges, substantially, that defendant's railway runs through plaintiff's lands on an embankment, that defendant has failed to es- tablish and maintain proper openings for the outlet of surface water falling on and flowing over said lands, and caused to be filled up a natural water course across said lands, which caused the surface water to stand and back up on plaintiff's crops growing on said lands, to his damage, states a cause of action for obstruction of a water course, and not for damage by surface water only. Chicago, R. I. & P. Ry. Co. v. Maynard, 122 P. 149, 31 Okl. 685. as Petition, alleging that plaintiff's horses hitched to buggy were frightened by children on roller skates, that city had permitted street to remain in an unsafe condition and that buggy fell into hole and injured plaintiff, held to state cause of action. City of Cushing v. Stanley (Okl.) 172 P. 628. 8 7 In an action against a city and a private person for damages resulting from a nuisance in an alley, plaintiff alleged as her cause of action that de- fendant permitted the nuisance to be constructed and maintained in the alley ; and that "the defendants and each of them failed, neglected, and refused to abate such nuisance when notified to do so." Held, that the petition suffi- ciently alleges notice to the city of the existence of the nuisance, and negli- gence on its part thereafter in removing same, to be good against a demurrer. City of Pawhuska v. Rush, 119 P. 239, 29 Okl. 759. A petition charging that a city's line of sewer extended through plaintiff's crops, that it negligently permitted surface water to be discharged on the crops, destroying them, and had disaJ lowed plaintiff's claim for damages, states a cause of action as against a general demurrer. City of Chickasdia v. Looney, 128 P. 136, 36 Okl. 155. ss it was not error to refuse to strike from a petition an allegation of gen- eral custom among others in the same business as to places for work or uieth- (410) Art. 4) PETITION 575 sumption of risk; 89 proximate cause; 90 damages in general; 81 damages from breach of contract, 9 - breach of promise, 93 or ods, as bearing on master's exercise of due care. Missouri, O. & G. Ry. Co. v. Overmyre, 58 Okl. 723, 160 P. 933. A petition, alleging negligence in the use of defective machinery and the giving of orders by obeying which the servant received injuries held to state a cause of action. Enid Electric & Gas Co. v. Decker, 128 P. 70S, 36 Okl. 367. 8 An allegation in a petition for injuries due to tie falling of a water tank placed by defendant in plaintiff's kitchen held not to amount to a confession of knowledge of the defective condition of the tank so as to import an as- sumption of the risk of injury therefrom. Moore v. Johnson, 136 P. 422, 39 Okl. 587. so In an action by a servant for personal injuries, petition held to allege that acts of negligence of master were the proximate cause of the accident in which plaintiff was injured. Ferris v. Shandy (Okl.) 174 P. 1060. 81 A petition alleged that plaintiff was about to commence an action for alimony against her husband, who was then within the jurisdiction of the court; that he was possessed of property of the value of $7,000, but did not state where the property was situated, or that the" defendant was a resident of the state; that defendant, who was the district judge of the court where the action was about to be commenced, advised the husband to withdraw from the jurisdiction of the court, and to dispose of his property ; that subse- quently she brought her action, and obtained a judgment against him for $1,500; that the execution issued thereon was returned unsatisfied. Held, that the petition did not state a cause of action, because of the uncertainty of plaintiff's damage. Harrison v. Redden, 36 P. 325, 53 Kan. 265. Petition alleging increased depth of stream caused by obstruction, destroy- ing use of road across stream and valuable sand beds, with resulting damage, held not demurrable. Zalaback v. City of Kingfisher, 59 Okl. 222, 158 P. 926. Where the petition in an action for damages shows that plaintiff has sus- tained a detriment as defined by Rev. Laws 1910, 2845, and the amount thereof, that defendant wrongfully caused same, and that it is a detriment for which the law affords redress, it states a cause of action. Midland Vallej R. Co. v. Larson, 138 P. 173", 41 Okl. 360. A petition in an action by an oil and gas lessor for injuries to the surface rights held to state a cause of action. Pulaski Oil Co. v. Conner, 62 Okl. 211, 162 P. 464, L. R. A. 1917C, 1190. 2 Where the petition alleged that making of an enforceable contract foi the carriage of goods, and alleged defendant's breach resulting in plaintiff's damage, such petition is good as against general demurrer. St. Louis & S. F. R. Co. v. Wm. Bondies & Co., 64 Okl. 88, 166 P. 179. A petition in replevin held not demurrable, though it did not specifically allege breach of conditions of a chattel mortgage, where the attached copy of the mortgage showed such breach. Dabney v. Hathaway, 51 Okl. 658, 152 P. 77. Petition in an action for breach of two builders' contracts, whereby plain- tiff was forced to pay lien claimants, held to state a cause of action. Antene v. Jensen, 47 Okl. 352, 148 P. 727. as A petition in an action for breach of promise to marry held sufficient. Waddell v. Wallace, 121 P. 245, 32 Okl. 140, Ann. Cas. 1914A, 692. (411) 575 PLEADINGS (Ch. IT death; 94 personal injuries in general; 95 assault; 96 injury to pas- senger, 97 or shipment; 98 recovery of excessive freight rates; 99 94 In an action by a parent to recover for the death of his son, an allega- tion that he was capable of earning $3 per week, and that by reason of his death plaintiff had been damaged in the sum of $10,000, is sufficient to sustain a verdict. Kansas City v. Siese, 80 P. 626, 71 Kan. 283. Petition held to state a cause of action for damages from death due to a violation of the Factory Act. Frisco Lumber Co. v. Ethridge, 45 Okl. 566, 146 P. 441. Petition, in an action for the wrongful death of an employe 1 , held not de- murrable, where it clearly charged negligence, though it contained statements from which contributory negligence might be inferred. Duncan Cotton Oil Co. v. Cox, 139 P. 270, 41 Okl. 633. In an action for the death of a boy from falling into a pit at an abandoned city puinphouse, which pit was filled with water, and covered with a light layer of straw, petition held demurrable. City of Shawnee v. Cheek, 137 P. 724, 41 Okl. 227, 51 L. R. A. (N. S.) 672, Ann. Cas. 1915C, 290. 95 The allegations of the petition as to plaintiff's injuries held sufficient to authorize proof of the impairment of his earning capacity. Missouri, O. & G. Ry. Co. v. Collins, 47 Okl. 761, 150 P. 142. A petition for personal injury in a crossing accident, alleging that solely by reason of defendant's negligence, and the negligence of its flagman, sta- 96 A demurrer to a petition which alleges that defendant at a certain time and place willfully and maliciously beat the plaintiff with a stick or club, causing her great pain, suffering, and mental anguish, to her damage in the sum of $1,000, is properly overruled. Long v. McWilliams, 69 P. 882, 11 Okl. 562. 97 The petition, in a passenger's action for injuries due to the derailment of a train, held to state a cause of action for negligence. Missouri, O. & G. Ry. Co. v. Vandivere, 141 P. 799, 42 Okl. 427. A petition stating that the defendant carrier negligently permitted the floor of a passenger car to become in a dangerous condition, to plaintiff's injury, held not demurrable, though it did not state that the carrier knew of the dangerous condition ; proof of actual or imputed notice being admissible un- der it. Missouri, O. & G. Ry. Co. v. Smith, 55 Okl. 12, 155 P. 233. 8 An allegation in a petition in an action for injuries to live stock shipped under a contract requiring suit within a certain time, that the delay in suing was due to pending negotiations between plaintiff and connecting carriers, held not to state an implied waiver of the contract limitation by the initial carrier. Harrington v. Wichita Falls & N. W. Ry. Co., 56 Okl. 729, 156 P. 634. 99 A petition against a carrier to recover excessive freight rates, alleging the distance from the starting point to destination, that a certain sum was a reasonable compensation for carrying the commodity over defendant's line for such distance, that defendant wrongfully charged plaintiff a larger sum stated, more than a reasonable charge, which plaintiff was compelled to pay and did pay under protest, and that plaintiff had never consented that the charge was reasonable, but had demanded the return of the excessive and unreasonable part thereof, which had been refused, stated a cause of action. Ft. Smith & W. R. Co. v. Chandler Cotton Oil Co., 106 P. 10, 25 Okl. 82. (412) Art. 4) PETITION . 575 trover; * malicious prosecution ; 2 consideration ; 8 the account sued on ; 4 rights in replevin of the holder of a chattel mortgage 5 and of tioned as required by a city ordinance, in being absent from his post and in failing to- give any warning, relied upon a violation of the ordinance. Lusk v. Pugh (Okl.) 176 P. 80. A petition in an action for injuries to a boy alighting from a moving freight train by order of the fireman held to state a cause of action. Chicago, R. I. & P. Ry. Co. v. Matukas, 47 Okl. 302, 147 P. 1038, L. R. A. 1917C, 1066. Petition in employe's action for injuries held to state a cause of action based on concurring negligence of a fellow servant and of the master. Frisco Lumber Co. v. Spivey, 140 P. 157, 40 Okl. 633. Petition, in a fireman's action against a city, held to sufficiently state, as against a general demurrer, facts from which it could be inferred that the city had notice of the defects in the street in time to have repaired same with the exercise of reasonable diligence. City of Ardmore v. Fowler, 54 Okl. 77, 153 P. 1117. A petition in a pedestrian's action for injuries from a defective sidewalk held not subject to general demurrer, where it alleged that the city unlaw- fully and negligently permitted the sidewalk to remain unsafe, open, and unguarded. City of Woodward v. Bowder, 46 Okl. 505, 149 P. 138. i A petition in trover states a cause of action when it alleges that plaintiff was the owner of the property in question, describing it, and alleging its value, and that defendants wrongfully took and converted it to their own use. Robinson v. Peru Plow & Wheel Co., 31 P. 988, 1 Okl. 140. - A petition in an action for malicious prosecution, alleging that a prose- cution was commenced against plaintiff, that it was instituted by defendants, that it was malicious and without probable cause, and that it has been finally terminated in plaintiff's favor, states a cause of action. Schrieber v. Clapp, 74 P. 316, 13 Okl 215. s The petition in an action for the balance due on an account for material used in repairs on a building and alleging a novation held to plead a consid- eration under Rev. Laws 1910, 926. Martin v. Leeper Bros. Lumber Co., 48 Okl. 219, 149 P. 1140. * A petition drawn under Rev. Laws 1910, 4774, authorizing the use of a short form of an account in an action on account, held to substantially com- ply with the requirements of such statute, so that it was not error to over- rule a demurrer and an objection to the introduction of any evidence. Moo- ney v. First State Bank of Washington, Okl., 48 Okl. 676, 149 P. 1173. 5 A petition which bases the right of plaintiffs' recovery upon their special ownership in property under a chattel mortgage, and which contains the usual allegations of such pleading in replevin, and alleges the conditions of the note so secured have been broken, is not subject to the objection that it is insufficient to state a cause of action because it does not state that the note has not been paid, or the amount due thereon. Swope v. Burnham, 52 P. 924, 6 Okl. 736. A petition in replevin to recover possession of chattels embraced in a chat- tel mortgage, for the purpose of enabling the mortgagee to enforce his lien, and which sets out the mortgage and shows by independent averments that the particular property sought to be recovered is not the property embraced in a prior chattel mortgage covering some of the property embraced in plain- (413) 575 PLEADINGS (Ql. 11 the lessee ; * action against stockholders ; 7 interest ; 8 bonds ; 9 in- tiff's mortgage, is not subject to the objection on demurrer that the petition does not show right of possession in the plaintiff. Payne v. McCormick Har- vesting Mach. Co., 66 P. 287, 11 Okl. 318. Where the plaintiff claims the right to possession of property by virtue of the lien created by a chattel mortgage, under the general denial the defendant is entitled to show that the mortgage was obtained by fraud or deception, and thus defeat the lien, and conse- quently the right of possession in the mortgagee. Id. In replevin by a mortgagee, the petition is not subject to general demurrer because it fails to allege condition broken in the mortgages, and that the notes were due, since the mortgages were attached to the petition and made a part thereof, and contain copies of the notes showing that they were past due when suit was brought, and a condition that on default the mortgagee was entitled to possession. Whiteacre v. Nichols, 87 P. 865, 17 Okl. 387. e Petition in replevin by lessee held to show that the building in controversy was personal property, removable under Rev. Laws 1910, 6749. Welch v. Church, 55 Okl. 600, 155 P. 620. 7 A petition against a stockholder by a trustee in bankruptcy of a corpora- tion for par value of stock for which defendant had transferred lease con- taining covenant against assignment, held insufficient to state a cause of ac- tion. Chilson v. Cavanagh, 61 Okl. 98, 160 P. 601, L. R. A. 1918D, 1044. Petition, in a stockholder's action against a corporation and other stock- holders and officers to rescind a sale of stock formerly owned by plaintiff and sold to the individual defendants and to secure a reissuance of the stock to plaintiff, held insufficient to show a right to the relief sought. Checotah Hardware Co. v. Hensley, 141 P. 422, 42 Okl. 260. Where the directors of a corporation are guilty of a breach of trust injurious to the corporate assets and to shareholders and the corporation refuses to sue to redress such in- juries, one or more shareholders may proceed in their individual names. Id. Petition in a stockholder's action for redress for breaches of trust injurious to the corporate assets and plaintiff's right held demurrable, where it did not clearly show that a demand on the defendant directors to enforce the rights of the corporation would have been refused. Id. Amended petition, in action by bank commissioner to recover double lia- bility, imposed by Rev. Laws 1910, 265, upon a stockholder of insolvent state bank, held to state a cause of action. Blackert v. Lankford (Okl.) 176 P. 532. Complaint in equity where a receiver joined subscribers to the capital stock of a bank as defendants to recover unpaid subscriptions, which alleges that the judge who appointed the receiver on application of creditors supported s Where an itemized account, showing when the several items were pur- chased, and the time when the purchases were to be paid for, is attached to and made a part of the complaint, a prayer asking for judgment for the principal sum, together with interest according as the same may appear to be due from the account, is sufficient to support a verdict for the principal sum with interest from the date on which each payment became due to the date of the verdict. Dunham v. Holloway, 41 P. 140, 3 Okl. 244, judgment affirmed Holloway v. Dunham, 18 S. Ct. 784, 170 U. S. 615, 42 L. Ed. 1165. 9 See note 9 on following page. (414) Art. 4) PETITION 575 surance; 10 money had and received; 11 ejectment; 12 avoiding by a showing that the bank was insolvent and without assets entered an or- der directing the receiver to retain counsel and sue defendants as subscrib- ers on their unpaid subscriptions, or for the stock issued to them for the benefit of all the creditors, and that the suit is filed under such order, war- rants the court to treat such suit as brought by the creditors of the insolvent bank, over which equity has jurisdiction, and in which all the subscribers may be joined as defendants. Dill v. Ebey, 112 P. 973, 27 Okl. 584, 46 L. R. A. (N. S.) 440. A petition in an action against a stockholder for attorney's fees for serv- ices rendered in an action instituted by him in a federal court in behalf both of himself and the corporation construed as- to the relief sought. Colley v. Sapp, 44 Okl. 16, 142 P. 1193, affirming judgment on rehearing 44 Okl. 16, 142 P. 989. 8 In an action on a constable's bond for a wrongful seizure and sale of ' property under an attachment, a petition alleging that part of the property levied on, to wit, 500 bushels of wheat, was wasted through the officer's neg- ligence, and that the attached property was sold at private sale, states a cause of action. Holdredge v. McCombs, 56 P. 536, 8 Kan. App. 663. A petition, in an action on the bond of a firm of abstracters to recover damages by reason of an error in the abstract, stating that plaintiff, relying on the abstract, covenanted to warrant title to his property against the liens of all persons whatsoever, and that in order to protect the property purchased from plaintiff the purchaser was compelled to pay to the clerk of the district court the sum of $216 to prevent the selling of the property under execution, whereby the plaintiff became liable to pay to said purchaser the said sum, does not state facts sufficient to show that plaintiff sustained actual injury. Walker v. Bowman, 105 P. 649, judgment reversed on rehearing 111 P. 319, 27 Okl. 172, 30 L. R. A. (N. S.) 642, Ann. Gas. 1912B, 839. Petition in an action on a building contractor's bond held to state a cause of action. Gorton v. Freeman, 51 Okl. 516, 152 P. 127. Petition in an action on a receiver's bond held sufficient as against general demurrer, where it alleged the giving, and facts constituting a breach, of the bond. Nichols v. Dexter, 52 Okl. 152, 152 P. 817. In action on a receiver's bond, failure to attach to the petition a copy of the order appointing the receiver does not render the petition subject to gen- eral demurrer. Nichols v. Dexter, 52 Okl. 152, 152 P. 817. 10 An allegation in the petition that defendant, a solvent insurance com- 11 Petition held to state a cause of action for money had and received. Martindale v. Shaha, 51 Okl. 670, 151 P. 1019. 12 A complaint in ejectment under Code 1890, c. 70, art. 32, 5, is not in- sufficient in not specifically alleging that plaintiff is entitled to the premises in suit, where it alleges facts leading to that conclusion. Carson v. Butt, 46 P. 596, 4 Okl. 133. A description in a petition in ejectment of the land sued for held sufficient to support a judgment for plaintiffs on failure to answer. State v. Thomas, 126 P. 1082, 87 Kan. 803. In an action for possession of land, filed prior to the time when Rev. Laws 1910 became operative, where the petition contained all the allegations re- quired by Snyder's Comp. Laws 1909, 6122, it is good against a general de- murrer. Frazier v. Nichols, 50 Okl. 41, 150 P. 711. (415) 575 PLEADINGS (Cll. 11 pany, had refused to pay the loss on a policy on demand therefor, held equiv- alent to an allegation that it had denied liability. America.^ Nat. Ins. Co. v. Donahue, 54 Okl. 294, 153 P. 819. Petition alleging that defendant received premium for a fidelity bond and signed it, knowing that principal had not signed, and delivered it to plaintiff as a completed instrument, sufficiently alleged defendant's waiver of princi- pal's signature. Oklahoma Sash & Door Co. v. American Bonding Co. (Okl.) 170 P. 511. Where the petition alleged the property insured was on March 7th located in the building described, and in another paragraph averred its destruction > attached to a petition, and its execution is alleged and its substance pleaded, its execution will be taken as admitted, if not denied under oath on trial. Long v. Shepard, 130 P. 131, 35 Okl. 489. In an action on a note by the assignee under a written indorsement execut- ed before maturity and indorsed on the note, where a copy of the note and indorsement thereon is attached to the petition as an exhibit, and the original note and indorsement is introduced in evidence and the answer is not verified by defendant's affidavit, the execution of the note and the indorsement is ad- mitted. Commonwealth Nat. Bank of Dallas, Tex., v. Baughman, 111 P. 332, 27 Okl. 175. In an action on written contracts binding defendant, among other things, to make an unconditional payment of money, an unverified answer leaves de- fendant practically in default. Read v. Dodsworth, 147 P. 799, 95 Kan. 117. Under Code Civ. Proc. 110 (Gen. St. 1909, 5703), the omission to verify the denial of a statement in a petition that owner of mortgaged realty had conveyed it to defendant by deed whereby grantee assumed incumbrauce was (498) Art. 5) ANSWER 610 it was executed. 49 It has been held that, where the execution of a chattel mortgage is properly alleged in a petition, and is not denied under oath, it is not material error for the court to admit a copy thereof in evidence, though it may not be duly authenticated. 50 The statute providing that allegations of the execution of writ- ten instruments shall be taken as true unless there is a verified denial does not preclude defendant from pleading in an unverified answer and proving that he signed the contract, but that his signa- ture was procured by the fraud of plaintiff; 51 nor that the mort- gage under which plaintiff claims is void, for the reason that one of the parties thereto was insane at the time it was executed, 52 nor does it preclude him from establishing that the chattel mortgage sued on was fully paid prior to the commencement of the action to replevin property therein named. 53 It has been held that the validity of a tax deed, good upon its face, may be put in issue by an unverified pleading. 54 But where, in an action for a breach of warranty in a deed, the petition sets out that, at the date of such deed, there were outstanding valid tax certificates against the premises, that such certificates were duly assigned and taxes paid thereon, and tax deeds issued, and pur- chased by plaintiff, an unverified general denial does not put in issue the regularity of such tax proceedings, but admits it. 55 When the allegations of the execution of a contract of agency are not denied, but the illegality of the contract is pleaded, a veri- fication is unnecessary. 56 equivalent to an admission that such deed was executed. McAndrew v. Sowell, 163 P. 653, 100 Kan. 47. Verified answer held not to join issue of fact as to execution of note and mortgage, so that it was not error to admit them without first proving their execution. Garnett v. Storm, 64 Okl. 137, 166 P. 401; Pine v. Western Nat. Bank, 65 P. 690, 63 Kan. 462. 49 Hilsmeyer v. Blake, 125 P. 1129, 34 Okl. 477; Flesher v. Callahan, 122 P. 489, 32 Okl. 283. BO Handley v. Harris, 29 P. 1145, 48 Kan. 606, 30 Am. St. Rep. 322, 17 L. R. A. 703. si St. Louis Jewelry Co. v. Bennett, 90 P. 246, 75 Kan. 743. B2 State Bank of St. John v. Norduff, 43 P. 312, 2 Kan. App. 55. ss Nutt v. Humphrey, 3 P. 787, 32 Kan. 100. B* Curtis v. Schmehr, 76 P. 434, 69 Kau. 124. 5:- Walker v. Fleming, 14 P. 470, 37 Kan. 171. 56 Alexander v. Barker, 67 P. 829, 64 Kan. 396. Where a petition sets forth a. cause of action upon a verbal contract, and the answer denies the same, and properly alleges a written contract, and the (499) 610 PLEADINGS (Ch. 11 In an action to rescind a contract made under duress for the purchase of land and for cancellation of a note, the issue of duress and illegality of the note raised by the pleadings and established prima facie by plaintiff's evidence makes a judgment for defendant on his cross-petition improper, although plaintiff's answer there- to is not verified. 57 Failure to deny the execution of an administrator's deed under oath does not admit the validity o the proceedings on which it is based. 58 An allegation that a party is the owner of real property under a valid and legal deed of conveyance duly executed describes no written instrument whose execution is to be held admitted un- less denied under oath. 59 When the answer alleges the execution of a written contract con- cerning the matters in difference between the parties, and no de- nial thereof is made under oath by plaintiff, the execution of such contract is admitted, together with all natural inferences to be made therefrom. 00 Allegations as to the execution of written instruments and in- dorsements thereon are taken as true, unless the denial is verified by affidavit. 61 Unless the indorsements of written instruments are specifically alleged in the petition, issues may be raised there- on by an unverified denial. 62 reply thereto is not verified, but contains an allegation that the execution of the written contract was procured by fraud and misrepresentation, an ob- jection to the introduction of evidence, made by the defendant, is properly overruled, as an issue was raised by the reply. Missouri Pac. Ry. Co. v. McGrath, 44 P. 39, 3 Kan. App. 220. 57 Bushey v. Coffman, 173 P. 341, 103 Kan. 209. 68 Q'Keefe v. Behrens, 85 P. 555, 73 Kan. 469, 8 L. R. A. (N. S.) 354, 9 Ann Gas. 867. rId. eo Chicago, B. & Q. R. Co. v. Imhoff, 45 P. 627, 3 Kan. App. 765. Where written document is pleaded as defense, unverified reply does not put in issue execution of such instrument, and there is no necessity for proving it on trial. St. Louis & S. F. R. Co. v. Driggers (Okl.) 166 P. 703. Under Rev. Laws 1910, 4759, allegations of the execution of a written re- lease set up in the answer will be taken as true, unless denied by verified reply. St. Louis & S. F. R. Co. v. Brunei-, 52 L Okl. 349, 152 P. 1103. 61 J. I. Case Threshing Mach. Co. v. Rennie (Okl.) 177 P. 548. 62 Berry v. Oklahoma State Bank, 50 Okl. 484, 151 P. 210, L. R. A. 1916A, 731. In an action on a guaranty of payment of a note and interest coupons by one other than the payee, where the petition alleged that the plaintiff was (500) Art. 5) ANSWER 610-611 Rev. Laws 1910, 4759, requires a specific allegation, independ- ent of exhibits, of the indorsements on written instruments, be- fore defendant is required to deny same under oath. An allegation of indorsement of bills of exchange is not put in issue by a verified allegation in the answer denying that the bills were transferred and indorsed to plaintiff for value before ma- turity. 63 There is no presumption of want of authority to indorse the name of a payee on a bill of acceptance, by means of a rub- ber stamp, where the indorsee suing thereon alleges due indorse- ment ; such allegations being taken as true, unless a denial there- of is duly verified. 6 * 611. Appointment or authority An allegation of an agency in a pleading must be taken as true unless denied under oath; but, if no objection is made to the in- troduction of evidence to prove or disprove agency, then this stat- utory requirement is waived, and in such a case it is the duty of the court to submit the issue of agency as though the pleading denying agency was verified ; 65 and failure to deny under oath al- legations of the appointment or authority of a public officer is an admission of the title of the officer to the office as alleged and of his power and authority to perform the duties and functions there- of. 66 the owner and holder of the note and coupons, but did not allege the execu- tion of a written indorsement of the same, an unverified general denial puts the ownership of the paper in issue. Southern Kansas Farm Loan & Trust Co. v. Barnes, 66 P. 638, 63 Kan. 548. es Metropolitan Discount Co. v. Davis (Okl.) 170 P. 707, 7 A. L. R. 670. e* Metropolitan Discount Co. v. Davis (Okl.) 170 P. 707, 7 A. L. R. 670. 65 Burford v. Hughes, 75 Okl. 150, 182 P. 689; Knudson v. Fenimore (Okl.) 169 P. 478, L. R. A. 1918C, 18.1; Ince Nursery Co. v. Sams (Okl.) 177 P. 370; Hughes v. Carlton, 48 P. 444, 5 Kan. App. 386; Arkansas City Bank v. Mc- Dowell, 52 P. 56, 7 Kan. App. 568; Terry v. Anderson, 51 P. 800, 6 Kan. App. 921; Ft. Smith & W. R. Co. v. Solsherger, 38 Okl. 40, 131 P. 1078; McCabe & Steen Const. Co. v. Wilson, 87 P. 320, 17 Okl. 355, judgment affirmed 28 S. Ct. 558, 209 U. S. 275, 52 L. Ed. 788. A general allegation of agency, when not denied under oath, will be pre- sumed without proof to be an agency with such authority as is- charged in the pleading. Gaar, Scott & Co. v. Rogers, 46 Okl. 67, 148 P. 161. ee City of Ardmore v. Sayre, 54 Okl. 779, 154 P. 356. Under Rev. Laws 1910, 5427, an allegation of the bill of particulars that plaintiff was employed by the defendant city as "secretary to the mayor" will be taken as true when not denied by affidavit. Oklahoma City v. Saunders, 46 Okl. 1, 147 P. 1191. (501) 611 PLEADINGS (Ch. 11 Where a petition avers that plaintiff is the duly appointed, acting guardian of certain minors, an unverified answer admits such guardianship. 67 In an action by a widow to recover for the death of her husband, who was a resident of the state, an allegation that no personal rep- resentative of his estate had been appointed is put in issue by the unverified denial, and without proof of such fact a demurrer to the evidence is rightfully sustained; such right to sue not being an "appointment," 1 or an "authority." 68 But a failure to deny un- der oath an allegation of plaintiff that defendant, through an agent, did a certain act, is not admission that defendant did the act com- plained of. 69 Nor is an allegation in a pleading of the nonexist- ence of authority to be taken as true because the denial of the same is not verified. 70 In an action against a corporation for personal injuries in being struck by defendant's automobile, allegations in the petition that the automobile was under the care of defendant's servant who con- trolled it, together with defendant's failure to verify the answer, would not constitute an admission of the truthfulness of the alle- gations of the petition. 71 An allegation that one had full authority to act for himself is not to be taken as true when not denied under oath. 72 An allegation that plaintiff is the holder of the note sued on may be put in issue by an unverified answer, where the note does not show plaintiff's ownership. 73 6T Kerr v. McKinney (.Okl.) 170 P. 685; Tate v. Stone, 130 P. 296, 35 OkL 369. es Vaughn v. Kansas City N. W. R. Co., 70 P. 602, 65 Kan. 685. 69 Leavenworth Light & Heating Co. v. Waller, 70 P. 365, 65 Kan. 514, re- versing judgment Waller v. Leavenworth Light & Heating Co., 61 P. 327, 9 Kan. App. 301; Missouri Pac. Ry. Co. v. Finley, 16 P. 951, 38 Kan. 550; Swofford Bros. Dry Goods Co. v. Berkowitz, 51 P. 796, 7 Kan. App. 24. To.winfield Land & Trust Co. v. Burger, 30 P. 476, 49 Kan. 233; Atchison, T, & S..F. R. Co. v. Walz, 19 P. 787, 40 Kan. 433. 71 Oklahoma Automobile Co. v. Benner (Okl.) 174 P. 567. A petition in action for injury by defendant's automobile driven by .his daughter, alleging her general authority to use it for herself and friends, and that she was then acting under such authority held not to allege her agency, so as to require a denial under oath. Stafford v. Noble, 105 Kan. 219, 182 P. 650. 72 Washbon v. State Bank of Holton, 121 P. 515, 86 Kan. 468. 73 Shipman v. Porter, 48 Okl. 265, 149 P. 901, 902. In action on note by one other than the payee, where nothing appears by in- (502) Art. 5) ANSWER 611-612 However, in the payee's action against the maker, an unverified answer admitting execution and delivery of the note sued on, but alleging that the payee is not the owner and holder thereof, states no defense. 7 * 612. Account To relieve plaintiff from proving an open account as against a general denial, it is essential, not only that a properly verified copy of the account be attached to the petition, but that the petition al- lege its correctness. 75 Failure to deny under oath a verified account admits only its ac- curacy, and not its legality. 76 Defendant need not deny under oath an unintelligible verified statement of account. 77 Where a plaintiff attaches a duly verified account to his petition, but does not specifically allege in the petition that the account is correct, the defendant is not required to deny the correctness of the account under oath, but may raise the issue by a general de- nial. 78 The statute requires, not only that a verified account be dorsement, etc., to indicate the ownership of the note, an allegation that plain- tiff is the owner and holder may be put in issue Jt>y an unverified answer. Southwest General Electric Co. v. Eiddle (Okl.) 168 P. 436. 7* Burling v. Stinnett, 46 Okl. 159, 148 P. 140. 75 El Reno Vitrified Brick & Tile Co. v. C. W. Raymond Co., 46 Okl. 3S8, 148 P. 1000. The petition must allege the correctness of the verified account attached. A verification of the petition which includes a statement of the account is not sufficient. Myers v. First Presbyterian Church of Perry, 69 P. 874, 11 Okl. 544. Where there is no allegation in a pleading of the correctness of a verified account attached thereto, there can be no denial thereof, and the account is at issue under the general denial. Haldeman v. Johnson, 54 P. 507, 8 Kan. App. 473. 76 Hill v. Board of Com'rs of Republic County, 160 P. 9S7, 99 Kan. 49. Under Gen. St. 1889, par. 4191, which provides that "in all actions allega : tions of * * * the correctness of any account duly verified * * * ehall be taken as true, unless the denial of the same be verified," etc., it is not necessary that an answer should be verified in order to raise the issue of the maturity of the account; and, where its correctness is not de- nied, evidence may be introduced to show it is not due, though the petition is verified, and the answer is not. Johnston v. Johnson, 44 Kan. 666, 24 P. 1098. 77 Continental Gin Co. v. Sullivan, 48 Okl. 332, 150 P. 209. 78 Miners' Supply Co. v. Chesnutt-Gibbons Grocer Co., 50 Okl. 151, 150 P. 686. (503) 612-613 PLEADINGS (Ch. 11 attached to a petition, but that the petition specifically allege its correctness before defendant is required to deny it under oath, otherwise a general denial is sufficient. 79 An answer which does not question the correctness of a verified account as set forth in the petition, but which sets up an affirma- tive defense, need not be verified. 80 613. Corporation and partnership "In all civil actions brought by or against a corporation, it shall not be necessary to prove on the trial of the cause the existence of such corporation, unless the defendant shall in his answer ex- pressly aver under oath that the plaintiff or defendant is not a corporation." 81 79 Id. The correctness of plaintiff's account is not admitted by defendant's failure to deny it under oath when the petition contains no allegation of its correct- ness, though a verified account is attached to the petition. Dewey v. Burton, 46 P. 321, 4 Kan. App. 582. Under Wilson's Rev. & Ann. St. 1903, 4312, providing that, where the correctness of accounts is duly verified, it shall be taken as true unless the denial is verified, where the verification of an account contains no allegation of its correctness, it does not require the answer to be verified. Sawyer & Aus- tin Lumber Co. v. Champlain Lumber Co., 84 P. 1093, 16 Okl. 90. Under Civ. Code, 108, providing that the correctness of an account verified by affidavit of the party or -his attorney shall be taken as true, unless the denial of the same be verified in a similar manner, the correctness of an ac- count set up_by defendant as a counterclaim is not admitted by the failure of plaintiff to deny the same under oath, when the correctness thereof is not al- leged in the answer. McMath v. Beal, 45 P. 1103, 4 Kan. App. 565. A verified counterclaim by defendant in trespass alleged that defendant was to have one-half the crops raised by plaintiff on the premises, and that plain- tiff converted the whole of such crops to his own use. The amount of the crops which defendant would have received was itemized. Held, that the counterclaim was not a statement of account, to be taken as true unless the denial thereof was verified. Kauter v. Fritz, 47 P. 187, 5 Kan. App. 756. . so Sawyer & Austin Lumber Co. v. Champlain Lumber Co., 16 Okl. 90, 84 P. 1093. The fact that a verified account sued on is not denied by a verified affida- vit does not preclude defendant J rom interposing any defense pleaded which does not involve a denial of the reasonableness of the amounts 'charged or the correctness of the items; but defendant may show that plaintiff agreed to charge nothing for the work, or that the account was paid. Lucas v. Board of Com'rs of Ford County, 73 P. 56, 67 Kan. 418. si Rev. Laws 1910, 12SO. Unless it is alleged in the answer under oath that plaintiff is not a corpora- tion, plaintiff need not prove that it is a corporation. Marshall Mfg. Co. v. (504) Art. 5) ANSWER 613-615 "Whenever any suit shall be instituted by an incorporated town it shall not be required to show its compliance with any of the provisions of law as to its organization or publication of by-laws or ordinances, unless the same is controverted by affidavit." 82 ' Where the petition alleges that a third person wa? the agent of defendant, and such allegation is not denied, it will be treated as admitted. 83 Where petition alleges sale of goods to defendants as partners, one defendant's denial under oath that she owed plaintiff anything, and of existence of partnership, admits correctness of account, but not her indebtedness thereon, and, to recover, plaintiff will be re- quired to show either a personal or partnership liability. 84 An unverified denial of an allegation of existence of a partner- ship is ineffectual, and presents no defense to an action against such partnership. 86 614. Waiver The provision that allegation of indorsement on written instru- ments, not met by a verified denial, shall be taken as true, may be waived by the pleader's introducing evidence thereon. 89 615.- Forms GENERAL DENIAL- VERIFIED DENIAL OF NOTE SUED ON (Caption.) Comes now the said defendant, G. H. & Co., a corporation, and files its answer to the petition of plaintiffs filed herein, and states : 1. The defendant, answering the first alleged cause of action set forth in the petition herein, denies each and every allegation Dickerson, 65 Okl. 188, 155 P. 224; First Nat. Bank of Tishomingo v. Latham, 132 P. 891, 37 Okl. 286. 82 Rev. Laws 1910, 676. ss j. j. Case Threshing Mach. Co. v. Mbsley (Okl.) 173 P. 208. s* Watson-Durand-Kasper Grocery Co. v. Scheetz, 163 P. 168, 99 Kan. 772. ss Miles v. Grosman Co. (Okl.) 173 P. 808. se Spaulding v. Thompson, 60 Old. 136, 159 P. 509. Verification of the answer in an action on a written instrument is waived, notwithstanding Code Civ. Proc. 110 (Gen. St. 1909, 5703), where plaintiff joins issue, introduces evidence contradicting the defense, and asks instruc- tions relative thereto. Emery v. Bennett, 155 P. 1075, 97 Kan. 490, Ann. Cas. 1918D, 437. (505) 615 PLEADINGS (Cll. 11 therein contained, except such as are hereinafter specifically ad- mitted. 2. The said defendant admits that it is a corporation organized, existing, and doing business under and by virtue of the laws of the state of Oklahoma. 3. The defendant, answering the second alleged cause of action set forth in the petition herein, denies each and every allegation therein contained, except such as are hereinbefore specifically ad- mitted. 4. Further answering the second alleged cause of action set forth in the petition herein, defendant specifically denies that it made, executed, or delivered the promissory note and mortgage al- leged in said second alleged cause of action, or that the authorized agent of defendant made, executed and delivered the same. (Signature) Attorney for Defendant. State of Oklahoma, ] County of X. Y., being first duly sworn, says : That he is an officer, to wit, the president, of the defendant corporation; that he has read the foregoing answer and knows the contents thereof; and that the same is true of his own knowledge. (Signature.) Subscribed and sworn to before me this day of , 19. (Seal.) (Signature) Notary Public. My commission expires , 19 . VERIFIED DENIAL OF THE CORRECTNESS OF THE ACCOUNT SUED ON (Caption.) Comes now the said defendant, E. F., and for his answer to the petition of plaintiff filed herein denies each and every allegation therein contained, and specifically denies the correctness of the verified account sued on, (Signature) Attorney for Defendant. State of Oklahoma, County of -, being first duly sworn, states: That he is the defendant (or attorney or agent for the defendant^ in the above entitled ac- (506) Art. 5) ANSWER 615-617 tion, and that the above and foregoing statements in denial are true. (Signature.) Subscribed and sworn to before me this day of , 19. . (Seal.) (Signature) Notary Public. My commission expires , 19 . DIVISION IV. COUNTERCLAIM AND SET-OFF 616. Counterclaim Nature Right to interpose Set-off Lim- itations "The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim or connected with the subject of the action or on account of a wrongful attachment or garnishment issued and levied in said action after the same has been set aside. The right to relief concerning the subject of the action mentioned in the same section must be a right to relief necessarily or properly involved in the action for a complete determination thereof, or set- tlement of the question involved therein. Provided, that either party can plead and prove a set-off or counterclaim of the proper nature, in defense of the liability sought to be enforced by the other party, and it shall not be necessary that such set-off shall exist as between all parties plaintiff and defendant in such suit, but any party may enforce his set-off or counterclaim against the liability sought to be enforced against him. Such set-off or counterclaim shall not be barred by the statutes of limitations until the claim of the plaintiff is so barred." 87 617. Set-off Right to interpose "A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract or ascertained by the decision of a court." 88 ST Eev. Laws 1910, 4746. ss Rev. Laws 1910, 4747. . Contract and tort. In an action on a contract defendant may set off or plead as a defense thereto any claim arising to him by virtue of any contract with plaintiff. Mowatt v. Shidler (Okl.) 168 P. 1169. In suit for price of (507) 617 PLEADINGS (Ch. 11 While the principal debtor may set ff a debt due from the maker to him in an action against him and his surety jointly, his surety cannot do so on his own motion, unless he shows the insolvency of land and to establish a vendor's lien, where defendant pleaded as a set-off an indebtedness from plaintiff, evidenced by a note and account, instruction that he could not set it off unless there was an agreement that debt should be set off as part of consideration for property, held error. Id. In an action on a note given for the price of machinery, where the property was returned under the contract, defendant Was entitled to a credit for the reasonable value of the property when it was returned to plaintiff. Wade v. Ray, 139 P. 116, 41 Okl. 641. A claim on an implied contract is not allowable to defendant as a set-off in an action sounding in tort. Nation v. Planters' & Mechanics' Bank, 119 P. 977, 29 Okl. 819. Where plaintiff states such facts as are necessary to sustain an action to recover chattels on the implied contract, and none showing a purpose to rely on the tort, except in using the words, "did convert the same to her own use and benefit," and alleges that he is the owner, the character of ownership, the taking of the chattels for defendant's benefit, and their value, a demand for the value, a refusal, and a prayer for recovery of the alleged value, there being no specific allegation of fraud, wrong, or injury to plaintiff by reason of the tort, but the amount claimed being confined to the alleged value, de- fendant may treat the action as ex contractu, and where defendant pleads set-off, and plaintiff replies, evidence of set-off is properly admitted. Smith v. McCarthy, 18 P. 204, 39 Kan. 308. A railroad company sued its former treasurer for moneys alleged to be- long to the company, and to have been received by him as treasurer, and wrongfully appropriated by him to his own use. It appeared that he appro- priated the same in payment of certain claims which he held against the com- pany, the claims being founded on contract. Held, that he might set off such claims against the claim of the railroad company so far as they were legal and valid. St. Louis, Ft. S. & W. R. Co. v. Chenault, 12 P. 303, 36 Kan. 51. Damages arising out of an actionable tort in a land trade cannot be set off or counterclaimed in an action on a contract which was distinct from the transaction in which the tort was committed. Hazlett v. Wilkin, 140 P. 410, 42 Okl. 20. A cause of action accruing to defendant for damages resulting from a con- spiracy between plaintiff and another to bring an unjustifiable suit against him, and the bringing of such suit in pursuance of the conspiracy, cannot be set up as a counterclaim in answer to plaintiff's demand, as it does not arise out of the contract which is the foundation of plaintiff's claim. First Nat. Bank v. Hasie, 48 P. 22, 57 Kan. 754. Waiver of tort. In an action on a note by the payee, the maker, who alleges that his employs owns the real interest 4n the note, may set off a claim against such employe for goods embezzled by the latter, such claim being one on implied contract, since the employer could waive the tort and sue the agent on contract. Challiss v. Wylie, 11 P. 438, 35 Kan. 506. A railroad company sued its former treasurer for moneys alleged to belong to the company, and to have been received by him as treasurer, and wrong- (508) Art. 5) ANSWER 618 his principal and his inability to obtain relief either in an action against him or as a defense to an action on the note. 89 618. Defined and distinguished Statute applied A counterclaim is a cause of action existing in favor of a defend- ant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or trans- action set forth in the petition as the foundation of plaintiff's claim, or connected with the subject of the action. 90 A set-off is a cause of action arising upon contract or ascertained by 'the decision of a court, and can only be pleaded in an action founded on contract. It must be independent of, and not connected with, the contract made the foundation of the cause of action in the petition, and can only be pleaded where there is mutuality of par- ties. The cause of action sought to be pleaded as a set-off must exist in favor of all the defendants against the plaintiff. 91 fully appropriated by him fully delayed a train, for the purpose of injuring it, was founded on contract; nor could the company waive the torts for the purpose of recovering as for breach of contracts. Atchison, T. & S. F. R. Co. v. Phelps, 46 P. 183, 4 Kan. App. 139. as Willoughby v. Ball, 90 P. 1017, 18 Okl. 535. so Richardson v. Penny, 61 P. 584, 10 Okl. 32. 9i Id. Counterclaim,. A "counterclaim" is the claim of a defendant to recover from a plaintiff by setting up and establishing any cross-demand which may exist in his favor as against plaintiff. Drovers' State Bank v. Elliott, 154 P. 255, 97 Kan. 64. Defendant may prove counterclaim arising out of contract or transaction alleged as foundation of claim, or connected with subject of action. Cooper v. Gibson (Okl.) 170 P. 220. A counterclaim need not simply defeat plaintiff's recovery or reduce the amount thereof, but, is something of a legal or equitable nature arising out of the contracts or transactions set forth in the petition giving defendant a right to relief necessarily or properly involved in a complete determination of the action. Hodge v. Bishop, 151 P. 1105, 96 Kan. 419. In an action on a contract, defendant may plead as a counterclaim any cause of action arising on contract which he may have against plaintiff. Orr v. Gerrold, 57 P. 48, 8 Kan. App. 441. A counterclaim secures to defendant full relief, which a separate action at law or a bill in chancery or a cross-bill would have secured for him on an allegation and proof of the facts, but relates only to such causes of action as exist against plaintiff and which might be basis of an action against him by defendant. Mathews v. Sniggs, 75 Okl. 108, 182 P. 703. It is not necessary that a counterclaim should be founded in or arise out of the contract set forth in the petition; it being sufficient if it arises out of (509) 618 PLEADINGS (Ch. 11 the transaction set forth in the petition, or is connected with the subject of the action. Wyman v. Herard, 59 P. 1009, 9 Okl. 35. In an action for plastering a house, where defendant pleaded a counter- claim, alleging damages on account of plaintiff's unskillful workmanship in constructing a foundation for the house, it must be shown by defendant that the contract for building such foundation was a part of the same contract or transaction under which the plastering of the house was done. Allison v. Shinner, 54 P. 471, 7 Okl. 272. The answer, in an action for rent, held to present a proper counterclaim, where it asked that defendant's wife be made a party and be adjudged to have an equitable title to the land, and that plaintiff be required to carry out the contract in which the title originated. Hodge v. Bishop, 151 P. 1105, 96 Kan. 419. In action on building contract, defendant may elect to counterclaim against contractor for damages from failure to perform contract, instead of defend- ing against any recovery because of such failure to perform. Brown v. Tull (Okl.) 164 P. 785. A chattel mortgagor may counterclaim, in replevin to recover the goods un- der the mortgage securing the purchase p^rice, for damages for fraud in the sale. Miller v. Thayer, 150 P. 537, 96 Kan. 278. Where the answer of defendant in ejectment alleged that he had a lease for a term of years, and that plaintiff was in unlawful possession and un- lawfully withholding the premises from defendant, and prayed judgment for possession and for damages, that part of the answer claiming interest in the land and asking affirmative relief was a counterclaim. Long v. Bagwell, 38 Okl. 312, 133 P. 50. Where a plaintiff files a petition in ejectment, and defendant in his answer, in addition to a general denial, states he is in possession of the same land, and claims to be the owner thereof by virtue of a tax deed, and asks that his title thereto may be quieted against plaintiff, that part of his answer claiming title in himself, and asking affirmative relief, is a counterclaim, within Code, 95, defining a counterclaim as> a demand existing in favor of defendant and against plaintiff arising out of the transaction sued on. Venable v. Dutch, 15 P. 520, 37 Kan. 515, 1 Am. St. Rep. 260. A mortgagor may, in replevin by the mortgagee, plead as a counterclaim the breach of a contract by the mortgagee to buy the goods and pay the dif- ference between the amount of the mortgage and the agreed price of the goods. Deford v. Hutchison, 25 P. 641, 45 Kan. 318, 11 L. R. A. 257, judgment modi- fied, 26 P. 60, 45 Kan. 332. In an action to recover damages for the removal of a house from real es- tate upon which plaintiff claimed a mortgage, defendants answered by a general denial, and set up a counterclaim, alleging that they had been pre- vented from making a loan by reason of the bringing of such action, and had been thereby damaged. Plaintiff failed to reply or appear, and the court ren- dered judgment in favor of defendants upon such answer. Held error, as the answer did not set up facts sufficient to constitute a counterclaim, the facts having arisen, not from the same transaction involved in the action, but from the bringing of the action. Kansas Loan & Investment Co. v. Hutto, 29 P. 558, 48 Kan. 166. In an action by a mortgagee against the mortgagor for possession of a traction engine and other chattels, the mortgagor cannot recover on a coun- (510) Art. 5) ANSWER 619 619. Subsisting right The validity of a counterclaim or set-off is determined by whether it would constitute a cause of action by defendant against plaintiff, had plaintiff not sued. 92 terclaini for damages resulting from failure of the mortgagee to deliver the engine at the time agreed upon, where the mortgage and the notes secured thereby were given by the mortgagor after the delivery of the engine for which the same were executed, without objection on account of the delay in its delivery. Frick Co. v. Stephens, 53 P. 378, 7 Kan. App. 745. In suit on supersedeas bond, defendant's damages from an unlawful at- tachment in the action in which bond was executed were not proper subject for counterclaim within Rev. Laws 1910, 4746. Brisley v. Mahaffey, 64 Okl. 319, 167 P. 984. Under Rev. St. 1910, 4746, limiting the use of a counterclaim, a note from plaintiff to a stranger to the suit, and assigned to defendant, cannot be used as a counterclaim where it is in no way connected with, and has no relation to, the contract or transaction made the basis of plaintiff's suit. First Nat. Bank v. Thompson, 137 P. 668, 41 Okl. 88. In an action for installing a plumbing system and for extras held that mat- ter arising out of a contract, distinct from that sued on, did not constitute a proper counterclaim under Rev. Laws 1910. 4745, 4746. Harris V. Warren- Smith Hardware Co., 44 Okl. 477, 144 P. 1050. Under Rev. Laws 1910, 4746, plaintiff cannot plead as counterclaim in ac- tion on notes unliquidated damages from unlawful suing out of attachment in former suit in settlement of which notes were executed. Phillips v. Har- gadine-McKittrick Dry Goods Co., 59 Okl. 294, 159 P. 320. S&t-off. A "set-off" is a demand which a defendant makes against the plaintiff in a suit to liquidate the whole or a part of his claim. Drovers' State Bank v. Elliott, 154 P. 255, 97 Kan. 64. Where a person agrees on certain conditions to be performed by a bank to indorse all notes held by the bank, to 55 per cent, thereof, and makes a spe- cial deposit in the bank to secure performance, he is entitled, on failure of the bank to comply with the conditions, to any part of such deposit which has not been properly applied under the agreement, and may set off same in an action against him by the bank on a note. First State Bank of Indiahoma v. Menasco, 55 Okl. 748, 155 P. 261. Under the statute limiting the use of a set-off (Rev. St. 1910, 4746), a de- fendant, in an action for conversion, cannot set off a note given by plaintiff to a stranger to the suit, and assigned to him. First Nat. Bank v. Thomp- son, 137 P. 668, 41 Okl. 88. In an action on a contract, a defendant may plead as a set-off any cause of action arising on contract which he may have against plaintiff. Orr v. Gerrold, 57 P. 48, 8 Kan. App. 441. In an action on a note, held permissible to set up a cross-demand for dam- ages for the wrongful taking and injury by plaintiff of a horse belonging to defendants. Ontjes v. Rhodenbaugh, 132 P. 211, 89 Kan. 533. 92 Johnson v. Acme Harvesting Mach. Co., 103 P. 638, 24 Okl. 468. (511) 619-620 PLEADINGS (Ch. 11 There must be a subsisting right in defendant. 98 An unadjudicated sum due on open account cannot be set off against a judgment. 94 620. Equity Equity can allow a set-off of debts independently of statute where grounds of equitable interposition are shown, such as fraud, insol- vency, or nonresidence, rendering it probable that party will lose his demand and be compelled to pay other demand. 95 A counterclaim may likewise be allowed. 96 os in a purchaser's action against real estate brokers for purchase money paid for land which proved deficient in quantity, the brokers could not offset a sum paid by them to an occupant of the premises to place themselves in po- sition to deliver possession, where such payment was made, not for plaintiff's benefit, but to secure the profit they expected to make on the transaction. Hur- ford v. Norvall, 39 Okl. 496, 135 P. 1060. In a carrier's action to recover an undercharge, held, that a set-off could not be allowed for damages on another shipment, where such other shipment was made under a contract prescribing conditions precedent to the allowance of damages, and such conditions had been disregarded. Chicago, R. I. & P. Ry. Co. v. Theis, 152 P. 619, 96 Kan. 494. Where a defendant did not intend to charge the plaintiff anything for va- rious items when they were furnished, and so testified, he cannot after an ac- tion has been commenced, make charges for them, and recover thereon. Col- lins v. Martin, 23 P. 95, 43 Kan. 182. In an action on an order to let F. have meat from the 1st of May until fur- ther orders, an item of $63.25 which one of plaintiffs, on cross-examination, admits was for meat sold to F.'s husband before the 1st of May, should not be offset against a bill which plaintiffs owe defendant. McNeely v. Duff, 31 P. 1061, 50 Kan. 488. 4 Colcord v. Conger, 62 P. 276, 10 Okl. 458. 95 Caldwell v. Stevens, 64 Okl. 287, 167 P. 610, I>. R. A. 1918B, 421. Equity may allow set-offs of mutual demands where such relief is necessary to enable party claiming it to collect his claims, and, where other equitable grounds exist, the insolvency of the party against whom the relief is sought will authorize such equitable remedy. Scrivner v. McClelland, 75 Okl. 239, 182 P. 503. In suit to recover upon notes and to foreclose mortgage on realty, fourth paragraph of defendant's answer held to state facts sufficient for exercise of jurisdiction in equity to decree set-off. Caldwell v. Stevens, 64 Okl. 287, 167 P. 610, L. R. A. 1918B, 421. as In action to restrain unfair competition, a counterclaim for damages for plaintiff's unlawful use of defendant's trade-name and seeking an injunction is proper, and, if the allegations thereof are sustained, defendant is entitled to the relief. O K Bus & Baggage Co. v. O K Transfer & Storage Co., 63 Okl. 311, 165 P. 136, L. R. A. 1918A, 956. (512) Art. 5) ANSWER 620-621 In an action by the trustee of a trust mortgage to recover the value of certain trust property sold to defendant, a holder by as- signment of a note secured by the mortgage, a counterclaim may be properly pleaded, asserting an interest in the application of the pro- ceeds of mortgaged property, and asking an accounting. 97 In an action to recover money defendant cannot avail himself of an equitable counterclaim involving the foreclosure of a mortgage and the sale of the real estate described therein, which the court has no power to hear, because the premises described in the mort- gage are situated in another county, and beyond the jurisdiction of the court where such counterclaim is filed. 98 621. Cross-bill or cross-petition In foreclosure the defendant cannot by cross-bill set up new mat- ter not maintainable as a counterclaim, unless such matter is in- volved in a proper determination of the subject-matter of the origi- nal suit. 99 A cause of action set up in a cross-bill against a party made co- defendant on motion of original defendant must be germane to orig- inal controversy, and a cross-bill wherein such defendant seeks to litigate a new controversy between himself and a codefendant is not maintainable as a counterclaim or cross-bill, but must be litigat- ed against codefendant by a separate action. 1 In a suit for breach of a contract to exchange realty, defendant may set up a cross-petition, alleging breach by plaintiff, and ask spe- cific performance with prayer in the alternative for damages, though he knows that plaintiff cannot perform. 2 97 Wyman v. Herard, 59 P. 1009, 9 Okl. 35. 8 Lyman v. Stan ton, 20 P. 510, 40 Kan. 727. 99 Tracey'v. Crepin, 138 P. 142, 40 Okl. 297. In foreclosure, a grantee of the mortgagor under a warranty deed could not set up by cross-petition damages against the mortgagor for breach of the covenants in the deed ; such matter not being germane to the original action. Id. 1 Patterson v. Central State Bank, 175 Okl. 147, 182 P. 678. In an action on a note wherein defendant has additional parties made co- defendants, his cross-bill, attempting to litigate a controversy between himself and such co-defendants not germane to the subject matter of the original suit, was properly dismissed. Id. 2 Stramel v. Hawes, 154 P. 232, 97 Kan. 120. HON.PL.&PBAC. 33 (513) 621-622 PLEADINGS (Ch. 11 In the absence of objection, an answer, containing the requisite allegations, may be treated as cross-petition, though not so named by the pleader. 3 Where defendant, by cross-petition, alleged ownership of per- sonal property and prayed equitable relief, and it appeared that bill of sale under which he claimed, although in his own name, was taken for use of his principal and had been delivered to principal, by which a trust resulted, the proof failed to sustain cause of action alleged, and he could not recover, notwithstanding the statute pro- viding that a trustee, etc., may sue without joining the person beneficially interested. 4 Where a resident of the state for the statutory time files her pe- tition for divorce, defendant may file a cross-petition and ob- tain a decree of divorce without alleging that he has resided con- tinually in the state for the year next before his application for divorce. 5 622. Landlord and tenant In a landlord's attachment, the tenant may counterclaim for labor performed and money expended in improving the premises under authority from the landlord. 6 The amount of a tenant's counter- claim for work and labor authorized by the landlord is to be deter- mined by the reasonable value of same, and the amount allowable, for money expended is actual expenditure. 7 Since damages resulting from a breach of the covenant of quiet enjoyment arise out of the lease, they may be recovered by way of counterclaim in an action for rent. 8 A lessee on discovering fraudulent representations by the lessor of a material fact is not compelled to give up the premises and rescind the contract, but may set off any damage caused thereby on suit for the rent. 9 In an action for damages for breach of a farm lease contract, a s Miller v. Oklahoma State Bank of Altus, 53 Okl. 616, 157 P. 767. t Frisco Lumber Co. v. Waldock (Okl.) 176 P. 220 ; Rev. Laws 1910, 4683. s Newman v. Newman, 112 P. 1007, 27 Okl. 381. e Ratcliff v. Sharrock, 44 Okl. 592, 145 P. 802. 7 Id. s Hanley v. Banks, 51 P. 664, 6 Okl. 79. Myers v. Fear, 96 P. 642, 21 Okl. 498, 129 Am. St. Rep. 795. (514) Art. 5) ANSWER 623-625 counterclaim for personal property taken by the tenant must al- lege ownership thereof in the landlord at the taking. 10 623. Action against United States While no affirmative judgment can be rendered against the United States on a set-off in favor of defendant, yet, when the Unit- ed States sues, it waives its exemption so far as to allow a presen- tation by defendant of a legal and equitable set-off to the extent of the demand made, but no judgment can be rendered against the United States for any balance found due. 11 624. Cross-demands Deprivation "When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other; but the two demands must be deemed compensated so far as they equal each other." 12 625. " . Assignments When cross-demands have existed between persons under such circumstances that if one had brought an action against the other a set-off could have been set up, neither can be deprived of the benefit of such set-off by the assignment of the other. 13 ' 10 Hill v. White,50 Okl. 573, 150 P. 1051. 11 United States v. Warren, 71 P. 685, 12 Okl. 350. 12 Rev. Laws 1910, 4751. is Gardner v. Risher, 10 P. 584, 35 Kan. 93. The fact that defendant gave verbal directions to a member of a firm which was indebted to him for his share in the profits on a contract to apply such profits to the payment of a debt due from defendant to such party, and of a note due to plaintiffs assignor who was also a member of such firm, where nothing was ever done under such directions, but the whole of such profits were included in securities afterwards transferred by the firm to secure its own indebtedness, does not affect the right of defendant to set off his share of such profits against a claim prosecuted against him by an assignee of such note, who purchased after maturity thereof, and after the right to such set- off had accrued. Davies v. Stevenson, 54 P. 679, 59 Kan. 648. Where a building contractor assigns the money due him under the contract to one who has furnished materials for the building, and the assignee sues the owner thereon, the owner can set off against the claim his damages for the wrongful institution of an action formerly brought against him, and pros- ecuted to final judgment, by such assignee on his claim for material, without making the contractor a party. Tracy v. Kerr, 28 P. 707, 47 Kan. 656. (515) 625-627 PLEADINGS (Ch. 11 > Where a corporation, through its president, asks that an account owing to him personally by the holder of its note be credited there- on, it amounts to a transfer of the account from the president to the corporation; and in an action on the note plaintiff cannot ob- ject to the account being used as a set-off because no formal as- signment was made. 1 * 626. Definition A "cross-demand" is a demand which is preferred by one party to an action in opposition to a demand already preferred against him by his adversary. 15 627. Parties and mutuality It is not necessary that counterclaim arising out of contract or transaction alleged as foundation of claim, or connected with sub- ject of action, exist as between all the parties and the defendant; 16 i* Kansas City Paper House v. Foley Ry. Printing Co., 118 P. 1056, 85 Kan. 678, 39 L. R. A. (N. S.) 747, Ann. Cas. 1913A, 294. is Drovers' State Bank v. Elliott, 154 P. 255, 97 Kan. 64. IB Cooper v. Gibson (Okl.) 170 P. 220; Robertson v. Howerton, 56 Okl. 555, 156 P. 329. Under the direct provisions of Acts Ter. Leg. Okl. 1905, p. 328, c. 28, art. 7, 3, it is not necessary that a set-off or counterclaim shall exist as between all parties to the suit ; but any party may enforce his set-off or counterclaim against the liability sought to be enforced against him. Loeb v. Loeb, 103 P. 570, 24 Okl. 384. One joint maker of a note can set off against it an indebtedness from the payee due him individually. McKay v. H. A. Hall & Co., 30 Okl. 773, 120 P. 1108, 39 L. R. A. (N. S.) 658 ; Curlee v. Ruland, 56 Okl. 329, 155 P. 1182. Where a purchaser of merchandise from a firm agreed to pay certain notes and account owed by the firm, and gave his note to the partners, who owned all the property, and in suit thereon counterclaimed on the notes and ac- count which had been assigned to him, the plaintiff is entitled to the benefit of the promise to the firm to pay such notes and account. Danielson v. Scott, 129 P. 1190, 88 Kan. 789. E. transferred cattle and other property to defendants under a contract by which the latter undertook, inter alia, to assume the payment of damages due to plaintiff on account of his cattle having become infected with a fever prev- alent among such cattle of E., by reason of E.'s negligence. Plaintiff there- upon brought suit on the contract, as the party for whose benefit it was made, to recover such damages. Held, that defendants are entitled to set off against this claim an indebtedness of plaintiff to them, existing before the contract with E. was made. Clay v. Woodrum, 25 P. 619, 45 Kan. 116. Under the express provisions of Comp. Laws 1909, 5635, a defendant may plead and prove a set-off or counterclaim of a proper nature in defense of the liability sought to be enforced by the plaintiff; and it is not necessary that (516) Art 5) ANSWER 628-630 but there must be privity of parties to entitle defendant to plead a set-off, and defendant cannot plead a set-off in favor of himself and against one not a party to the suit. 17 628. New party Counterclaim "When it appears that a new party is necessary to a final deci- sion upon a counterclaim, the court may either permit the new party to be made by a summons to reply to the counterclaim, or may direct the counterclaim to be stricken out of the answer, and made the subject of a separate action." 18 629. New party Set-off "When it appears that a new party is necessary to a final deci- sion upon the set-off, the court shall permit the new party to be made, if it also appear that, owing to the insolvency or non-res- idence of the plaintiff, or other cause, the defendant will be in dan- ger of losing his claim, unless permitted to use it as a set-off." 19 630. Form and requisites A counterclaim must be pleaded as fully and distinctly and with the same substantial requisites as an original cause of action, must be sufficient within itself without recourse to the pleadings, unless by express reference, 20 should be separately stated, and must show with certainty the character of claim, how it accrued, and the facts making it a proper subject of counterclaim or cross-petition. 21 the same shall exist as between all parties plaintiff and defendant in such ac- tion. Stauffer v. Campbell, 30 Okl. 76, 118 P. 391. 17 Van Arsdale v. Edwards, 101 P. 1123, 24 Okl. 41. An overpayment to the president and secretary of a corporation could not be set off as against an amount due the corporation in an action to which the ^resident and secretary were not parties. Peck- Williamson Heating & Ven- tilating Co. v. Board of Education, Oklahoma City, 50 P. 236, 6 Okl. 279. is Rev. Laws 1910, 4749. 19 Rev. Laws 1910, 4750. 20 Mathews v. Sniggs, 75 Okl. 108, 182 P. 703. 21 Id. In action for breach of contract to purchase plants, plea setting up as set- off breach of another contract to plant seed and ship to defendant any fit roots held subject to demurrer for failure to show that plaintiff produced roots fit for defendant's purposes. Barteldes Seed Co. v. Mitchell, 59 Okl. 65, 157 P. 935. (517) 631-634 PLEADINGS (Ch. 11 631. Notice Where a judgment is set aside and an answer asking for affirma- tive relief filed, notice of the same must be given to the parties af- fected thereby. 22 632. Waiver The right of set-off existing between parties owing each other may, on valuable consideration, be waived. 23 In suit on supersedeas bond, with counterclaim for damages from unlawful attachment in action in which bond was executed, plaintiff, by replying and joining issue of former adjudication, waived ob- jection that such damages were not proper subject for a coun- terclaim. 24 633. Withdrawal "The court, at any time before the final submission of the cause, on motion of the defendant, may allow a counterclaim or set-off, set up in the answer, to be withdrawn, and the same may become the subject of another action; on motion of either par- ty, to be made at the time such counterclaim or set-off is with- drawn, an action on the same shall be docketed and proceeded in as in like cases after process served; and the court shall direct the time and manner of pleading therein. If an action b'e not so docketed, it may afterwards be commenced in the ordinary way." 25 634. Neglect to claim Cost "If the defendant omit to set up a counterclaim or set-off, he can- not recover costs against the plaintiff in any subsequent action thereon ; but this section shall not apply to causes of action which 22 One of several defendants procured the judgment rendered in the case to be set aside as to him, upon the ground that no sufficient service of sum- mons was ever made upon him. Afterwards, he filed an answer in the action setting up new matter and grounds for affirmative relief, which affected the rights and interests of several of the other parties and other persons, with- out giving such other parties or persons any notice or any opportunity to ap- pear and defend. Held, that the court might, upon the hearing on such an- swer, refuse to grant the relief prayed for in such answer, and dismiss this new proceeding without prejudice. Clay v. Hildebrand, 24 P. 962, 44 Kan. 481. 23 Stacy v. Cook, 61 P. 399. 62 Kan. 50. 24 Brisley v. Mahaffey, 64 Okl. 319, 167 P. 984. 25 Rev. Laws 1910, 4771. (518) Art. 5) ANSWER 635-637 are stricken out of, or withdrawn from the answer, as in sections 4749 and 4771." 26 635. Forms ANSWER SETTING UP COUNTERCLAIM OR SET-OFF (Caption.) Comes now the defendant, and in answer to the plaintiff's petition filed herein states: 1. ^hat he denies each and every material allegation made by plaintiff in his petition, except (here state matters not denied). 2. That he has a counterclaim (or set-off) against plaintiff as fol- lows: (State in similar manner as though defendant were plain- tiff, stating his cause of action in his petition.) Wherefore defendant prays that judgment for plaintiff be denied, and that judgment be rendered for defendant against the plaintiff for the sum of dollars, and for his costs. (Signature) Attorneys for Defendant. DIVISION V. UNAUTHORIZED PLEAS 636. Plea in abatement There is no provision for a plea in abatement, and such a plead- ing, if sustained, must be treated as a demurrer or an answer. 27 637. Plea in bar Under the statute providing that the pleadings authorized are petition by plaintiff, answer or demurrer by defendant, demurrer or reply by plaintiff, and demurrer by defendant to reply, a plea in bar is unauthorized. 28 se Rev. Laws 1910, 4748. 27 Patterson v. Choate, 50 Okl. 761, 151 P. 620; Maxia v. Oklahoma Port- land Cement Co. (Okl.) 176 P. 907 ; Sweet v. Crane, 39 Okl. 248, 134 P. 1112. In a suit for damages from the levy of an attachment, a defendant's motion to abate, alleging that it was necessary to maintenance of suit that it be final- ly adjudicated that attachment was wrongfully obtained, would be regard- ed as an answer to the petition. Nation v. Savely (Okl.) 176 P. 937. The court was probably incautious in the use of terms in holding in 1899 that the point that plaintiff is not a corporation should be raised by a special plea in the nature of a plea in abatement. Leader Printing Co. v. Lowry, 59 P. 242, 9 Okl. 89. 28 Anderson v. State, 140 P. 1142, 42 Okl. 151; Rev. Laws 1910, 4736. (519) 638-639 PLEADINGS (Ch. 11 ARTICLE VI REPLY Section* 638. Reply or demurrer. 639. When reply necessary. 640. Counterclaim or set-off in reply. , 641. Demurrer or reply to answer by codefendant. 642. Construction and effect. 643. Requisites and sufficiency Forms. 644. Departure. 645- Waiver of objections. 638. Reply or demurrer "When the answer contains new matter, the plaintiff may reply to such new matter, denying, generally or specifically, each allega- tion controverted by him ; and he may allege, in ordinary and con- cise language, and without repetition, any new matter not incon- sistent with the petition, constituting a defense to such new matter in the answer ; or he may demur to the same for insufficiency, stat- ing, in his demurrer, the grounds thereof; and he may demur to one or more of such defenses set up in the answer, and reply to the residue." 29 639. When reply necessary Where the answer contains no new matter and amounts to no more than a denial of the petition, no reply is necessary. 30 ' 29 Rev. Laws 1910, 4753. so Wichita Falls & N. W. Ry. Co. v. Puckett, 53 Okl. 463, 157 P. 112. In suit on contract and bond, a verified general denial did not constitute "new matter," entitling plaintiff to a reply thereto. Detroit Automatic Scale Co. v. Taylor (Okl.) 169 P. 908. No reply need be filed where the answer does not set up new matter, but merely evidentiary facts by way of denial. Denman v. Brennamen, 48 Okl. 566, 149 P. 1105, L. R. A. 1915E, 1047. In an action upon a forfeited recognizance, the defendant, by a verified an- swer, averred that he signed the instrument when it was yet incomplete and what is known commonly as a blank recognizance, the blank spaces left there- in for the name of the county, the offense charged, the amount in which the prisoner was held and the court before which he was required to appear, be- ing left unfilled, and that he attached his name to it upon the condition that an- other person should join him in signing the recognizance, and, when so signed, the blanks should be filled out by the co-surety and the instrument delivered, and that unless it was so executed he was not to become liable thereon. He also alleged that the recognizance was not signed or completed by the other (520) Art. 6) REPLY 639 New matter in an answer which does not constitute a defense to plaintiff's petition, does not require a reply. 31 A set-off or counterclaim in an answer requires a reply; 32 but defendant need file no reply to such reply. 33 The plaintiff in an action against a carrier of live stock, in order to avoid a valid limitation of liability set up in the answer, must plead any deceit or fraud practiced upon him in obtaining his as- sent to the contract. 34 party, and therefore that he was not liable thereon. Held, that this answer was in substance and effect a denial that the recognizance sued on had been executed by him, and a verified reply by the plaintiff denying the allegations of the answer was unnecessary. Madden v. State, 10 P. 469, 35 Kan. 146. A general denial was filed to the original answer of defendants, and after- wards a supplemental petition was filed. Defendants answered again fully to the merits of the action, but did not set forth any new matter. Held, that another reply was unnecessary. Dreiling v. First Nat. Bank, 23 P. 94, 43 Kan. 197, 19 Am. St. Rep. 126. A reply is unnecessary where it would merely repeat, in effect, the allega- tions off the petition. Muskogee Vitrified Brick Co. v. Napier, 126 P. 792, 34 Okl. 618. An answer which, after a general denial of the negligence charged, alleges that any injuries sustained were the result of plaintiff's own negligence does not call for a reply. Chicago, R. I. & P. Ry. Co. v. Pitchford, 44 Okl. 197, 143. P. 1146. Where answer to plea of intervention contains a general denial, and affirm- ative matter amounting to a denial only of the matters set up in the plea, in- tervener need not file a denial of such affirmative matter. Farmers' State Bank of Ada v. Keen (Okl.) 167 P. 207. The answer, in a suit to cancel a deed as a forgery, held to be in effect a general denial of the allegation of forgery, to which no reply was necessary in order to render admissible evidence offered to establish forgery. Cox v. Gettys, 53 Okl. 58, 156 P. 892. si West v. Cameron, 18 P. 894, 39 Kan. 736, judgment affirmed on rehear- ing, 19 P. 616 ; Owens v. Farmers' & Merchants' Bank of Duke, 54 Okl. 387, 154 P. 355. 32 Where the petition set out an agreement with an itemized account there- under showing a balance due plaintiff, and defendant, after controverting part of the allegations, set up the agreement, but alleged a different result grow- ing out thereof, and set up an itemized account as a counterclaim, showing a balance due him, it constituted a counterclaim, which required a reply. Aiken v. Franz, 43 P. 306, 2 Kan. App. 75. 33 When a defendant in an action to foreclose a mortgage sets up in his answer a note and mortgage executed by a codefendant, on which judgment is asked, the reply thereto filed by such codefendant is the final pleading, and any allegation of new matter in such reply is deemed controverted. Hughes v. Durein, 44 P. 434, 3 Kan. App. 63. s* St. Louis & S. F. R. Co. v. Zickafoose, 39 Okl. 302, 135 P. 406. (521) 640-642 PLEADINGS (Ch. 11 640. Counterclaim or set-off in reply Where defendant in a civil action files an answer, which, in addition to a defense, alleges facts constituting a new cause of action by way of set-off, and prays for judgment, plaintiff may not in his reply aver new matter constituting a counterclaim or set-off on which he asks for affirmative relief, but his statements must be confined to facts constituting a defense to the answer. 35 641. Demurrer or reply to answer by codefendant "Where the answer contains new matter constituting a right to relief against a codefendant concerning the subject of the action, such codefendant may demur or reply to such matter in the same manner as if he were plaintiff, and subject to the same rules, as far as applicable." 36 642. Construction and effect An allegation in an answer is to be taken as true when the plain- tiff, in reply, pleads in confession and avoidance. 37 An unverified reply to an answer setting up a written contract does not admit defendant's construction of the contract so as to au- thorize a judgment on the pleadings; 38 but a mere general denial admits that the contract is as alleged. 39 ss Beakey v. Vander Meerschen, 78 Kan. 538, 97 P. 478. se Rev. Laws 1910, 4755 ; Long v. Harris, 132 P. 473, 37 Okl. 472. 37 Meeh v. Missouri Pac. Ry. Co., 60 P. 319, 61 Kan. 630. In an action by officers of grand lodge for moneys paid defendant by the treasurer of the lodge, admission in reply held sufficient, in absence of evi- dence to sustain matter in avoidance, to sustain a verdict for defendant. Washbon v. Hixon, 121 P. 518, 86 Kan. 406. ss McKnight v. Strasburger Bldg. Co., 150 P. 542, 96 Kan. 118. 39 Plaintiff sued defendant carrier for the deterioration of a shipment of live stock, alleging shipment under a written contract which could not be produced because it was in the hands of the defendant. Defendant attached the alleged contract to its answer, which contained a stipulation requiring notice of damage to be served on the railroad company's agent within one day after the delivery of the stock at destination, and declaring that a failure to comply therewith should bar any recovery. The answer alleged that such requirement had not been complied with, after which plaintiff filed a reply setting up only a general denial. Held, that the written contract was there- by admitted as alleged. St. Louis & S. F. R. Co. v. Cake, 105 P. 322, 25 Okl. 227. (522) Art. 6) REPLY 643 643. Requisites and sufficiency Forms Where the answer alleges that the note sued on is ultra vires, a demurrer to a reply containing a general denial is properly over- ruled. 40 Failure to file a reply controverting the allegations of the answer in an action on notes setting up the illegality of the contract in connection with which the notes were given operates as an ad- mission of the facts alleged relative thereto. 41 Where a railroad employe was killed, and after a settlement with the widow a son was born and the widow qualified as administratrix and set up the son's rights as a beneficiary, and the railroad plead- ed the settlement, a reply that the settlement was only of the wi- dow's individual rights, or that, if it embraced the rights of the child, it did not express the true contract, was not demurrable. 42 In an action by the vendor for the specific performance of a contract for the sale of real property, an allegation in the answer that the plaintiff has never tendered a deed executed by himself is met by allegations in the reply that no previous objection had been made upon that ground to the deed which he had tendered, and that he had at all times been and was still able and willing to furnish such a deed. 43 Allegations of new matter in an answer may call for a .verified denial, where the same allegations in a petition would do so. 4 * REPLY SUIT TO CANCEL CONVEYANCES (Caption.) Come now the plaintiffs and for reply say that the land in ques- tion was worth for agricultural purposes at least fifty dollars per *o Western & Southern Fire Ins. Co. v. Murphey, 56 Okl. 702, 156 P. 885. 41 Howard v. Farrar, 114 P. 695, 28 Okl. 490. 42 Herndon v. St. Louis & S. F. R. Co., 128 P. 727, 37 Okl. 256. 43 Geo. H. Paul Co. v. Shaw, 119 P. 546, 86 Kan. 136, 37 L. R. A. (N. S.) 1123, Ann. Gas. 1913B, 956. 441 Defendant in ejectment claimed title under certain tax deeds, and in his answer alleged their due execution and the validity of all proceedings anterior thereto; but it appeared on the face of such deeds, which were exhibited as part of the answer, that they were void. Plaintiff's reply was a general de- nial, unverified. Held, that the reply is not sufficient to put in issue the va- lidity of the tax deeds and proceedings. Tweedell v. Warner, 23 P. 603, 43 Kan. 597. (523) 643 PLEADINGS (Ch. 11 acre. They say that the option relied on as the foundation of de- fendant's claim was purchased by F. S. and P. C. for one thousand dollars with money procured from plaintiffs, furnished by O. R. ; that said O. R., as a part of the trade made with defendants, and with the help of defendants, and by the help of F. S. and P. C., who pretended to act as the agent of plaintiffs, procured a half in- terest in the property jointly with defendants ; that P. C. acted as the agent of plaintiffs in making the O. R. deed, and the deal with defendants, and proceeded to sell one-half to said O. R. as said agent for a consideration of twenty-eight thousand dollars, and was paid a commission by plaintiffs of five per cent., and said O. R. paid said P. C. four thousand five hundred dollars as a com- mission for making the deal with him and defendant; that these facts developed for the first time on the trial of a case against said O. R. held in this court February 25, 1918, to cancel his deed. That the contract of F. S. and P. C. with reference to securing a conveyance to F. S. developed fully for the first time in this trial on June 19, 1917, on a suit of plaintiffs to set aside a conveyance to said P. C. of one-fourth of the land, made at the same time said defendant procured his deed herein attacked; that the O. R. deal, the P. C. deal, and defendants' deal were all part of one transaction, and the making of each depended and was conditioned on the mak- ing of the other; that said O. R. and his agents and said P. C. and F. S. and the defendants and their agents acted in concert, and with a design to get plaintiffs' property for less than its value and pro- ceeded to incumber it as much as possible, and also to render it diffi- cult for plaintiffs to clear the title thereto and with a design of imposing on the plaintiffs, and to take advantage of said 's needs of money and his spendthrift propensities ; that the conduct of said O. R. in bribing his agent were unknown to plaintiffs until the trial of the O. R. suit, and all the details are yet unknown. They say that they do not now know and understand all the material facts connected with the execution of said deeds, and they say that there are no innocent purchasers from said defendant, and defend- ants F. E. and R. H. paid nothing and knew all the facts. They say that as soon as they learned of the fraudulent conduct of defendant and his co-conspirators they began this suit to set aside defendants' deed. They say that there never was any consideration for de- fendants' deed, and defendants have been fully paid for anything (524) Art. 6) REPLY 643-644 that he had parted with. They say they deny all allegations of new matter in the amended answer not herein admitted, and pray as in their petition. State of Oklahoma, 1 L SS. I County of . J " A. M. and B. M., of lawful age, being first duly sworn, on oath states: That they are the plaintiffs in the above entitled cause, that they have read the within and foregoing, and that the same is true and correct, as they verily believe. Subscribed and sworn to before me this day of , 19. (Seal.) -. REPLY DEFENSE TO COUNTERCLAIM (Caption.) Comes now the above named plaintiff, and for its reply to the an- swer of defendant to plaintiff's amended petition, filed herein, al- leges and states: 1. That it denies each and every allegation therein contained, except such as are hereinafter specifically admitted. 2. For further reply and defense to such answer, and to the alleg- ed set-off, plaintiff alleges and states : (Set forth defense to counter- claim in similar manner as though plaintiff were defendant, stating his defense and answer to petition filed against him.) Wherefore plaintiff prays that defendant take nothing by reason of his alleged counterclaim, and that plaintiff have judgment as prayed for in plaintiff's amended petition filed herein. (Signatures) Attorneys for Plaintiff. 644. Departure Where the plaintiff alleges performance of all the conditions of a contract, and defendant charges various breaches, a reply admit- ting failure to perform, and pleading estoppel and waiver, consti- tutes a departure. 45 *s Gage v. Connecticut Fire Ins. Co. of Hartford, Conn., 127 P. 407, 34 Okl. 744 ; Springfield Fire & Marine Ins. Co. v. Halsey, 126 P. 237, 34 Okl. 383 ; (525) 644 PLEADINGS (Ch. 11 In an action of ejectment it is improper to permit plaintiff, over objection, to file a reply setting up a cause of action to quiet title, since the claim of plaintiff is substantially changed. 46 Where the petition alleges ownership generally, but the reply admits the ownership to be special, as that of a mortgagee, such change of allegations constitutes a departure. 47 Where allegations in a reply are mere repetition, in a slightly changed form of matter already alleged in the amended petition, and are not contradictory thereof, the reply is not objectionable as a departure. 48 New matter in the reply which plaintiff is forced to plead in or- der to meet the allegations of the answer will not constitute de- parture if it does not contradict the facts stated in the petition, and if it is not adopted for a new basis for relief in place of the cause of action presented by the petition. 49 Merchants' & Planters' Ins. Co. v. Marsh, 125 P. 1100, 34 Okl. 453, 42 L. R.. A. (N. S.) 996 1 Union Casualty & Surety Co. v. Bragg, 65 P. 272, 63 Kan. 291;' St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 99 P. 647, 23 Okl. 79. 46 Bear v. Cutler, 86 Kan. 66, 119 P. 713. 47 Johnson v. State Bank of Seneca, 52 P. 860, 59 Kan. 250. 4-s Landon v. Morehead, 126 P. 1027, 34 Okl. 701. 4 Hunter Milling Co. v. Allen, 88 P. 252, 74 Kan. 679, 8 L. R. A. (N. S.) 291. In action on school warrants, with answer that they were unlawfully is- sued, without consideration, and are void, reply setting up estoppel held not a departure. Home State Bank v. School. Dist. No. 17, 102 Kan. 98, 169 P. 202. Where petition set forth certain letters constituting contract of agency, and the answer was a denial and an allegation of want of authority, and the re- ply pleaded other correspondence to support the contract, it did not constitute a departure. Sturgeon v. Culver, 124 P. 419, 87 Kan. 404, Ann. Gas. 1913E, 341. Plaintiff pleaded that an oral contract had been violated by defendant, who alleged that the contract was in writing and set up a brief memorandum. The reply admitted the signing of the memorandum, but alleged that it was only a part of the contract, and set forth the remaining stipulations which were oral. Held not to constitute a departure. Heskett v. Border Queen Mill & Elevator Co., 105 P. 432, 81 Kan. 356. Allegation of the answer that insurer had fraudulently misrepresented in her proof of loss the value of the property was put in issue by general de- nial; and further allegations in the reply, as to waiver of conditions of the. policy, were surplusage, and did not constitute a material variance. Ameri- can Ins. Co. of Newark, N. J., v. Rodenhouse, 128 P. 502, 36 Okl. 211 ; Roches- ter German Ins. Co. of Rochester, N. Y., v. Rodenhouse, 128 P. 508, 36 Okl. 378 ; Georgia Home Ins. Co. v. Halsey, 133 P. 202, 37 Okl. 678. A reply, admitting that suit was commenced after expiration of the limi- (526) Art. 6) REPLY 644-645 Where breach of condition subsequent has been pleaded as a defense, a reply alleging a waiver or estoppel is not a departure. 50 645. Waiver of objections The fact that a denial in the reply is pregnant with one or more admissions is immaterial, where the parties are compelled to resort to their pfoof as if the reply were of good character. 51 Failing to move to strike a reply, constituting a departure and going to trial, waives the defect. 52 tation period prescribed by the Indian Territory policy sued on, but pleading facts which, if true, would estop defendant from taking advantage of such clause as a defense, held not a departure. Northwestern Nat. Life Ins. Co. Ward, 56 Okl. 188, 155 P. 524. In action on benefit certificate, where petition pleaded full performance of all conditions precedent, and answer alleged a breach of warranty, a reply pleading waiver and estoppel was not such a departure as to warrant a re- versal of judgment for plaintiff. Miller v. National Council of Knights and Ladies of Security, 103 Kan. 579. 175 P. 397. so Springfield Fire & Marine Ins. Co. v. Null, 133 P. 235, 37 Okl. 665; West- ern Reciprocal Underwriters' Exchange v. Coon. 38 Okl. 453, 184 P. 22 ; Queen Ins. Co. of America v. Dalrymple, 60 Okl. 28, 158 P. 1154 ; German- American Ins. Co. of New York v. Lee, 51 Okl. 28, 151 P. 642. Quieting title. Where defendants, in an action to quiet title, plead facts showing that they are tenants in common as to a one-third interest, a reply admitting that they hold the naked legal title to the extent of that interest, and alleging that they have soFd and received the consideration for such in- terest, and that a deed was given therefor with their consent by one supposed by all parties to have authority as trustee to convey the Jand, does not con- stitute a departure. Neve v. Allen, 41 P. 966, 55 Kan. 638. In an action to quiet title and to cancel a contract purporting to have been made by plaintiff's agent with defendant for the exchange of lands on the ground that the execution thereof was not authorized, and to cancel a deed conveying the land on the ground that it had not been delivered where the an- swer avers the due execution of the contract and its subsequent ratification and the performance of the agreement by defendant and the delivery of the* deed, and prayed for judgment for possession, a reply, containing a general denial, and pleading, after the alleged agreement, that defendant and the owners of the land to be exchanged with plaintiff had incumbered it by grant- ing a telephone right of way and had leased the land, and that defendant had no title to the premises, does not set up a new cause of action, but pleads de- fense that the contract was not in force and is not a departure. Snyder v. Wheeler, 106 P. 462, 81 Kan. 508. oiDanielson v. Scott, 129 P. 1190. 88 Kan. 789. o 2 Wampler v. Stemen, 80 Okl. 240, 195 P. 764. (527) 646 PLEADINGS (Ch. 11 ARTICLE VII FILING AND SUBSCRIBING Sections 646. Time for filing. 647. Additional time Withdrawal Service of amendment- 648. Signing. 646. Time for filing "The answer or demurrer, by the defendant, shall be filed within twenty days after the day on which the summons is returnable ; the reply or demurrer shall be filed within thirty days after the day on which the summons was made returnable; the demurrer to the reply shall be filed within forty days after the day on which the summons was made returnable." 53 Where there has been a service of summons by publication, a subsequent personal service on defendant voluntarily within the jurisdiction supersedes the former service and fixes the answer date. 54 A pleading filed out of time without permission or agreement is a nullity. 55 It has been the policy of the court to discourage the practice of refusing to permit defendants to file an answer out of time and to give litigants their day in court, and to protect parties having a valid defense, especially where they are ignorant Indians. 56 After a defendant in default has been allowed to answer, and instead of doing so has filed a motion to make more definite and certain, which has been stricken from the files, and the case called for trial, it is not an abuse of the court's discretion to refuse to al- low him to answer then. 57 Where defendant's demurrer is overruled, and time given him to ss Rev. Laws 1910, 4756. s* Where plaintiff, a resident, sued defendant, a resident of Texas, and caused service of summons on defendant in Texas, requiring answer to peti- tion' on or before April 14, 1914, such service being, under Rev. Laws 1910, 4727, a service by publication, a subsequent personal service on defendant vol- untarily within the trial court's jurisdiction superseded the former summons and fixed the answer date. Dickinson v. Foot (Okl.) 173 P. 522. as State Nat. Bank v. Lowenstein, 52 Okl. 259, 155 P. 1127. ss McCoy v. Mayo (Okl.) 174 P. 491. 57 Missouri Pac. Ry. Co. v. Linson, 18 P. 498, 39 Kan. 416. (528) Art. 7) FILING AND SUBSCRIBING 646~647 file his answer, but he does not file it in time, and he afterwards makes application for further time, on the ground that papers necessary to drawing the answer had only been procured a few days before, but no answer is presented with the application, it is within the discretion of the trial court to deny such application. 58 Defendant cannot complain that on the day of trial plaintiff was allowed to file a reply to the answer. 89 647. Additional time Withdrawal Service of amendment "The court, or any judge thereof in vacation, may, in his discre- tion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this article, or by an order enlarge such time." 60 The granting or refusal of an application to file pleadings out of time is largely in discretion of trial court. 61 This discretion is dependent upon all the circumstances and must not be used arbitrarily or capriciously. 62 While .laches in filing pleadings should not be encouraged, the court should grant permission to file at all times when justice re- quires it. 63 It is not error for a trial court to permit a party to withdraw an interplea. 64 Where statements or admissions in a pleading against his interest were made by a party or his counsel under an honest mistake as to the facts, and he desires to be relieved of the effects thereof, he should apply to the trial court for leave to withdraw such admis- sion and make a showing of good faith in support of his applica- tion. 65 Where an action was brought by two coplaintiffs and on demurrer the court ordered separate actions to be brought in their names, and 68 Merten v. Newforth, 25 P. 204, 44 Kan. 705. 59 Sulzberger & Sons Co. of Oklahoma v. Strickland, 60 Okl. 158, 159 P. 833. o Rev. Laws 1910, 4757. 61 City of Lawton v. Kelley, 62 Okl. 291, 162 P. 1081. Permission to file pleadings out of time rests tinder Comp. Laws 1909, 5646, in the discretion of the court, to be exercised in the light of the circum- stances. Long v. Harris, 132 P. 473, 37 Okl. 472. 62 Checotah Hardware Co. v. Hensley, 141 P. 422, 42 Okl. 260. es Peck v. First Nat. Bank of Claremore, 50 Okl. 252, 150 P. 1039. e* Jackson v. Glaze, 41 P. 79, 3 Okl. 143. s Rogers v. Brown, 86 P. 443, 15 Okl. 524. HON.PX.& PRAC. 34 (529) 648-649 PLEADINGS (Ch. 11 in filing them the name of one plaintiff was omitted, an amendment to supply such name was a compliance with the order that separate actions be filed in the name of both plaintiffs, and service of amend- ment on defendant is unnecessary before judgment of default may be rendered. 66 648. Signing "Every pleading, in a court of record, must be subscribed by the party or his attorney." 67 ARTICLE VIII AMENDED AND SUPPLEMENTAL PLEADINGS Sections 649. Amendment before answer. 650. Formal defects. 651. Allowance of amendment Discretion Forms. 652. Variance. 653. Failure of proof. 654. Amendment on demurrer. 655. Continuance after amendment. 656. Notice of amendment- 657. Interlineation. 658. Subject-matter of amendment. 659- Supplemental pleadings. 660. Lost pleadings. 649. Amendment before answer "The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceedings; but notice of such amendment shall be served upon the defendant or his attorney, and the defendant shall have the same time to an- swer or demur thereto as to the original petition." 6S The provision for notice, applies only to voluntary amendments, and not to those made by order of court upon motion or demurrer. 69 ee National Surety Co. v. Oklahoma Presbyterian College for Girls, 38 Okl. 429, 132 P. 652. 67 Rev. Laws 1910, 4758. 68 Rev. Laws 1910, 4787. Under Code Civ. Proc. 137 (Gen. St. 1915, 7029), plaintiff, before an an- swer is filed, may amend his petition as to subject-matter and parties without leave of court. Wagler v. Tobin, 104 Kan. 211, 178 P. 751. 69 Harn v. Missouri State Life Ins. Co. (Okl.) 173 P. 214. (530) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 650 650. Formal defects "The court may, before or after judgment, in furtherance of jus- tice, and on such terms as may be proper, amend any pleading, pro- cess or proceeding by adding or striking out the name of any par- ty, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense ; and when any proceeding fails to conform, in any respect, to the provisions of this Code, the court may permit the same to be made conformable thereto by amendment." 70 Amendments to pleadings may be allowed in furtherance of jus- tice when they do not substantially change the cause of action or defense; this change not referring to the form of the remedy, but to the general identity of the transaction. 71 TO Rev. Laws 1910, | 4790. 71 Snider v. Windsor, 93 P. 600, 77 Kan. 67; Ma thews v. Sniggs, 75 Okl. 108, 182 P. 703; Bdmondston v. Porter (Okl.) 162 P. 692; Merchants' & Plant- ers' Ins. Co. v. Crane, 128 P. 260, 36 Okl. 160; Trower v. Roberts, 30 Okl. 215, 120 P. 617. Amendments may he allowed before or after judgment by inserting allega- tions material to case not changing substantially plaintiff's case. Elliott v. Coggswell, 56 Okl. 239, 155 P. 1146. Where, in an action against a city to recover damages caused by a defec- tive sidewalk, an objection is made at the trial to evidence on the ground that the petition did not show where the injury complained of occurred, and it appears that the action was against the city, and the petition charged that the accident occurred on North Fifth street between W. and N. streets, with- out stating the name of the city, it was not error to permit plaintiff to add by way of amendment, when the objection was raised, "in the city of Guthrie. Logan county, O. T." City of Guthrie v. Finch, 75 P. 288, 13 Okl. 496. In an action for the death of cattle claimed to have been poisoned by drink- ing compound escaping from poison vats maintained by defendant railroad, the allowance of an amended petition after the close of the evidence held not error. Midland Valley R. Co. v. Rippe, 61 Okl. 314, 161 P. 233. In an action by a broker for commission, held not error to permit plaintiff during the trial to amend his petition by inserting an allegation that the amount agreed to be paid was the usual and reasonable commission custo- marily paid to real estate agents. Lowenstein v. Holmes, 40 Okl. 33, 135 P. 727. When an action to enjoin the doing of an act which, it is alleged, would cause irreparable injury to plaintiff, has been pending in the district court for three years, it is not error to refuse plaintiff leave to so amend his peti- tion as to change the action from one for injunction to one for damages sus- (531) 650 PLEADINGS (Ch. 11 tained since the commencement of the action. Dever v. City of Junction City, 47 P. 152, 5 Kan. App. 180. There is no error in permitting plaintiff to amend his petition by striking out allegation that deceased employs was engaged in interstate commerce at time of injury. Lusk v. Phelps (Okl.) 175 P. 756. An amended and supplemental petition in an action for damages for breach of contract, which alleged that since commencement of the suit the matters in controversy had been submitted to arbitration, and defendant had been found indebted to plaintiff in a certain sum in a written award on which plaintiff prayed judgment, held properly allowed in view of Rev. Laws 1910, 4795. Wynnewood Cotton Oil Co. v. Moore, 54 Okl. 163, 153 Pi 633. Under Rev. Laws 1910, 4795, amendments are liberally allowed in the furtherance of justice, even though they change the cause of action, provided they do not substantially change plaintiff's claim. Id. Where a petition in an action against a railroad company for damages re- sulting from fire alleges that the fire was negligently communicated from one of defendant's engines to the grass growing along the track, it is not error to permit an amendment, more than seven years after the filing of the original petition, by adding that the company was negligent in permitting dry vegetation to accumulate and remain on the right of way where the fire was set out, as such an amendment does not constitute a separate and dis- tinct cause of action. St. Louis & S. F. Ry. Co. v. Ludlum, 66 P. 1045, 63 Kan. 719. In an action against a city for injuries caused by a defective sewer, an amendment to the petition showing that one of the plaintiffs, originally al- leged to be an owner, had no interest in the property, was not material, and did not change the cause of action, as under the Code judgment could be rendered for or against one of several plaintiffs. Kansas City v. King, 68 P. 1093, 65 Kan. 64. Plaintiffs sued to recover damages from a purchase of potatoes sold under a guaranty that they were sound, whereas a great portion was unmerchanta- ble. They amended their petition to allege that defendant so loaded the car that plaintiff could inspect only the top before they were compelled to pay, and that defendant, fraudulently to deceive plaintiff, had placed on top of the car sound potatoes and at the bottom unmerchantable potatoes. Held, that the amendment was properly allowed under X3omp. Laws 1909, . 5679, as it did not change substantially the claim of plaintiff. Z. J. Fort Produce Co. v. Southwestern Grain & Produce Co., 108 P. 386, 26 Okl. 13. Where the petition originally alleged that plaintiff was working and digging in a ditch, and engaged in dressing the bottom of the ditch, which was about 20 inches wide and 15 feet deep, and the ditch and banks, or side walls, were composed of loam, sand, and dirt, which was of such a character as to be predisposed to cave in and slide when without restraint, and that defendants had carelessly failed to shore up the walls to prevent it from caving in, and that the plaintiff was inexperienced and ignorant of the dangerous character of the employment and of the inexperience and incompetency of his employ- ers and their employes, and at the time of the injuries complained of, he was pursuing his employment in the usual way when, without fault on his part, the banks of the ditch caved in on him, there was no error in permitting an amendment by inserting allegations that the condition of the embankment, at the time of the injuries, and the accumulated dirt and other substance thrown thereon, was predisposed to slide and cave in; and the failure of the defend- (532) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 651 651. Allowance of amendment Discretion Forms The allowance of amendments to pleadings is within the sound discretion of the trial court, 72 whether before or at commencement ants to remove and clear away the same, so as to prevent its falling into the ditch and injuring the employe's, concurred with the other careless acts al- leged to bring about the injuries to the plaintiff. Chas. T. Derr Const. Co. v. Gelruth, 120 P. 253, 29 Okl. 538. Under Rev. Laws 1910, 4790, allowing amendments not substantially changing the claim or defense, a petition alleging failure of the defendant city treasurer to pay over money belonging to the city may be amended to set out that defendant converted the money to his own use. Shipley v. City of Lawton, 51 Okl. 575, 152 P. 119 ; Missouri Pac. Ry. Co. v. Henrie, 65 P. 665, 63 Kan. 330. In a suit on a written contract for the construction of a building, the plain- tiff may be allowed to amend at the trial by adding a quantum meruit count for labor and materials furnished. School Dist. No. 2 in Wabaunsee County v. Boyer, 26 P. 484, 46 Kan. 54. An amendment to a petition by inserting an allegation affecting plaintiff's eligibility to hold the office is properly allowed, where it is in furtherance of justice, and does not substantially change plaintiff's claim. Lewis v. Bandy, 45 Okl. 45, 144 P. 624. An amendment, stating definitely a ground of negligence which was stated in the original petition in general terms, does not state a new cause of action. Ballard v. Kansas City, M. & O. Ry. Co., 148 P. 764, 95 Kan. 343. Where the petition sets forth a contract, alleges part performance by plain- tiff and breach by defendant, and demands judgment for services performed by plaintiff, etc., it is not error to permit an amendment, alleging usual price for such services and praying judgment for reasonable value thereof. Elwood Oil & Gas Co. v. McCoy (Okl.) 179 P. 2. One who seeks to cancel a mortgage as obtained from him fraudulently and as having been fraudulently altered by mortgagee to include property not de- scribed therein when executed does not change his cause of action by amend- ing his petition so as to charge that the mortgage is a forgery and a substi- tution for the mortgage read to him and which he was asked to sign. Looka- baugh v. Bowmaker, 96 P. 651, 21 Okl. 489. 72Cohee v. Turner & Wiggins, 132 P. 1082, 37 Okl. 778; Joines v. Combs, 132 P. 1115, 38 Okl. 380; Offutt v. Wagoner, 120 P. 1018, 30 Okl. 458; Her- ron v. M. Rumley Co., 116 P. 952, 29 Okl. 317 ; Trower v. Roberts, 120 P. 617, 30 Okl. 215 ; Alcorn v. Dennis; 105 P. 1012, 25 Okl. 135 ; Kuchler v. Weaver, 100 P. 915, 23 Okl. 420, 18 Ann. Cas. 462 ; Rogers v. Hodgson, 26 P. 732, 46 Kan. 276; Mitchell v. Ripley, 49 P. 153, 5 Kan. App. 818; Brokaw v. Bartley, 1 P. 320, 9 Kan. App. 318 ; Jantzen v. Emanuel German Baptist Church, 112 P. 1127, 27 Okl. 473, Ann. Cas. 1912C, 659 ; Underwood v. Fosha, 133 P. 866, 89 Kan. 768; Shawnee-Tecumseh Traction Co. v. Wollard, 153 P. 1189, 54 Okl. 432 ; Wetmore State Bank v. Courter, 155 P. 27, 97 Kan. 178 ; Scott v. King, 152 P. 653, 96 Kan. 561; Abmeyer v. German-American State Bank, 179 P. 368, 103 Kan. 356; Elliott v. Coggswell, 155 P. 1146, 56 Okl. 239. The granting of permission to amend petition to ask for additional attor- ney's fees is within the sound discretion of the trial court. State v. Glass, 160 P. 1145, 99 Kan. 159. (533) 651 PLEADINGS (Ch. 11 of trial, 73 during trial, 74 or before or after judgment, in the fur- therance of justice, where they do not change substantially the claim or defense, is in the discretion of the trial court. 76 73 McKee v. Jolly (Okl.) 178 P. 656; St. Louis & S. F. R. Co. v. Long, 137 P. 1156, 41 Okl. 177, Ann. Gas. 1915C, 432 ; Long v. Kansas City, M. & O. R. Co., 164 P. 175, 100 Kan. 361. Allowance of amendment of pleading at opening of trial, setting forth ele- ment of damages from facts already pleaded, is not abuse of discretion, espe- cially where court offered continuance to make preparation to meet new mat- ter. Western Silo Co. v. Carter, 158 P. 71, 98 Kan. 279. 7*Maston v. Glen Lumber Co. (Okl.) 163 P. 128; American Warehouse Co. v. Gordon, 139 P. 123, 41 Okl. 618 ; Jones v. Phoenix Ins. Co., 146 P. 354, 94 Kan. 235; Jones v. S. H. Kress & Co., 153 P. 655, 54 Okl. 194; McCullough v. S. J. Hayde Contracting Co., 109 P. 176, 82 Kan. 734. In a proceeding to settle the priorities of judgment liens, where the creditor whose judgment was first rendered does not aver that a levy was made under his judgment within a year from its rendition, it is not an abuse of discre- tion to allow an amendment at the trial. Excelsior Mfg. Co. v. Boyle, 26 P. 408, 46 Kan. 202. An application to make amendments to a petition after the evidence has been closed is addressed to the discretion of the court. Matson v. Chicago, R. I. & P. Ry. Co., 102 P. 254, 80 Kan. 272. The refusal of an application, after the evidence is closed, to amend a petition for the purpose of alleging an additional element of damages, was not an abuse of discretion, where plaintiff had knowledge of such facts when his petition was filed, and no rea- sonable excuse was given for not including them. Id. 70 City of Shawnee v. Slankard, 116 P. 803, 29 Okl. 133; Merchants' & Planters' Ins. Co. v. Crane, 128 P. 260, 36 Okl. 160; Smith v. Rockett, 192 P. 691, 79 Okl. 244: Doty v. Shepard, 139 P. 1183, 92 Kan. 122, rehearing denied 141 P. 1013, 92 Kan. 1041 ; Keil v. Evans, 161 P. 639, 99 Kan. 273. While court under Rev. Laws 1910, 4790, may, before or after judgment, in furtherance of justice, amend any pleading to conform to proof, yet as a general rule the allowance of such amendments is in court's sound judicial discretion. Mackenzie v. City of Anadarko (Okl.) 178 P. 483. Held not an abuse of discretion. It is not an abuse of discretion to per- mit, after the close of the evidence, an amended petition to be filed which does not substantially change the cause of action or its defense. Midland Valley R. Co. v. Rippe, 61 Okl. 314, 161 P. 233. It was not an abuse of discretion to permit the plaintiff in a divorce suit to amend his petition so as to allege adultery in addition to cruelty and gross neglect of duty. Penn v. Penn, 133 P. 207, 37 Okl. 650. Where corporation is properly before court to answer petition naming it correctly, but wrongly alleging state of its incorporation, amendment to prop- erly describe such corporation is justified. Bishop-Babcock-Becker Co. v. Hyde,, 61 Okl. 250, 161 P. 172. In an action for divorce and alimony, the refusal of leave to file a third amended plea three years after the first amended petition, which was filed when plaintiff knew all the facts as to the title to property sought to be (534) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 651 Amendments may be allowed to defeat a motion for judgment on the pleadings. 76 ' An amendment of a petition, introducing a new and distinct cause of action, after the issues have been joined and the trial be- gun, is not permissible for the purpose of conforming the plead- ings to the facts proved, as it would "change substantially" the claim of the plaintiff. 77 Where the evidence to refute plaintiff's theory would sustain a judgment against defendant on a theory which might have been presented by plaintiff in another count, an amendment introduc- ing such other theory ought to be allowed. 78 Though ordinarily a pleading cannot be amended after verdict to conform to proof admitted over objection, an amendment may be allowed to prevent a final judgment against a party because of a defect in his pleading which has been supplied by evidence. 79 reached, was not an abuse of the discretion of the trial court. Lake v. Winslow, 129 P. 863, 36 Okl. 679. Where the petition, in an action for wrongful death, alleges that defendant committed acts amounting to wantonness, but characterized such acts simply as "negligence," it is not error to permit an amendment charging wanton misconduct in express terms, even after the limitation period has expired. Harbert v. Kansas City Elevated Ry. Co., 138 P. 641, 91 Kan. 605, 50 L. R. A. (N. S.) 850. 76 Mires v. Hogan, 79 Okl. 233, 192 P. 811. 77 State v. Krause, 50 P. 882, 58 Kan. 651. Where plaintiff in ejectment alleged that he was the owner of the legal and equitable title, he does not allege a different cause of action in an amended petition, alleging that he was the owner of the legal title, but that the deed to him was executed as a mortgage, and that the condition has been broken. Maddin v. Robertson, 38 Okl. 526, 133 P. 1128. Plaintiff, whose daughter was killed through the alleged negligence of de- fendants, brought an action in which he stated a common-law liability for loss of services of his daughter, but the averments were wholly insufficient to constitute a statutory liability for her death. More than two years after the negligent injury, he asked and obtained leave to amend his petition, so as to state a cause of action for the recovery of damages for death under Civ. Code, 422. Held, that the amendment constituted a new cause of action which did not relate back to the commencement of the action, so that the cause of action set up in the amendment was barred by limitations. City of Kansas City v. Hart, 57 P. 938, 60 Kan. 684 ; Simpson v. Same, Id. 78Harn v. Patterson, 58 Okl. 694, 160 P. 924. 73 Sutter v. International Harvester Co. of America, 106 P. 29, 81 Kan. 452. In an action on a policy for the loss sustained by the destruction of the property insured, where the petition alleges the value of said property, and the jury find a verdict for a larger sum, it Is error for the court, after ver- (535) 651 PLEADINGS (Ch. 11 Amendments should ordinarily be allowed on request therefor at the first opportunity after the necessity appears. 80 The allowance or refusal of a belated amendment to pleadings is within the discretion of the trial court. 81 Refusal to permit a party to amend after one trial had is not an abuse of the court's discretion ; 82 but the allowance of an amend- ment after trial to conform the petition to the facts proved is equiv- alent to a finding of fact by the court, and the order will not be re- versed on appeal because apparently against the weight of evi- dence, there being some evidence to support it. 83 When a petition omits an averment necessary to show a right of action in plaintiff, and defendant at every opportunity throughout the trial objects to it, and to the reception of evidence under it be- cause of such omission, it is too late, after verdict in plaintiff's fa- vor and the filing of a motion for a new trial by defendant, to cure the defective petition by amending it to conform to the facts proved. 84 An agreement between the parties as to the amount of recovery will support a judgment for such amount, though the pleadings were not amended to correspond with the agreement. 85 diet, to allow plaintiff to amend his allegations of value so as to cover the amount of the verdict. Home Ins. Co. of New York v. Wagner, 57 P. 1049, 9 Kan. App. 93. so Southwestern Broom & Warehouse Co. v. City Nat. Bank, 52 Okl. 422, 153 P. 204. 4 The allowing of an amendment after a full trial of a declaration seeking recovery of the entire amount due on a contract for the purchase of cattle and feed, so as to claim recovery for the portion shown to have been deliv- ered should not be denied on the ground of surprise. Snyder v. Rosenbaum, 215 U. S. 261, 30 S. Ct. 73, 54 L. Ed. 186, aflfcrming 18 Okl. 168, 89 P. 222. si German-American State Bank v. Badders, 152 P. 651, 96 Kan. 533 ; State Bank of Eudora v. Brecheisen, 157 P. 259, 98 Kan. 193 ; Pittman & Harrison Co. v. Hayes, 157 P. 1193, 98 Kan. 273. Where the petition has been once amended and there has been considerable delay before the case came to trial, and a demurrer is sustained to plaintiff's evidence, it is not an abuse of discretion to then refuse to permit plaintiff to amend by changing the cause of action from one to recover a forfeit from a stakeholder to one for damages for breach of contract. Benfield v. Croson, 136 P. 262, 90 Kan. 661. 82Atchison Sav. Bank v. Means, 58 P. 989, 61 Kan. 857; Cornelssen v. Harman, 103 Kan. 624, 176 P. 141. 83 Missouri Pac. Ry. Co. v. McCally, 21 P. 574, 41 Kan. 639, 655.' s* Walker v. O'Connell, 52 P. 894, 59 Kan. 306. so Wilson v. Panne, 41 P. 984, 1 Kan, App. 721. (536) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 651 Allowance of amendment to answer after a motion to reopen case has been overruled, in order to plead new issues, is within trial court's discretion. 88 Where defendant's answer admits a fact essential to plaintiff's right to recover, and after defendant has made his opening state- ment not inconsistent with such admission, and after motion for peremptory instruction against him, the court may in its discre- tion refuse to permit him to amend the answer by denying the facts admitted. 87 It is not abuse of discretion to refuse, after impaneling of jury, to allow answer alleging personal contributory negligence to be amended so as to charge also imputed negligence. 88 It is within the court's discretion to refuse permission to file a second amended answer. 89 It is not an abuse of discretion to refuse during the trial of a cause an amendment to an answer which sets up a new defense, where no reason is given therefor other than that the trial court refused to allow the evidence to be introduced under a general denial. 90 An answer cannot be amended to conform to the proof, where the proof supporting the amendment was immaterial, incompetent, and introduced over plaintiff's objection. 91 Where a civil action is tried before a district judge without a jury, and special findings are made and filed by the judge, even if there be a variance between the allegations of the answer and the facts proven upon the trial, yet if it be a case where an amend- ment of the answer ought to have been allowed to conform to the facts proved, the judgment will not be reversed on account of such variance; but, instead thereof, the answer will be considered as amended to conform to the facts proved and found. 92 se Randall v. Randall, 166 P. 516, 101 Kan. 341. ST First State Bank of Keota v. Bridges, 39 Okl. 355, 135 P. 378. SB Angell v. Chicago, R. I. & P. Ry. Co., 156 P. 763, 97 Kan. 688, rehearing denied 157 P. 1196, 98 Kan. 268. 8 St. Francis Land & Abstract Co. v. Rathburn, 114 P. 862, 84 Kan. 664. 90 Piper v. Choctaw Northern Townsite & Improvement Co., 85 P. 965, 16 Okl. 436. i Northwest Thresher Co. v. McNinch, 140 P. 1170, 42 Okl. 155; Same v. Pruitt, 140 P. 1173, 42 Okl. 163 ; Same v. Bell, 140 P. 1174, 42 Okl. 164 ; Same v. Long, 141 P. 4, 42 Okl. 165; Same v. Washichek, 141 P. 4, 42 Okl. 166; Same v. Minium, 141 P. 5, 42 Okl. 168 ; Same v. Basey, 141 P. 5, 42 Okl. 169. 92 Wilcox & White Organ Co. v. Lasley, 20 P. 228, 40 Kan. 521. (537) ' 651 PLEADINGS (Ch. 11 Imposition of terms on granting leave to amend is a matter rest- ing in the sound discretion of the court. 83 Permitting defendant to amend to allege mutual mistake of law, after the evidence was closed, witnesses were discharged, the jury instructed, and counsel for defendant had made his opening argument, plaintiff not being granted a continuance, is an abuse of the discretion vested in the court. 94 It is no abuse of discretion to permit an amended reply, which does not change issues, to be filed before final judgment. 95 It is error to allow a pleading to be amended in a material re- spect and render judgment thereon without notice to, and in the absence of, the adverse party. 96 In order to take advantage of a ruling on a demurrer when such demurrer is sustained, the party must stand upon his pleading held to be defective, and not amend. 97 MOTION FOR LEAVE TO AMEND PETITION (Caption.) Come now the plaintiffs and ask leave of court to amend their petition by interlineation or by attaching to the bottom of page of said petition the following paragraph, to wit: (Here set forth amendments desired.) Wherefore plaintiffs pray that they be permitted to amend said petition as above stated. , Attorneys for Plaintiffs. ORDER ALLOWING AMENDMENT TO PETITION (Caption.) Now on this 4th day of September, 1917, this cause coming on for hearing on the motion of plaintiffs to amend the petition filed 3 Pappe v. Post, 101 P. 1055, 23 Okl. 581. 94 Northwest Thresher Co. v. McNinch, 140 P. 1170, 42 Okl. 155 ; Same v. Pruitt, 140 P. 1173, 42 Okl. 163; Same v. Bell, 140 P. 1174, 42 Okl. 164; Same v. Long, 141 P. 4, 42 Okl. 165; Same v. Washichek, 141 P. 4, 42 Okl. 166; Same v. Minium, 141 P. 5, 42 Okl. 168; Same v. Basey, 141 P. 5, 42 Okl. 169. as Ely v. Pool, 60 Okl. 77, 159 P. 511. so Kansas City, L. & S. R. Co. v. Richolson, 1 P. 138, 31 Kan. 28; Kansas City, L. & S. R. Co. v. Richolson, 1 P. 138, 31 Kan. 28. 97 Berry v. Barton, 71 P. 1074, 12 Okl. 221, 66 L. R. A. 513. (538) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 651-652 herein, after due consideration the court finds that plaintiffs ace entitled to amend said petition as stated in said motion. It is therefore ordered and decreed that plaintiffs be and they are hereby given authority to amend their petition as stated in their motion, by (here set out amendments to be made). Said amendments to be made not later than , and defend- ants given days to file amended answer. , Judge. 652. Variance "No variance between the allegations, in a pleading, and the proof, is to be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or de- fense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been mis- led, and thereupon the court may order the pleading to be amended, upon such terms as may be just." 98 Plaintiff before judgment may properly be permitted to amend his declaration to conform to the facts proved, where such amend- ment does not substantially change the cause of action." as Rev. Laws 1910, 4784. Giving of instruction to find for defendant if the evidence showed that the date of the conversion was different from that alleged in bill of particulars held error in view of Rev. Laws 1910, 4784 et seq. Missouri, O. & G. Ry. Co. v. Diamond, 48 Okl. 424, 150 P. 175. Lookabaugh v. Bowmaker, 96 P. 651, 21 Okl. 489; Elwood Oil & Gas Co. v. Gano, 76 Okl. 287, 185 P. 443 ; Fitzgerald v. Hollan, 24 P. 957, 44 Kan. 499 ; Fulsom-Morris Coal & Mining Co. v. Mitchell, 132 P. 1103, 37 Okl. 575 ; Binion v. Lyle, 114 P. 618, 28 Okl. 430; St. Louis, I. M. & S. Ry. Co. v. Hard- wick, 115 P. 471, 28 Okl. 577. In action for amount due for drilling an oil well under an oral contract to pay $1.50 per foot, an amendment, alleging that defendant agreed to pay the customary price for drilling such well in the locality, which was $1.50 per foot, simply pleading more specifically the contract alleged to have been made did not contravene the rule against pleading a special contract and at- tempting a recovery upon a quantum meruit. Elwood Oil & Gas Co. v. Gano, 76 Okl. 287, 185 P. 443. Amendment of pleading to correspond with the proof will not be reversed, where no prejudice is shown. Coley v. Johnson, 121 P. 271, 32 Okl. 102. In an action for personal injuries, the plaintiff offered evidence as to the expenses incurred for medical attention, medicines, etc. This was objected to on the ground that such issue was not raised by the pleadings. The pleadings were then permitted to be so amended, when the evidence was ad- (539) 652 PLEADINGS (Ch. 11 Defendant may likewise be permitted to amend. 1 ' "When the variance is not material, * * * the court may di- rect the fact to be found, according to the evidence, and may or- der an immediate amendment without cost." 2 mitted. Held, not to be an abuse of discretion. Chas. T. Derr Const. Co. v. Gelruth, 120 P. 253, 29 Okl. 538. Where a petition, intended to state a caus-e of action for false imprison- ment, fails to do so, but sufficiently states a cause of action for malicious prosecution, and the evidence clearly shows false imprisonment, and the de- fendant is not misled, held, that the petition might be amended at any time during the trial so as to state a cause of action for false imprisonment. Atchison, T. & S. F. R. Co. v. Rice, 14 P. 229, 36 Kan. 593. In action for agreed price of drilling an oil well, with counterclaim for plaintiff's negligence in destroying well, wherein defendant's pleading was not explicitly in conflict with the evidence, but was merely ambiguous and indefi- nite, and where plaintiff was not taken by surprise, an amendment should have been allowed. Gates v. Little Fay Oil Co., 105 Kan. 46, 181 P. 570. Where petition alleged note's transfer to plaintiff in due course but copy of note showed no written indorsement, and where evidence of transfer by indorsement before maturity was received without objection, court, on objec- tion to sufficiency of petition, should have allowed amendment to conform to proof. Stevens v. Vermillion, 102 Kan. 408, 170 P. 807. A trial amendment in an action for recovery of rents due on farm land, 1 Plaintiff commenced an action to recover judgment on three promissory notes. The defendants pleaded, in substance, a failure of consideration, and asked that the notes be canceled. After the evidence was closed, defendants were permitted to amend their answer by an averment that sis other promis- sory notes were given with those mentioned in the petition, for the same purpose, and as a part of the same transaction, and praying that they be canceled also. Held not error to permit such amendment ; it clearly appear- ing from the undisputed evidence given in the case that such averments were true. Minneapolis Threshing Mach. Co. v. Currey, 89 Jf! 688, 75 Kan. 365. Where the answer, in an action for damages from eating tainted meat, ad- mitted that plaintiff was employed by the "defendants," and the uncontra- dicted evidence showed that he was employed by only one, defendants should have been permitted to amend their answer to conform to the proof. Malone v. Jones, 139 P. 387, 91 Kan. 815, L. R. A. 1915A, 328, rehearing granted 139 P. 1199, and judgment affirmed on rehearing 142 P. 274, 92 Kan. 708, L. R. A. 1915A, 331. Where, in an action for conversion, the answer was a general denial, and evidence tending to show purchase and payment was excluded because not within the issues, an application for permission to amend to plead purchase and payment was improperly denied. American Warehouse Co. v. Gordon, 139 P. 123, 41 Okl. 618. 2 Rev. Laws 1910, 4785. Where a petition on a fire policy alleges a written settlement, oral proof of a parol settlement is not a total failure of proof within Comp. Laws 1909, 5675, but a variance within sections 5673 and 5674, permitting amendments. Merchants' & Planters' Ins. Co. v. Crane, 128 P. 260, 36 Okl. 160. (540) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 653~654 653. Failure of proof "When, however, the allegation of the claim or defense, to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, * * * but a failure of proof." * 654. Amendment on demurrer "At any time within ten days after the demurrer is filed, the ad- verse party may amend, of course, on payment of costs since filing which was in the furtherance of justice to conform allegation to proof, is properly allowed, particularly where not excepted to. Fruitt v. Carter, 52 Okl. 284, 152 P. 1081. In an action on a fire insurance policy, where, after several months' de- fault, defendant, on leave of court, files an answer, on which trial is had nearly two years after the loss, and while plaintiff's testimony is being taken defendant asks leave to amend its answer and introduce a new defense, but makes no showing as to the truth of such defense, nor explains its delay, such leave may be properly refused. Kansas larmers' Mut. Fire Ins. Co. v. Amick, 14 P. 454, 37 Kan. 73. Where, on foreclosure of subcontractors' liens, it appeared that the con- tractor was really the owners' agent, the court properly permitted amend- ments to the petition to conform to such proof. Southwestern Paint & Wall Paper Co. v. Perkins, 136 P. 324, 90 Kan. 725. Where plaintiff in replevin alleged ownership and right of possession under a chattel mortgage and the court found that plaintiff had the right of pos- session, though not under the chattel mortgage, held that plaintiff's motion to amend its petition, under Gen. St. 1909, 5733 (Code Civ. Proc. 140), to conform to the evidence, and for judgment, should have been sustained. Phillips County Bank v. Lowe, 137 P. 930, 91 Kan. 338. In an action to foreclose a mortgage in which a defendant claimed that the mortgage was part of the assets of a partnership composed of himself and plaintiff, and the evidence showed that the owner was an innocent purchaser who had given a mortgage to such defendant, and that such defendant was not entitled to the mortgage, an amendment to conform the petition to such situation and to pray that plaintiff be subrogated to such defendant's rights in the mortgage was properly allowed after judgment. Winfrey v. Clapp, 122 P. 1055, 86 Kan. 887. When a petition claiming damages is not demurrable for insufficiency in its statements of fact to constitute a cause of action, but is only subject to a motion to make it more definite and certain as to the allegations ef damage sustained, and upon it a first trial is had, in the course of which the plaintiff makes a full disclosure of the several items constituting his demand, it is not error upon a second trial, and at the close of the plaintiff's evidence, during which the same disclosures were made, to allow the petition to be amended by setting out the various items of damages claimed so as to con- form to the evidence given. Walker v. O'Connell, 52 P. 894, 59 Kan. 306, distinguished. Tullock v. Mulvane, 60 P. 749, 61 Kan. 650, judgment reversed 22 S. Ct. 372, 184 U. - S. 497, 46 L. Ed. 657. s Rev. Laws 1910, 4786. (541) 654-656 PLEADINGS (Ch. 11 the defective pleading. Notice of the filing of an amended plead- ing shall be forthwith served upo? the other party or his attor- ney, who shall have the same time thereafter to answer or reply thereto, as to an original pleading." * "Upon a demurrer being overruled the party who demurred may answer or reply, if the court be satisfied that he has a meritorious claim or defense, and did not demur for delay." 5 x "If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by way of amendment, with or with- out costs, as the court, in its discretion, shall direct." 6 655. Continuance after amendment "When either party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise, that the ad- verse party could not be ready for trial, in consequence thereof, a continuance may be granted to some day in term, or to another term of the court." 7 656. Notice of amendment Where the filing of an amended petition is an abandonment of the original petition and sets out a new cause of action, and seeks relief not prayed for in the original petition, notice to defendant or his attorney is essential to give the court jurisdiction to render judgment thereon. 8 * Rev. Laws 1910, 4788. Under Comp. Laws 1909, 5677 (St. 1893, 4015), providing that at any time within 10 days after a demurrer is filed the adverse party may amend of course on payment of costs accrued since filing the defective pleading, and Comp. Laws 1909, 5679 (St. 1893, 4017), authorizing the court, on such terms as may be proper, to amend any pleading, when the amendment does not substantially change the claim on defense, the court is not only authorized to permit an amendment, but may require the payment of accrued costs as a condition thereto. Herron v. M. Rumsley Co., 116 P. 952, 29 Okl. 317. 5 Rev. Laws 1910, 4789. e Rev. Laws 1910, 4792. 7 Rev. Laws 1910, 4793. s Lausten v. Lausten, 55 Okl. 518, 154 P. 1182. (542) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 657~658 657. Interlineation It is not error to permit amendment of petition by interlineation, where it does not substantially change plaintiff's claim and no ap- parent prejudice results to defendant. 9 658. Subject-matter of amendment Amendments of pleadings may be allowed in furtherance of jus- tice, when they do not substantially change cause of action or defense, regardless of change in form of remedy. 10 An amended pleading containing a definite statement of facts concerning a material matter not in conflict with the general aver- ment respecting the same subject contained in the original petition does not state a new cause of action, but is only an amplification of the facts constituting the first one pleaded. 11 A petition which fails to state a cause of action may be amend- ed, though some of the defendants reside outside the county and are attacking the court's jurisdiction. 12 It is not error -to permit an amendment which pleads an addition- al cause of action growing out of the same transaction, but does not substantially change the claim. 13 Whether the cause of action sued on originally is the same as McKee v. Jolly (Okl.) 178 P. 656. Under Civ. Code Kan. 140 (Gen. St. Kan. 1915, 7032), granting permission to amend petition during trial by interlineation, increasing sum sued for, where defendant objected, but requested no delay, and proceeded with trial, has been held no error. Ring v. Phoenix Assur. Co., Limited, of London, 164 P. 303, 100 Kan. 341. 10 B. Van Winkle Gin & Machine Works v. Brooks, 53 Okl. 411, 156 P. 1152. Plaintiffs sued defendant for damages for false representations in the sale to them by him of a horse. At the trial, after all the evidence had been' introduced, but before argument, the court gave plaintiffs leave to amend the petition, and granted a continuance, imposing on plaintiffs aU the costs up to the time of the amendment. The amended petition alleged that de- fendant expressly warranted, the horse. Held, that allowing the amend- ment was not error, under Civ. Code, 139, providing that the court may allow an amendment "in furtherance of justice, and on such terms as may be proper," when the amendment does "not change substantially the claim or defense." Culp v. Steere, 28 P. 987, 47 Kan. 746. 11 Wilbers v. Ronnau, 107 P. 772, 82 Kan. 171. 12 Wells v. Hansen, 154 P. 1033, 97 Kan. 305, L. R. A. 1916F, 566, Ann. Cas. 1918D, 230. is St. Louis & S. F. Ry. Co. v. Keiffer, 48 Okl. 434, 150 P. 102fi. (543) 658 PLEADINGS (Ch. 11 that set out in an amended petition is to be determined by the averments of the pleadings, and not by testimony of what the pleader intended the pleadings should contain. 14 Amendments to correct mistakes or defects in pleadings should be liberally allowed, where they will promote justice and not sub- stantially change the claims or defenses. 15 But an application to amend a petition made when the case is called for trial may be properly denied where the materiality of the proposed amendments is not made to appear, nor the reasonable necessity thereof. 18 Where personal service is made on one defendant, and another, against whom no personal judgment is asked, is served by publica- tion, and the latter makes a general appearance, it is proper to al- low the original petition to be amended so* as to charge such defend- ant personally. 17 The filing of a complete amended petition after service or at- tempted service and before answer, is an abandonment of the orig- inal petition. 18 Where an amended petition is filed, and no part of the original petition is referred to or adopted therein, such original petition is superseded and is no part of the record, and while it may be in- troduced in evidence by the adverse party the same as any other writing signed by the party, subject to be explained, its contents cannot be considered on the trial either as part of the record or as admissions of plaintiff, unless introduced in evidence. 19 Plaintiff may amend his petition at any time before answer is filed to increase his demand for relief, 20 or by reducing claim for i* City of Kansas City v. Hart, 57 P. 938, 60 Kan. 684 ; Simpson v. Same, Id. is Woods v. Nicholas, 140 P. 862, 92 Kan. 258. ie Federal Betterment Co. v. Reeves, 93 P. 627, 77 Kan. Ill, 15 Ann. Cas. 796. i? Beebe v. Carter, 38 P. 278, 54 Kan. 261. is Lausten v. Lausten, 55 Okl. 518, 154 P. 1182. The filing of an amended pleading takes from the record the original plead- ing. Brown v. Galena Mining & Smelting Co., 4 P. 1013, 32 Kan. 528. is Lane v. Choctaw, O. & G. R. Co., 91 P. 883, 19 Okl. 324; Territory v. Woolsey, 130 P. 934, 35 Okl. 545; Gaar, Scott & Co. v. Rogers, 46 Okl. 67, 148 P. 161. 20 Willis v. Cochran (Okl.) 168 P. 658. In an action against a prior guardian and his sureties, plaintiff praying for the amount of the bond, he was entitled to amend to conform to evidence (544) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 658 damages, 21 or by striking out a claim for judgment against one of the defendants. 22 The right to amend a petition by increasing ad damnum and joining a party plaintiff is absolute, and it is reversible error to strike such an amended petition from the files. 28 Amendments which substantially change the claim previously relied on will not be permitted. 2 * One who seeks to rescind a contract for the exchange of land, by an action in the county in which the land is situated, against persons who reside elsewhere, cannot, after they have been sum- moned and appear, amend his petition by adding a second cause of action for damages for breach of covenant of warranty and thus blend a local with a transitory cause of action, but must be confin- ed to the cause of action that authorizes the service made. 25 The amendment of a petition by striking out certain words from the title of plaintiff, and making the same amendment in the peti- tion, does not change substantially the cause of action, and will relate back to the date of the original petition. 26 The rule permitting amendments permits amendment of an ex- hibit to a pleading, 27 of the reference in the pleading to the ex- supporting a finding for a larger sum found to be due. Charles v. Witt, 129 P. 140, 88 Kan. 484. Plaintiffs alleged that defendants engaged to sell plaintiffs' land at $4,000 for a commission of $125, but that if only $3,900 could be obtained, the com- mission should be $100. The land sold for $4,000, but defendants fraudulent- ly represented that only $3,900 was obtained, that plaintiffs paid the defend- ants a commission of $100, and that they fraudulently converted $100 of the price paid for the land, and asked judgment for $75. Later plaintiffs were permitted to amend their petition by alleging that defendants through their fraud forfeited all rights to commission, and asked for recovery of commis- sion paid and the remainder of the price. Held, that the amendment was properly allowed. Deter v. Jackson, 92 P. 546, 76 Kan. 568. 21 Lusk v. Phelps (Okl.) 175 P. 756. 22 Mulvane v. Sedgley, 61 P. 971, 10 Kan. App. 574, judgment affirmed 64 P. 1038, 63 Kan. 105, 55 L. R. A. 552. 23 Willis v. Cochran (Okl.) 168 P. 658. 24 Jewett v. Malott, 57 P. 100, 60 Kan. 509. 25 Neal v. Reynolds, 16 P. 785, 38 Kan. 432. 26 American Bonding Co. of Baltimore v. Dickey, 88 P. 66, 74 Kan. 791. 27 Where it appeared at trial that there was some slight variation between original mortgage and copy attached to plaintiff's petition, amendment by at- taching correct copy as exhibit was permitted by Rev. Laws 1910, 4784. Chase v. Cable Co. '(Okl.) 170 P. 1172. (545) 658 PLEADINGS (Ch. 11 hibit, 28 of words descriptive of plaintiff, 29 of the description of the property involved in the suit, 30 and of the name of the court and the county in the caption to the petition where the summons was properly entitled. 31 An amendment may be allowed in am- plification of plaintiff's claim. 32 An amendment of a petition to correct a mistake of the pleader, which merely substitutes one party for another as plaintiff, does not change the cause of action. 33 In a mother's action for death of a minor son, an amendment ss Where a petition on a note recited that a copy of the note was attached, marked "Exhibit A," but by mistake the original note instead of a copy was attached, plaintiff after answer was entitled to amend by striking the ref- erence to a copy and inserting a recital that the original note was attached. Bradley v. Pinney, 93 P. 585, 77 Kan. 763. 29 Where words descriptive of plaintiff are by mistake used in the title of the action, and an allegation is also by mistake inserted in the petition, aver- ring that such plaintiff is a corporation, the petition may be amended. Amer- ican Bonding Co. of Baltimore v. Dickey, 88 P. 66, 74 Kan. 791. 30 Where a suit is brought to recover the purchase price of a possessory right to and improvements upon a claim on which plaintiff held the home- stead entry, it is proper for the court to allow an amendment to the petition changing the description of the land from the S. W. *4 of section No. 23, to the S. W. % of section No. 25. Lookabaugh v. La Vance, 49 P. 65, 6 Okl. 358. In an action brought for a conversion of certain cattle, and in the trial of which it appears that the defendant did not in fact sell the cattle in question, but that they were sold by .another under the direction of defendant, who knowingly received the proceeds of sale, and converted the same, it is not error for the district court, before another trial of the cause is had, to per- mit the plaintiff to so amend his petition as to charge defendant with a con- version of the proceeds of such sale. Emporia Nat. Bank v. Layfeth, 64 P. 973, 63 Kan. 17. si A petition did not in its caption recite the name of the court and county in which the action was brought, as required by Code Civ. Proc. 87. A prsecipe for summons, properly entitled, was filed and the summons in due form was served. Held, that the court had jurisdiction of the action and of the parties, and properly allowed the petition to be amended by inserting the name of the court and the county. Hastie v. Burrage, 77 P. 268, 69 .Kan. 560. 32 Amendment to a petition in an action for defendant's fraudulent repre- sentations as to the value of notes exchanged by him for plaintiff's property merely amplifies the averments of the original petition and states a cause of action for deceit and fraud. Woods v. Nicholas, 140 P. 862, 92 Kan. 258. Where an amended petition does not substantially change plaintiff's original claim, it is not error to permit it to be filed, though it sets out the original claim more in detail. West & Russell v. Rawdon, 130 P. 1160, 33 Okl. 399. as Harlan v. Loomis, 140 P. 845, 92 Kan. 398. (546) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 658 permitting- the adding of the brothers and sisters as plaintiffs does not change the cause of action. 8 * Where cause of action did not exist at the time of filing a peti- tion, it cannot be aided by an allegation in an amended petition of an occurrence subsequent to the filing of the original petition. 85 An amendment, changing an action on a promissory note into an action on an implied trust, will not be permitted. 36 That a fifth amended petition sets up a different cause from the fourth does not render erroneous its allowance, where it does not set up a cause different from that in the petitions prior to the fourth. 37 In an action for slander, it is not error to permit filing of amend- ment charging the utterance of other slanderous words from those alleged, where the new cause of action is of the same general char- acter as that contained in the original petition, and where defend- ant has ample time to meet such amendment; it not substantially changing the cause of action. 38 It is not error to permit a petition in a suit to quiet title to be amended before answer, so as to change the action to one in eject- ment, where no prejudice is shown. 39 An amendment in ejectment may be properly allowed to unite a cause of action for partition. 40 In an action for material furnished and services rendered for the recovery of the contract price, it is proper to permit plaintiff to amend his petition, stating no new facts constituting a cause of action, but seeking to recover the value of the material and work upon a quantum meruit. 41 34 Moteenbocker v. Shawnee Gas & Electric Co., 49 Okl. 304, 152 P. 82, L. R. A. 1916B, 910. ss Brown v. Galena Mining & Smelting Co., 4 P. 1013, 32 Kan. 528. 36 Jewett v. Malott, 57 P. 100, 60 Kan. 509. 37 Ray v. Navarre, 47 Okl. 438, 147 P. 1019. 8 Trower v. Roberts, 30 Okl. 215, 120 P. 617. 38 Curtis v. Schmehr, 76 P. 434, 69 Kan. 124. Where the petition in an action for partition shows the defendant to be in the exclusive occupancy of the premises involved, the court of the county to which the case is transferred on change of venue may permit it to be amended so as to state also a cause of action in ejectment. Young v. McWilliains, 89 P. 12, 75 Kan. 243. 40 Hanson v. Hanson, 122 P. 100, 86 Kan. 622. *i Limerick v. Lee, 87 P. 859, 17 Okl. 165. (547) 658 PLEADINGS (Ch. 11 A petition for money had and received may be amended by stat- ing that "defendant wrongfully, knowingly, fraudulently, and un- lawfully appropriated and converted the money to his own use," without changing the nature of the action, when it is evident that the amended petition is concerning the same transaction set forth in the original one. 42 The petition in action by a copartnership to recover for conver- sion of its property cannot be amended, so as to state a cause of ac- tion in favor of one of the members of the dissolved firm for an accounting of the partnership business between such member and such defendant. 43 Filing an amended petition by leave waives all error in the pro- ceedings prior thereto. 44 When a demurrer to a petition has been overruled, and the de- fendant answers, and the plaintiff is then permitted to amend the petition, and to this amended petition the defendant answers, and after a trial is had on the amended pleadings, the defendant brings the case up for review, the appellate court will not consider the sufficiency of the original petition. 45 Where an amendment allowed after trial does not substantially change the issues, and there is no showing of surprise, 40 or where the court permits plaintiff to amend her petition by simply increas- ing the amount of damages asked for, it is not error to refuse to allow a defendant time to file an amended answer. 47 Where defendant has knowledge of misjoinder before trial, he cannot after trial, amend his answer, so as to allege such mis- joinder. 48 42 Bogle v. Gordon, 17 P. 857, 39 Kan. 31. 43 Thompson v. Beel'er, 77 P. 100, 69 Kan. 462. 44 Garanflo v. Cooley, 5 P. 766, 33 Kan. 137; Long v. Hubbard, 50 P. 968, 6 Kan. App. 878. An amended petition becomes and must be treated as the original petition. A summons, order of arrest, and subsequent judgment must be considered the same as if the amended petition had been filed at the time the original petition was filed. Id. 45 Union Pac. By. Co. v. Estes, 15 P. 157, 37 Kan. 229. 46 Dixon v. Helena Society of Free Methodist Church of North America (Okl.) 166 P. 114. 47 City of Topeka v. Sherwood, 18 P. 933, 39 Kan. 690. 4 s Where plaintiffs sued on a policy covering real and personal property, and the trial showed that one had no interest in the personalty and the (548) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 658 An answer, defective for failure to allege failure of warranty, is cured when amended during trial by inserting the omitted allega- tions. 49 It is not error for the court, in an action on a note, to refuse to allow defendant to amend his answer by adding a new defense aft- er the cause has been partly tried. 50 An answer may be amended where the amendment does not sub- stantially change the defense. 51 Where issues have been joined, and plaintiff has filed an amend- ed petition by leave of court, which does not change the cause of action, it is not error to refuse defendant leave to file an amended answer, where he can prove all the defenses under his original an- swer. 52 It is not error to deny an application to amend the answer during trial, where the proposed amendment is inconsistent with the al- legations of the answer. 53 Defendants may be permitted to amend their answer by pleading more fully failure of consideration, which they had imperfectly pleaded. 54 Refusal of amendment to answer to permit introduction of evi- dence establishing custom contravening written contract sued on is not error. 55 A pleading may generally be amended by the addition of matters arising or discovered after the original pleading was filed. 56 A party ought not to be permitted, after having selected his other no interest in the real estate, which the insurance company knew be- fore the action was brought, an application after the evidence had all been introduced by defendant to amend its answer and plead misjoinder was prop- erly denied. Phenix Ins. Co. v. Washington, 81 P. 461, 71 Kan. 777. 40 Barber Medicine Co. v. Bradley, 48 Old. 82, 150 P. 127. so Russell v. Gregg, 30 P. 185, 49 Kan. 89. si Robertson v. Lombard Liquidation Co., 85 P. 528, 73 Kan. 779. 52 Cherokee & P. Coal & Mining Co. v. Britton, 45 P. 100, 3 Kan. App. 292. ss Engle v. Legg, 39 Okl. 475, 135 P. 1058. 54 Campbell v. Newton & Driskill, 52 Okl. 518, 152 P. 841. 66 Drennan v. Warburton, 122 P. 179, 33 Okl. 561. 56 in an action on a nonnegotiable note, refusal to permit defendant to amend his pleadings, so as to show that the collection of the note has been enjoined in a suit between the original parties, is reversible error. Randolph v. Hud- son, 74 P. 946, 12 Okl. 516. (549) 658 PLEADINGS (Ch. 11 ground of defense, when he finds himself defeated thereon, to shift it, so as to court the hazard of another battle. 57 In view of Rev. Laws 1910, 4790, precluding defendant from amending to change his defense, it is not the duty of trial court to consider the answer as amended to conform to proof. 58 In an action for damages, an amendment of defendant's answer by incorporating therein a general denial in addition to the mat- ter formerly set up as a defense does not change substantially such defense, where the former answer did not contain a specific admis- sion of the amount of damages claimed in plaintiff's petition. 59 In a suit on a contract for the sale of land, the purchaser hav- ing pleaded that the contract was induced by fraud and had been rescinded therefor, it is not an abuse of discretion to allow the purchaser, on paying the costs and submitting to a continuance, to amend his answer so as to affirm the contract and claim damages for the fraud. 60 An amended answer and cross-petition, filed in an action by the defendant, supersedes the first answer; and the plaintiff is preclud- ed from insisting that the defenses set" up in the original answer and cross-petition are inconsistent with each other. 61 A deniurrer to an amended answer does not raise the question whether the pleader had a right to make the amendment. 62 After an amended answer has twice been held good when at- tacked by the plaintiff, it is error to refuse defendant leave to amend after the demurrer to his amended answer had been sustained. 63 Where a cross-complaint is filed by defendant he is entitled to the same rights as plaintiff, so far as amending his pleading is con- cerned. 64 67 Barrett v. Kansas & T. Coal Co., 79 P. 150, 70 Kan. 649. The granting or refusal of permission to amend is within trial court's discretion, which is not abused by refusal to permit trial amendment to answer substantially changing the defense. Dill v. Malot (Okl.) 167 P. 219. s s Springfield Fire & Marine Ins. Co. v. Griffin, 64 Okl. 131, 166 P. 431. so Smock v. Carter, 50 P. 262, 6 Okl. 300. eo Stevens v. Matthewson, 26 P. 38, 45 Kan. 594. iReihl v. Likowski, 6 P. 886, 33 Kan. 515. 2Tecumseh State Bank v. Maddox, 46 P. 563, 4 Okl. 583. 63 Leitz v. Rayner, 15 P. 571, 37 Kan. 470. e* Venable v. Dutch. 15 P. 520, 37 Kan. 515, 1 Am. St. Rep. 260. Where a. cross-petition alleged that by written contract plaintiff was to pay for certain party walls, it was not error to permit an amendment at the (550) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 658 After a trial, a reply should not be permitted to be amended, ex- cept in the interests of justice. 65 The fact that a petition is not subscribed by the party or his at- torney is a technical defect, which may be corrected by amend- ment. 66 Where amended petition recites that all allegations of original petition are made a part thereof, demurrer is properly overruled, if facts stated in either or both pleadings constitute cause of ac- tion. 67 When it is important that an answer should be verified, the court should allow it to be done by the affidavit of the defendant, his agent or attorney, even during the trial, under such terms as are proper. 68 Where an unverified answer denying the execution of a note was not questioned by either party throughout the trial, an amendment by adding a verification may be allowed in furtherance of justice before or after judgment. 69 trial alleging that the plaintiff agreed to pay for the party walls, but that by mutual mistake the written contract did not express the real agreement, and praying for its reformation. Gross Const. Co. v. Hales, -129 P. 28, 37 Okl. 131. Where a cross-petition alleged that by written contract plaintiff agreed to pay for party walls, an amendment, alleging that plaintiff agreed to pay for the party walls, but that by mistake the written contract did not express the real agreement, did not change substantially the claim or de- fense. Id. e s In an action for the wrongful seizure and conversion of personal prop- erty, the defendant, a United States marshal, attempted to justify under an order of attachment directed to him. Subsequent to the filing of the reply in the case the court, granting the order of attachment, upon motion dis- charged the attachment proceedings. Thereafter the plaintiff, with leave of the court, filed an amended or supplemental reply, setting up the dissolu- tion of the attachment. Held, that the court committed no error in allow- ing the reply to be filed, as it alleged facts material to the case occurring after the former reply. Simpson v. Voss, 1 P. 601, 31 Kan. 227. In an action on a note, the defense was failure of consideration. After a verdict against plaintiff was returned by the jury, and after their motion for a new trial was overruled, plaintiffs asked leave to amend their replies to the separate answers of defendants, in order to allege that the said defense had been waived by defendants. Held, that the request to amend came too late, and was properly overruled. Dunham v. Brown, 58 P. 232, 9 Kan. App. 889. ee Manspeaker v. Bank of Topeka, 46 P. 1012, 4 Kan. App. 768. 67 Dashiell v. McGuire, 157 P. 409, 98 Kan. 177. es Chinberg v. Gale Sulky Harrow Mfg. Co., 16 P. 462, 3S Kan. 228. Jones v. Citizens' State Bank, 39 Okl. 393, 135 P. 373. (551) 658 PLEADINGS (Ch. 11 Where an answer is filed purporting to be defendant's answer, but entirely unsigned, and the case is tried as if the answer had been signed, and the court's attention is not called to such defect until after judgment, the answer may then be amended by adding the signature. 70 A court may, on objection made at the trial to an unverified in- terplea, permit its verification. 71 Generally, the same rules will apply to the amendment of bills of particulars, on appeal from a justice to the district court, as those in reference to the amendment of pleadings in general. 72 On appeal from a justice, the district court may, in the further- ance of justice, after evidence submitted, permit plaintiff, on pay- ment of all costs, to amend his bill of particulars so as to show that he is seeking to recover as an administrator, and not as an indi- vidual. 73 Permitting a plaintiff to amend the bill of particulars the second time, so as to charge defendant as a copartnership instead of a cor- 7oy U rann v. Hamilton, 108 P. 822, 82 Kan. 528. 71 Hargrove v. Woolf, 8 P. 192, 34 Kan. 101. 72 Where a bill of particulars alleged that defendant contracted to take good care of the horse and colt of plaintiff entrusted to his keeping, it will be held that such pleading states a contract for ordinary care, and, where said bill of particulars further states that said horse and colt sickened and died for want of proper care and attention, it is error to admit evidence over the objection of defendant of a contract for special and extra care. Ransom v. Getty, 14 P. 487, 37 Kan. 75. A written claim presented to a railway company, accompanied by a letter explaining the full particulars of the transaction, charging the company with the loss of 50 per cent, of a certain number of boxes of oranges, and for the return of freight paid it thereon, is sufficient to notify the company of a, claim against it for damages caused by its negligence in transporting the oranges; and hence such claim, after being filed before a justice of the peace as a bill of particulars, could be amended by setting out the damages and negligence. St. Louis & S. F. Ry. Co. v. Bryan Fruit Co., 42 P. 267, 1 Kan. App. 551. Where the bill of particulars in an action against a railroad company for a fire set by a locomotive shows that the company on a designated date ran a passenger train from one station to another so negligently as to permit fire to escape from the engine and destroy plaintiff's property, a motion to re- quire the setting forth the number of the engine was properly refused, there being nothing to indicate that the company was operating so many passenger trains as to make it difficult to ascertain from the statement the particular engine. Missouri, K. & T. Ry. Co. v. Traxon, 92 P. 580, 77 Kan. 821. 78 Reed v. Cooper, 1 P. 822, 30 Kan. 574. (552) Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS 658~659 poration as originally alleged, being within the discretion of the trial court, is not ground of reversal. 74 A bill of particulars on two promissory note's may be amended so as to show the cause of action to be on a judgment rendered on such notes. 75 659. Supplemental pleadings "Either party may be allowed, on notice, and on such terms, as to costs, as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply." 76 It is the function of a supplemental petition to supply the facts which may be necessary to a complete determination of the rights of plaintiff and defendant touching the subject-matter of the suit, on the facts existing at the time of the rendition of the judgment, and which would vary the relief to which plaintiff would have been entitled at the commencement of the action. 77 The filing of an amendatory or supplemental pleading rests in the discretion of the trial court, and must be on notice. 78 A plaintiff, with the consent of the court, may file a supplemental petition, alleging facts material to the case occurring after the fil- ing of his original petition. 79 Where the application is made 'after several trials of the action and the facts constituting the new defense are not fully and defi- nitely stated, and no satisfactory reason is given for the delay in presenting the application, its refusal is not error. 80 Where a petition for unlawful conversion fails to state definitely the date of such conversion, and a motion by defendant to compel" T* Farmers' & Merchants' Bank v. Bank of Glen Elder, 26 P. 680, 46 Kan. 376. 7&Teberg v. Swenson, 4 P. S3, 32 Kan. 224. 76 Rev. Laws 1910, 4795; Prince v. Gosnell, 47 Okl. 570, 149 P. 1162. 77 Wade v. Gould, 59 P. 11, 8 Okl. 690. 78Brokaw v. Bartley, 61 P. 320, 9 Kan. App. 318; Kingfisher Improvement Co. v. Talley, 51 Okl. 226, 151 P. 873 ; Alexander v. Clarkson, 150 P. 576, 96 Kan. 174; Rogers v. Hodgson, 26 P. 732, 46 Kan. 276; Goodacre v. Skinner, 28 P. 705, 47 Kan. 575; Wade v. Gould, 59 P. 11, 8 Okl. 690; Stith v. Ful- linwider, 19 P. 314, 40 Kan. 73; Alexander v. Clarkson, 150 P. 576, 96 Kan. 174, 79 Williams v. Moorehead, 7 P. 226, 33 Kan. 609. so Central Branch Union Pac. R. Co. v. Andrews, 21 P. 276, 41 Kan. 370. (553) 659 PLEADINGS (CIl. 11 plaintiff to give the exact date is overruled, and both parties try the case as though the statute of limitations were involved, it is error to refuse to permit defendant, at the close of plaintiff's tes- timony, to file a supplemental answer raising question of limita- tions. 81 A plaintiff cannot file a supplemental petition after a judgment determining in his favor the issues presented by his original peti- tion, where the purpose of such supplemental petition is merely to join a new party as codefendant in the original action upon facts arising since the commencement of the action and not growing out of issues involved therein and presenting matters distinct from any issue in the original action. 82 The facts embodied in a supplemen- tal petition must relate to the cause of action set forth in the orig- inal petition and be in aid thereof. 83 A supplemental petition can- not set out facts which have arisen since the commencement of the action and which by themselves constitute a new and independent cause of action without reference to the facts alleged in the original pleading. 84 Where the petition states no cause of action, the statute does not authorize the filing of a supplemental petition setting up subse- quently occurring facts. 85 A defect in the original petition in that it states a cause of action not existing when the action was brought cannot be cured by setting up in a supplemental petition matters subsequently occurring. 86 It is no objection to a supplemental answer and cross-petition that it alleges matters which have arisen, or have become known, subsequent to the filing of the original answer, if the facts are ma- terial. 87 In a suit to cancel a deed, plaintiff's application, at the close of the testimony, to file a supplemental reply, alleging that the deed si Ament v. Lowenthall, 35 P. 804, 52 Kan. 706; Austin v. Jones, 28 P. 621, 47 Kan. 565. s 2 National Bank of Anadarko v. First Nat. Bank, 39 Okl. 225, 134 P. 866. 83 Id. s* Id. so Reader v. Farriss, 49 Okl. 459, 153 P. 678, L. R. A. 1916D, 672; Farriss v. Reader, 49 Okl. 492, 153 P. 682. sa id; Gardner v. City of Leavenworth, 146 P. 1000, 94 Kan. 509. si Atkinson v. Kirkpatrick, 135 P. 579, 90 Kan. 515; Robertson v. Christen- son, 135 P. 567, 90 Kan. 555. (554) Art. 9) DEFECTS AND OBJECTIONS 659~662 had been obtained by fraud, is properly denied, where the evidence does not support such allegation. 88 A demurrer to a supplemental petition runs to the allegations of both the original and supplemental petitions. 80 A petition pleading a specific title as the foundation for relief is not enlarged by an amended answer which, besides pleading specific defenses, states in general terms that the plaintiff has no title, and in order to secure the benefit of a new title acquired sub- sequent to the institution of the suit the plaintiff should obtain leave to file a supplemental petition setting up such title. 90 660. Lost pleadings "If an original pleading be lost, or withheld by any person, the court may allow a copy thereof to be substituted." 81 ARTICLE IX DEFECTS AND OBJECTIONS Sections 661. Immaterial errors. 662. Cure of error. 663. Waiver. 664. Objection to introduction of any evidence Form. 661. Immaterial errors "The court, in every stage of action, must disregard any errof or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party ; and no judgment shall be reversed or affected by reason of such error or defect." 92 662. Cure of error Omission of material allegations in a petition or complaint may be supplied by the allegations of the answer. 83 s 8 Lewis v. Allen, 142 P. 384, 42 Okl. 584. s Reynolds v. Hill, 114 P. 1108, 28 Okl. 533. 90 Robertson v. Board of Com'rs of Rawlins County, 113 P. 413, 84 Kan. 52, judgment affirmed on rehearing 119 P. 316, 86 Kan. 10. i Rev. Laws 1910, 4783. 92 Rev. Laws 1910, 4791; Blackwell v. Hatch, 73 P. 933, 13 Okl. 169. 93 Loyal Mystic Legion of America v. Brewer, 90 P. 247, 75 Kan. 729; St. Louis & S. F. R. Co. v. Keller, 62 P. 905, 10 Kan. App. 480. Where the holder of a note and mortgage brings suit to foreclose, making the mortgagees and others defendants, and states as to such others that the 662 PLEADINGS (Ch. 11 Where the allegations of an answer explicitly set forth matters defectively set forth in the petition, such defects in the petition are cured. 94 The objection that the petition of plaintiff contained two causes of action which were not separately stated and numbered, one be- ing to reform a deed, became immaterial when the defendant in his pleading and proof showed that the mistake in that deed had been cured by the making and delivery of a subsequent deed. 93 Defects in the petition caused from incomplete allegations as to malice and probable cause are cured by an answer admitting the imprisonment, setting out all the facts, and attempting a justifica- tion. 96 In an action to recover under an agreement to deliver seed vital and fit for seed purposes, a failure to allege in the petition that the seed furnished were vital and fit for seed purposes is remedied by an answer averring that they were unfit for seed purposes and were not vital. 97 "defendants, and each of them, have or claim some interest in and to the premises above described," and W., one of such others, without objection, files a full answer, setting up all his claims and interests in the premises, and a trial is had on such pleadings, and both plaintiff and W. introduce evidence, and findings are made and judgment rendered, though plaintiff's petition as against W. is defective, yet W., by his answer and other acts, waives the de- fects. Clay v. Hildebrand, 9 P. 466, 34 Kan. 694. Under Gen. St. 1889, par. 4223, directing that errors not affecting the mer- its be disregarded, a defect in a petition in an action to vacate a judgment, arising from failure to set forth the judgment, was cured by an answer ad- mitting rendition of the judgment, and evidence, containing the petition, summons, and judgment in full, where the question of the sufficiency of the petition was raised only by objection to evidence because it failed to state a cause of action. Schnitzler v. Fourth Nat. Bank, 42 P. 496, 1 Kan. App. 674. Appointment of receiver to protect property and hold revenues pending final result or suit to cancel a guardian's lease and quiet title, held not error, though the ancillary petition was not verified, where a verified answer ad- mitted facts alleged in the petition authorizing appointment of receiver. Ward v. Inter-Ocean Oil & Gas Co., 52 Okl. 490, 153 P. 115. 84 Bierer v. Fretz, 4 P. 284, 32 Kan. 329. Where a petition inferentially states a fact, and the answer admits the fact, and the defendant objects to the introduction of any evidence under the petition because it does not state such fact, and the court overrules the objec- tion, held not error. Atchison, T. & S. F. R. Co. v. Gabbert, 8 P. 218, 34 Kan. 132. Knight v. Dal ton, 83 P. 124, 72 Kan. 131. 96 Arkansas City Bank v. McDowell, 52 P. 56, 7 Kan. App. 568. 97 D. M. Ferry & Co. v. Ballinger, 60 P. 824, 8 Kan. App. 756. (556) Art. 9) DEFECTS AND OBJECTIONS 662 Where defendants plead facts amounting to a waiver of a condi- tion in the policy, a failure of plaintiff to plead such waiver is cured. 98 Where the petition contains two counts, one for recovery of a real estate agent's commission, the other on a note given for the same debt, and defendant files a general denial and plea that the note has been altered, plaintiff is entitled to a trial on both counts." Where the petition against the indorser of a note fails to allege notice of dishonor or facts excusing notice, but the indorser sets up a failure to give notice, and plaintiff replies, alleging facts ex- cusing the failure, and the case is tried on the issues thus joined, the defects are cured. 1 Where the petition in holder's action against maker and in- dorser, which because of scrivener's inadvertence in copying note set out in its body failed to allege notice of dishonor or any ex- cuse, after admission of note in terms waiving notice of protest, court, in interest of justice, should treat the petition as amended. - In an action for conversion, where possession was not alleged in the pleading, the defect was cured by the introduction, without objection at any time in the trial court, of evidence proving such possession. 3 An indefinite answer is cured by the admission without objec- tion of evidence supplying the omissions. 4 A complaint for negligence, though not alleging that plaintiff used due care, is not cured by verdict for plaintiff. 5 Failure of a petition in an action for price of land to allege ten- der of a deed is cured by judgment requiring plaintiff to deposit a deed before rendition of judgment. 6 Where plaintiff recovered, and defects in the petition were not challenged by demurrer, objections to testimony, or motion for 98 Milwaukee Mechanics' Ins. Co. v. Sewell (Okl.) 168 P. 660. 99 Gonder v. Dodge, 155 P. 937, 97 Kan. 562. 1 Shaffer v. Govreau, 128 P. 507, 36 Okl. 267. 2 Whitaker v. Bruner (Okl.) 175 P. 238. 3 Long-Bell Lumber Co. v. Webb, 52 P. 64, 7 Kan. App. 406. 4 Bailey v. Parry Mfg. Co., 59 Okl. 152, 158 P. 581. 5 City of Guthrie v. Nix, 41 P. 343, 3 Okl. 136. 6 Witt v. Boothe, 158 P. 851, 98 Kan. 554. (557) 662-663 PLEADINGS (Ch. 11 new trial, the petition would be regarded after judgment as amend- ed. 7 Where defendants do not appear until after judgment, objec- tions that the petition fails to support the judgment will be over- ruled, unless it fails to allege some matter essential to the relief sought. 8 Any error in overruling objections to evidence in ejectment be- cause the petition fails to set up copies of instruments making up chain of title is cured by amendment after verdict without objec- tion or exception setting up such copies. 9 663. Waiver "When the defects do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be tak- en, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdic- tion of the court, and that the petition does not state facts suffi- cient to constitute a cause of action." 10 Where an attorney fails to point out clearly the grounds of his objection to pleadings or proceedings, he will ordinarily be deem- ed to have waived his objection. 11 Irrelevancy and redundancy in a pleading are waived by failure to move to strike it in the trial court. 12 Incapacity of the plaintiff to sue, which appears on the face of the petition, must be taken advantage of by either an answer or a demurrer, or the defect is waived. 18 Where parties submit issues to court on agreed state of facts, generally such action waives error in rulings on the pleadings. 1 * Where a defective petition sets forth a prima facie cause of ac- 7 Farmers' & Merchants' Nat. Bank v. Gann, 148 P. 249, 95 Kan. 237. 8 Hoehler v. Short, 140 P. 146, 40 Okl. 681. 8 Randals v. Paro (Okl.) 168 P. 216. i Rev. Laws 1910, 4742. 11 Emery v. Bennett, loo P. 1075, 97 Kan. 490, Ann. Cas. 1918D, 437. 12 Hunt v. Jones, 128 P. 1094, 35 Okl. 252. 13 Where a widow sues for the wrongful death of her husband and alleges that no personal representative has been appointed, widow's incapacity to sue must be taken advantage of by demurrer or answer, or defect will be waived. Chicago, R. I. & P. Ry. Co. v. Brooks, 57 Okl. 163, 156 P. 362. 14 Powell v. Crittenden, 57 Okl. 1, 156 P. 661; Enid City Ry. Co. v. City of: Enid, 144 P. 617, 43 Okl. 778. (558) Art. 9) DEFECTS AND OBJECTIONS 663 tion and is met by answer instead of demurrer, it will be deemed sufficient. 16 When a case is tried by the court on an agreed statement of facts, and no objection is raised to the sufficiency of the petition, any defect therein which could be cured by an amendment is waived. 16 A defendant cannot complain of the insufficiency of a petition to present an issue in which it voluntarily joined, where such is- sue was fully tried on the merits. 17 A party, accepting all the issues tendered, by the petition, and defending the case against all the theories presented, will not be granted a new trial because of the inconsistency of such theories. 18 Any error in overruling a demurrer is waived, where defendant ans*wered an amended petition, curing the defect, and went to trial without objection. 19 Where a petition in equity was defective, in that it contained no offer to place defendant in statu quo, defendant waived his right 15 Naugle v. Naugle, 132 P. 164, 89 Kan. 622. Where failure of petition on foreclosure of mechanic's lien to allege that the material furnished was actually used in the building was not challenged by demurrer, the defect was waived. Ryndak v. Seawell, 76 P. 170, 13 Okl. 737. A bill of particulars praying for specific property or its value and also for damages is sufficient under Rev. Laws 1910, 4807, to warrant recovery of damages for the detention in absence of objection. Weleetka Light & Water Co. v. Castleberry, 142 P. 1006, 42 Okl. 745. In an action for partition, where a petition avers parties are tenants in common, but not that plaintiffs are in possession, and there is not joined with the demand for partition an action for possession, and the defendant answers, claiming title and possession, and asking that title be quieted, and the suffi- ciency of plaintiffs' petition is not challenged by defendant, he thereby waives all objections to its sufficiency. Moorehead" v. Robinson, 75 P. 503, 68 Kan. 534. 16 State Bank of St. John v. Norduff. 43 P. 312, 2 Kan. App. 55. 17 Triple Tie Ben. Ass'n v. Wood, 98 P. 219, 78 Kan. 812. Where, in ejectment, counsel in opening statement spoke of the defendant's conversion of plaintiff's personalty, and the court without objection permitted evidence as to damages for such conversion, though it was not pleaded, held, that the pleading should be construed as broad enough to include those ele- ments of damage, or that the issues were enlarged by consent of parties. Cus- ter v. Royse, 104 Kan. 339, 179 P. 353. 18 Provident Loan Trust Co. v. Mclntosh, 75 P. 498, 68 Kan. 452, 1 Ann. Cas. 906. 1 Commerce Trust Co. v. School Dist. No. 37 of Pontotoc County, 47 Okl. Ill, 147 P. 303. (559) 663 PLEADINGS (Ch. 11 to attack it on that ground, where he answered to the merits and went to trial upon the issues tendered. 20 When causes of action have been improperly joined, if no objec- tion is taken by demurrer, the error is waived. 21 It is too late to object for the first time on the trial of a cause to the insufficiency of a petition on technical grounds, or to any amendment which has been answered and issues joined thereon. 22 The sufficiency of the allegations of a petition to state a cause of action cannot be questioned for the first time by a motion to set aside a sheriff's sale made pursuant to the judgment rendered in the case. 23 Failure to plead estoppel or waiver may be waived by plaintiff by proceeding without objection as though such defense had been pleaded. 24 The pleading of inconsistent defenses is waived, where plaintiff replies and joins issue thereon and makes no objection until motion for a new trial. 25 An answer charging contributory negligence in general terms is sufficient, if a motion to make definite and certain has not been filed. 26 Objection on the ground that it does not state a cause of action 20 Smith V. Smith, 89 P. 896, 75 Kan. 847. 21 Tucker v. Hudson, 38 Okl. 790, 134 P. 21; Reynolds v. Hill, 114 P. 1108, 28 Okl. 533 ; Gates v. Freeman, 57 Okl. 449, 157 P. 74. In ejectment for several distinct parcels of land, where plaintiff's title as to all defendants is the same, and the answer sets up misjoinder of causes of action, because some of the defendants claim separate interests in separate parcels, but admits that all defendants are in possession of all the real estate, the misjoinder is no ground for objection to the introduction of testimony, or demurrer to tne evidence ; and, where none of defendants ask a separate trial, and the action proceeds as though there was no misjoinder, it will be regarded as immaterial. Bloclgett v. Yocum, 103 P. 128, SO Kan. 644. One appearing and answering a cross-action against him without objection waives misjoinder of causes of action in the cross-petition. State Exch. Bank v. National Bank or Commerce (Okl.) 174 P. 796, 2 A. L. R. 211; Same v. Traders' Nat. Bank (Okl.) 174 P. 799. - >2 City of Guthrie v. Finch, 75 P. 288, 13 Okl. 496. 23 Birmingham v. Leonhardt, 43 P. 996, 2 Kan. App. 513. - 4 First Bank or Texola v. Terrell, 44 Okl. 719, 145 P. 1140, Ann. Cas. 1917A, 681. - 5 Kaufman v. Boismier, 105 P. 326, 25 Okl. 252. 26 Kirkland v. Atchison, T. & S. F. Ry. Co., 104 Kan. 388, 179 P. 362. (5GO) Art. 9) DEFECTS AND OBJECTIONS 663 is waived by failure to demur to a counterclaim seeking affirmative relief. 27 Where defendant voluntarily goes to trial without a reply being filed, when he is not bound to do so, he waives it, and is regarded as consenting to go to the proof of the answer as if it were de- nied. 28 Departure in a reply is waived by failure to move to strike. 29 Where a petition is filed, defendant answers, and plaintiff re- plies by a general denial, and afterwards defendant files an amend- ed answer, including the allegations in his first answer, and, in addition thereto, sets up new matter, and no reply is filed to this amended answer; and the parties go to trial thereon without ob- jection, all the allegations of the amended answer are put in issue by the reply of plaintiff, except the new matter contained in the amended answer; and, if a reply by plaintiff is necessary to the amended answer, defendant waives such reply by proceeding to trial without objection and as if a reply had been filed. 30 An objection to a reply for variance cannot be made by a de- 27 Wyman v. Herard, 59 P. 1009, 9 Okl. 35. Where a counterclaim for damages for an alleged wrongful attachment is set up in answer, plaintiff, by filing a reply, thereby joins issue and waives objection that such damages were not the proper subject for a counterclaim. Word v. Nakdimen (Okl.) 178 P. 257. 28 Patterson v. Choate, 50 Okl. 761, 151 P. 620 ; Holt v. Holt, 102 P. 187, 23 Okl. 639 ; Kepley v. Carter, 30 P. 182, 49 Kan. 72 : Allison v. Bryan, 109 P. 934, 26 Okl. 520, 30 L. R. A. (N. S.) 146, 138 Am. St. Rep. 988; Leach v. Al- tus State Bank, 56 Okl. 102, 155- P. 875. 29 Purcell v. Corder, 124 P. 457, 33 Okl. 68; Stuart v. Grayson (Okl.) 162 P. 956 ; St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 91) P. 647, 23 Okl. 79. Defendant, who submits the cause to the jury without objection to the pleadings or the evidence, will be held to have accepted all the issues ten- dered, and waived any question of the departure of the reply from the peti- tion. Consolidated Kansas City Smelting & Refining Co. v. Osborne, 71 P. 838, 66 Kan. 393. In an action on a note by an indorsee against the maker, the answer was fraud in its inception, plaintiff replied, denying each and all of the allegations in the answer, inconsistent with or denying allegations of the petition. Held that, though the reply was defective, as the parties proceeded through two trials as if it were sufficient, and the fraud alleged was in issue, defendant is not in a position to insist that the fraud was admitted. First Nat. Bank v. Abmeyer, 108 P. 94, 82 Kan. 283. 30 Cooper v. Davis Sewing Mach. Co., 15 P. 235, 37 Kan. 231. HoN.Pt.& PEAC. 36 (561) 663 PLEADINGS (Ch. 11 fendant who has filed a special answer setting forth a fals is- sue, to which any reply would be sufficient. 31 Where a demurrer to a pleading is sustained, and the pleader asks leave to amend, he waives the error in sustaining such de- murrer, and in order to take advantage of any error in the ruling he must stand on his pleading. 32 The filing of an amended pleading on the sustaining of a demur- rer to the original pleading is a waiver of any error in the ruling on the demurrer. 38 Defendant who files an answer within time granted therefor after overruling of the demurrer, waives any error in overruling the de- murrer, 34 unless an exception to the ruling was taken. 35 31 Plaintiff in an action on a policy alleged a total loss, which defendant in his answer denied generally, averring the loss to be partial, and not total, and set forth as a special defense that an appraisal required by the policy had not been completed, and that the action was prematurely brought, which special answer 'was surplusage and constituted no defense to the action stated. Plain- tiff's reply alleged abandonment of the appraisement by defendant. Held, that the reply was responsive to the special matter pleaded, and an objection that it was variant with the cause of action stated in the petition could not be raised by defendant; it having by special answer set forth a false issue, to which any reply would "be sufficient. Liverpool & L. & G. Ins. Co. v. Heckman, 67 P. 879, 64 Kan. 388. 32 Board of Com'rs of uarfield County v. Beauchamp, 88 P. 1124, 18 Okl. 1 ; State v. Martin, 62 Okl. 295, 162 P. 1088 : Berry v. Barton, 71 P. 1074, 12 Okl. 221, 66 L. R. A. 513 ; Chidsey v. Ellis, 125 P. 464, 31 Okl. 107 ; Morrill v. Casper, 73 P. 1102, 13 Okl. 335; Gates v. Miles (Okl.) 169 P. 888; Guess v. Reed, 49 Okl. 124, 152 P. 399. 33 Bank of Santa Fe v. Haskell County Bank, 38 P. 485, 54 Kan. 375; King- man v. Pixley, 54 P. 494, 7 Okl. 351 ; Pattee Plow Co. v. Beard, 110 P. 752, 27 Okl. 239, Ann. Cas. 1912B, 704 ; Campbell v. Thornburgh, 57 Okl. 231, 154 P. 574 ; Wallace v. Blasingame, 53 Okl. 198, 155 P. 1143 ; Cabell v. McLish, 61 Okl. 224, 160 P. 592 ; Brown v. J. I. Case Plow Works, 59 P. 601, 9 Kan. App. 685. 3 * Munson v. First Nat. Bank of Okmulgee, 58 Okl. 284, 159 P. 486. Where defendant demurs to a complaint as not stating a cause of action, and the demurrer is overruled, and, without raising exceptions, defendant an- swers, any defects in the complaint are cured. Sanford v. Weeks, 18 P. 823, 39 Kan. 649. Where a petition on a policy failed to show that plaintiff had not per- formed the conditions precedent, and after the overruling of a demurrer de- fendant filed an answer, alleging failure to comply with the provisions of the policy, the grounds of demurrer were waived. American Ins. Co. of Newark, N. J., v. Rodenhouse, 128 P. 502, 36 Okl. 211. Where the petition does not allege compliance with the conditions precedent 36 Simmons v. Chestnut-Gibbons Grocery Co. (Okl.) 173 P. 217. (562) Art. 9) DEFECTS AND OBJECTIONS .663 AVhere a demurrer is sustained to certain paragraphs of the answer, and defendant files an amended answer setting up the same defenses and issues are joined thereon, error in sustaining the demurrer is waived. 36 A party who seeks to have the ruling on a demurrer to the peti- tion reviewed must elect to stand on the demurrer, and at once bring the case to the appellate court, or an answer may be filed, and when the case is tried, if it is tried on the original petition, and then brought up by the party demurring, the ruling on the demurrer will be passed on. 3T The asking and obtaining of leave to file an amended petition at end of trial waives any error in denying application to amend original pleading or any error in proceedings prior to filing of amended petition. 38 Verification of the denial of the execution of a written instrument is not waived, though there be no motion to strike the pleading from the file. 39 Where upon retrial the petition was amended so that the facts stated in the amended petition constituted a new cause of action, which would be barred by expiration of the period of limitation after the filing of the original petition, and before the filing of the amended petition, but at the former trial the case was tried on the theory set up in the amended petition, defendant, having acquiesced in such interpretation of the original petition, is precluded from ob- jecting that the amended petition set up a new cause of action. 40 " Where plaintiff is permitted to file a supplemental petition during the trial without previous notice, and defendant objects to the fil- ing on grounds other than want of notice, and proceeds with the to an action, and a demurrer is overruled, and defendant alleges that plain- tiff has failed to comply with the conditions, the grounds of demurrer are waived. Rochester German Ins. Co. of Rochester, N. Y., v. Rodenhouse, 12 P. 508, 36 Okl. 378. 36 Pacific Mut. Life Ins. Co. of California v. O'Neil, 130 P. 270, 36 Okl. 792. A plaintiff in ejectment, who, on second trial as a matter of right, replied to an answer to which a demurrer had been sustained, and objected to an amended answer, held to have waived the demurrer. Johnson v. Myers, 122 P. 713, 32 Okl. 421. 87 Union Pac. Ry. Co. v. Estes, 15 P. 157, 37 Kan. 229. 38 Cornelssen v. Harman, 103 Kan. 624, 176 P. 141. so St. Louis & S. F. R, Co. v. Bruner, 52 Okl. 349, 152 P. 1103. * Taylor v. Atchison, T. & S. F. Ry. Co., 68 P. 691, 64 Kan. 888. (563) 663 PLEADINGS (Ch. 11 trial without making an application for delay, he cannot afterwards complain of want of notice. 41 The lack of verification of a pleading is waived by pleading over and going to trial on the merits without objection. 42 A party who challenges the form or sufficiency of a verified pleading should attack it by motion before the introduction of the evidence is begun, and an objection made after the introduction of the evidence is ordinarily too late to be available. 43 Where, on sustaining objection to the sufficiency of plaintiff's pleading, he avails himself of leave to amend, he thereby waives his right to complain of the ruling. 44 Error, if any, in striking matter from an amended answer, is waiv- ed by defendant's taking leave to file and filing a further amend- ment. 45 41 King v. Hyatt, 32 P. 1105, 51 Kan. 504, 37 Am. St. Rep. 304. Where plaintiff, without objection, filed a supplemental petition setting up a new cause of action, the error, if any, was waived where defendant filed answer and went to trial upon the issues so joined under Rev. Laws 1910, 4742, providing that where certain defects, including misjoinder of causes of action, exist in the petition, and no objection is taken by demurrer or answer, defendant shall be deemed to have waived such objections with immaterial exceptions. Reynolds v. Hill, 114 P. 1108, 28 Okl. 533. * 2 Boston Loan & Trust Co. v. Organ, 36 P. "733, 53 Kan. 386. Plaintiff, not objecting to an unverified plea of intervention before proceed- ing to trial, is deemed to have waived any objection to the failure to verify such plea. Farmers' State Bank of Ada v. Keen (Okl.) 167 P. 207. Defective verification of a petition on which a restraining order was granted ex parte was waived where defendant answered to the merits without ob- jecting to the petition. Galbreath Gas Co. v. Lindsey, 129 P. 45, 35 Okl. 235. Any defect or irregularity in the verification of a petition for an injunction is waived, where, without raising it, defendant answers to the merits. Glasco v. School Dist. No. 22, McClain County, 103 P. 687, 24 Okl. 236. The failure of defendant, in an action on a note, to verify his answer deny- ing execution was waived by the filing of a reply denying the allegations of the answer. Jones v. Citizens' State Bank. 39 Okl. 393, 135 P. 373. Where a pleading denies the execution of a written instrument, and is veri- fied by an attorney, and no objection is made to the verification until evidence is offered in support of the denial, it is not error to overrule an objection made on the ground that the affidavit does not show that the facts were within the personal knowledge of the attorney. Hoopes v. Buford & George Implement Co., 26 P. 34, 45 Kan. 549. 43 Hornick v. Union Pac. R. Co., 118 P. 60, 85 Kan. 568, 38 L. R. A. (N. S.) 826, Ann. Cas. 1913A, 208. 44 Pappe v. Post, 101 P. 1055, 23 Okl. 581. 46 Ott v. Elmore, 73 P. 898, 67 Kan. 853. Where a motion to strike and a demurrer are sustained to an answer, and (564) Art. 9) DEFECTS AND OBJECTIONS 663 A defendant who has been brought in by a supplemental petition, by answering and going to trial waives questions of jurisdiction raised by a prior motion to dismiss on the grounds that the original petition had fully performed its functions as a pleading in the cause before the supplemental petition was filed, and that the supplemen- tal petition was filed without notice to him.* 6 The error in striking out a supplemental and amended answer was waived by filing a second supplemental and amended answer, alleging most of the facts set up in the stricken answer, which was permitted to stand unchallenged, as it superseded the one stricken out. 47 Where the petition sets forth the manner of the indebtedness of defendant to plaintiff, and defendant's answer is a general denial, but at the trial defendant's evidence tends to establish a counter- claim, and no objection is made to its introduction on the ground that the pleadings did not authorize it, if the action is tried, and the evidence admitted as though the answer were sufficient to allow the evidence to be introduced, the objection is waived. 48 In a suit to foreclose a lien for materials, where there is a gen- eral denial, and also denial of any debt, and the case is tried on the issue of payment without objection, until certain evidence is offered, the findings for defendant will not be disturbed on the ground that such issue is not made by the pleadings. 49 Where the petition did not allege that the locomotive was de- fective, but defendant tried the case on the assumption that the ex- istence of defects was an issuable fact, defendant could not ob- ject to evidence, introduced, by plaintiff tending to show that the spark arrester on the engine was defective. 50 The question of variance between pleading and proof must be raised at a time* which will permit an amendment of the pleading on such terms as may be just, and the adverse party must not only defendants by leave file an amended answer repleading the eliminated matter, any error in orders sustaining the motion and demurrer is waived. Schuber v. McDuffee (Okl.) 169 P. 642. 46 Beecher v. Ireland, 54 P. 9, 8 Kan. App. 10. 47 Robertson v. Christenson, 90 Kan. 555, 135 P. 567. 48 Feidler v. Motz, 22 P. 561, 42 Kan. 519. 49 Chicago Lumber Co. v. Limerick, 36 P. 710, 53 Kan. 395. 50 Kansas City, Ft. S. & M. B. Co. v. Chamberlain, 61 Kan. 859, 60 P. 15. (565) 663-664 PLEADINGS (Ch. II have been misled to his prejudice, but the fact must be shown to the satisfaction of the trial court. 51 Where, in an action for money loaned, defendant answered that the money was invested in cattle in which the parties were partners,, and the court found that the money loaned was invested in part- nership cattle, and afterwards defendant agreed to take plaintiff's interest and repay the amount invested by him, and gave judgment for plaintiff, no objection having been made till after judgment, there was not a fatal variance. 52 An averment that a certain person was general manager of a railway company, and that, on behalf of the company, he promised to give a pass over its roads, is a sufficient allegation of the au- thority of the agent, after judgment for plaintiff, when there is no showing that such averment was challenged at the trial. 53 664. Objection to introduction of any evidence Form An objection to the introduction of any evidence under a petition is good only when there is a total failure to allege in the petition some matter essential to recovery, and is not good when the al- legations are simply indefinite or statements of conclusions of law. 54 When this is the only objection to a petition its allegations will be liberally construed, and when there is not a total failure of averment as to some essential matter, the allegations are simply incomplete, and objection to the introduction of evidence is properly overruled. 55 si Missouri, K. & T. Ry. Co. v. Green, 89 P. 1042, 75 Kan. 504. The petition alleged that defendant was negligent in permitting the roof of his warenouse to become leaky, and that water came in and fell upon plain- tiff's goods stored there, andi that defendant negligently permitted them to remain wet, and they thus became damaged. The proof seemed to show that the water came into the room from the street, and not through the roof. Held, that there was not such a variance as would warrant the court in sustaining a demurrer to the evidence. Red Ball Transfer & Storage Co. v. Deloe, 30 Okl. 522, 120 P. 575. AVhere plaintin, in an action for injuries, sought to expand his charge of negligence by proving the speed of the train to which testimony defendants objected, ana moved to strike it out after it had 'been admitted, and by an in- struction sought to limit the jury's inquiry to the issue presented by the pleading, a claim that defendants acquiesced in the enlargement of the issues is not sustained. Judgment, 79 P. 673, 70 Kan. 755, reversed on rehearing. Chicago, R. I. & P. Ry. Co. v. Wheeler, 83 P. 27, 70 Kan. 7GO. 5a Mulhall v. Mulhall, 41 P. 109, 3 Okl. 304. " Atchison, T. & S. F. R. Co. v. English, 16 P. 82, 38 Kan. 110. s* First Nat. Bank v. Cochran, 87 P. 855, 17 Okl. 538. 66 Id. ; Ball v. White, 50 Okl. 429, 150 P. 901 ; Johnston v. Chapman, 38 Okl. (566) Art. 9) DEFECTS AND OBJECTIONS 664 General averments of fraud in a petition are sufficient as against an objection to the introduction of evidence thereunder. 56 The practice of questioning the sufficiency of a petition by objections to evidence is not to be encouraged, and the objections should be overruled, if under any fair construction of the petition any cause of action is stated. 57 42, 131 P. 1076 ; Abbott v. Dingus, 44 Okl. 567, 145 P. 365 ; Sulsberger & Sons Co. v. Castleberry, 40 Okl. 613, 139 P. 837 ; Thorp v. St. Louis & S. F. R. Co. (Okl.) 175 P. 240; First Nat. Bank v. Harkey, 63 Okl. 163, 163 P. 273; Sharpless Separator Co. v. Gray, 62 Okl. 73, 161 P. 1074; Wilson v. Eulberg, 51 Old. 316, 151 P. 1067; Blackert v. Lankford (Okl.) 176 P. 532; Missouri, K. & T. Ry. Co. v. Murphy, 90 P. 290, 75 Kan. 707 ; Hogan v. Bailey, 110 P. 890, 27 Okl. 15; Young v. Severy, 49 P. 1024, 5 Okl. 630. In action for breach of contract, failure to allege performance on plaintiffs part presented only by objection to evidence and not by demurrer held imma- terial. Capper v. Manufacturers' Paper Co., 121 P. 519, 86 Kan. 355. The payment of money to secure the liberty and discharge of one who has been imprisoned on at malicious prosecution must be specifically averred in a suit to recover damages therefor ; but averment is sufficiently made if it is declared in the petition that the plaintiff has been "forced to pay out and expend large sums of money in securing his liberty and discharge," if the ob- jection is first made at the trial to the introduction of evidence tending to show what payments have been made by the plaintiff for that purpose. Ten Cate v. Fansler, 65 P. 375, 10 Okl. 7. In an action by a servant for injuries, the petition alleged that "one V. was employed by said defendant and was in charge of said machine, and that the plaintiff herein was employed to take and carry away the staves after they had been planed." It was further alleged that defendant was the owner and operator of the plant in which the machine referred to was situated, and that plaintiff was obliged to obey a foreman of -a department thereof. No demurrer was filed, and a motion to make more definite did not refer to the failure to directly allege employment by defendant. Held, that a motion objecting to tne introduction of testimony on account of such failure was properly overruled. Brower v. Timreck, 71 P. 581, 66 Kan. 770. Where plaintiff died pending action, amendment of petition by administra- trix, in whose name action was revived, stating that plaintiff died intestate and that administratrix was duly appointed by probate court, had duly quali- fied, and was acting administratrix of plaintiff, was sufficient against objec- tion to introduction of evidence. Estes v. Edgar Zinc Co., 156 P. 758, 97 Kan. 774. An objection to the introduction of evidence under a petition to set aside a deed to property of which plaintiff is not in possession, alleged to have T}een procured by undue influence, is properly overruled, though a prayer for partition is joined with that for other relief. Howard v. Carter, 80 P. 61, 71 Kan. 85. 66 Howard v. Carter, 80 P. 61, 71 Kan. 85. "Id. Where a petition states a cause of action for damages for fraud, and de- fendant answers, and trial is had on that theory, an objection that the peti- (567) 664 PLEADINGS (Ol. It Every legal intendment is indulged in support of an answer at- tacked, and if it may be construed to state a defense, etc., objection to evidence in support of answer will not be sustained merely be- cause allegations are indefinite or mere legal conclusions. 58 A departure in the reply from the petition, 59 or the failure to veri- fy a pleading, cannot be taken advantage of by objection to the in- troduction of any evidence thereunder, but should be raised by mo- tion to strike out. 60 Misjoinder of causes of action cannot be met by an objection to introduction of evidence. 61 . Failure of a petition to state a cause of action may be presented by an objection to the introduction of any evidence. 62 An objection to the introduction of evidence on the ground that the petition does not state a cause of action is equivalent to a demurrer to the petition and cannot be used to raise the objection of the uncertainty of the petition, 63 and raises no issue of fact. 64 Where the complaint does not state facts sufficient to constitute a cause of action, and an objection is made by defendant to the in- troduction of any evidence under it for that reason, the objection should be sustained, even though defendant has answered. 65 But in the absence of a demurrer or motion, unless there is a total omis- sion to allege some essential material fact, the petition will be held good on an objection to the introduction t)f evidence, 66 and the tion was not drawn upon any definite theory cannot be raised by objection to the evidence. Allen v. Datschewski, 142 P. 953, 92 Kan. 933. 58 First Nat. Bank v. Humphreys (Okl.) 168 P. 410. 59 St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 99 P. 647, 23 Okl. 79; Merchants' & Planters' Ins. Co. v. Marsh, 125 P. 1100, 34 Okl. 453, 42 L. R. A. (N. S.) 996; Purcell v. Corder, 124 P. 457, 33 Okl. 68; Landon v. Morehead, 126 P. 1027, 34 Okl. 701. o / Doughty v. Funk, 103 P. 634, 24 Okl. 312. 61 State Exch. Bank v. National Bank of Commerce (Okl.) 174 P. 796, 2 A. L. B. 211; Same v. Traders' Nat. Bank (Okl.) 174 P. 799. e 2 Lankford v. Schroeder, 47 Okl. 279, 147 P. 1049, L. R. A. 1915F, 623. 63 wey v. City Bank, 116 P. 943, 29 Okl. 313 ; Shultz v. Jones, 3 Okl. 504, 41 P. 400. 64 Cowart v. Parker-Washington Co., 136 P. 153, 40 Okl. 56. 05 Church v. Atchison, T. & S. F. R. Co., 29. P. 530, 1 Okl. 44. Where a petition fails to state a cause of action, the trial court should sustain an objection to the introduction of evidence thereunder. Willoughby v. Ball, 90 P. 1017, 18 Okl. 535. ee Marshall v. Homier, 74 P. 368, 13 Okl. 264. (568) Art. 9) DEFECTS AND OBJECTIONS 664 court will consider all the pleadings in the case, and if, 'from all of them, it can find that there is a cause of action for plaintiffs, the motion will be overruled. 87 Where a petition states a cause of action in general terms, and defendant answers, he cannot by 'demurrer to the. evidence question the sufficiency of the petition. 68 Testimony tending to support the allegation will not be exclud- d, because not specifically pleaded, and where no motion is made to make it more certain. 69 Where the petition alleges ownership generally, but the reply ad- mits the ownership to be special, as that of a mortgagee, an objec- tion to evidence under the repugnant matter in the reply should be sustained. 70 An objection to any evidence under the petition, because of the omission of the allegations of certain material facts is waived, if evidence is introduced on the trial to prove such facts, without ob- jection. 71 When it is essential that one insisting on specific performance make out complete equity, he must show that the contract sued on is capable of being specifically enforced, and where it is disclosed that the contract is unreasonable in its terms and void under the statute of frauds and that the acts done are not such that dam- ages would be an inadequate remedy, and plaintiff has within his control money more than sufficient to compensate him for any loss sustained, objection to the introduction of evidence thereunder is properly sustained. 72 Where the only objection to a petition is by objection to the introduction of evidence at the trial, the court will determine only whether it states a cause of action in equity, and if 87 Id. ; Missouri, O. & G. Ry. Co. v. McClellan, 130 P. 916, 35 Okl. 609 ; De Watteville v. Sims, 44 Okl. 708, 146 P. 224 ; Litsch v. Kansas Gas & Elec- tric Co., 148 P. 632, 95 Kan. 496. If a pleading treated as an answer with a demurrer waived states a cause of action, though defectively, an objection to the introduction of testimony will be overruled. State Exch. Bank v. National Bank of Commerce (Okl.) 174 P. 796, 2 A. L. R. 211; Same v. Traders' Nat. Bank (Okl.) 174 P. 799. 68 Elliott v. Hudson, 113 P. 307, 84 Kan. 7. 69 St. Louis & S. F. Ry. Co. v. Henry, 46 Okl. 526, 149 P. 132. 70 Johnson v. State Bank of Seneca, 52 P. 860, 59 Kan. 250. 71 Baden v. Bertenshaw, 74 P. 639, 68 Kan. 32. 72 Haffner v. Dobrinski, 88 P. 1042, 17 Okl. 438, judgment affirmed 30 S. Ct. 172, 215 U. S. 446, o4 L. Ed. 277. (569) 664 PLEADINGS (Ch. 11 the facts pleaded are sufficient, and in their nature properly cog- nizable by a court of equitable jurisdiction, the objection will be overruled. 73 Objection to evidence because incompetent, irrelevant, and im- material is insufficient to test sufficiency of petition, counterclaim, etc., or whether it is a proper subject of litigation when it has not been tested by demurrer, motion, or objection to introduction of any evidence on ground that pleading states no cause of action or defense. 74 An objection to the introduction of evidence under an answer should be sustained, where it clearly appears that the answer fails to state a defense. 75 Where a cross-petition does not state a cause of action against plaintiff, the court should decline to hear evidence in support thereof. 76 Where the question of a variance between the pleading and proof is first raised by a demurrer to the evidence, it will not be regarded as fatal, when it appears that the party objecting was neither sur- prised, misled, or prejudiced thereby. 77 OBJECTION TO INTRODUCTION OF (Oral.) Comes now the defendant and objects to the introduction of any evidence, for the reason that plaintiff's petition filed herein wholly fails to allege facts sufficient to constitute a cause of action in favor of the plaintiff and against this defendant. 73 Id. 7 * Scanlan v. Barkley (Okl.) 178 P. 674. 75 Hilton v. Bailey, 46 Okl. 759, 149 P. 863. Overruling of objection to evidence by the defendant purchaser, who set up failure of title as a defence, held error, where his answer did not contain an offer to reconvey. Herron v. Harbour, 57 Okl. 71, 155 P. 506. Where a defendant is estopped from making a claim of damages or question- ing the amount of a debt by a former judgment or decree, it is not error to sustain an objection to the introduction of evidence when offered to estab- lish such defenses. Engle v. Legg, 39 Okl. 475, 135 P. 1058. 76 McConnell v. Davis, 46 Okl. 201, 148 P. 687. 77 Collier v. Monger, 75 Kan. 550, 89 P. 1011. (570) Art. 10) MOTIONS AND ORDERS THEREON ARTICLE X MOTIONS AND ORDERS THEREON DIVISION I. MOTIONS IN GENERAL Sections 665. Definition Several objects. 666. Notice Form. 667. Service Return Form. 668. By officer Fees. 669. Appearance. 670. Affidavits and pleadings to motion. 671. Hearing. 672. Effect of continuance. 673- Second motion. DIVISION II. ORDERS 674. Ruling Form. 675. Law of the case. 676. Nunc pro tune order Form. 677. Entry Notice. 678. Vacating and modifying. DIVISION III. PARTICULAR MOTIONS 679. Motion to dismiss. 680. Motion for judgment on the pleadings Nature Form. 681. Grounds for sustaining or overruling. 682. Departure. 683. Judgment against verdict. 684. Motion to strike from files Form. 685. Affirmative pleading. 686. Defensive pleadings. 687. Demurrer. 688. Departure. 689. Limitations. 690. Amended pleading. 691. Failure to amend. 692. Motion to strike from pleading Form. 693. Motion to strike parties Form. 694. Motion to make more definite and certain. 695. Form and requisites. 696. Time of making. 697. Waiver Dismissal. 698- Motion to require pleader to separately state and number. 699. Form and requisites. 700. Waiver Dismissal. 701. Motion to require election Form. 702. Time of making. (571) 665-667 PLEADINGS (Ch. 11 DIVISION I. MOTIONS IN GENERAL 665. Definition Several objects "A motion is an application for an order, addressed to the court, or a judge in vacation, or by any party to a suit or proceeding, or one interested therein, or affected thereby." 78 "Several objects may be included in the same motion, if they all grow out of, or are connected with, the action or proceeding in which it is made." 79 666. Notice Form "Where notice of a motion is required, it must be in writing, and shall state the names of the parties to the action or proceeding in which it is made, the name of the court or judge before whom it is to be made, the place where and the day on which it will be heard, the nature and terms of the order or orders to be applied for; and if affidavits are to be used on the hearing, the notice shall state that fact, and it shall be served a reasonable time before the hear- ing." 80 NOTICE OF MOTION (Caption.) To the Above Named Plaintiff, A. B., and His Attorney of Record, G. H.: You and each of you are hereby notified that said defendant, C. D., has filed in the above entitled cause his motion to (stating kind of motion filed), a copy ofl which is hereto attached, and that the same will be presented in said court on the day of , 19 , at o'clock, , M., or as soon thereafter as counsel can be heard. X. Y., Attorney for Defendant. 667. Service Return Form "Notices of motions, mentioned in this article, may be served by a sheriff, coroner or constable, the party or his attorney, or by any other person, and the return of any such officer or affidavit of any such person shall be proof of service ; the service shall be on the 7 s Rev. Laws 1910, 5310. TO Rev. Laws 1910, 5311. so Rev. Laws 1910, 5312. (572) Art. 10) MOTIONS AND ORDERS THEREON 6G7-GG9 party, or his attorney of record, and in case there is more than one party adverse to such motion, service shall be made on each party or his attorney." 81 RETURN OF NOTICE OP MOTION (Acceptance of Service) Receipt of a copy of the above and foregoing notice, and of a copy of the motion therein referred to, is hereby acknowledged on behalf of plaintiff this day of , 19 . G. H., Attorney for Plaintiff. (Affidavit of Personal Service] (Venue.) X. Y., being duly sworn, .on oath says : That he is the attorney for the defendant in the above entitled action ; that he served the attached notice on the plaintiff therein, A. B., on the day of , 19 , by delivering to said A. B., personally, at his of- fice in the city of , a true and correct signed duplicate orig- inal thereof. X. Y. Subscribed and sworn to before me this day of - , 19. , Notary Public. My commission expires , 19 . 668. By Officer Fees "The service of a notice shall be made in the manner required by law for the service of a summons ; and when served by an of- ficer, he shall be entitled to like fees." 82 669. Appearance The journal entry of a ruling of a trial court sustaining a motion to retax costs, reciting that the adverse party excepted to the rul- ing, sufficiently shows an appearance. 83 si Rev. Laws 1910, 5313. 82 Rev. Laws 1910, 5314. 88 Teagarden v. Board of Com'rs of Linn County, 49 Kan. 146, 30 P. 171. (573) 670-673 PLEADINGS (Ch. 11 670. Affidavits and pleadings to motion On the hearing of a motion addressed to the discretion of the court and supported by affidavit, it is not error for the court to re- ceive and consider counter affidavits tending to refute facts stated in affidavits supporting the motion and presenting other grounds for denying it. 84 Answers or other pleadings to a motion are not required, and there is no provision for making up the issues for the trial of mo- tions. 85 671. Hearing Where numerous motions are pending 1 for executions against stockholders of a corporation, and a petition is filed to set aside the judgment against the corporation as to them, and in the ab- sence of the district judge the county judge grants a temporary injunction against the proceeding on the motions, the district court, in ordering that the hearing of the motions be postponed un- til further orders are made in the injunction proceedings, does not abuse its discretion. 88 672. Effect of continuance Where a motion is 'made during the term and continued to an- other term, when it is decided, it is the same as if the decision was made at the term when it was filed. 87 673. Second motion After a motion has been overruled, the movant has no right to file a second motion for the same relief on grounds existing at the time of the prior motion. It can only be done on leave of court, which is seldom granted. 88 Where a party concludes that his motion is defective or insuffi- cient, he should apply and obtain leave to amend or withdraw his first motion before filing a second motion. 88 s* Randall v. Randall, 101 Kan. 341, 166 P. 516. ss Berry v. Dewey (Kan.) 170 P. 1000. se Gurney v. Steffens, 43 P. 241, 56 Kan. 295. ST St. Louis, I. M. & S. Ry. Co. v. Lowrey, 61 Okl. 126, 160 P. 716. ss Adams v. Lockwood, Englehart & Co., 30 Kan. 373, 2 P. 626. so KjellandSr v. Kjellander, 139 P. 1013, 92 Kan. 42. (574) \ Art. 10) -MOTIONS AND ORDERS THEREON 674~675 DIVISION II. ORDERS 674. Ruling Form A ruling on a motion will not be set aside, where there were sufficient grounds to sustain it, though such grounds were not re- lied on by the party seeking relief. 90 'ORDERS ON MOTIONS (Caption.) This cause coming on to be heard on the motion of the defend- ant to require the plaintiff to make his petition more definite and certain (or state other kind of motion), due proof of notice and copy of said motion on G. H., attorney for plaintiff having been made, and the court having heard said motion and being fully advised in the premises : It is ordered that the plaintiff's petition herein be made more definite and certain by amendment in the following allegations (stating them and showing in what particular to be amended) ; and leave to amend said petition in that respect is hereby granted, said amendment to be filed within days from this date. Dated this day of , 19 . , Judge. 675. Law of the case A ruling on a motion to suppress a deposition on grounds not appearing therein does not become the law of the case, so as to require the court, when the motion is renewed at a subsequent trial and supported by new proof of the invalidity of the deposition, to overrule it without consideration. 91 Where an order is made denying a motion to quash service of summons, and a final judgment is rendered, and no appeal is tak- en, the matter arising on the motion to quash becomes res judica- ta and a bar to the right of defendant to raise the same question on a subsequent motion involving the same subject-matter. 90 o Hancock v. Youree, 106 P. 841, 25 Okl. 460. si Bethany Hospital Co. v. Hale, 77 P. 537, 69 Kan. 616. 92 Rogers v. McCord Collins Mercantile Co., 91 P. 864, 19 Okl. 115. (575) 676 PLEADINGS (Cll. 11 676. Nunc pro tune order Form Every court of record may, on proper application, enter its or- ders, by nunc pro tune entry, which the clerk has by mistake omit- ted from the record. The jurisdiction to order a nunc pro tune entry is not lost by lapse of time, where no intervening rights are affected. 93 Such order may be made either on parol or on written evidence, 94 and is not open to collateral attack by a party to a proceeding, because not made upon sufficient evidence, or because of erroneous findings of fact, or because not supported by the find- ings of fact. 95 Though lapse of time may call for stronger testi- mony that an order was in fact made and as to the extent thereof, and as to the effect of the belated entry, when it is made, it may be enforced as if entered when originally made. 96 Application for Order Nunc Pro Tune Nunc Pro Tune Order MOTION (Caption.) Comes now the said plaintiff, A. B., and respectfully represents and shows to the court that the order of this court made and en- tered herein on the day of , 19 , recites that (set- ting forth facts incorrectly stated in order), whereas (state what facts were), and by a clerical error and mistake the said facts were erroneously stated in said order. (Or, that the order of this court made the day of , 19 , overruling the plaintiff's motion for judgment on the plead- ings herein, and allowing plaintiff exceptions to such ruling, have not been regularly brought up and recorded by the clerk of this court.) Wherefore plaintiff moves the court to enter an order nunc pro tune herein, correcting said order (or record), to show (state cor- rection to be made). X. Y., Attorney for Plaintiff. as Courtney v. Barnett (Okl.) 166 P. 207. 94 Where an order is made by the probate court, and through mistake or neglect is not entered on the records, the court can enter such order nunc pro tune even after considerable time and on either parol or written evidence. Graden v. Mais, 112 P. 107, 83 Kan. 481. 95 Courtney v. Barnett (Okl.) 166 P. 207. 6 Graden v. Mais, 112 P. 107, 83 Kan. 481. (576) Art. 10) MOTIONS AND ORDERS THEREON 676-678 ORDER (Caption.) This court having, on the day of , 19 , made and entered in the above entitled cause its order reciting that (set forth facts incorrectly stated in order), whereas (set forth what facts were), and by a clerical error and mistake the said facts were erroneously stated in said order: It is therefore hereby ordered that said order be and the same is hereby corrected and amended, so as to state that (state cor- rections). Dated , 19 , this order to be entered nunc pro tune as of , 19-. , Judge. 677. Entry Notice The statute requiring orders made out of court to be entered on the journal is directory, and compliance therewith is not essential to the validity of the orders. 97 In the absence of some statute or rule of court requiring it, par- ties who rely upon a custom of the clerk to notify them when orders are entered upon motions pending in their cases, do so at their peril. 98 6J8. Vacating and modifying A court of record has inherent power on its own motion to va- cate or modify its orders, however conclusive, during the term of their rendition or entry. 99 An order is void which is made by the superior court at a sub- sequent term, vacating a former order without notice on its own motion, without complying with the statutes relative to the review of orders on motions. 1 97 Keenan v. Chastain, 64 Okl. 16, 164 P. 1145, withdrawing opinions on second rehearing 157 P. 326 ; Rev. Laws 1910, 5317 ; Mutual Life Ins. Co. of New York v. Buford, 61 Okl. 158. 160 P. 928. 98 Western Coal & Mining Co. v. Green, 64 Okl. 53, 166 P. 154. St. Louis, I. M. & S. Ry. Co. v. Lowrey, 61 Okl. 126, 160 P. 716. i Hawkins v. Hawkins, 153 Pac. 844, 52 Okl. 786; Rev. Laws 1910, 5267-5269. HON.PL.& PBAC.-37 (577) 5 679-680 PLEADINGS (Ch. 11 DIVISION III. PARTICULAR MOTIONS 679. Motion to dismiss The question of a former adjudication cannot be raised by a motion to dismiss. 2 680. Motion for judgment on the pleadings Nature Form A motion for judgment on pleadings is in the nature of a demur- rer, and is in substance both a motion and a demurrer; being a demurrer because it attacks the sufficiency of pleadings, and a mo- tion because an application for an order for judgment. 3 It is not 'available, however, to dispose of the merits of the case. 4 Every legal intendment is to be indulged in favor of the plead-, ing attacked, 5 and if there is any reasonable doubt as to its suffi- ciency, a judgment on the pleadings should not be granted. 6 2 Attica State Bank v. Benson, 54 P. 1037, 8 Kan. App. 566. For form of motion to dismiss, see ante, 533. s Deming Inv. Co. v. Reed (Okl.) 179 P. 35. A motion for judgment on the pleadings is in the nature of a demurrer, and tests the sufficiency of the pleadings and presents a question of law as to whether the facts alleged are a defense. Schuber v. McDuffee (Okl.) 169 P. 642; Oliphant v. Crane (Okl.) 172 P. 1073; Mires v. Hogan (Okl.), 192 P. 811. In action on note and to foreclose mortgage securing it, plaintiff's motion for judgment on the pleadings held properly sustained. Kerr v. Mcffinney (Okl.) 170 P. 685. 4 Peck v. First Nat Bank of Claremore, 50 Okl. 252, 150 P. 1039. s Every legal intendment is indulged in support of an answer attacked, and if it may be construed to state a defense, a motion for judgment on the pleadings will not be sustained merely because allegations are indefinite or mere legal conclusions. First Nat. Bank v. Humphreys (Okl.) 168 P. 410. 6 If there is any reasonable doubt as to the sufficiency of the pleading, judgment on the pleadings will not be granted. Peck v. First Nat. Bank of Claremore, 50 Okl. 252, 150 P. 1039. Where it is necessary for plaintiff to file reply to new matter set up in the answer, it is reversible error to render judgment on the pleadings on plaintiff's motion after his reply is filed. Id. A motion for judgment on the pleadings in a justice court should be over- ruled where there is any reasonable doubt as to its sufficiency. Earl v. Tyler, 128 P. 269, 36 Okl. 179. A motion for judgment on the pleadings, where filed by plaintiff to de- fendant's answer, should be granted only when such answer, allowing every reasonable intendment in its favor, does not deny or state a defense to the material allegations of the pleading. Cobb v. Wm. Kenefick Co., 100 P. 545, 23 Okl. 440. On motion for judgment on averments in petition and opening statement of counsel, they should be liberally interpreted. Moffatt v. Fouts, 160 P. 1137, 99 Kan. 118. (578) Art. 10) MOTIONS AND ORDERS THEREON 680-681 A motion for judgment on the pleadings is in the nature of a demurrer, and admits for its purpose the truth of all facts well pleaded by the opposite party. 7 It invokes the trial court's judgment on pleaded and undisputed facts, and the judgment is equivalent to a ruling on a demurrer. 8 The district court has the inherent power to render a judgment on the pleadings without a motion. 9 MOTION FOR JUDGMENT ON THE PLEADINGS (Caption.) Comes now the above named plaintiff, A. B., and moves the court to enter judgment on the pleadings in the above entitled action, as prayed for in plaintiff's petition, on the ground and for the reason that the answer and cross-petition filed herein are sham, frivolous, and wholly insufficient to constitute a defense to the said action, and wholly barren of any equities or claims of right in the defendant to entitle him to the relief sought, or to any equita- ble, legal, or other relief whatsoever. X. Y., Attorney for Plaintiff. 681. Grounds for sustaining or overruling A motion for judgment on the pleadings should be denied where the pleadings raise a question of fact. 10 Hence a motion by plain- tiff for judgment on the pleadings should be denied, where the 7 C. E. Sharp Lumber Cp. v. Kansas Ice Co., 142 P. 1016, 42 Okl. 689. A motion for a judgment on the pleadings like a demurrer admits the truth of all well-pleaded facts in the pleadings of the opposing party. Dem- ing Inv. Co. v. Reed (Okl.) 179 P. 35. A motion for judgment on the pleadings may be carried back and sustained against a prior pleading of the movant, and the court will consider the whole record and give judgment for the party who on the whole appears entitled to it. Id. Motion for judgment on the pleadings admits for its purpose the truth of all the facts well pleaded by the opposite party. Griffin v. Gulp (Okl.) 174 P. 495. s Smith v. Lundy, 173 P. 275, 103 Kan. 207. a Mires v. Hogan (Okl.) 192 P. 811. 10 Cobble v. Farmers' Nat. Bank of Tecumseh, Okl., 53 Okl. 814, 158 P. 364; Franklin v. Ward (Okl.) 174 P. 244; St. Louis & S. F. R. Co. v. Kerns, 136 P. 169, 41 Okl. 167 ; Noland v. Owens, 74 P. 954, 13 Okl. 408 ; Smith v. Jos. W. Moon Buggy Co. (Okl.) 169 P. 875 ; Chapman v. Tallant, 42 P. 61, 1 Kan. App. 799. (579) 681 PLEADINGS (Ch. 11 answer raises any issue of fact, 11 though by way of general denial, 12 unless there be an agreed statement of facts which contains some- 11 It is error to sustain a motion for judgment on the pleadings, where there is on file, undisposed of, an answer of one of the defendants, setting forth that plaintiff is indebted to him on account in a sum in excess of plain- tiff's demand. Stauffer v. Campbell, 30 Okl. 76, 118 P. 391. Where the answer states a defense to a cause of action pleaded, it is error to render judgment for plaintiff on the pleadings and opening statement. Mascho v. Johnson, 49 Okl. 646, 153 P. 630; Mackey v. Boswell, 63 Okl. 20, 162 P. 193. When it appears on the face of a note sued on that it is barred by the statute of limitations, and the only evidence that it is not barred consists in alleged promises in writing to pay, made within the statutory period, and such alleged promises are denied under oath, plaintiff is not entitled to a judgment on the pleadings ; and the fact that defendant added, to said denial under oath, the plea of payment within the statutory period, is immaterial. Smith v. Beeler, 29 P. 1087, 48 Kan. 669. Where, in an action on a note, an answer was filed alleging that the real owner of the note and the makers resided in different counties, and that the owner, to compel the makers to leave the county of their residence to defend the action, transferred it without consideration to plaintiff and caused him to commence an action against the makers and owner as indorser in the county in which he resided, it was error to render judgment on the plead- ings against the makers on the ground that the answer did not state a de- fense to the note, for the facts stated showed that the court had no juris- diction to hear the merits of the controversy. Freight v. Wyandt, 99 P. 611, 79 Kan. 309. It is error to sustain a motion for judgment on the pleadings where the answer properly raised the bar of limitations and the statute of frauds and 12 in replevin, answer by defendant, pleading general denial, and also af- firmative defense admitting execution of note and mortgage on which claim for possession was based raises question of fact, so that judgment on plead- ings is improper. Williams v. Gibson Bros., 60 Okl. 147, 159 P. 649. A plaintiff who seeks to restrain a city of the first class from collecting a special tax on his property, on account of the cost of the improvement of a street upon which his property is situate, is not entitled to a judgment on the pleadings, when an answer by said city is on file, verified by the city attorney, that is in effect a general denial. McCrea v. City of Leavenworth, 27 P. 129, 46 Kan. 767. Where in an action on an oral agreement to pay rent defendant filed a general denial, a motion for judgment on the pleadings was properly denied. Dunn v. Anderson, 51 Okl. 280, 151 P. 1045. It is not error to deny judgment on the pleadings, where the answer is a general denial sufficient to put in issue all the averments of the petition. Barnes v. Davis, 30 Okl. 511, 120 P. 275. Where two separate and well-pleaded causes of action are united in one petition, and a general denial is filed by the defendants, and also a good plea of a former adjudication as to one of the causes only, it is error for the court to sustain a motion for judgment on the pleadings as to both causes of action. Fouts v. Pettigrew, 74 P. 1107, 68 Kan. 289. (580) * Aft. 10) MOTIONS AND ORDERS THEREON 681 the existence of an oral contract without which plaintiff could not recover. Fox v. Ziehme, 30 Okl. 673, 120 P. 285. in action on written contract for payment of money, alleging ownership of certain lease, a part of consideration for contract, wherein answer al- leged failure of consideration and contained a general denial, judgment for plaintiffs on the pleadings was error. Lesem v. Harris, 102 Kan. 222, 169 P. 959. In action on notes and to foreclose mortgage securing them, where defend- ant pleaded payment and was in default under an order to make his answer more definite and certain, sustaining of plaintiff's motion for judgment on the pleadings was error, in view of Rev. Laws 1910, 4745, prescribing requisites of answer. Moore v. Continental Gin Oo. (Okl.) 173 P. 809. Where answer admitted execution of note but denied a holding in due course alleging. that it was given on condition and negotiated in breach there- of to plaintiff, who took with knowledge, it was error to render judgment for plaintiff on pleadings. Dunkin v. Waurika Nat. Bank, 62 Okl. 175, 162 P. 788. Where the answer in replevin contained several defenses in addition to a general denial, a motion for judgment on the pleadings was properly over- ruled. First State Bank of Mannsville v. Howell, 137 P. 657, 41 Okl. 216 ; Same v. Lawson, 137 P. 661, 41 Okl. 226. A motion by plaintiff for judgment on the pleadings should be granted only when the answer does not deny, or state a defense to, a material allegation of the petition. Shipman v. Porter, 48 Okl. 265, 149 P. 901 ; Id., 48 Okl. 284, 149 P. 902. Where material allegations of plaintiff's petition are denied by the an- swer and facts pleaded showing the same to be untrue, it is error to render judgment for plaintiff on the pleadings. Fenton v. Burleson, 124 P. 1087, 33 Okl. 230. Plaintiff sued to recover an amount due on a contract to clean and crush zinc ore, which provided that plaintiff should sell to defendants his crushing plant and lease, but should retain the mill for 100 days to clean ore furnished by defendants, payment to be made for such work when the ore was sold, provided that if payment was not made as agreed, or if defendants failed to perform, plaintiff might retain any sum paid and withdraw the papers from escrow in satisfaction of the contract. It was also provided that plaintiff would execute bills of sale and an assignment of a lease to be placed in es- crow, that the property should be free from all incumbrances, and the peti- tion averred performance of all the conditions. The answer admitted the contract, the milling of the ore and alleged performance, and further alleged that plaintiff did not own the property when he agreed to sell it, and' that he refused to place in escrow the bill of sale and assignment of the lease, and prayed recovery for an overpayment to plaintiff. Held, that a motion for judgment on the pleadings by plaintiff should have been overruled. Sparks v. McAllister, 103 P. 127, 80 Kan. 546. In action for unliquidated damages, where answer admits breach of con- dition of bond sued on, but raises issue as to damages, motion of plaintiff for judgment on pleadings was improperly sustained. White v. Hocker, 58 Okl. 38, 158 P. 440. (581) 681 PLEADINGS (Ch. 11 thing fatal to defendant's recovery, 13 or the defenses or general denial contained in the answer are vitiated by admissions con- tained therein; 14 but should be granted where the petition states is Where parties stipulated that certain statements were facts in the case reserving right to put in further evidence, plaintiff's motion for judgment on pleadings and findings could only be sustained if answer stated no defense, or if agreed facts contained something fatal to defendant's recovery. Coburn v. Simpson, 102 Kan. 234, 170 P. 383. For purpose of plaintiff's motion for judgment on pleadings and findings, allegations of answer, unless contradicted by stipulation of parties as to facts, must be assumed to be true, though referred to in such stipulation. Coburn v. Simpson, 102 Kan. 234, 170 P. 383. i* When, under the allegations of the petition and the admissions in the answer, the plaintiff is entitled to judgment on the pleadings, it is error to deny a motion made for such purpose. Long v. Shepard, 130 P. 131, 35 Okl. 489. Where defendant bases his counterclaim on a written contract for commis- sions for the sale of goods, but the contract provides for a sale outright to defendant, and no commissions are provided for therein, and no other de- fense is made, overruling of the motion for judgment on the pleadings is error. Page Woven Wire Fence Co. v. Allen, 31 Okl. 155, 120 P. 638. Ordinarily a judgment for plaintiff on the pleadings cannot be ordered, where issue is joined upon a general denial and other defenses, unless the general denial is overthrown by other statements in the answer. Cobe v. Coughlin Hardware Co., 112 P. 115, 83 Kan. 522, 31 L. R. A. (N. S.) 1126. Where defendant's answer contained a general denial, which, however, was qualified by other allegations admitting all facts necessary to authorize a judgment in plaintiff's favor, it was not error to sustain plaintiff's motion for judgment on the pleadings. Oliphant v. Crane (Okl.) 172 P. 1073, 1074; Schuber v. McDuffee (Okl.) 169 P. 642. An answer containing a general denial and also a negative pregnant con- stituting admission of liability by defendant is subject to a motion for judg- ment in the pleading. Marshall Mfg. Co. v. Dickerson, 55 Okl. 188, 155 P. 224. Where the admitted facts showed that the organization of a consolidated district was void, the court properly entered judgment on the pleadings, declaring the district void and that the persons acting as its officers were without legal rights, and decreeing dissolution of the district. Smith v. State. 47 Okl. 682, 149 P. 884. Where the petition states a cause of action and, aside from the general denial, the answer admits facts entitling plaintiff to recover, judgment on pleadings is proper. Acton v. Culbertson, 38 Okl. 280, 132 P. 812. Where the essential averments of a petition in an action for compensation as a real estate broker are a contract and a compliance therewith, and the answer, after a general denial, recognizes the procurement of a purchaser and an acceptance by the landowner and the execution of a valid contract of sale, and an agreement to compensate the brokers in accordance with the contract a motion by plaintiffs for judgment on the pleadings was properly sustained. Yoder v. Randol, S3 P. 537, 16 Okl. 308, 3 L. R. A. (N. S.) 576. . (582) Aft. 10) , MOTIONS AND ORDERS THEREON 681 a cause of action and the answer fails to set up any legal defense, 15 or cross-complaint. 16 A motion by defendant for judgment on the pleadings should 15 Baker v. Gaines Eros. Co. (Okl.) 166 P. 159; Mires v. Hogan (Okl) 192 P. 811. In action on contract for sale of wheat, held that plaintiff was entitled to judgment on the pleadings. Cargill Commission Co. v. Mowery, 161 P. 634, 99 Kan. 389, judgment modified on rehearing 162 P. 313, 99 Kan. 389. Plaintiff sued to foreclose a mortgage in the form of a warranty deed. The answer admitted that the deed was executed to secure an extension of a note and mortgage which was surrendered to defendants and to enable the mortgagor to avoid the payment of taxes. There was no plea of payment. Held to authorize judgment on the pleadings. Johnson v. Harvey, 112 P. 108, 83 Kan. 471. In action for unpaid installments on an article sold under contract bind- ing buyer to execute notes as evidence of indebtedness, answer not pleading any consideration for modification of contract stated no defense, and au- thorized judgment for plaintiff on the pleadings. Miles v. Grosman Co. (Okl.) 173 P. 808. Where a copy of a negotiable note sued on and attached to the petition shows an undated indorsement, and defendant indorsee does not deny the indorsement under oath or plead facts showing that plaintiff took with knowledge of infirmities, plaintiff is entitled to judgment on the pleadings. Mangold & Glandt Bank v. Utterback, 54 Okl. 655, 160 P. 713, L. R. A. 1917B, 364. Where a petition alleges defects in a note by mutual mistake, and the an- swer admits the defects, it is not error to render judgment on the pleadings reforming the same. De Groat v. Focht, 131 P. 172, 37 Okl. 267. Where the pleadings aver that a citizen of the Creek Nation, by a clause in a deed executed prior to Act April 2G, 1906, 19, and before the restric- tions were removed from the allotment of the grantor, agreed to execute a conveyance when his restrictions were removed, and such agreement is at- tached to the petition as a part thereof, and its execution is not denied, and it is averred that after removal of the restrictions the grantor executed a deed pursuant to the stipulation, the latter deed is void ; and judgment to that extent should be entered for plaintiff on the pleadings. Long v. Shep- ard, 130 P. 131, 35 Okl. 489. In replevin to recover certain chattels by virtue of a mortgage the answer setting up only a partial failure of consideration judgment was properly en- tered for plaintiff. Jones v. Bostick, 129 P. 718, 35 Okl. 363. In an action on a note, indorsed before maturity, where the unverified an- swer contains a general denial, a denial of ownership, and an allegation of fraud, but sets up no counterclaim, plaintiff is entitled to judgment on the pleadings. Rose v. Boyer, 141 P. 1006, 92 Kan. 892. is Where the allegations of a complaint as amended are admitted by the answer, and affirmative matter is filed as an answer and cross-complaint, on a motion for judgment on the pleadings ,the same should be rendered for plaintiff, if the allegations of the cross-complaint are insufficient to sustain a judgment for defendant. Pugh v. Stigler, 97 P. 566, 21 Okl. 854. (583) 681 PLEADINGS (Ch. 11 likewise be denied, where the pleadings raise any issue of fact, 11 which, if decided in plaintiffs favor would entitle him to any legal IT Where an answer states a defense to plaintiff's cause of action and plain- tiff files a verified reply putting in issue the existence of such facts, it is er- ror to render judgment on the pleadings. Goodman v. Broughman, 136 P. 420, 39 Okl. 585. Allegations in pleadings of defendant that no summons was served in the case in which the judgment was rendered, though insufficient when standing alone, if coupled with averments of fraud and collusion extraneous to the issues in the case in which the judgment was rendered, were sufficient on mo- tion by defendants for judgment on the pleadings. Griffin v. Gulp (Okl.) 174 P. 495. In an action on a note, it is error to render judgment in favor of defendant on. the pleadings where the answer fails to set up a complete defense. McCor- mick Harvesting Machine Co. v. Koch, 58 P. 626, 8 Okl. 374. Where court, on motion for leave to amend subcontractor's statement for lien filed as an exhibit to petition, found that owner was known by name to be inserted by amendment, judgment on pleadings for defendant was error. Badger Lumber Co. v. Collinson, 156 P. 724, 97 Kan. 791. In ejectment, plaintiff claimed to be the owner and entitled to possession. Defendants, in their cross-petition, denied plaintiff's ownership and alleged that a third person was the owner and that she had executed an oil and gas lease to defendants under which they were in possession. Plaintiff filed a general denial to the cross-petition and reaffirmed his ownership. Held, that the court could not enter judgment for defendants on the pleadings; it being necessary to determine the issue of ownership in order to decide the rights of the parties. McCready v. Dennis, 85 P. 531, 73 Kan. 778. Where the petition states a cause of action and the answer alleges no new matter, rendition of judgment for defendant on the pleadings is improper. Leighton v. Crowell, 60 Okl. 219, 159 P. 1119. A reply denying each allegation in the answer inconsistent with the alle- gations of the petition, without motion to make it more definite or other at- tack which would give the pleader opportunity to amend, is sufficient to put in issue allegations of defensive new matter in the answer, and judgment on the pleadings based thereon is properly denied. Stone v. Stone (Okl.) 168 P. 423. Reply to an answer setting up a judgment in bar, containing a general denial of matters in answer, and alleging facts intended to avoid the judgment, was an admission of existence of judgment, and where affirmative facts were not legally sufficient to defeat the bar, judgment on the pleadings was proper. GQacken v. Andrew (Okl.) 169 P. 1096. Where, in action on note, the answer admitted execution by several defend- ants, and oral agreement to receive a fixed sum as defendant's liability and payment thereof and a reply denied allegations of answer as "inconsistent" with petition, motion by defendant for judgment on the pleadings was proper Iv denied where no motion to make the reply definite and certain was made. Lambert v. Sloop, 58 Okl. 289, 159 P. 482. In action for rent collected by plaintiff's agent, held, on the petition, answer and cross-petition, and the reply alleged to be improperly verified, it was (584) Art. 10) MOTIONS AND ORDERS THEREON 681 or equitable relief, 18 as where the petition states a cause of action and the answer does not constitute a complete defense thereto, 1 ' though no reply has been filed, 20 but should be granted where the not error to refuse to render judgment for defendant upon the pleadings. Harn v. Boyd (Okl.) 170 P. 505. Where plaintiff alleged that he had repaid the beneficiary for premiums ad- vanced and made further advancements on consideration of being substituted as beneficiary, held, that it was error to render judgment for a claimant to tbe fund adverse to plaintiff, without receiving all the evidence and determining the cause on equitable considerations. Brown v. Modern Woodmen of Ameri- ca, 156 P. 767, 97 Kan. 665, L. R. A. 1916E, 588. is A motion for a judgment for defendant on the pleadings will not be sus- tained where, on any or all the pleadings in the case, taken together, facts are stated which show that plaintiff is entitled to some legal or equitable re- lief. Hawkins v. Overstreet, 54 P. 472, 7 Okl. 277. Plaintiff filed a petition alleging title to land through a railway company, and that defendants took forcible possession under a pretended homestead entry, and by false representations secured a settlement whereby he gave then $400 in cash and his note for $600 to obtain a relinquishment of their title, and asked judgment for $400. Defendants filed a general denial, and set up title to the land under their homestead entry. Plaintiff replied, attacking the bona fides of the homestead entry. Held, that a judgment for defendants on the pleadings was erroneous, since the plaintiff had a right to present to the jury the question of the good faith of the homestead entry. Tessendorf v. Lasater,. 61 P. 328, 9 Kan. App. 885. Since a plea of former adjudication presents an issue of fact, a party pleading same is not entitled to judgment on the pleadings by reason thereof- Johnson v. Johnson, 143 P. 670, 43 Okl. 582. 19 Where plaintiff's petition states a cause of action, and defendant's answer does not constitute a complete defense thereto, it is error to render judgment for defendant on the pleadings. Sweet v. Crane, 39 Okl. 248, 134 P. 1112. Where, in a materialman's action to enforce a lien, the petition states a cause of action for wrongful conversion, defendant's motion for judgment on the pleadings should be denied, though the petition does not show plaintiff entitled to enforce the lien, and though the prayer be only for such enforce- ment. C. E. Sharp Lumber Co. v. Kansas Ice Co., 142 P. 1016, 42 Okl. 689. 20 Where petition seeks cancellation of conveyance because never executed by plaintiffs, and that being a full-blood conveyance of inherited lands, it was never approved by the county court, and answer contained general denial and allegations of execution and approval of conveyance, judgment on the pleadings should not be entered for failure to reply. Robert v. Mullen, 61 Okl. 40, 160 P. 83. An allegation in the answer that plaintiff, assignee of the note sued on, paid nothing for the note, held not to state a defense, and not to call for a reply so as to permit judgment on the pleadings for want of reply. Owens v. Farmers' & Merchants' Bank of Duke, 54 Okl. 387, 154 P. 355. Where, if claim of plaintiff was true, defendant was not entitled to judg- ment on its cross-petition, defendant's motion for judgment on the pleadings after all of the evidence had been offered held properly overruled, though^ plaintiff filed no reply. Hoover v. Brookshire, 122 P. 171, 32 Okl. 298. (585) 681 PLEADINGS (Ch. 11 pleadings do not present any issue of fact which, if determined in plaintiff's favor, would warrant recovery by him, 21 particularly if plaintiff does not request leave to amend. 22 21 In action in replevin, consolidated with action by defendant therein for injunction, setting up right to replevied property under award, held, that trial court did not err in sustaining motion of defendant in first action, plain- tiff in second action, for judgment on the pleadings. Scrivner v. McClellancl (Okl.) 168 P. 415. Where cattle were shipped under a written contract alleged in the answer providing that a failure to give notice of claims before removal of the cattle at destination and within one day after delivery should bar the shipper's right to recover on claims with reference thereto, and neither the petition nor the reply alleged a compliance with such condition nor waiver thereof, and no facts were pleaded showing an actual or substantial compliance with the provision or excuse for failure to do so, defendant was entitled to judgment on the pleadings. St. Louis & S. F. R. Co. v. Cake, 105 P. 322, 25 Okl. 227. A petition to foreclose a subcontractor's lien under the mechanic's lien law failed to allege that notice of the filing of the lien had been served on the owner. More than a year after the lien was filed the petition was amended to allege service of notice. A motion for judgment on the pleadings was denied, and an objection to evidence under the amended pleading overruled. Held er- ror. Powers v. Badger Lumber Co., 90 P. 254, 75 Kan. 687. Where the reply to an answer setting up a discharge in bankruptcy, in ad- dition to a general denial, alleged particular but insufficient facts to avoid the effect of the discharge, held, that a judgment on the pleadings was proper, notwithstanding the general denial. Chambers v. Kirk, 139 P. 986, 41 Okl. 696. Where a petition in an action on the bond of a justice of the peace alleges the collection of moneys by the principal as justice, and the answer admits the execution of the bond, and alleges that the moneys were collected under a contract between plaintiff and the justice, so pleaded as to require a verified denial, and the contract shows on its face that it is illegal and void as against public policy, and the reply filed is an unverified general denial, the legal ef- fect of the contract is admitted, and defendant is entitled to judgment on the pleadings. Limerick v. Barrett, 43 P. 853, 3 Kan. App. 573. 22 Where an action is brought against a railroad for injury to horses ship- ped, and the petition alleges that they were shipped under a written contract, evidenced by bill of lading attached to the petition and made a part thereof, and said bill of lading provides for notice within 30 hours of any damage in transit, and there is written across the face of the bill of lading "released per contract," and this contract is referred to in the answer of defendant and at- tached as an exhibit, and contains provision that as a condition precedent to recovery notice shall be given in writing to the railroad company or its of- ficers before the stock is removed from the place of shipment, and it is al- leged that this provision of the contract has not been complied with, and plaintiff files a reply setting up a general denial, which is unverified, the written contract is admitted, and where neither the petition nor the reply al- leges a compliance with conditions of the bill of lading or contract, nor any allegation of waiver, and no facts are set up in the pleadings as to compliance, (586) Art. 10) MOTIONS AND ORDERS THEREON 681 Where the execution of a written contract is alleged and relied on in a petition, counterclaim, or set-off, a verified denial thereof must be contained in the answer or reply ; otherwise, the allega- tion as to the execution of the instrument will be taken as true at the hearing on a motion for judgment on the pleadings. 23 The same is true where the plaintiff or defendant, as the case may be, relies on a verified account to which no verified denial is filed, 14 providing the correctness of the account is alleged in the body of the pleading. 25 Where plaintiff alleged a shipment under a definite verbal con- a motion for judgment for defendant on the pleadings should be sustained, where there is no request by plaintiff to amend. St. Louis & S. F. R. Co. v. Phillips, 87 P. 470, 17 Okl. 264. 23 Where, in an action on a note, the answer denying its execution i> filed unverified, but was sworn to by defendant before the clerk of the court on the day the case is called for trial without leave of court first obtained, while the answer remains on file, it is error to render judgment against de- fendant on the pleadings. Manning v. Stroud State Bank, 110 P. 650, 26 Okl. 6^5. In action on note wherein answer is not verified and does not allege any set- off or counterclaim or legal defense, judgment on the pleadings may be en- tered for plaintiff. Kerr v. McKinney (Okl.) 170 P. 685. In action to enforce policy as it was alleged to have been before being wrongfully changed, where defendant alleged execution as shown by copies at- tached and reply was not verified, defendant was entitled to judgment on pleadings, under Code Civ. Proc. Kan. 110 (Gen. St. Kan. 1909, 5703). Hayes v. Mutual Benefit Life Ins. Co., 158 P. 1107, 98 Kan. 584. Where defendants pleaded the execution of a note and mortgage, and asked judgment thereon and foreclosure, and plaintiff replied by an unverified de- nial, judgment should have been rendered for defendants on the note and mortgage. Brewer v. Martin, 138 P. 166, 40 Okl. 350. 24 An action was brought upon an account, the correctness of which was verified by affidavit. Defendants filed a verified answer, conceding the account, but stating that they purchased drafts from a banking firm of which plaintiff was. a partner, and that the drafts were dishonored, and they were compelled to redeem the same. The amount of the indebtedness thus arising exceeded plaintiff's claim, and defendants demanded judgment for the differ- ence. Plaintiff replied with a verified denial of the allegations of the answer. Both parties declined to offer evidence, and submitted the case upon the pleadings, and judgment was rendered for plaintiff for the amount of his ac- count. Held that, though the counterclaim was good, the judgment was prop- er, since it was denied under oath and no proof was offered. Hatfield v. Far- num, 29 P. 395, 48 Kan. 126. 25 Where bill of particulars does not allege correctness of the account sued on, and is unverified, plaintiff is not entitled to judgment on the pleadings, though a verified statement of account be attached to the bill. Barnes v. Uni- versal Tire Protector Co., 63 Okl. 292, 1C5 P. 176. (587) 681 PLEADINGS (Ch. 11 tract, and defendant answered by general denial and by pleading a written contract which it alleged was the only one between the parties, the overruling of defendant's motion for judgment on the pleadings, because the reply containing a general denial of new matter was unverified, was not error. 26 Where defendant in his answer, in addition to the general de- nial, pleads facts warranting affirmative relief, and after filing such answer, but before reply, plaintiff, by leave of court, dismisses, de- fendant will be allowed to pursue his remedy for affirmative relief as set up in his answer, and on motion for judgment on the plead- ings on the ground that the allegations for affirmative relief are undenied, the court should either sustain the motion or rule plain- tiff to reply to the affirmative part of the answer, so that the issue may be raised and tried by the court. 27 A reply, denying the allegations of the answer inconsistent with the petition, denies all defenses to the cause of action alleged in the petition, so as not to entitle defendant to judgment on the pleadings. 28 Where the answer raises an issue of fact and both parties move for judgment on the pleadings, it is error to grant plaintiff's mo- tion. 29 Defendant, by moving for judgment on the pleadings, does not waive his right to have an issue of fact set out in his an- swer, tried by the court or by a jury. 30 Motions for judgment on the pleadings cannot be sustained, un- less the court can determine on the pleadings the rights of the par- ties and pronounce judgment final between them. 31 Where a question of fact is involved, it is proper for the court to set aside its judgment on the pleadings. 32 26 Atchison, T. & S. F. Ry. Co. v. Moore, 129 P. 24, 36 Okl. 433; Atchison, T. & S. F. Ry. Co. v. Robinson, 129 P. 20, 36 Okl. 435. 27 Brown v. Massey, 92 P. 246, 19 Okl. 482. as McKnight v. Strastmrger Bldg. Co., 150 P. 542, 96 Kan. 118. 29Atwood v. Massey, 54 Okl. 178, 153 P. 629. so Id. si White v. Hocker, 58 Okl. 38, 158 P. 440. 32 Chamberlain Metal Weather Strip Co. v. Bank of Pleasanton, 160 P. 1138, 98 Kan. 611. (588) Art. 10) MOTIONS AND ORDERS THEREON 682-684 682. Departure A departure in the reply from the petition cannot be taken ad- vantage of by motion for judgment on the pleadings, but can only be reached by a motion to strike. 33 683. Judgment against verdict While judgment may be given for a party on the pleadings even after verdict against him, his right thereto should clearly appear from the pleadings, and where the pleadings present material is- sues of fact not determinable without evidence aliunde a motion for judgment on the pleadings is properly overruled. 3 * 684. Motion to strike from files Form "Motions to strike pleadings and papers from the files may be made with or without notice, as the court or judge may direct." 85 Like a demurrer, a motion to strike a pleading admits the truth of all facts well pleaded for .the purposes of the motion, except where the motion is to strike the pleading as a sham. 36 While in some cases the granting or refusing of a motion to strike rests in the sound discretion of the trial 'court, the court must not act ar- bitrarily. The discretion referred to contemplates a legal discre- tion, a discretion to be exercised in discerning the course prescrib- ed by law according to legal principles. Motions to strike pleadings for any cause are not to be encour- aged, and will be granted only in a clear case. A motion to strike a pleading as an entirety, or several separate paragraphs of a pleading, cannot be sustained, where one or more of the paragraphs are sufficient. 37 Where objections to a pleading are based on its insufficiency in 83 St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 99 P. 647, 23 Okl. 79; Wilson v. Jones (Okl.) 168 P. 194. s* Curtis & Gartside Co. v. Pigg, 39 Okl. 31, 134 P. 1125; Rev. Laws 1910, 5140. 35 Rev. Laws 1910, 5315. 3* Turk v. Page (Okl.) 174 P. 1081. 37 Turk v. Page (Okl.) 174 P. 10S1. Considered as a permissible pleading, it was error to strike from an an- swer eight separate paragraphs thereof, where one or more of such para- graphs of the defenses interposed was sufficient. Turk v. Page (Okl.) 174 P. 1081. (589) 684-686 PLEADINGS (Ch. 11 matters of substance, they should be taken by demurrer, and not by motion to strike. 38 MOTION TO STRIKE ANSWER PROM (Caption.) Comes now the plaintiff and moves the court to strike from the files herein the answer filed by the defendant, upon the ground that said answer is not verified (or is defectively verified, in this, speci- fying the defect). - , Attorney for Plaintiff. 685. - Affirmative pleading A motion to strike out an affirmative pleading is not an appro- priate method of testing its sufficiency ; 89 the proper remedy be- ing by demurrer,* or by objection to the introduction of any evi- dence under it. 41 A motion to strike a petition from the files for impertinent, im- material, libelous, and scandalous matter, should not be sustained, where the petition contains facts which, if true, would constitute a valid basis for judgment. 42 686 - Defensive pleadings Where the answer fails to state a defense to the action or any part thereof, a motion to strike the answer should be sustained. 43 Where the defendant's answer and cross-petition alleges that an account was a joint liability against the plaintiff and third par- ty, plaintiff's agent, and its correctness is denied by an affidavit of the agent in the reply, a refusal to strike the reply for want of ss Hailey v. Bowman, 137 P. 722, 41 Okl. 294. 88 Grand Lodge I. O. O. F. of State of Kansas v. Troutman, 84 P. 567, 73 Kan. 35. 40 Where objections to a pleading are based on its insufficiency in matters of substance, they should be taken by demurrer, and not by motion to strike. Hailey v. Bowman, 137 P. 722, 41 Okl. 294. It is improper to strike out an answer and cross-petition because the facts stated therein are insufficient to establish a cause for relief, the proper prac- tice being to demur. Armstead v. Neptune, 44 P. 998, 56 Kan. 750. 41 Objection to a petition on the ground that it does not state facts suffi- cient to constitute a cause of action can be made only by demurrer or ob- jection to evidence, and cannot be raised by motion to strike the petition from the files. First Nat. Bank v. Cochran, 87 P. 855, 17 Okl. 538. 42 Butler v. Butler, 125 P. 1127, 34 Okl. 392. 48 National Life Ins. Co. v. Hale, 54 Okl. 600, 154 P. 536, L. R. A. 1916E, '<21. (590) Art. 10) MOTIONS AND ORDERS THEREON 686~689 proper verification is not error, particularly where the purported account is not in fact an account; it not constituting a proper counterclaim or set-off. 44 Where the defendant has filed an an- swer, good in form, to which a reply has been filed, he cannot be compelled, to avoid having the answer stricken as a sham, to give an affidavit or deposition before a notary public, to be used on the hearing of a motion to strike from the files the answer as false and a sham. 45 If the amended reply is filed, and the defendant is not prepared to proceed with the trial, his remedy is to apply for a continuance, not to move to strike the amended reply. 46 687. Demurrer The striking of the demurrer of one defendant from the files, in- stead of permitting it to be amended, was not an abuse of discre- tion, where such defendant, being in default, obtained leave to plead, and was represented by the same attorney as his codefendant, who had filed a demurrer on the same grounds, -which demurrer had been previously overruled. 47 688. Departure An objection to a pleading on the ground of departure must be raised by motion to strike, 48 not by motion for judgment on the pleadings. 49 689. Limitations The question whether an action was barred by limitations can- not be raised by a motion to strike the petition from the files. 50 4* Ham v. Boyd (Okl.) 170 P. 505. 45 in re Bartholomew, 21 P. 275, 41 Kan. 273. 40 Ely v. Pool, 60 Okl. 77, 159 P. 511. 47 Burr v. Honeywell, 51 P. 235, 6 Kan. App. 783. 48 Wilson v. Jones (Okl.) 168 P. 194; Merchants' & Planters' Ins. Co. v. Marsh, 125 P. HOC, 34 Okl. 453, 42 L. R. A. (N. S.) 996. Departure held ground for striking out a reply. Springfield Fire & Marine Ins. Co. v. Halsey, 126 P. 237, 34 Okl. 383. A refusal to strike from the files an amended petition, as a departure from the original petition, is not ground of reversal on appeal where no objection- able departure appears, nor any abuse of its discretion by the trial court. Le- roy & C. V. A. L. R. Co. v. Small, 26 P. 695, 46 Kan. 300. 49 Wilson v. Jones (Okl.) 154 P. 663; Stuart v. Grayson (Okl.) 162 P. 956. so Baldwin v. Ohio Tp., 65 P. 700, 63 Kan. 885. (591) 690-692 PLEADINGS (Ch. 11 690. Amended pleading A motion to strike out a pleading may be used to eliminate an amended pleading which is a mere repetition of one held defective on demurrer; "but where an amended petition sets forth addition- al facts and a fuller statement of those alleged in the original peti- tion, and made in the bona fide effort to state a cause of action, a motion to strike out because of sameness to the original petition will not lie. 51 Where an amended answer measurably complies, in particulars required", with an order that the original be made more definite and certain, it is error to sustain a motion to strike the amended an- swer from the files, though it may not state facts sufficient to con- stitute a defense; but a demurrer, so that an amendment can be allowed, is the proper pleading. 52 However, where parties obtain leave to amend to make it more definite and certain and the amendment fails to do so, the amend- ment is properly stricken. 53 The striking of an amended pleading leaves the original plead- ing standing, as though no amendment had been filed. 54 691. Failure to amend Where an answer on file states a defense and defendant is in de- fault of an order to make his answer more definite and certain, the proper procedure is by motion to strike the answer. 55 692. Motion to strike from pleading Form "If redundant or irrelevant matter be inserted in any pleading, it may be stricken out, on motion of the party prejudiced thereby." 56 si Grand Lodge I. O. O. F. v. Troutman, 84 P. 567, 73 Kan. 35. Where the original petition was sufficient, there was no error in refusing to strike from the files an amended petition, which in no way changed the cause of action. Chicago. K. & W. Ry. Co. v. Totten, 42 P. 269, 1 Kan. App. 558. Where the original and two amended petitions prayed for equitable relief, it was error to sustain a motion to strike the last amended petition from the files, as changing the action from one in tort to an action in equity. Baldwin v. Ohio Tp., 65 P. 700, 63 Kan. 885. 52 McNinch v. Northwest Thresher Co., 100 P. 524, 23 Okl. 386, 138 Am. St. Rep. 803. 53 Long v. McFarlin, 58 Okl. 321, 159 P. 653. 54 St. Francis Land oc Abstract Co. v. Rathburn, 114 P. 862, 84 Kan. 664. 55 Moore v. Continental Grn Co. (Okl.) 173 P. 809. so Rev. Laws 1910, 4770. In action by creditor, after alleged rescission of settlement by debtor's con- (592) Art. 10) MOTIONS AND ORDERS THEREON 692 It is proper to strike from a petition on motion mere surplus- age, 57 irrelevant 58 and immaterial allegations calculated to preju- dice defendant, 59 matter in avoidance of an anticipated defense, 60 copies, the originals of which are not signed by the defendant or his agent, 61 allegations specially pleading punitive damages in a sum certain, where it is not required that such damages be spe- cially pleaded. 62 Likewise redundant and irrelevant matter may be stricken from an answer. 63 structive delivery of goods, debtor's claim for damages for malicious prosecu- tion of former civil action held properly stricken; there being no basis for a/ claim that the action was brought maliciously and without probable cause. United States Tire Co. v. Kirk, 102 Kan. 418, 170 P. 811. 57 In petition to cancel deeds oy full-blood Indians and quiet title on ground that county court was without jurisdiction to approve the deeds, and that they were void and not supported by consideration, allegations that considera- tion named was never paid held surplusage and properly stricken. Long v. McFarlin, 58 Okl. 321, 159 P. 653. Where facts in a petition are redundant and surplusage and could be proven without being pleaded, it is within the discretion of the court to strike out rr retain them. Sramek v. Sklenar, 85 P. 566, 73 Kan. 450. ss it is not error, on motion of defendant, to strike irrelevant matter from plaintiffs petition. Grand Lodge K. P. of North America, etc., v. Farmers' & Merchants' Bank of Boley, 64 Okl. 225, 166 P. 1080. 59 Roe v. Board of Com'rs of Elk County, 40 P. 1082, 1 Kan. App. 219. When a petition contains redundant or irrelevant allegations, calculated to prejudice defendant on the trial, the same should be stricken out on motion. Roe v. Board of Com'rs oi j Elk County, 40 P. 1082, 1 Kan. App. 219. In action for partition of land in this state, where amended petition made stranger to title a party, alleging that he claimed title to plaintiff's land in an- other state and wrongfully excluded plaintiff from possession, motion by an other defendant claiming interest in Kansas lands to strike averments as t<> new defendant, etc., was properly sustained. Caldwell v. Newton, 163 P. 163, 99 Kan. 846. eo When a complaint sets up matter in avoidance of a plea of res judicata which plaintiff anticipates may be made by defendant, that matter is properly stricken out. Frick Co. v. Carson, 43 P. 820, 3 Kan. App. 478. 61 Certain copies of letters held properly stricken from the petition, in an action for services, where they were not signed by defendant, or by any person authorized by him to sign them. Van Doren v. Altoona Portland Ce- ment Co., 141 P. 560, 92 Kan. 470. 62 Where in the ad damnum damages are claimed generally in a sum cer- tain, and exemplary damages as such are claimed also in a sum certain, motion to strike the latter item was properly sustained; it being unnecessary that punitive damages should be specially pleaded. Acton v. Culbertson, 38 Okl. 280, 132 P. 812. es An order striking out parts of an answer, but leaving sufficient to pro- sent all proper defenses and counterclaims, held not error. Stroupe v. Hewitt, 133 P. 562, 90 Kan. 200. In action for damages for conversion of goods by bailee, striking from his HON.PL.& PKAC. 38 (593) 692 PLEADINGS (Ch. 11 It is error, however, to strike out certain portions of a petition unless such parts are statements of matter foreign to the cause, and raise no issue proper to be raised in the case, and unless such motion is made by the party prejudiced. 84 It is not error to refuse to strike out the statement of a legal con- clusion from a pleading, where the facts on which such statement rests are fully set out. 65 In an action for breach of marriage promise, it is not error to overrule a motion to strike out of the petition evidential facts form- ing no part of the cause of action, but which are pleaded as aggra- vation of damages. 66 An allegation in a reply at variance with the petition should be stricken on motion. 67 MOTION TO STRIKE) PORTION OF PLEADING (Caption.) Comes now the above named defendant, C. D., and moves the court to strike from the petition of the plaintiff heretofore filed herein the following statements and allegations, to wit : 1. That portion of the and lines of paragraph numbered of said petition, reading as follows: (Set forth portion of petition concerned) for the reason that the same is ir- relevant and immaterial and a legal conclusion. 2. That portion of the last line of paragraph numbered of said petition, reading as follows: (Setting same forth) answer statements amounting to reasons for conversion was not error, where the facts had no bearing on question of liability. United States Tire Co. v. Kirk, 102 Kan. 418, 170 P. 811. e* Berry v. Geiser Mfg. Co., 85 P. 699, 15 Okl. 364. It is not error for the court to overrule a motion to strike out parts of pe- tition not statements of redundant or irrelevant matter, but germane to the issues. Crump v. Lanham (Okl.) 168 P. 43. In action to recover twice the amount of usurious interest paid, overruling motion to strike certain parts of petition relating only to renewal notes of original notes, was not error, where action was brought within two years from maturity of last renewal note. Citizens' State Bank of Ft. Gibson v. Strahan, 63 Okl. 288, 165 P. 189, modifying judgment on rehearing 59 Okl. 215, 158 P. 378. SB State Bank of Stockton v. Showers, 70 P. 332, 65 Kan. 431. 616 Sramek v. Sklenar, 85 P. 566, 73 Kan. 450. 67 Gage v. Connecticut Fire Ins. Co. of Hartford, Conn., 127 P. 407, 34 Okl. 744. (594) Art. 10) MOTIONS AND ORDERS THEREON 692~694 for the reason that the same is irrelevant, immaterial, and sur- plusage. 3. That portion of paragraph numbered - - of said petition reading as follows: (Setting same forth) for the reason that the same is irrelevant, immaterial, a repetition^ and surplusage. , , Attorney for Defendant. 693. Motion to strike parties Form Where plaintiff has joined unnecessary parties with him, the proper practice is a motion to strike such parties from the petition, rather than a motion to strike the petition from the files. 68 MOTION TO STRIKE PARTIES (Caption.) Comes now the above named defendant, C. D., and moves the court to strike the name of the plaintiff, E. F., from the petition herein, and from this action, for the reason that said plaintiff has no interest in this action and is an unnecessary and improper party plaintiff. X. Y., Attorney for Defendant. 694. Motion to make more definite and certain "When the allegations of a pleading are so indefinite and un- certain that the precise nature of the charge or defense is not ap- parent, the court may require the pleading to be made definite and certain by amendment." 69 Under this statute, it is only where the allegations of a pleading are so indefinite and uncertain that the precise nature of the action or defense is not apparent that the court may require a party to make his petition or answer more definite and certain. 70 es Maddin v. Robertson, 38 Okl. 526, 133 P. 1128. es Rev. Laws 1910, 4770. 70 Moore v. Continental Gin Co. (Okl.) 173 P. 809. It is not error to overrule a motion to make a pleading more definite where it is sufficient to inform the opposing party of the precise charge or defense. Eisminger v. Beman, 124 P. 289, 32 Okl. 818. Where the answer set up a large number of items which defendant alleged were owing him by plaintiff and alleged that plaintiff, at the execution of the note and mortgage, was indebted to defendant in a larger sum than that named in the note, and the reply alleged that at the date of the execution of the note and mortgage there were other matters of mutual account between the plaintiff and defendant, and that on that date the plaintiff and defendant mutually agreed that all obligations between them, except the note and mort- (595) 694 PLEADINGS ( Ch. 11 This statute does not authorize the court to require a party to plead his evidence, 71 or to supply omitted matters which would give the opposite party an opportunity to demur. 72 The motion is addressed to the trial court's sound discretion, 73 but should be sustained where the statutory grounds clearly ap- gage should be extinguished and satisfied, a motion to make the reply more definite and certain was properly overruled. Hutchings v. Cobble, 30 Okl. 158, 120 P. 1013. A petition in an action for conversion held sufficient as against an objection to evidence, in absence of a motion to make more definite and certain, where it advised defendant of the nature of plaintiff's claim. Farmers' & Merchants' Nat. Bank v. Gann, 148 P. 249, 95 Kan. 237. Where in an action for death of an employe, it appeared that the intestate's fellow employes knew how he was killed, and before the trial all the evidence offered by plaintiff relating to the occurrence was taken by deposition, so that defendant had full knowledge of the facts, it was not reversible error to overrule a motion to require general allegations of the petition as to neg- ligence to be made more definite. St. Louis & S. F. Ry. Co. v. French, 44 P. 12, 56 Kan. 584. Where a petition in a personal injury case alleges a specific act of negli- gence by one of three designated agents of the defendant, it is not subject to a motion to make the allegation more definite by pointing out the particular agent, where it is also averred that plaintiff has no further information. Atchison, T. & S. F. Ry. Co. v. Davis, 79 P. 130, 70 Kan. 578. The fact that a petition setting forth a specific cause of action contains general allegations did not render erroneous the overruling of a motion to make more definite and certain, where the court treated the general allegations as surplusage, and confined plaintiffs to the specific cause of action. Dwelle v. Dwelle, 40 P. 825, 1 Kan. App. 473. It is proper to overrule a motion to make a petition more definite and cer- tain, made long after the issues were joined, and only when the case is called for trial, where the petition is fully traversed, has not been otherwise assail- ed, and is not clearly misleading. Phoenix Ins. Co. of Brooklyn v. Arnoldy, 47 P. 178, 5 Kan. App. 174. TI Moore v. Continental Gin Co. (Okl.) 173 P. 809; Shawnee Life Ins. Co. v. Taylor, 58 Okl. 313, 160 P. 622 ; Scott v. Shewell, 164 P. 1061, 100 Kan. 466. Motion to require petition to be made more definite and certain by setting out evidentiary facts is properly denied, where ultimate facts are alleged. Jackson v. Uncle Sam Oil Co. of Kansas; 156 P. 756, 97 Kan. 674. 72 Listen v. Nail, 63 Okl. 212, 164 P. 467. 7 s City of Lawton v. Hills, 53 Okl. 243, 156 P. 297; Frey v. Failes, 132 P. 342, 37 Okl. 297; Felt v. Westlake (Okl.) 174 P. 1041; Cribb v. Hudson, 160 P. 1019, 99 Kan. 65. An order requiring a petition to be made more direct and certain will not be reversed, where there is a doubt as to the issue presented, or whether a cause of action is stated, or whether defendant is charged with notice of what he is required to defend against. Skelton v. Standard Inv. Co., 37 Okl. 82, 130 P. 562. (596) Art. 10) MOTIONS AND ORDERS THEREON 694 ^ pear. 74 It lies only when the pleading is so uncertain that the charge or defense is not apparent, and does not relate to the refine- ments of common-law pleadings. 75 To be available, however, an objection to the generality or indefiniteness of a pleading should be raised by such a motion. 76 P A ailure to attach to a petition a copy of the written instrument upon which the cause of action is based, should be challenged by motion. 77 74 A pleading containing only a general allegation of negligence is subject to a motion to make more definite and certain. Price v. Atchison Water Co., 50 P. 450, 58 Kan. 551, 62 Am. St. Rep. 625. Where the petition in an action to recover unauthorized fees and money received by the board of county commissioners failed to show wherein the fees were illegal, and wherein the claim allowed by the commissioners for which he was alleged to have unlawfully received the money was unlawful, it was error to deny a motion to make the same more definite. Roe v. Board of Com'rs of Elk County, 40 P. 1082, 1 Kan. App. 219. Where petition alleged that employer neglected to furnish safe means of passage to and from its brick kilns or running boards, and negligently re- moved cross-bricks from ditches, whereby employ^ going out of kiln acciden- tally stepped into hole in ditch and was injured, it was not error to require plaintiff to make his petition more definite and certain as to place of injury. Anderson v. Denison Clay Co., 104 Kan. 766, 180 P. 797. Petition in action against outgoing clerk of county court and surety on his bond for moneys received during office, held insufficient as against motion to require petition to be made more definite and certain by setting forth sources of moneys and separate receipts and disbursements. Swarts v. State 4Okl.) 174 P. 255. Where allegations of a complaint for slander contain two separate causes of action and show that the slanderous words were spoken in the same con- versation, defendant is entitled, on motion, to have the petition made more definite, to the end that he may not be tried on two causes of action, when but one exists. Thompson v. Harris, 67 P. 456, 64 Kan. 124, 91 Am. St. Rep. 187. A petition alleged that a copy of an account attached as an exhibit, indi- cating merely dates and sums of money, generally represented grain sold and delivered. There was nothing indicating the quantity or kinds of grain, or which items referred to grain. Held, that a motion to make more definite should have been granted. Nash v. Deuton, 51 P. 896, 59 Kan. 771. 75 Board of Com'rs of Republic County v. United States Fidelity & Guaran- ty Co., 150 P. 590, 96 Kan. 255. TAEng-elbrecht v. Herrington, 172 P. 715, 101 Kan. 720, 103 Kan. 21, L. R. A. 1918E, 785; Board of Com'rs of Neosho County v. Spearman, 130 P. 677, 89 Kan. 106. 77 Incorporated Town of Sallisaw v. Chappelle (Okl.) 171 P. 22; Rev. Laws 1910, 4769. Where a petition alleges a contract for sale of lands, made between plain- (597) 695-697 PLEADINGS (Ch. 11 695. Form and requisites A motion to make a pleading more definite, which fails to point out wherein it is indefinite, is properly overruled. 78 MOTION TO MAKE MORE DEFINITE AND CERTAIN (Caption.) Conies now the above named defendant, A. B., and moves the court to require the plaintiff to make his petition filed herein more definite and certain in the following particulars, to wit: (Here set forth particulars in which petition should be more definite and certain.) , Attorneys for Defendant. 696. Time of making A motion made by defendant to require plaintiff to make his pleading more definite and certain is generally too late when not made until after the case is called for trial. 79 It may be made at any time within the period allowed to answer or demur, and, if defendant obtains an extension of time in which to plead, his right to make such motion is not waived, since the words "to plead" are not limited to the filing of an answer or demurrer, but include any pleading provided for by law. 80 It was not an abuse of discretion to deny an application for leave ttj file, out of time, a motion requiring plaintiff to make his petition more definite and certain, where no showing was made by "defend- ant that he had any valid defense. 81 The motion may be heard, though filed by leave of court after defendant is in default. 82 697. Waiver Dismissal Failure to secure a ruling upon a motion to make the petition more definite and certain constitutes an abandonment and waiver / tiff and defendant's agent, and that the authority of the agent is in writing, it is not error to require plaintiff to set out a copy of such writing. Atwood v. Rose, 122 P. 929, 32 Okl. 355. TS Grimes v. Cullison, 41 P. 355, 3 Okl. 268; Union Coal Co. v. Wooley, 54 Okl. 391, 154 P. 62. TO St. Louis & S. F. Ry. Co. v. Snaveley, 28 P. 615, 47 Kan. 637. so St. Louis & S. F. R. Co. v. Young, 130 P. Oil, 35 Okl. 521. si Horton v. Haines, 102 P. 121, 23 Okl. 878. 82 Anderson v. Denison Clay Co., 104 Kan. 766, 180 P. 797. (598) Art. 10) MOTIONS AND ORDERS THEREON 698~699 thereof. 83 Failure to comply with an order sustaining such mo- tion authorizes dismissal of the action. 84 698. Motion to require pleader to separately state and number A motion to separately state and number is addressed to the sound discretion of the trial court ; 85 but where two or more caus- es of action are stated in the same petition, and not separately stat- ed or numbered, it is error for the court to overrule a motion of the defendant to require the plaintiff to separately state and num- ber the several causes of action stated in his petition. 88 699. Form and requisites A motion to require causes of action to be separately stated and numbered should designate the matters constituting each separate cause. 87 ss Arnold v. Burks, 63 Okl. 273, 164 P. 970. * Anderson v. Denison Clay Co., 104 Kan. 766, 180 P. 797. ss Cribb v. Hudson, 160 P. 1019, 99 Kan. 65. sa Provident Trust Co. v. Coron, 49 P. 345, 5 Kan. App. 431. Under Code Civ. Proc. Kan. 88, and Gen. St. Kan. 1901, 4522, where a petition sets up a cause of action in ejectment and another for rents and profits, a motion to separately state and number the two causes of action should be sustained. New v. Smith, 84 P. 1030, 73 Kan. 174. A petition against the A. and the F., and other railroad companies, alleged that plaintiff was a stockholder in the F. company, and, after setting out a history of certain transactions, prayed that the A. company be compelled to account for the proceeds of certain bonds which it is alleged were wrongfully surrendered to it by the F. company; that it recover from the A. company the rents and profits of the F. company from the time it was built ; that cer- tain shares of stock of the F. company which were issued to the A. company be canceled ; and that a consolidation of the A., the F., and other companies be declared void. Held, that plaintiff should have been required to separately state and number his several causes of action. Atchison, T. & S. F. R. Co. v. Board of Com'rs of Sumner County, 33 P. 312, 51 Kan. 617. Where a petition alleges as ground for damages the premature bringing of a former action by defendant against plaintiff, and its dismissal, and that such action has been determined by the court as prematurely brought, and judgment therein rendered against plaintiff, alleging in another paragraph that defendant sued to enjoin plaintiff from doing certain acts, and that such injunction action was dismissed and judgment rendered for plaintiff for costs, and a third paragraph alleges refusal of defendant to do certain things which he had agreed to do under a written contract, it states three causes of action, so that a motion to require these three causes to be separately stated and numbered was proper. fBurdick v. Carbondale Inv. Co., 80 P. 40, 71 Kan. 121. ST Southern Surety Co. v. Waits, 45 Okl. 513, 146 P. 431. Motion to separately state and number, which fails to point out causes of (599) 699-701 PLEADINGS (Ch. 11 MOTION TO SEPARATELY STATE AND NUMBER (Caption.) Comes now the defendant, A. B., and moves the court to require the plaintiff to separately state and number the various causes of action alleged in plaintiff's petition filed herein. , Attorneys for Defendant. 700. Waiver Dismissal The right to move to have different causes of action separately stated and numbered is waived by demurring to either the whole or a part of the petition. 88 When a petition embraces two separate and distinct causes of action in one count, and, on motion, plaintiff is required by the court to separately state and number them, and he refuses to do so, it is not error for the court to dismiss the action without prej- udice to a future one. 89 701. Motion to require election Form Plaintiff cannot ordinarily be required to elect on which count he will proceed, 90 unless the causes of action are inconsistent with action or call court's attention to paragraphs which should be separately stated and numbered, is too general. Henry v. Gulf Coast Drilling Co., 56 Okl. 604, 156 P. 321 ; Western Union Tel. Co. v. Simpson, 62 P. 901, 10 Kan. App. 473. Where it is not obvious that the petition states more than one cause of ac- tion, and the motion to require plaintiff to separately state and number the several causes of action is general and fails to specify wherein the petition states more than one cause of action, it is not error to overrule the motion. Cockrell v. Schmitt, 94 P. 521, 20 Okl. 207, 129 Am. St. Rep. 737. ss First Nat. Bank of Tishomingo v. Ingle, 132 P. 895, 37 Okl. 276. Where petition states both statutory and common-law cause of action, grow- ing out of same transaction, in one count, there is a defect within Rev. Laws 1910, 4738, that may be remedied on motion, but cannot be reached by de- murrer. Shelby-Downard Asphalt Co. v. Enyart (Okl.) 170 P. 708. 89 Eisenhouer v. Stein, 15 P. 167, 37 Kan. 281. o Woodman v. Davis, 4 P. 262, 32 Kan. 344. Where petition alleged deposit with defendant bank of a note for collec- tion, which note was secured by chattel mortgage, and the bank allowed the mortgage to expire and also failed to apply certain deposits made in the bank by the maker to payment of the note but applied such deposits to its own use, it was error to require plaintiff to elect on which theory he would rely for recovery. Bourland v. Madill State Bank, 124 P. 314, 32 Okl. 761. Where petition alleged execution of note, its return to maker, and his re- ceipt therefor conditioned to pay in case of any mistake as to his claim of (600) Art. 10) MOTIONS AND ORDERS THEREON 701 each other. 91 For example, where the petition alleged in one para- graph the existence of an agency, and in another that the acts of the party assuming to act as agent had been ratified, the court prop- erly refused to require plaintiff to elect upon which he would stand. 92 In a suit on account for services rendered, where there is uncer- tainty as to the grounds of recovery, there may be properly joined in the petition a count on an express contract, a count on quantum meruit, and the granting of a motion to require plaintiff to elect is addressed to the discretion of the trial court. 03 Where a petition states one cause of action and the evidence tends to establish that cause of action, it is not error to refuse to require the plaintiff to make any election between different phases of the evidence. 94 But where a party pleads facts constituting two causes of action, one for rescission of contract and one for dam- ages for breach of warranty, it is proper to require an election be- tween the causes. 95 Where separate causes of action are improperly joined in a pe- payment, an arbitration finding it unpaid, maker's failure to acquiesce in award or to pay or return note, it was not error to deny motion to compel plaintiff to elect as to cause of action, submitted by court as an action upon an alleged indebtedness. Washington Nat. Bank v. Myers, 104 Kan. 526, 180 P. 268. Where a petition states facts entitling plaintiff either to a decree of specific performance of a contract to convey land or judgment for damages and prays for such judgment, he may not be required to elect his remedy before trial. Huey v. Starr, 101 P. 1075, 79 Kan. 781, rehearing denied 104 P. 1135, 79 Kan. 781. i Action for specific performance of husband and wife's oral contract to raise plaintiff as their child, and that on their death she should inherit as if they died intestate and to recover on implied contract for reasonable value of plaintiff's services, held inconsistent, and court did not err in compelling plain- tiff to elect. Pantel v. Bower, 104 Kan. 18, 178 P. 241. A count of a petition which claims the price of property on the theory that plaintiff has parted with title to it by sale, and that defendant owns it and is entitled to its possession, is inconsistent with another count asking dam- ages as in trover for its conversion on the theory that the plaintiff owned it, and it is not error to require an election between such counts. J. B. Ehrsam & Sons Mfg. Co. v. Jackman, 85 P. 559, 73 Kan. 435, rehearing denied 91 P. 486, 73 Kan. 435. 2 Amazon Fire Ins. Co.'v. Bond (Okl.) 165 P. 414. s Mellon v. Fulton, 98 P. 911, 22 Okl. 636, 19 L. R. A. (N. S.) 960. 4 Harris v. Morrison, 163 P. 1062, 100 Kan. 157. s Muenzenuiaycr v. Hay, 159 P. 1, 98 Kan. 538. (601) 701-702 PLEADINGS (Ch. 11 tition and no demurrer is filed, the defect cannot be taken advan- tage of by motion to require plaintiff to elect. 96 As inconsistent defenses may be included in one answer, election between them cannot be required. 97 Misjoinder of causes of action is not raised by a motion to re- quire the pleader to elect. 98 MOTION TO REQUIRE ELECTION (Caption.) Comes now the above named defendant, and moves the court to require the plaintiff to elect on which cause of action stated in his petition he will proceed, for the reason that in the first cause of action therein stated plaintiff repudiates and asks to rescind the contract therein alleged, for the reason that the same is void on the ground of fraud, and in the second cause of action alleged plaintiff seeks to affirm said alleged contract and recover damages for an alleged breach thereof, and that said causes of action are inconsistent. X. Y., Attorney for Defendant. 702. Time of making An objection to inconsistent counts in a petition and motion to s require plaintiff to elect should be made before answer, and the overruling of such objection made at the commencement of trial is within the discretion of the trial court. 99 se Gates v. Freeman, 57 Okl. 449, 157 P. 74. 97 Emerson-Brantingham Implement Co. v. Ware (Okl.) 174 P. 1066. Even if defenses are inconsistent, unless expressly prohibited by statute, they may be united in one answer, and the pleader cannot be compelled to elect between them. Covington v. Fisher, 97 P. 615, 22 Okl. 207. Where answer sets forth in separate paragraphs a different state of facts, each of which constitutes a defense or counterclaim, defendant cannot be re- quired to elect on which paragraph he will proceed to trial. Oklahoma Hay & Grain Co. v. T. D. Randall & Co. (Okl.) 168 P. 1012 ; Rev. Laws 1910, 4745, subd. 3. s West v. Madansky (Okl.) 194 P. 439. 99 Day v. Kansas City Pipe Line Co., 125 P. 43, 87 Kan. 617. (602) Art. 11) DEMURRER 703 ARTICLE XI DEMURRER Sections 703. Grounds-rForm. 704. Misjoinder ot parties. 705. Office of demurrer. 706. Requisites and construction. 707. Time to demur After motions. i 70S. Admissions for purpose of demurrer. 709. General demurrer. 710. Limitations. 711. Objection to introduction of any evidence as alternative. 712. Demurrer and answer. 713. Where single count. 714. Joint demurrer. 715. Demurrer to answer. 716. To amended answer. 717. To set-off or counterclaim. 718. Demurrer to reply. 719. Demurrer relating back. 720. Construction of pleading demurred to. 721. Ruling, order, and judgment. 703. Grounds Forms "The defendant may demur to the petition only when it appears on its face, either : "First. That the court has no jurisdiction of the person of the defendant, or the subject of the action. "Second. That the plaintiff has no legal capacity to sue. "Third. That there is another action pending between the same parties for the same cause. "Fourth. That there is a defect of parties, plaintiff or defend- ant. 1 i "Defect of parties," within the statute making it a ground of demurrer, means too few and not too many parties, and is not synonymous with "mis- joinder of parties," which means an excess of parties. Niblo v. Drainage Dist. No. 3, 58 Okl. 639, 160 P. 468. A petition alleging a cause of action against a railway company and cer- tain persons named as receivers of its property is not demurrable on the ground that it shows a defect of parties, nor on the ground that it fails to state a cause of action against either one because the other is charged also with the same liability. Union Pac. Ry. Co. v. Smith, 52 P. 102, 59 Kan. 80. . A demurrer to a petition for a defect of parties defendant should point out the parties improperly omitted, and where this is not done the overruling of (603) 703 PLEADINGS (Ch. 11 "Fifth. That several causes of action are improperly joined. 2 "Sixth. That the petition does not state facts sufficient to con- stitute a cause of action." 3 DEMURRER TO PETITION, CONTAINING ALL STATUTORY GROUNDS (Caption.) Comes now the said defendant and demurs to the petition of plaintiff filed herein, and for grounds of demurrer alleges: 1. That it appears upon the face of said petition that the court has no jurisdiction of the person of this defendant. 2. That the court has not jurisdiction of the subject of this ac- tion (pointing out why). the demurrer cannot be regarded as erroneous. Federal Betterment Co. v. Blaes, 88 P. 555, 75 Kan. 69. Where a suit is brought against one person, and the petition discloses on its face that the debt sued on is the debt of a co-partnership, a demurrer for de- fect of parties defendant is the proper practice, and should be sustained. Cox v. Gille Hardware & Iron Co., 58 P. 645, 8 Okl. 483. A general demurrer does not raise the question of defect of parties. Davis, v. Caruthers, 97 P. 581, 22 Okl. 323. A defect of parties is waived where there is no special demurrer on that ground and the question is not otherwise raised. Id. The question of defect of parties plaintiff must be raised by demurrer if the defect appears on the face of the petition, otherwise by answer, and if no objection be taken any other way, the same is waived. Culbertson v. Mann, 30 Okl. 249, 120 P. 918; Coulson v. Wing, 22 P. 570, 42 Kan. 507, 16 Am. St. Rep. 503 ; Union Pac. Ry. Co. v. Kindred, 23 P. 112, 43 Kan. 134 ; Ryan v. Phillips, 44 P. 909, 3 Kan. App. 704 ; Harrah State Bank v. School Dist. No. 70, Oklahoma County, 47 Okl. 593, 149 P. 1190 ; Burton v. Cochran, 47 P. 569, 5 Kan. App. 508. Objections to a counterclaim which asks affirmative relief on the ground of defect of parties are waived by reply without demurrer. Wyman v. Her- ard, 50 P. 1009, 9 Okl. 35. 2 West v. Madansky, 80 Okl. 161, 194 P. 439 ; Lyons v. Berlau, 73 P. 52, 67 Kan. 426. Under the rule of procedure in the territory of Oklahoma prior to its admis- sion as a state, which is the rule of procedure now in force in the state, mis- joinder of causes of action should be raised by demurrer. Choctaw, O. & G. R. Co. v. Burgess, 97 P. 271, 21 Okl. 653. Where a petition contains two or more causes of action which cannot be properly united in the same action, the fact that they are in one statement, instead of being set forth in separate counts, will not deprive defendant of his right to demur. Benson v. Battey, 78 P. 844, 70 Kan. 288, 3 Ann. Cas. 283. s Rev. Laws 1910, 4740. A petition warranting relief either at law or in equity is good on a gen- eral demurrer. Schanbacher v. Payne, 79 Okl. 101, 191 P. 173. (604) Art. 11) DEMURRER 703-705 3. That the plaintiff has no legal capacity to sue (pointing out defect relied upon). 4. That there is another action pending between the same par- ties for the same cause (specifying same). 5. That there is a defect of parties plaintiff (or defendant) in the omission of (designating party) who is a necessary party plain- tiff (or defendant). 6. That several causes of action are improperly joined, in this, to wit : (Pointing out how.) 7. That the petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against this defendant 8. That said petition shows upon its face, that the alleged cause of action is barred by the statute of limitations of the state of Ok- lahoma. A. B., Attorney for Defendant. 704. Misjoinder of parties A misconduct of parties plaintiff is not a cause for demurrer. 4 705. Office of demurrer The office of a demurrer is primarily to raise an issue of law on facts raised in the pleading attacked, 8 and to challenge the suffi- ciency of a pleading on its face. 6 * First Nat. Bank of Russell v. Knoll, 52 P. 619, 7 Kan. App. 352 ; Stiles v. City of Guthrie, 41 P. 383, 3 Okl. 26; Martin v. Clay, 56 P. 715, 8 Okl. 46; Powell v. Dayton, S. & G. R. R. Co., 11 P. 222, 13 Or. 446 ; Pierson v. Fuhr- mann, 27 P. 1015, 1 Colo. App. 187; Stiles v. City of Guthrie, 41 P. 383, 3 Okl. 26 ; Marth v. City of Kingfisher, 98 P. 436, 22 Okl. 602, 18 L. R. A. (X. S.) 1238 ; City of Pawhuska v. Rush, 119 P. 239, 29 Okl. 759 ; Marshall v. City of Osborne, 104 Kan. 377, 179 P. 303 ; Bourland v. Madill State Bank, 124 P. 314, 32 Okl. 761; Tucker v. Hudson, 38 Okl. 790, 134 P. 21; Dieterle v. Harris (Okl.) 169 P. 873. Neither misjoinder of parties nor excess of parties can be taken advantage of by demurrer, but can only be reached by motion filed before joining issues on the merits. State Exch. Bank of Elk City v. National Bank of Commerce s Bristow v. Carrigar, 132 P. 1108, 37 Okl. 736. W|here it appears on the face of petition that contract sued on is within statute of frauds the defect may be taken advantage of by demurrer. Crab- tree v. Eufaula Cotton Seed Oil Co., 122 P. 664, 32 Okl. 465. An objection that a petition fails to state a cause of action should be pre- sented by demurrer. Lankford v. Schroeder. 47 Okl. 279, 147 P. 1049, L. R. A. 1915F, 623. Ball v. White, 50 Okl. 429, 150 P. 901 ; McConnell v. Davis, 46 Okl. 201, 148 P. 687. (605) 705 PLEADINGS (Ch. 11 A demurrer will not lie where the alleged defects do not appear on the face of the pleading, 7 or to rid a single cause of action or de- fense of irrelevant, redundant, or improper matter, 8 or because of mere generality in the allegation of essential facts or mere conclu- sions of fact, 9 or because the pleading is indefinite and uncertain and properly subject to a motion to make more definite and cer- tain, 1 - or because of redundancies which may properly be reached by motion to strike out. 11 Nor will a demurrer raise the question of inconsistency or departure in the pleadings, 12 or reach a failure (Old.) 174 P. 796, 2 A. L. B. 211 ; Same v. Traders' Nat. Bank of Kansas City, Mo. (Okl.) 174 P. 799; Cfcoctaw, O. & G. R. Co. v. Burgess, 97 P. 271, 21 Okl. 653. ' Continental Ins. Co. v. Pratt, 55 P. 671, 8 Kan. App. 424 ; Sweet v. Crane, 39 Okl. 248, 134 P. 1112. Where the petition, in an action on a voluntary bond of a district clerk, charged the due execution of the bond, the defense that it was given without consideration, not appearing therein, could not be raised by demurrer. Ahs- muhs v. Bowyer, 39 Okl. 376, 135 P. 413, 50 L. B. A. (N. S.) 1060. Where a petition in replevin, on its face, states a cause of action, and the defendant relies upon the fact that a valid service of summons was not had until more than two years after the cause of action accrued, such a defense cannot be raised by demurrer. Harris v. Bell, 59 P. 1095, 9 Kan. App. 706. A demurrer to a bill of particulars on the ground that there is another ac- tion pending between the same parties for the same cause of action should be overruled where such fact does not appear on the face of the pleadings. Biard v. Laumann, 116 P. 780, 29 Okl. 138. s Sparks v. Smeltzer, 93 P. 338, 77 Kan. 44. Gano v. Cunningham, 128 P. 372, 88 Kan. 300. Conclusions of fact held not to render a pleading bad as against a demurrer, in the absence of a motion to make definite and certain. Boberts v. Pendle- ton, 142 P. 289, 92 Kan. 847. A demurrer to a petition on the ground that the material facts are set forth in general terms will not lie. Board of Com'rs of Neosho County v. Spear- man, 130 P. 677, 89 Kan. 106. 10 City of Guthrie-v. Shaffer, 54 P. 698, 7 Okl. 459; Wey v. City Bank of Hobart, 116 P. 943, 29 Okl. 313. Indefiniteness and informality of pleading cannot be alleged by demurrer or objection to evidence. Burnette v. Elliott, 84 P. 374, 72 Kan. 624. 11 Bank of Le Boy v. Harding, 41 P. 680. 1 Kan. App. 389. 12 Walters v. Chance, 85 P. 779, 73 Kan. 680; Fetzer & Co. v. Williams, 103 P. 77, 80 Kan. 554. Inconsistent averments in a petition, which might have been stricken out on motion, furnish no ground of demurrer, if by rejecting them, a cause of ac- tion still remains. Nicholson v. Nicholson, 109 P. 1086, 83 Kan. 223. The fact that more than one ground of recovery may have been pleaded in the petition, or that the grounds set up for recovery may not be consistent with each other, affords no reason for sustaining a demurrer which challenges (606) Art. 11) DEMURRER 705-706 to attach to the petition a copy of the written instrument upon which the cause of action is based. 18 A petition is not demurrable because it commingles several causes of action erroneously paragraphed or subdivided; the remedy in such cases being by motion to separately state and number. 1 * Demurrer is not the proper method by which to object to a suit against a defendant by initials instead of by his Christian name. 15 The question of the ownership of the notes sued on cannot be raised by demurrer. 16 706. Requisites and construction "The demurrer shall specify distinctly the grounds of objection to the petition. Unless it do so, it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action." 17 only the sufficiency of the facts alleged. Bichel v. Oliver, 95 P. 396, 77 Kan. 696. An objection to a pleading on the ground of departure cannot be raised by demurrer. Merchants' & Planters' Ins. Co. v. Marsh, 125 P. 1100, 34 Okl. 453, 42 L. R. A. (N. S.) 996; Landon v. Morehead, 126 P. 1027, 34 Okl. 701; Purcell v. Corder, 124 P. 457, 33 Okl. 68. 1 3 Incorporated Town of Sallisaw v. Chappelle (Okl.) 171 P. 22 ; Rev. Laws 1910, 4769. That a copy of the account sued on was not attached to the petition did not render the petition demurrable under Rev. Laws 1910, 4769. Rogers' Mill- ing Co. v. Goff, Gamble & Wright Co., 46 Okl. 339, 148 P. 1029. Petition held not demurrable where it stated a cause of action on account, though exhibits attached to it suggested a doubt as to whether defendant act- ed in a representative capacity or as an individual. Caiman v. Kreipke, 139 P. 698, 40 Okl. 516. A petition in an action on account for goods sold by a corporation held not demurrable, though it did not describe the account otherwise than as that of defendant, and was signed only by the vice president, without any seal at- tached. Davison v. Calmback, 148 P. 625, 95 Kan. 560. i* First Nat Bank of Tishomingo v. Ingle, 132 P. 895, 37 Okl. 276 ; City of Ellsworth v. Rossiter, 26 P. 674, 46 Kan. 237. A demurrer will not lie against a petition which is defective only in not separately stating and numbering the several causes of the action supposed to be stated therein. Walker v. Sims, 64 P. 81, 9 Kan. App. 890. Where petition states both statutory and common-law cause of action, grow- 15 McColgan v. Territory, 49 P. 1018, 5 Okl. 567. is Waldock v. Winkler, 51 Okl. 485, 152 P. 99. IT Rev. Laws 1910, 4741. A demurrer to a pleading must specify the grounds of the objection. Tootle v. Berkley, 45 P. 77, 57 Kan. 111. (607) f 706-708 PLEADINGS (Ch.ll The question of a defect of parties cannot be raised under a general demurrer alleging simply a want of facts sufficient to state a cause of action. 18 Where the petition is a single cause of action or count, though the pleader paragraphs the same and numbers each paragraph, it is error to sustain a demurrer on the ground "that none of the counts state a cause of action." 19 Where a demurrer to a petition consisting of one count is sus- tained, and the same is refiled unchanged, except for a second cause of action plaintiff attaches thereto a second count, a demurrer sub- sequently filed only applies to the second count. 20 707. Time to demur After motions A demurrer to a pleading is a waiver of all defects that should properly be raised by motion. 21 708. Admissions for purpose of demurrer A demurrer to a pleading admits the truth of the allegations there- of, 22 which are well pleaded, 23 but does not determine the truth of the pleader's inference based on facts pleaded unless the facts are sufficient to authorize such inference, 24 nor does it admit the truth ing put of same transaction, in one count, there is a defect within Rev. Laws 1910, 4738, that may be remedied on motion, but cannot be reached by de- murrer. Shelby-Downard Asphalt Co. v. Enyart (Okl.) 170 P. 708. is A. Helm & Son v. Briley, 87 P. 595, 17 Okl. 314. is Burton v. Doyle, 48 Okl. 755, 150 P. 711. 20 Schoner v. Allen, 105 P. 191, 25 Okl. 2,2. 21 Union State Bank v. Woodside (Okl.) 178 P. 109. 22 C. E. Sharp Lumber Co. v. Kansas Ice Co., 142 P. 1016, 42 Okl. 689; Tan- cred v. Brewer, 75 Okl. 17, 181 P. 490 ; Gregg v. Oklahoma State Bank (Okl.) 179 P. 613. A demurrer to an answer admits the allegation of ownership therein, mak- ing proof unnecessary, though the exhibits thereto show that, under a rule of evidence, defendant is without proof thereof. State v. Freeman, 62 P. 717, 10 Kan. App. 578. In an action for death of a child from drowning in a pond in a city park, a demurrer to the petition admitted its allegations generally, and especially as to the physical conditions of the pond. Harper v. City of Topeka, 139 P. 1018, 92 Kan. 11, 51 L. R. A. (N. S.) 1032. 23 A demurrer only admits facts which are well pleaded. Adams v. Couch, 26 P. 1009, 1 Okl. 17. A demurrer admits every material fact properly stated in plaintiff's peti- tion. Scrivner v. McClelland, 75 Okl. 239, 182 P. 503. 24 Kee v. Armstrong, Byrd & Co., 75 Okl. 84, 182 P. 494, 5 A. L. R. 1349. Allegations of a petition placing a practical interpretation on the bond sued (608) Art. 11) DEMURRER 708-709 of the allegations of the pleading attacked, except for the purpose of determining their legal effect/- 3 and to test the demurrer. 29 On a demurrer to an answer which is carried back to the petition, the plaintiff will not be deemed to have admitted allegations in the answer inconsistent with and contradictory to those included in the petition. 27 The pleading demurred to must be liberally construed. 28 709. General demurrer A general demurrer to a petition raises only the question of its sufficiency in stating a cause of action. 29 It should be sustained where the petition neither states a cause of action in equity or at law, 30 or omits any fact or facts essential to be established by proof to sustain the action, 31 or shows that the remedy sought is barred on were not to be taken as true on demurrer when inconsistent with the lan- guage of the bond. Rettiger v. Dannelly, 136 P. 942, 91 Kan. 61. Though a demurrer admits the facts of a petition, yet, where an agreement is in parol, the defendant is entitled to the benefit of the statute of frauds, un- less the part performance pleaded is sufficient to avoid its operation. Pur- cell v. Corder, 124 P. 457, 33 Okl. 68. The effect of a demurrer to a petition pleading an oral agreement is the same as an answer admitting the agreement, but claiming the benefit of the statute of frauds. Id. If the petition alleges such a part performance as will take the agreement out of the statute of frauds, the demurrer is such an admission of part performance as will pre- clude defendant from the benefit of the statute. Id. 25 Jacobs v. Vaill, 72 P. 530, 67 Kan. 107. 26 Buell v. U-Par-har-ha, 60 Okl. 79, 159 P. 507. 27 Marney v. Joseph, 145 P. 822, 94 Kan. 18, Ann. Gas. 1917B, 225. 28 On demurrer to a petition as defective for not stating a cause of action, the petition must be liberally construed, and all its allegations for the purpose of the demurrer taken as true. Oklahoma Sash & Door Co. v. American Bond- ing Co. (Okl.) 170 P. 511. On demurrer to an answer as not stating a defense, the pleading must be liberally construed, and all its allegations, for the purposes of the demurrer, taken as true; and the demurrer will be sustained only where the answer pre- sents defects so substantial as to authorize the court to say that, taking all the facts to be admitted, they constitute no defense to the action stated in the petition. Smith- Wogan Hardware & Implement Co. v. Jos. W. Moon Buggy Co., 108 P. 1103, 26 Okl. 161. 29 Westervelt v. Jones, 47 P. 322,- 5 Kan. App. 35. 30 Kimmell v. Powers, 91 P. 687, 19 Okl. 339. While an action improperly brought for specific performance may be retain- ed to render damages for breach of contract, yet if the petition, after repeat- ed amendments, neither states a cause of action for specific performance, nor for breach of contract a general demurrer should be sustained. Schilling v. Moore, 125 P. 487, 34 Okl. 155. 31 Garten v. Trobridge, 104 P. 1067, 80 Kan. 720. HON.PL.& PBAC. 39 (609) 709 PLEADINGS (Ch. 11 by reason of plaintiff's laches, 32 but should be overruled where the petition states facts constituting a cause of action and is sufficiently definite to put defendant on notice of what he is charged with, 33 though the relief prayed for is not that to which the facts entitle the plaintiff, 34 and though the petition seeks to recover more relief than that to which plaintiff is entitled. 33 Where no motion to make more definite has been presented, the demurrer should be overruled if the facts stated, when all are taken as true, constitute a cause of action, whether well pleaded or not. 36 32 City of Leavenworth v. Douglass, 53 P. 123, 59 Kan. 416. ss Incorporated Town of Stigler v. Wiley, 128 P. 118, 36 Okl. 291. It is not error to overrule demurrer where allegations of petition construed most favorably to pleader set up cause of action. Henry v. Gulf Coast Drill- ing Co., 56 Okl. 604, 156 P. 321. Though petition in action to recover on contractor's surety bond, which plainly alleged that a stated balance was due, contained obvious clerical er- ror as to amount already paid, whereby it might be asserted that no balance was due, it is not subject to demurrer. Sheahan v. United States Fidelity & Guaranty Co., 163 P. 172, 99 Kan. 704. Where a pleading states any facts upon which the pleader is entitled to any relief under the law, a general demurrer should not be sustained. Bishop- Babcock-Becker Co. v. Estes Drug Co., 63 Okl. 117, 163 P. 276; C. E, Sharp Lumber Co. v. Kansas Ice Co., 142 P. 1016, 42 Okl. 689. Where pleading contains more than one paragraph alleging more than one cause of action or defense and states one cause of action or defense, it is er- ror to sustain general demurrer to it as entirety. Zebold v. Hurst (Okl.) 166 P. 99, L. R. A. 1917F, 579. Where a pleading consists of more than one count, each count must, as against a general demurrer be considered as if constituting the entire pleading. Riverside Tp. v. Bailey, 82 Kan. 429, 108 P. 796. s* Anderson v. Muhr, 128 P. 296, 36 Okl. 184. Where the relief prayed for is for a money judgment, and plaintiff does not state the amount for which she asked judgment, as required by Wilson's Rev. & Ann. St. 1903, 4291, such failure does not alone render the petition so in- sufficient as to render it subject to demurrer on the ground that it does not state facts sufficient to constitute a cause of action. Oklahoma Gas & Electric Co. v. Lukert, 84 P. 1076, 16 Okl. 397. A petition, alleging that plaintiff purchased land from defendants relying on their willfully false statements that they had an absolute title when in fact they had less than a full title, held good on demurrer, though rescission was not in terms asked for, and no formal offer to reconvey was made, and the facts were not pleaded by which damages recoverable could be accurately measured. Klingman v. Gilbert, 135 P. 682, 90 Kan. 545. so Updegraff v. Lucas, 93 P. 630, 76 Kan. 456, 13 Ann. Gas. 860, rehearing denied 94 P. 121, 76 Kan. 456, 13 Ann. Cas. 860 ; Walker v. Fleming, 14 P. 470, 37 Kan. 171. se Bowersox v. J. W. Hall & Co., 84 P. 557, 73 Kan. 99. Where the language of a petition is sufficiently explicit to raise an issue of (610) Art. 11) DEMURRER 709 A general demurrer to a petition, which attempts to state several causes of action, should be overruled if any of the statements of causes of action are good, 37 though such facts may not entitle plaintiff to the entire relief prayed for. 38 Where a petition states a valid cause of action as to a part of the relief demanded, a judgment sustaining a demurrer generally is er- roneous. 39 A joint general demurrer should be overruled where the petition states a cause of action against any party joining in the demurrer. 40 Where a petition of two plaintiffs states a cause of action as to but one of them, it is proper practice to overrule a general demurrer thereto as to him, and sustain it as to the other plaintiff. 41 Where a pleader alleges two different rights of recovery and the question is whether either of said remedies is proper, a general de- murrer should be overruled if facts are alleged sufficient to consti- tute a cause of action for either remedy, 42 When the separate paragraphs of a petition sufficiently state a cause of action for debt and mortgage foreclosure, a general demur- rer to each of such paragraphs should be overruled, though plain- tiff also asks for an attorney's fee, which is not recoverable. 43 A petition in action for money had and received is not subject to general demurrer for failure to allege what specific use was made of money. 44 fact on which the pleader would be entitled to recover, it is error to sustain a general demurrer. Berry v. Geiser Mfg. Co., 85 P. 699, 15 Okl. 364. 37 Emmerson v. Botkin, 109 P. 531, 26 Okl. 218, 29 L. R. A. (N. S.) 786, 138 Am. St. Rep. 953 ; Hanenkratt v. Hamil, 61 P. 1050, 10 Okl. 219 ; Blackwell Oil & Gas Co. v. Whitesides (Okl.) 174 P. 573; Chupco v. Chapman (Okl.) 160 P. 88; Coody v. Coody, 136 P. 754, 39 Okl. 719, L. R. A. 1915E, 465; Cockrell v. Schmitt, 94 P. 521, 20 Okl. 207, 129 Am. St. Rep. 737 ; Ardmore State Bank v. Mason, 30 Okl. 568, 120 P. 1080, 39 L. R. A. (N. S.) 292. 38 Watkins v. Yell (Okl.) 176 P. 390. 3 St. Louis & S. F. R. Co. v. Commissioners of Labette County, 63 Kan. 889, 66 P. 1045. Where petition states a good cause of action for foreclosure of a mechanic's lien, and seeks to recover $40 attorney's fees, the allegation as to the attor- 40 Rogers' Milling Co. v. Goff, Gamble & Wright Co., 46 Okl. 339, 148 P. 1029. 41 Bissey v. Marion (Kan.) 178 P. 991. 42 Gourley v. Lookabaugh, 48 Okl. 65, 149 P. 1169. 43 Hailey v. Bowman, 137 P. 722, 41 Okl. 294. 44 Cleveland Nat. Bank v. Board of Education of City of Cleveland (Okl.) 179 P. 464. (611) 709-710 PLEADINGS (Ch. 11 A misjoinder of causes of action can only be reached by special demurrer setting forth distinctly the grounds of objection, and can- not be met by general demurrer. 45 An oral demurrer should be considered as a general demurrer only, and be overruled, where the pleading attacked states a cause of action entitling the pleader to any relief. 46 710. Limitations Where petition on its face shows that cause of action is barred by limitations, a general demurrer thereto is properly sustained, unless facts as pleaded in the petition show that the statute has been tolled. 47 ney's fees, none being allowed, will not render the petition so defective that the matter may be reached by general demurrer to the whole petition. Savage v. Dinkier, 72 P. 366, 12 Okl. 463. 45 State Exch. Bank of Elk City v. National Bank of Commerce (Okl.) 174 P. 796, 2 A. L. R. 211; Same v. Traders' Nat. Bank of Kansas City, Mo. (Okl.) 174 P. 799. A general demurrer does not go to a misjoinder of causes of action, under Rev. Laws 1910, 4740, subsec. 5, and in order to attack a misjoinder of causes of action a demurrer for such misjoinder must be interposed. Hart- Parr Co. v. Thomas (Okl.) 171 P. 867. 46 United States Fidelity & Guaranty Co. v. Fidelity Trust Co., 49 Okl. 398, 153 P. 195. 47 Delzell v. Couch (Okl.) 173 P. 361; Missouri, K. & T. Ry. Co. v. Wilcox, 121 P. 656, 32 Okl. 51 ; Territory v. Woolsey, 130 P. 934, 35 Okl. 545; Ostran v. Bond (Okl.) 172 P. 447; Webb v. Logan, 48 Okl. 354, 150 P. 116; Fox v. Ziehme, 30 Okl. 673, 120 P. 285 ; Froage v. Webb (Okl.) 165 P. 150. Where pe- tition in action for breach of oral contract showed that cause of action ac- crued more than three years before commencement of action, and did not al- lege any written acknowledgment of existing liability within limitations, over- ruling of demurrer thereto was error. Id. The defense of the statute of limitations may be availed of by general de- murrer, or by an objection to testimony under the petition. Martin v. Gassert, 139 P. 1141, 40 Okl. 608. A petition, showing on its face that a fraud on which the cause of action was founded was consummated more than two years be- fore action brought is demurrable, where it does not show that plaintiff did not discover the fraud until within the two years. Id. Only an explicit allegation, showing that limitations have run, renders a petition demurrable. Wray v. Howard, 79 Okl. 223, 192 P. 584. Kansas cases. The defense of limitations cannot be raised by demurrer, un- less it distinctly appears on the face of the petition that the action is neces- sarily barred. Walker v. Fleming, 14 P. 470, 37 Kan. 171. The objection that a cause of action is barred by limitations cannot be taken by demurrer, unless the petition shows on its face that the cause of action is (612) Art. 11) DEMURRER 710-713 But where the petition on its face does not show that the cause of action is barred by limitations, a demurrer thereto on that ground should be overruled. 48 711. Objection to introduction of any evidence as alter- native Defendant may demur to a petition for not stating facts sufficient to constitute a cause for action, or may question its sufficiency by objection to the introduction of evidence. 49 712. Demurrer and answer "The defendant may demur to one or more of the several causes of action stated in the petition, and answer to the residue." 50 713. Where single count Where a demurrer and an answer are filed at the same time, and the petition contains but one count, the answer will be held to have so barred. Garfield Tp., Finney County, v. Dodsworth, 9 Kan. App. 752, 58 P. 565. A demurrer should be sustained where the complaint shows on its face that the action is barred. Morgan v. Van Wyck, 5 Kan. App. 520, 48 P. 206; City of Phillipsburg v. Kincaid, 50 P. 1093, 6 Kan. App. 377 ; Hunt v. Jetmore, 61 P. 325, 9 Kan. App. 333. A petition held demurrable where it appeared that the action was barred under the statute of Kansas and no other statute was pleaded. Perry v. Rob- ertson, 150 P. 223, 93 Kan. 703, 96 Kan. 96. A petition on a written contract maturing more than five years before action is demurrable, unless it shows some fact interrupting the running of limitations. Id. Limitation is a matter of defense, and only explicit allegations showing di- rectly that limitations have run renders a petition demurrable; the question otherwise being raised by special plea. Brunbaugh v. Wilson, 82 Kan. 53, 107 P. 792. Where the exhibits attached to a petition show upon their face that the cause of action set out therein is barred by the statute of limitations, and there are no allegations in the petition showing that the cause of action is not so barred, held, that a demurrer to such a petition should be sustained. School Dist. No. 1 v. Herr, 50 P. 101, 6 Kan. App. 861. 48 Tucker v. Hudson, 38 Okl. 790, 134 P. 21 ; Lindsay v. Chicago, R. I. & P. Ry. Co., 56 Okl. 234, 155 P. 1173; United States Fidelity & Guaranty Co. v. Fidelity Trust Co., 49 Okl. 398, 153 P. 195. 4 Brown v. Galena Mining & Smelting Co., 4 P. 1013, 32 Kan. 528. In action for breach of contract, failure to allege performance on plaintiff's part presented only by objection to evidence and not by demurrer held imma- terial. Capper v. Manufacturers' Paper Co., 121 P. 519, 86 Kan. 355. so Rev. Laws 1910, 4744. (613) 714-715 PLEADINGS (Ch. 11 superseded the demurrer, and the trial should proceed as though none had been filed. 51 714. Joint demurrer A complaint which states a cause of action against one of several defendants is good against a joint demurrer. 52 715. Demurrer to answer It is error to sustain a general demurrer to an answer which in- cludes a general denial of the averments of the petition. The de- murrer should be overruled as to that averment. 53 But the demur- rer may be sustained where the answer contains averments in- consistent with the general denial. 54 A demurrer will not lie for surplusage or generalities. 55 A general demurrer to an answer should be overruled, where the answer raises any issue necessary to be determined before judgment can be rendered on the petition, 56 and where the answer contains several paragraphs or defenses, one of which is good. 57 si Ryndak v. Sea well, 76 P. 170, 13 Okl. 737. Where a pleading styled an answer contained a demurrer, coupled with facts constituting a defense, and thereafter a general denial by way of a re- ply was filed, it was not error to disregard the demurrer, and require a trial on the merits. Title Guaranty & Surety Co. v. Slinker, 128 P. 696, 35 Okl. 128; Id., 128 P. 698, 35 Okl. 153. 52 Stiles v. City of Guthrie. 3 Okl. 26, 41 P. 383. 53 City of Guthrie v. T. W. Harvey Lumber Co., 50 P. 84, 5 Okl. 774. An answer containing a general denial modified by admissions, but not ad- mitting all facts necessary to entitle plaintiff to recover, is good as against de- murrer. Rust v. Rutherford, 147 P. 805, 95 Kan. 152. A general demurrer to an answer containing a general denial cannot be sustained. Marshall Mfg. Co. v. Dickerson, 55 Okl. 188, 155 P. 224. An an- swer containing a general denial and also a negative pregnant constituting admission of liability by defendant, though subject to motion for judgment on the pleadings, is not subject to a general demurrer. Id. Where facts pleaded in a paragraph of an answer are admissible under a general denial pleaded, it is not error to sustain a demurrer to such para- graph. Hopkins v. Dipert, 69 P. 883, 11 Okl. 630. s* Adkins v. Arnold, 121 P. 186, 32 Okl. 167. 55 A demurrer to an answer, in that the second clause of the first paragraph was not responsive to an allegation in the petition, that the third clause was evasive, and that another paragraph stated conclusions of law, and was not responsive to the allegations of the petition, was insufficient. Galbreath Gas Co. v. Lindsey, 129 P. 45, 35 Okl. 235. 56 Simpson v. Collins, 62 P. 719, 10 Kan. App. 578. Where an answer denies a material fact in the petition essential to plain- s' See note 57 on following page. (614) Art. 11) DEMURRER 715-718 A pleading containing a general denial and also a general demur- rer will be treated as an answer, and the demurrer will be con- sidered waived. 58 , 716. To amended answer Where an amended answer measurably complies in particulars required, with an order to make the original more definite and cer- tain, it is error to sustain a motion to strike it from the files, though it may not state facts sufficient to constitute a defense; but a de- murrer, so an amendment can be allowed, is proper. 59 717. To set-off or counterclaim A set-off or counterclaim, to withstand a demurrer for want of facts, must, like any other complaint, state facts sufficient to consti- tute a cause of action. 60 718. Demurrer to reply "If the reply to any defense set up by the answer be insufficient, the defendant may demur thereto, stating the grounds of such de- murrer." ' To a reply containing a general denial and new matter, a demur- tiffs' right of recovery, it is error to sustain a demurrer to such answer on the ground that it does not state a defense. Lee v. Mehew, 56 P. 1046, 8 Okl. 136. , Where an answer states facts constituting a defense in themselves, the sus- taining of a general demurrer thereto is error. Gillum v. Anglin, 44 Okl. 684, 145 P. 1145. 67 A demurrer to an answer containing several paragraphs must be over- ruled, if there is one good paragraph. Hurst v. Sawyer, 37 P. 817, 2 Okl. 470. A general demurrer to an answer containing several defenses should be over- ruled, where any defense by itself, or the answer as a whole, states matters which defeat plaintiff's right to recover. Rust v. Rutherford, 147 P. 805, 95 Kan. 152; Mollohan v. King, 50 P. 881, 58 Kan. 816; Harrill v. Weer, 109 P. 539, 26 Okl. 313 ; Flint v. Dulany, 15 P. 208, 37 Kan. 332. ss State Exch. Bank v. National Bank of Commerce (Okl.) 174 P. 796, 2 A. L. R. 211; Same v. Traders' Nat. Bank (Okl.) 174 P. 799. sa McNinch v. Northwest Thresher Co., 100 P. 524, 23 Okl. 386, 138 Am. St. Rep. 803. eo In action on note, answer of defendant indorsers held, as against a de- murrer, to sufficiently plead a set-off based upon alleged fraud practiced upon them by plaintiff holder and defendant maker of the note. Blair v. McQuary, 164 P. 262, 100 Kan. 203, modifying judgment on rehearing 162 P. 1173, 100 Kan. 203. el Rev. Laws 1910, 4754. (615) 719-720 PLEADINGS (Ch. 11 rer for want of facts is bad if not addressed especially to the new matter. 62 719. Demurrer relating back A demurrer to an answer or reply searches the record. 63 A de- murrer to a petition because not stating a cause of action can be sus- tained only where court can say that, taking all the facts to be admitted, they furnish no cause of action, and, if facts stated therein entitle plaintiff to any relief, a demurrer for want of facts should be overruled ; 6 * and where there is a general demurrer to defenses of an answer and the petition does not state facts suffi- cient to constitute a cause of action, a demurrer should be sustain- ed to the petition. 66 However, where a petition is defective for want of a material averment, but such averment is supplied by the answer and is not inconsistent with the averments of the petition, a demurrer filed to the answer and properly overruled will not be carried back and sustained as to the petition^ 6 720. Construction of pleading demurred to On demurrer a petition is liberally construed. 67 It must be con- strued with exhibits attached. 68 62 Ordway v. Cowles, 25 P. 862, 45 Kan. 447. 63 In action on note, where answer alleged that it was given in connection with written contract in settlement of controversy between parties, and by the terms thereof it never became payable, held that demurrer to plaintiff's reply to answer should have been carried back to answer and sustained there- to, and judgment rendered for plaintiff. Rohrbaugh v. Cunningham, 101 Kan. 284, 166 P. 471. 04 Oklahoma Sash & Door Co. v. American Bonding Co. (Okl.) 170 P. 511. es Bartholomew v. Guthrie, 81 P. 491, 71 Kan. 705. A demurrer to an answer brings up the sufficiency of the complaint. John- son v. Wynne, 67 P. 549, 64 Kan. 138 ; Crow v. Hardridge (Okl.) 175 P. 115. A demurrer to an answer may be carried back to a petition, though a pre- vious demurrer to the petition has been overruled. Marney v. Joseph, 145 P. 822, 94 Kan. 18, Ann. Gas. 1917B, 225. 66 Sill v. Sill, 1 P. 556, 31 Kan. 248. 67 Jackson v. Moore, 79 Okl. 59, 191 P. 590. es Southern Surety Co. v. Municipal Excavator Co., 61 Okl. 215, 160 P. 617, L. R. A. 1917B, 558: Pettis v. Johnston, 78 Okl. 277, 190 P. 681; Hughes v. Martin (Okl.) 196 P. 951. Where the instrument sued on is attached by copy to the petition and made a part thereof, it should be made a part of the petition when constructing the allegations thereof as against a general demurrer. Whiteacre v. Nichols, 87 P. 865, 17 Okl. 387. (616) Art. 11) DEMURRER 720-721 In replevin, the affidavit and bond for the ancillary order are not construed as parts of the pleadings, to determine whether a cause of action has been stated. 60 On demurrer to improperly commingled paragraphs of a peti- tion, the entire petition will be considered, and not merely the subdivisions attacked. 70 In considering demurrers to separate causes of action, the court is not confined to allegations in a particular subdivision, but may supplement them with general allegations applicable alike to the different causes, though this could not be done if separate causes are separately stated and numbered, except where allegations are incorporated by reference. 71 Facts not shown by the pleadings cannot be inquired into in de- termining sufficiency of a pleading on demurrer. 72 721. Ruling, order, and judgment In sustaining a demurrer to a petition for misjoinder of causes of action, the court should so state, and afford plaintiff an oppor- tunity to file several petitions. 73 But where a demurrer to a peti- tion is sustained, and plaintiff fails to file an amended pleading as permitted by the order, a judgment dismissing his cause of action is proper. 74 It is error for the court to render judgment by default on sus- taining a demurrer to the answer, in the absence of defendant or his counsel, without giving defendant an opportunity to plead over or elect to stand on the demurrer. 75 so Cudd v. Farmers' Exch. Bank of Lindsay, 76 Okl. 317, 185 P. 521. 70 First Nat. Bank of Tishomingo v. Ingle, 132 P. 895, 37 Okl. 276. 71 Cliupco v. Chapman (Okl.) 160 P.. 88. Where a pleading consists of more than one count, neither the facts involv- ed in the action nor the averments of another count, unless incorporated into the pleading demurred to, can be considered on a hearing on the demurrer. Riverside Tp. v. Bailey, 82 Kan. 429, 108 P. 796. 72 Where, in an action by F. against D., charging that certain covenants contained in a deed by D. to F. were broken, neither the petition nor the ^x- hibits connect D. with the title of the original grantor, W., on demurrer the court cannot properly determine the question of W.'s right to alienate. Fal- ler v. Davis, 30 Okl. 56, 118 P. 382, Ann. Gas. 1913B, 1181. >" Wlutley v. St. Louis, E. R. & W. Ry. Co., 116 P. 165, 29 Okl. 63; Rev. Laws 1910, 4743. 74 Gates v. Miles (Okl.) 169 P. 888; State v. Martin, 62 Okl. 295, 162 P. 108&. 75 Thwing v. Doye, 44 P. 381, 2 Okl. 608. (617) 721 PLEADINGS (Ch. 11 Where an answer in an action on an official bond contains a general denial, and the plaintiff elects to stand on a demurrer, which is overruled, to two other paragraphs of the answer, which state a good defense, and nothing further is offered by the plaintiff, it is not error for the court to dismiss the cause. 76 An order of the court overruling defendant's demurrer to the petition on the ground that it does not state facts sufficient to con- stitute a cause of action is not a final adjudication in plaintiff's favor, so as to prevent defendant, at the trial, from again attacking the sufficiency of the petition by an objection to the reception of any evidence thereunder. 77 The court, by erroneously overruling a demurrer to the reply, is not precluded from correctly deciding a motion for judgment on the pleadings. 78 An application for leave to answer after a demurrer has been adjudged frivolous rests largely within the trial court's reasonable discretion, and should be granted except in extreme cases. 79 Where a demurrer to an answer is sustained, and defendant stands on his exception thereto, and judgment is rendered against him, and he takes additional time to prepare a case for appeal, and when, after the term has expired, he files a motion to set aside the judgment and be allowed to amend, the motion cannot be con- sidered. 80 It is error for a trial court to render a judgment sustaining a plea in abatement, without giving plaintiff an opportunity to plead there- to, where it cannot be said from the record that he elected to stand on his demurrer to the plea or refused to plead further. 81 A judgment sustaining a demurrer to a petition from which no 76 Board of Com'rs of Logan County v. Harvey, 52 P. 402, 6 Okl. 629. 77 Goodrich v. Commissioners of Atchison County, 47 Kan. 355, 27 P. 1006, 18 L. B. A. 113. 78 Sherburne v. Strawn, 34 P. 405, 52 Kan. 39. 7 Nolen v. State, 48 Okl. 594, 150 P. 149; Jones v. Same, 48 Okl. 601, 150 P. 151. A "frivolous pleading'' is one so clearly untenable or the insufficiency of which is so manifest upon a bare inspection of the pleading that the court or judge is able to determine its character without argument or research. Nolen v. State, 48 Okl. 594, 150 P. 149 ; Jones v. Same. 48 Okl. 601, 150 P. 151. so Davidson v. Hughes, 91 P. 913. 76 Kan. 247; Id., 91 P. 915, 77 Kan. 842. si Nation v. Savely (Okl.) 176 P. 937. (618) Art. 12) ISSUES, PROOF, AND VARIANCE 722~724 appeal is taken does not control the judgment on hearing of a de- murrer against an amended petition afterwards filed by leave of court. 82 ARTICLE XII ISSUES, PROOF, AND VARIANCE DIVISION I. ISSUES Sections 722. Kinds. 723. Of law. 724. Of fact. 725. Where both issues arise. 726. Allegations deemed true. 727. Admissions. 728. Material allegation. DIVISION II. PBOOF 729. Proof required under certain pleadings Verified denial. 730. Proof admissible under pleadings. 731. Under general denial. 732. When evidence admissible of facts not pleaded. DIVISION III. VABIANCE 733. Rules and application. DIVISION I. Issues 722. Kinds "Issues arise on the pleadings, where a fact or conclusion of law is maintained by one party, and controverted by the other. There are two kinds : First, Of law. Second, Of fact." 83 723. Of law "An issue of law arises upon a demurrer to the petition, answer or reply, or to some part thereof." 8 * 724. Of fact "An issue of fact arises : First, upon a material allegation in the petition, controverted by the answer ; or, second, upon new matter in the answer, controverted b/y the reply ; or, third, upon new mat- S2 Parks v. Monroe, 161 P. 638, 99 Kan. 368. ss Rev. Laws 1910, 49S9 ; General Electric Co.-v. Sapulpa & I. Ry. Co., 4& Okl. 376, 153 P. 189; United States Fidelity & Guaranty Co. v. Fidelity Trust Co., 49 Okl. 398, 153 P. 195. s* Rev. Laws 1910, 4990. (619) 725-726 PLEADINGS ,Ch.ll ter in the reply, which shall be considered as controverted by the defendant without further pleading." 85 725. Where both issues arise Issues both of law and fact, may arise upon different parts of the pleadings in the same action. In such cases the issues of law must be first tried, unless the court otherwise direct." 86 726. Allegations deemed true "Every material allegation of the petition, not controverted by ^ the answer, and every material allegation of new matter in the answer, not controverted by the reply, shall, for the purposes of the action, be taken as true ; but the allegation of new matter in the reply shall be deemed to be controverted by the adverse party, as upon direct denial or avoidance, as the case may require. A de- murrer to a reply shall not be held to admit any of the facts al- leged in such reply for any purpose other than to determine the sufficiency thereof. Allegations of value, or of amount of damages, shall not be considered as true, by failure to controvert them ; but this shall not apply to the amount fclaimed in action on contract, express or implied, for the recovery of money only." 87 as Rev. Laws 1910, 4991. se Rev. Laws 1910, 4992. 87 Rev. Laws 1910, 4779. Under Rev. Laws 1910, 4779, allegations of value or amount of damages in a petition are not admitted as true by a failure to controvert them. Cudd v. Farmers' Exch. Bank of Lindsay, 76 Okl. 317, 185 P. 521. Where, prior to the admission of the state into the Union, in replevin to recover certain personalty, in which plaintiffs claimed a special ownership under chattel mortgages, there was a nouverified answer with allegations that plaintiffs were a partnership and were transacting business under a fic- titious name, a reply was necessary, and, none being filed, the material alle- gations of the new matter in the answer uncontroverted should be taken as true and constitute a complete defense. Baker v. L. C. Van Ness & Co., 105 P. 660, 25 Okl. 34. Where plaintiff founds his claim to property on a certain note and chattel mortgage, and sets forth a copy of them in his original pleadings, and makes them a part thereof, and defendant does not deny their execution by affidavit, it is not necessary for plaintiff to prove that the note was unpaid. Hardwick v. Atkinson, 58 P. 747, 8 Okl. 608. (620) Art. 12)' ISSUES, PROOF, AND VARIANCE 727-729 727. Admissions Defendant need not prove matters admitted in the petition; 88 but his act in challenging the competency of one of plaintiff's wit- nesses, upon the theory of the facts as alleged in the petition, is not such an admission of the truthfulness of the petition as renders proof unnecessary. 89 Likewise plaintiff is relieved from proving facts admitted by defendant in the answer. 90 728. Material allegation "A material allegation, in a pleading, is one essential to the claim or defense, which could not be stricken from the pleading without leaving it insufficient." 91 DIVISION II. PROOF t 729. Proof required under certain pleadings Verified denial The issues raised by the pleadings determine the proof which is required. 92 A verified denial, however, is required to put certain facts in issue. It is necessary to put in issue plaintiff's corporate 88 Where the execution of the deeds relied upon by the defendant in parti- tion is admitted in plaintiff's pleading, the defendant need not introduce the deeds in evidence to establish his interest. Ryan v. Cullen, 133 P. 430, 89 Kan. 879. Where, in an action to enjoin the collection of certain school district taxes, plaintiff admitted that the order for the levy had been made and that the county clerk had extended the levy, further proof that the levy had been or- dered was unnecessary. St. Louis & S. F. Ry. Co. v. Lindsey, 39 Okl. 439, 135 P. 1053. * McWilliams v. Piper, 53 P. 837, 7 Kan. App. 289. o Where the answer admits execution of the note sued upon and pleads payment and set-off, the note need not be put in evidence. Dill v. Malot (Okl.) 167 P. 219. In an action on an unindorsed note, payable to a third person, defendants' answer that the note was executed in consideration of a conveyance of lands by plaintiff admitted plaintiff's ownership of the note, and no proof is nec- essary, though it was denied by the answer. Choate v. Stander, 61 Okl. 148, 160 P. 737. si Rev. Laws 1910, 4780. In an action on a negotiable certificate of deposit, an unverified answer de- nying plaintiff's ownership of the certificate and alleging that the deposit had been withdrawn by the true owner presents an issue for trial. Wichita Nat. Bank v. Maltby, 36 P. 1000, 53 Kan. 567. 92 Where the defense in an action for the publication of libelous articles is that the articles are true, plaintiff is entitled to recover unless defendant es- tablishes the truth of every material item. Spencer v. Minnick, 139 P. 130, 41- Okl. 613. (021) 729 PLEADINGS (Ch. 11 character, 93 or the existence of an alleged partnership, 94 or the exe- cution of a written instrument. 95 Although several facts are alleged in the petition, plaintiff need prove only such facts as are essential to establish his right to re- cover. 96 He must prove all material and necessary allegations, 97 but he need not prove a conclusion of law. 98 A slanderous state- ment need not be proven precisely as charged. 99 An unnecessary allegation need not be proven. Thus, whe're an insurance company pleads a breach of condition against concur- 93 Where defendant flies specific verified denial of plaintiff 's corporate char- acter, plaintiff must prove such character. J. P. Bledsoe & Son v. Keystone Steel & Wire Co., 139 P. 257, 41 Okl. 586. 94 Where the petition alleges the existence of a partnership, and the exe- cution of a mechanic's lien, and a verified answer is filed denying "each and every allegation, averment, and statement contained in the plaintiff's peti- tion," the existence of the pai'tnership, and the due execution of the lien, are such issues as must be proved on the trial, to entitle the plaintiff to recover. Hayner v. Eberhardt, 15 P. 168, 37 Kan. 308. 95 Felix v. Walker, 57 P. 128, 60 Kan. 467. Where defendant alleged that he was induced by fraud to sign, without reading it, the contract sued on, and that it did not contain the real agree- ment, held, that evidence supporting such allegations was admissible. George O. Richardson Machinery Co. v. Duncan, 46 Okl. 21, 148 P. 80. 96 Where plaintiff alleges several independent unconnected acts of negli- gence as ground for recovery and the proof is sufficient to establish any of such acts of negligence, he may recover. Dickinson v. Tucker (Okl.) 176 P. 949. That the petition, in an action against a railroad company for damages from fire, unnecessarily charged negligence did not require plaintiff to prove negligence in order to recover. Midland Valley R. Co. v. Lynn, 38 Okl. 695, 135 P. 370. In action for carrier's conversion of grain covered by bill of lading held by bank, where it paid into court the amount demanded, and an intervener claimed an interest in such money, proof of value of car was not necessary as between plaintiff and intervener. Marsh Milling & Grain Co. v. Guaranty State Bank of Ardmore (Okl.) 171 P. 1122, L. R. A. 1918D, 704. 7 Under petition in action against railroad and its engineer and fireman, alleging that the latter willfully, wantonly, and maliciously blew a whistle with intent to frighten plaintiff's horse, no recovery could be had where the evidence showed no more than mere negligence of defendants. St. Louis & S. F. R. Co. v. Boush (Okl.) 174 -P. 1036. 98 St. Louis & S. F. R. Co. v. Johnson, 86 P. 156, 74 Kan. 83. 99 Refusal to instruct that a recovery could be had on proving the slan- derous statement precisely as charged in the petition held not error. Smith v. Gillis, 51 Okl. 134, 151 P. 869. It is sufficient to prove the substance of the identical words charged, or so many of them as may be sufficient to make out a case, without regard to structural combination not materially affecting the meaning of the actionable words. Id. (622) Art. 12) ISSUES, PROOF, AND VARIANCE 730 rent insurance, and the reply sets up a waiver, and the policy au- thorizes concurrent insurance, it is unnecessary to prove the al- leged waiver. 1 730. Proof admissible under pleadings Ordinarily the evidence must be confined to the issues raised by the pleadings ; 2 but this rule will not be applied so as to work an injustice by excluding evidence because it only indirectly or partial- ly supports the allegations. 3 Evidence which may reasonably be held to have a bearing upon 1 Springfield Fire & Marine Ins. Co. v. Null, 133 P. 235, 37 Okl. 665. 2 Comanche Mercantile Co. v. Wheeler & 'Motter Mercantile Co., 55 Okl. 328, 155 P. 583 ; Winans v. Hare, 46 Okl. 741, 148 P. 1052 ; Frazier v. Eben- ezer Baptist Church, 56 P. 752, 60 Kan. 404 ; Hartford Fire Ins. Co. v. War- britton, 71 P. 278, 66 Kan. 93 ; Westchester Fire Ins. Co. v. Coverdale, 58 P. 1029, 9 Kan. App. 651 ; Chicago, R. I. & P. Ry. Co. v. Spears, 122 P. 228, 31 Okl. 469; Chambers v. Van Wagner, 123 P. 1117, 32 Okl. 774; Robieson v. Royce, 66 P. 646, 63 Kan. 886. A tax deed, executed after the commencement of an action, and not put in issue, nor mentioned by the pleadings, cannot be introduced on trial. Camp- bell v. Fulmer, 18 P. 493, 39 Kan. 409. A plaintiff, in his complaint, must state the facts constituting his cause of action, and is not at liberty to make out his case by giving in evidence facts which he has not stated in his complaint. Burke v. Levy, 8 P. 527, 68 Cal. 32 ; Nordholt v. Nordholt, 26 P. 599, 87 Cal. 552, 22 Am. St. Rep. 268 ; King- man, P. & W. R. Co. v. Quinn, 25 P. 1068, 45 Kan. 477 ; Robbins v. Barton, 31 P. 686, 50 Kan. 120 ; Northern Pac. R. Co. v. O'Brien, 21 P. 32, 1 Wash. St. 599; Gilmore v. H. W. Baker Co., 41 P. 124, 12 Wash. 468. Without pleading and proof of special damages for delay in transit of shipment, it was error to admit evidence of depreciation of value of merchan- dise after delivery to consignee, because he had to carry it over to another season. Wichita Falls & N. W. Ry. Co. v. D. Cawley Co. (Okl.) 172 P. 70. Permitting plaintiff to testify that she became sick in consequence of being deprived by the conductor of her suit case, containing medicine, held error, where her petition did not ask special damages because thereof. Chicago, Rock Island & P. Ry. Co. v. Mailes, 52 Okl. 278, 152 P. 1131. The evidence in a passenger's action for injuries must be confined to the issues, raised in the pleadings. Id. In an action for damages to a shipment of cattle, held, that the admission of evidence on the issue of a waiver of terms of the shipment contract was er- ror, where such issue was not raised by the pleadings. Atchison, T. & S. F. Ry. Co. v. Lynn & Hudson, 54 Okl. 701, 154 P. 657. 3 In an action to recover on a note, a copy of which is set out in the peti- tion, proof of loss of the note and of its execution and contents may be re- ceived, though no mention of the loss is made in the petition. Bare v. Ford, 87 P. 731, 74 Kan. 593, 118 Am. St. Rep. 336, 11 Ann. Cas. 251. (623) 730 PLEADINGS ( Ch. 11 the issues should be admitted, 4 but evidence on a matter entirely distinct from anything in issue should be excluded. 5 4 In mandamus to compel the officers of a county to hold their offices at the county seat, when the answer puts in issue the legality of the election, all testimony tending to show fraud in receiving illegal votes or rejecting le- gal votes for either of the contesting towns is admissible. State v. Stock, 16 P. 106, 38 Kan. 154, rehearing denied 16 P. 799, 38 Kan. 184. Where plaintiff and defendant, attorneys, were employed in action to. re- cover land, and client was to pay one-quarter of value of land recovered, and, after recovery, conveyed one-quarter of land to defendant, and plaintiff sued to recover a one-half interest therein, wherein defendant denied plaintiff's in- terest, defendant's evidence that land was conveyed for services rendered by him, and not under contract of employment, was within issues and compe- tent, and its exclusion was prejudicial error. Lamb v. Alexander (Okl.) 179 P. 587. Where a petition against * carrier for damages to cattle charged rough and indifferent handling, by which the cattle were badly bruised, evidence that the cattle were badly bruised, by their being lugged about in the cars and jammed against the sides and ends of the cars, was within the issues. St.' Louis & S. F. B. Co. v. Bilby, 130 P. 1089, 35 Okl. 589. In action to set aside compromise of claim for seduction, where petition al- leged that defendants misrepresented amount for which settlement could be made, testimony as to what girl's father told defendants regarding terms of settlement was admissible. Matthews v. McNeill, 157 P. 387, 98 Kan. 5. In action to set aside compromise of claim for seduction, where petition alleged that defendants falsely represented that girl became pregnant, doctor's testi- mony that she became pregnant was admissible. Id. Petition and answer in an action for secret profits made by defendant in a real estate transaction, wherein he acted as plaintiffs' agent, held to raise a primary issue of agency. Gast v. Barnes, 44 Okl. 114, 143 P. 856. Petition and answer in an action for wrongful death held to show without controversy that deceased was injured while employed by an express com- pany, and not while employed by the defendant railway company, though the petition alleged that deceased was also engaged in handling personal baggage. Missouri, K. & T. By. Co. v. West, 38 Okl. 581, 134 P. 655. Where a petition charges that a city negligently permitted a sidewalk to become out of repair so as to be dangerous, and negligently permitted it to remain in a dangerous condition, and the answer denies the allegations, it is not error to permit the plaintiff to prove that the defendant city bad actual notice of the defects, or that it had been out of repair for such a length of time as to impute notice to the city. City of Guthrie v. Finch, 75 P. 288, 13 Okl. 496. In railway mail clerk's^action for personal injury, alleging that car was cold and unfit for occupancy, evidence that windows rattled and that doors were loose were admissible. St. Louis & S. F. B. Co. v. McClain, 63 Okl. 75, 162 P. 751. Where plaintiff in ejectment claimed right of possession under a verbal agreement to convey land in settlement of a debt, and the proof showed that possession was taken under an agreement that the land should stand as se- 5 See note 5 on following page. (624) Art. 12) ISSUES, PROOF, AND VARIANCE 730 If testimony is competent to sustain either one of two causes oi action contained in a petition, it should be admitted. 6 The fact that evidence relevant as to an issue raised by an curity, either agreement was pertinent to the issue. Charpie v. Stout, 129 P. 1166, 88 Kan. 682, denying rehearing 128 P. 396, 88 Kan. 318. Declarations of the predecessor in title of plaintiffs in ejectment that the land in contro- versy should pass to defendants at her death were as competent to rebut a claim based on an agreement for sale as one based on an agreement for se- curity. Id. Where, in ejectment, defendant claims under deed from the plaintiff given to elear title upon payment of a debt to secure which the defendant had exe- cuted a deed to plaintiff, such claim 1 does not preclude defendant from recov- ering upon a title held prior to the giving of such deed. Madden v. Stegman, 127 P. 524, 88 Kan. 29. Where the petition in an action to recover for work and material and fore- closure of a mechanic's lien stated a cause of action for work and material, evidence may be, received thereunder, though on its face it showed plaintiff was entitled to no lien. Uncle Sam Oil Co. v. Richards, 60 Okl. 83, 158 P. 1187. Where petition negatived contributory negligence and answer alleged that if plaintiff received any injuries they were the result of her own negligence, the issue of contributory negligence was raised ; reply denying that plain- tiff's injuries were the result of her own negligence. Pioneer Telephone & Telegraph Co. v. Kophart, 59 Okl. 265, 159 P. 355. In an action to cancel a deed, under a general allegation of forgery the grantor may show that the deed was placed in escrow with defendant with the space for the name of the grantee left blank, and that defendant, with- out authority, filled in his own name. Maclellan v. Seim, 46 P. 959, 57 Kan. 471. c In action against domestic railway for injuries in another state, defense that plaintiff was not defendant's employe 1 is not available under plea to ju- risdiction of trial court. Wichita Falls & N. W. Ry. Co. v. Puckett, 53 Okl. 4<&, 157 P. 112. In an action for the value of live stock, where there is no negligence al- leged, and the only breach of contract pleaded is the loss of the live stock in New Mexico, it is error to admit evidence of injuries in Arizona ; such issue not being raised by the pleadings. Atchison, T. & S. F. Ry. Co. v. Lambert, 123 P. 428, 32 Okl. 665. In an action for the loss of live stock shipped from Arizona to Oklahoma, where defendant pleaded provisions of a shipping con- tract as a defense and alleged that they were valid under the laws of Ari- zona, the exclusion of evidence of the laws of Arizona was error. Id. Where the petition alleges specific acts of negligence, evidence tending to prove other negligent acts not embraced in the acts charged is not admissible. Missouri, O. & G. Ry. Co. v. Adams, 52 Okl. 557, 153 P. 200. Evidence of a settlement under a compromise agreement held not admissi- ble under a plea of payment. Continental Gin Co. v. Arnold, 52 Okl. 569, 153 P. 160. In an action under Rev. St. U. S. 5198 (U. S. Comp. St. 9759), to recover e Lyons v. Berlau, 73 P. 52, 67 Kan. 426. HON.PL.&PBAC. 40 (025) 730 PLEADINGS CCh. 11 answer was not relevant to an issue raised by the reply to a coun- terclaim did not render the evidence inadmissible. 7 A plaintiff alleging ownership of property at a certain time is not restricted, as to the evidence of such ownership, to the day fix- ed in the petition, but may show ownership prior to such time." In an action for personal injuries, where defendant alleges con- tributory negligence and denies negligence generally, there is no admission of negligence limiting the issues to that of contributory negligence. 9 Proof of ratification of the acts of an agent includes proof of agency and authority, and may be made under a pleading charging the ratified act to be that of the principal. 10 Proof cannot be offered by the surety that the default of the principal was excused, unless the acts relied on to excuse the de- i the penalty provided for the payment of usurious interest, facts constituting accord and satisfaction cannot be proven under a general allegation of pay- ment. First Nat. Bank v. Latham, 132 P. 891, 37 Okl. 286. Where a real estate agent sues for commissions earned on a sale of land and relies on a special contract, it is error to admit evidence establishing a quantum meruit and to instruct that the jury may return a verdict for such sum as is customary for the services rendered. King v. Stephenson, 116 P. 183, 29 Okl. 29. Where the petition declares merely on an express contract and pleads full performance thereof, recovery cannot be had on quantum meruit. Dunn v. T. J. Cannon Co., 51 Okl. 382, 151 P. 1167. Where action is brought on insurance contract and petition alleges proof of loss was furnished, evidence of waiver of proof of loss is inadmissible. Hartford Fire Ins. Ob. v. Mathis, 57 Okl. 332, 157 P. 134. Where the petition pleaded that affirmative proofs of loss of time had been furnished, evidence that plaintiff wrote to the company, claiming indemnity, and that it replied, denying all liability, was not within the issues. Conti- nental Casualty Co. v. Wynne, 129 P. 16, 36 Okl. 325. Evidence of directions given by plaintiffs to their agent, relative to con- centrating the converted property at a given point, held immaterial, where it was admitted by the pleadings that defendant was in possession when the suit was instituted. West Tulsa Belt Ry. Co. v. Bell, 54 Okl. 175, 153 P. 622. Where bill of particulars seeks recovery for conversion, admission of evi- dence of breach of warranty by defendants is error. % Pierce v. Barks, 60 Okl. 97, 159 P. 323. In ejectment, where defendant claims possession under contract with plain- tiff for purchase of the property, evidence of title on plaintiff's part becomes immaterial. Baldridge v. Centgraf, 108 P. 83, 82 Kan. 240. T Mulhall v. Mulhall, 41 P. 577, 3 Okl. 252. s Russell v. Bradley, 28 P. 176, 47 Kan. 438. a Clemens v. St. Louis & S. F. R. Co., 131 P. 169, 35 Okl. 667. 10 St. Louis & S. F. R. Co. v. Leger Mill Co., 53 Okl. 127, 155 P. 599. (626) Art. 12) ISSUES, PROOF, AND VARIANCE 730-731 fault, and which rendered the performance of the condition of the recognizance impossible, have been pleaded by such surety. 11 The petition in a personal injury case must allege that obliga- tions have been incurred for medical attention, hospital fees, and like items in the nature of special damages, to justify proof of such items. 12 Incompetent testimony is not rendered competent by being set out in the pleadings, though the opposing party has failed to ask that it be stricken out. lp 731. Under general denial A general denial puts in issue every material fact pleaded, 14 and any evidence is admissible under a general denial which controverts the facts denied. 15 11 Madden v. State, 10 P. 469. 35 Kan. 146. 12 Revel v. Pruitt, 142 P. 1019, 42 Okl. 696. is Ireton v. Iretou, 52 P. 74, 59 Kan. 92. i* First State Bank of Mannsville v. Howell, 137 P. 657, 41 Okl. 216; Same v. Lawson, 137 P. 661, 41 Okl. 226. 15 Electric Ry., Light & Ice Co. v. Brickell, 85 P. 297, 73 Kan. 274; Lower v. Shorthill (Okl.) 176 P. 107. In an action to recover damages for the failure of the defendant to deliver a quantity of corn which plaintiff claimed to have purchased from defendant at a stated time, and on certain terms, defendant filed a general denial. Un- der such an answer, defendant was entitled to offer any testimony which went to controvert the facts that the plaintiff was bound to establish in order to maintain his action. Davis v. McOrocklin, 8 P. 196, 34 Kan. 218. Evidence that at date of the deed from plaintiff relied on by defendant in ejectment, and for his entire life, plaintiff was an idiot, held admissible un- der general denial with allegations of ownership. Hatfield v. Lotty, 48 Okl. 173, 149 P. 1171. In action for damages for wrongful discharge, defendant, under a general denial, was entitled to introduce evidence controverting any fact which plain- tiff was bound to prove. McKelvy v. Choctaw Cotton Oil Co. (Okl.) 178 P. 882. In action for damages for wrongful discharge, the breach of the con- tract was a necessary element in statement of his action which he was re- quired to affirmatively prove. Id. In action for damages for personal injuries, defense that person responsible for injury complained of was independent contractor is not affirmative one, and need not be specially pleaded, but is available under general denial. Gulf, C. & S. F. Ry. Co. v. Beasley (Okl.) 168 P. 200. ( In an action against a sheriff for his refusal to levy a writ against prop- erty, the petition alleged that the debtor "had sufficient property and effects on which a levy might have been made to fully satisfy plaintiffs demand." To the petition a general denial was filed. The plaintiff's evidence tended to show the debtor's ownership of a stock of goods. Held, that evidence of chat- (627) 731 PLEADINGS (Ch. 11 Where defendant pleads as a defense the making of a written contract between himself and the plaintiff, but specifies no con- sideration, the law imports one, and, if the defense is only contro- verted in the reply by a general denial, the issue of consideration is not raised. 16 But a special defense must be pleaded to authorize the introduction of evidence thereon. 17 Where a settlement of a debt is relied on as a defense it must be pleaded; proof thereof not being admissible under a general de- nial. 18 Where an action is merely for an alleged existing balance due at the beginning of suit, without reference to th extent or amount of original liability, evidence of payment is admissible under the gen- eral denial. 19 A verified general denial will not raise the issue of execution of tel mortgage liens on the goods to an amount in excess of their value was ad- missible under the general denial. Phelps, Dodge & Palmer Co. v. Skinner, 65 P. 667, 63 Kan. 364. In an action against an attorney for negligently failing to file appeal as agreed, defendant may, under a general denial, introduce evidence to rebut negligence. Tishomingo Electric Light & Power Co. v. Gullett, 52 Okl. 180, 152 P. 849. Where, in an action for the balance due on a contract and for extras, de- fendant answers by general denial and by specifically denying liability for the extras it is error to exclude his evidence. Harris v. Warren-Sinith Hard- ware Co., 44 Okl. 477, 144 P. 1050. In an action of conversion, any evidence is admissible under a general de- nial which tends to disprove plaintiff's allegations ; and it is not necessary? under Comp. Laws 1909, 5634, to plead that the property converted was a gift inter vivos to defendant. Manning v. Maytubby, 141 P. 781, 42 Okl. 414. is Avery Mfg. Co. v. Lambertson, 86 P. 456, 74 Kan. 304. 17 General denial is insufficient in action on fire insurance policy to pre- sent issue of insured's willful burning of property. Springfield Fire & Ma- rine Ins. Co. v. Griffin, 64 Okl. 131, 166 P. 431. In an action on a fire insurance policy, evidence of waiver of proofs of loss is inadmissible, unless pleaded. Palatine Ins. Co. v. Lynn, 141 P. 1167, 42 Okl. 486. Where the insurer dM not specially plead as a defense pro tanto its re- duced liability from. the loss occurring while the building wafe vacant, such defense which was based on a condition subsequent, was not available. Liv- erpool & London & Globe Ins. Co. v. Cargill, 44 Okl. 735, 145 P. 1134. A breach of warranty cannot be proved under a general denial, but must be specially pleaded. Standard Fashion Co. v. Morgan, 48 Okl. 217, 149 P. 1160. is Roniger v. Mclntosh, 137 P. 792, 91 Kan. 368. is Jones v. El Reno Mill & Elevator Co., 110 P. 1071, 26 Okl. 796, Ann. Gas. 1912B, 486. (628) Art. 12) ISSUES, PROOF, AND VARIANCE 731-732 a written instrument, where in the same answer there is an admis- sion of the execution. 20 In ejectment, all defenses, legal and equitable, may be proven in evidence under a general denial. 21 The question as to whether an Indian is an adult, and thereby competent to enter into a lease contract, 22 or whether he is compe- tent to make a lease without the approval of the county court, and the questions as to his age, his quantum of Indian blood, and the alienability of his surplus and homestead allotment, constitute de- fensive matters, not available under a general denial. 23 732. When evidence admissible of facts not pleaded Facts relied on to constitute waiver of proof of loss must be plead- ed with particularity before evidence to establish same can be re- ceived, 24 as must also all acts, representations, and conduct relied on to constitute an estoppel. 25 20 Wilhite v. Dieball, 94 Kan. 78, 145 P. 854. 21 Eller v. Noah (Okl.) 168 P. 819 ; Hurst v. Sawyer, 37 P. 817, 2 Okl. 470 ; Rowsey v. Jameson, 46 Okl. 780, 149 P. 880; Wiggins v. Powell, 152 P. 765, 96 Kan. 478; Armstrong v. Brownfield, 4 P. 185, 32 Kan. 116; Smith v. Hobbs, 31 P. 687, 49 Kan. 800 ; Adam v. Johnson, 65 P. 662, 63 Kan. 886. In ejectment where the petition and answer set forth such facts and make such denials as are required by Code Civ. Proc. 619, 620 (Gen. St. 1909, S 6214, 6215), either party may prove any fact which would tend to strengthen his own title or defeat that of his adversary as if the facts were fully plead- ed, including those showing that the rights of either party were barred by limitations. Taylor v. Danley, 112 P. 595/83 Kan. 646, 21 Ann. Gas. 1241. 22 The question as to whether an Indian is an adult, and thereby competent to enter into a lease contract, or otherwise alienate his allotment, is defensive matter, not available to the defendant under a general denial. Mullen v. Carter (Okl.) 173 P. 512. 23 In an action for rent, under the statute the question whether the Indian lessor was competent to make a lease without approval of the county court, and the questions as to his age, his quantum of Indian blood, and the aliena- bility of his surplus and homestead allotment, constituted defensive matters not available under a general denial. Mullen v. Howard, 143 P. 659, 43 Okl. 531. 24 Continental Ins. Co. v. Chance, 48 Okl. 324, 150 P. 114. 25 Bunker v. Harding (Okl.) 174 P. 749. Unless estoppel or waiver of conditions in a mutual fire insurance policy is distinctly pleaded by insured in action thereon, evidence thereof is inadmis- sible. Wolff v. German-American Farmers' Mut. Ins. Co., 60 Okl. 113, 159 P. 480. In an action on a life policy, it was error to admit evidence tending to show such estoppel or waiver, where not pleaded. Fidelity Mut. Life Ins. Co. of Philadelphia, Pa., v. Dean, 57 Okl. 84, 156 P. 304. (629)' 732-733 PLEADINGS (Ch.ll In an action for injuries to plaintiff on the track, an ordinance limiting the speed of trains within the city limits may be admitted in evidence to show its violation by defendant as an element to establish actionable negligence, though not pleaded. 26 Where, after the issues in an ejectment suit have been made up, defendants obtain a deed from plaintiff, and plaintiff claims on trial that the deed was procured through fraud, evidence thereof is admissible. 27 DIVISION III. VARIANCE 733. Rules and application In actions at law, in order to enable plaintiff to recover or defend- ant t6 succeed in his defense, the proof must not vary from what had been alleged in the pleadings. 28 "Variance" means "difference," and it is no variance that the proof does not establish all the allegations of the petition. 29 26 Chicago, R. I. & P. Ry. Co. v. Martin, 141 P. 276, 42 Okl. 353. 27 Davis v. Mimey, 60 Okl. 244, 159 P. 1112. 2 s Chambers v. Van Wagner, 123 P. 1117, 32 Okl. 774. Where a broker sues to recover a commission on sale of realty, he cannot recover on the theory of damages from breach by the owner of his contract of sale. Robinson v. Oklahoma Fire Ins. Co., 55 Okl. 52, 155 P. 202. Under Rev. Laws 1910, 4786, where the cause alleged is on a broker's contract for commission, and the proof shows it to be a cause for the defendant owner's breach of his contract to sell to the purchaser procured, there is not a vari- ance, but a failure of proof. Id. The plaintiff, in an action to set aside a deed and have a certain judgment declared a lien on the property was not entitled to recover, in the absence of proof that the judgment introduced in evidence had been recorded or dock- eted so as to become a subsisting lien. Lockoby v. Cook, 132 P. 142, 37 Okl. 419. Where, in an action to have a deed set aside and a certain judgment de- clared a lien on the property plaintiff introduced a judgment rendered in a different court for a different amount against different parties than that de- scribed in the petition, the variance was fatal in the absence of any amend- ment. Id. A divorce should not be granted for acts of cruelty entirely different from those alleged in the petition. Winterburg v. Winterburg, 34 P. 971, 52 Kan. 406. In an action on an account assigned to plaintiff in writing, in which the execution of the assignment is admitted by the pleading, it is not error for the court to refuse to admit the defendant to introduce evidence tending to show that such assignment is only colorable, and that the plaintiff is not the real party in interest, where no such defense is pleaded. Lesh v. Meyer, 66- P. 245, 63 Kan. 524. 29 Red Ball Transfer & Storage Co. v. Deloe, 30 Okl. 522, 120 P. 575. (630) Art. 12) ISSUES, PROOF, AND VARIANCE 733 That a petition alleges more than has been proven is not fatal where the unproven allegations are not necessary to recovery, nor is it fatal that the testimony offered does not support certain allega- tions in the petition where it does support others sufficient to au- thorize a recovery. 30 A departure between pleadings and proof is not disclosed, merely because the proof of essential allegations is not extended to cover unnecessary averments made in connection with them. 31 Proof of a fact different from that stated in the pleadings, but not amounting to a failure of proof and to which no objection is made by the adverse party, is of no consequence. 82 so Shawnee Light & Power Co. v. Sears, 95 P. 449, 21 Okl. 13. Under Civ. Code, 134 (Gen. St. 1909, 5727), discrepancy between pleading that purchaser of land requested the seller to obtain as large loan as pos- sible, after contract of sale was executed, and proof that request was made after agreement had been made, but before it was reduced to writing, was immaterial. O'Harro v. Akey, 158 P.* 854, 98 Kan. 511. Under Code Civ. Proc. 134 (Gen. St. 1909, 5727), declaring a variance immaterial unless misleading a party to his prejudice, a reply speaking in the name of a firm, and proof that one of the partners owned all the prop- erty and effects which were delivered to the defendant, are not in fatal vari- ance. Danielson v. Scott, 129 P. 1190, 88 Kan. 789. Where a petition alleged a will and the granting of letters testamentary to have been made in one county, it was not error to admit in evidence proof of probate and issue of testamentary letters by authenticated transcript from the probate court of another county, since this was an immaterial variance. Stout v. Crosby, 63 P. 661, 10 Kan. App. 580. Where plaintiff, suing for personal injuries, pleads that certain items of medical expense have been paid, but offers to show that the items have been incurred, there is no .variance prejudicial to rights of defendant, and exclu- sion of such offer is error. Sweet v. Henderson (Okl.) 178 P. 666. si Bailey v. Gatewood, 74 P. 1117, 68 Kan. 231. Immaterial variance between allegations and proof is not fatal, where there is sufficient evidence to show substantially the matters alleged. Russell v. Watts, 96 Kan. 275, 150 P. 600. 32 Patterson v. Missouri, K. & T. Ry. Co., 104 P. 31, 24 Okl. 747. Where a complaint in an action against a national bank as a stockholder in another corporation alleged that it acquired such stock in a particular manner, evidence that it was acquired in a different manner held not a fatal variance. First Nat. Bank v. Montgomery County Nat. Bank, 67 P. 458, 64 Kan. 134. Where, in an action for money loaned, defendant answered that the money was invested in cattle in which the parties were partners, and the court found that the money loaned was invested in partnership cattle, and afterwards defendant agreed to ttke plaintiff's interest and repay the amount invested by him, and gave judgment for plaintiff, no objection having been made till after (631) 733 PLEADINGS (Ch.ll In a broker's action for eompensation, there was no variance be- tween an allegation that it was understood that plaintiff should re- ceive the usual and customary commission paid' real estate agents and proof of a parol agreement without any stipulations as to the amount of the compensation, as it will be implied by law that plain- tiff was to receive the customary or reasonable commission. 33 Where a petition declares on both oral and written contracts con- cerning the same matter, and evidence shows oral contract, there is no variance between pleading and proof. 34 A petition which alleges all the facts showing a cause of action and the amount of actual damages, but prays for treble damages which are not recoverable, does not prevent recovery of actual damages. 35 A variance is not material, unless it has actually misled the ad- verse party. 36 judgment, there was not a fatal variance. Mulhall v. Mulhall, 41 P. 109, 3 Okl. 304. Where petition alleges contract and amount due thereunder, but is uncer- tain as to whether it was express or implied, and there was no objection for uncertainty, variance would not arise, because proof showed right to recover upon quantum meruit. Producers' Supply Co. v. Shirley (Okl.) 170 P. 504. A petition on a fire policy alleged specific acts as a waiver of proof of loss and on the trial uncontradicted evidence was introduced, without objection, sufficient to show a waiver thereof, but upon other grounds. Held, that the petition would be considered as amended so as to conform to the proof, and a waiver so proved fairly in issue. St. Paul Fire & Marine Ins. Co. v. Mitten- dorf, 104 P. 354, 24 Okl. 651, 28 L. R. A. (N. S.) 651. There is no material variance between an allegation that a railroad's em- ployees knew that plaintiff was in a place of danger and proof that they should have known it. St. Louis & S. F. Ry. Co. v. Cole, 49 Okl. 1, 149 P. 872, L. R. A. 1915F, 866. ss Lowenstein v. Holmes, 40 Okl. 33, 135 P. 727. 3* Royer v. Western Silo Co., 161 P. 654, 99 Kan. 309. In an action by the mortgagor to compel the mortgagee to pay over the balance of the loan to secure which the mortgage was executed, which had been withheld by the mortgagee, plaintiff alleged that his cause of action was based on a verbal agreement, while his proof showed that the application for the loan was in writing, but that subsequently it was modified by parol be- fore the loan was made. Held no variance. Kansas Loan & Trust Go. v. Love, 45 P. 953, 4 Kan. App. 188. 33 Mohr v. Sands, 44 Okl. 330, 133 P. 238. se Patterson v. Missouri, K. & T. Ry. Co., 104 P. 31, 24 Okl. 747; Guinan v. Readdy, 79 Okl. Ill, 191 P. 602 ; Chicago, R. I. & P. Ry. Co. v. Bankers' Nat. Bank, 122 P. 499, 32 Okl. 290; People's Nat. Bank v. Myers, 69 P. 164. 65 Kan. 122. A petition alleged a payment on account so as to toll limitations. The evi- (632) Art. 12) ISSUES, PROOF, AND VALANCE 733 Where two causes of action are indefinitely stated in a petition, and the petition is not attacked by motion to separately state the causes of action, or to make more definite, it is not error to permit plaintiff during the trial to abandon one of the causes and proceed with the other. 87 dence showed the indorsement of plaintiff's note by defendant, the discount of it by plaintiff at a bank, and the payment thereof when due by defendant. Held not a fatal variance. Benton v. Yurann, 55 P. 676, 8 Kan. App. 305. There is no error in refusing to limit the inquiry as to the engine which injured plaintiff to an engine of a certain number, though that numbered engine was testified to as the one in question ; the number of the engine not being essential, and the jury being authorized to find for plaintiff though they did not find that the engine that did the injury bore that number. Chi- cago Great Western Ry. Co. v. Troup, 80 P. 30, 71 Kan. 843. An action in replevin was brought against a sheriff in his individual ca- pacity and the evidence showed that the property was taken by him as sher- iff as the property of a third person under an execution issued against such third person. Held, that there was not a fatal variance between the plead- ings and the proof. Burchett v. Purdy, 37 P. 1053, 2 Okl. 391. A variance in the description of a contract which must be construed the same, whether or not the variance existed, not changing its nature, will be disregarded. Lowenstein v. Holmes, 40 Okl. 33, 135 P. 727. A variance between the original note and the copy attached to the peti- tion, in that the former was dated March 25, 19 , and the latter March 25, 1910, was not material. Zeno v. Bazzell, 139 P. 281, 41 Okl. 574. That the evidence as to date of conversion varied from the date alleged in the petition did not authorize the taking of such evidence from the jury. Missouri, O. & G. Ry. Co. v. Diamond, 48 Okl. 424, 150 P. 175. 37 Hume v. Atkinson, 54 P. 15, 8 Kan. App. 18. (633) DEPOSITIONS AND AFFIDAVITS (Ch. 12 CHAPTER XII DEPOSITIONS AND AFFIDAVITS Sections 734-774. Article I. Depositions. 775-780. Article II Affidavits. ARTICLE I DEPOSITIONS Sections 734. Defined. 735. When taken. 736. Subpoena for deposition. 737. Contempt Discharge. 738. Abuse of process. 739. Stipulation. 740. Before whom taken. 741. Depositions taken out of state. 742. Officer disinterested. 743. Commission. 744. Notice. 745- Publication notice. 746. Contempt Refusal to testify. 747. Writing of depositions. . 748. Filing. 749. Authentication. ' 750. Certificate. 751. When to be filed. 752. Fees for taking. 753- Exceptions. 754. Requisites and sufficiency. 755- To be decided before trial. 756. Incompetency and irrelevancy. 757. Motion to suppress Form. 758. Objections at hearing. 759. Waiver of objections- 760. Perpetuating testimony. 761. Petition Form. 762. Order for examining witnesses Form. 763. Cross-interrogatories. 764. Before whom taken. 765. Filing and use Cpsts. 766. Error waived by not excepting. 767. When deposition may be used. 768. Unavailability of witness. 769. Deposition as evidence. 770. May be read when. (634) Art. 2) DEPOSITIONS 734-735 Sections 771. Admission of part of deposition. 772. Copies. 773- Interpleader. 774. Forms. 734. Defined "A deposition is a written declaration, tinder oath, made upon notice to the adverse party for the purpose of enabling him to at- tend and cross-examine, or upon written interrogatories." * It may be given in narrative form. 2 735. When taken "Either party may commence taking testimony by deposition at any time after service of summons upon the defendant." 3 Depositions may be taken during the term at which the case is set for trial.* It is not error for a notary before whom a deposition is to be taken to adjourn the taking of said deposition at the time and place named in the notice for taking the same until the next day, at the same place and hour, at the request of the attorney of the party taking the deposition, 5 though the opposing party does not appear. (i Where the next day is Sunday or a legal holiday, the adjourn- ment should be to the next day thereafter; and this is true, though both Sunday and a legal holiday intervene. 7 But the deposition must be taken in accord with the notice or stipulation. For ex- ample, it is error to admit in evidence a deposition taken on the 5th day of the month instead of on the 3d, the time agreed on, when there is nothing to show a commencement of the deposition before the 5th, or that there was any continuance from the 3d to the 5th. 8 1 Rev. Laws 1910, 5069. 2 N. S. Sherman Machine & Iron Works v. E. D. Cole Mfg. Co., 51 Okl. 353, 151 P. 1181. s Rev. Laws 1910, 5074. * Northrup v. Hottenstein, 16 P. 445, 38 Kan. 263 ; In re Merkle, 40 Kan. 27, 19 Pac. 401 ; St. Louis & S. F. Ry. Co. v. Morse, 16 P. 452,' 38 Kan. 271. s Babb v. Aldrieh, 25 P. 558, 45 Kan. 218. 6 Kelly v. Martin, 36 P. 705, 53 Kau. 380. T Leach v. Leach, 27 P. 131, 46 Kan. 724. s Peterson v. Albach, 32 P. 917, 51 Kan. 150. (635) 736-740 DEPOSITIONS AND AFFIDAVITS (Ch. 12 i 736. Subpoena for deposition "When the attendance of the witness, before any officer author- ized to take depositions, is required, the subpoena shall be issued by such officer." 9 737. Contempt Discharge A witness "imprisoned by an officer before whom his deposition is being taken, may apply to a judge of a court of record, who shall have power to discharge him, if it appears that his imprison- ment is illegal." 10 738. Abuse of process Taking the deposition of a party in a pending case merely to ascertain in advance what his testimony will be, and not for the purpose of using the same as evidence, is an abuse of judicial au- thority and process; and a party committed for refusing to give his deposition in such a case will be released on habeas corpus. 11 739. Stipulation A stipulation of facts to avoid the taking of depositions does not enlarge or change the issues made by the pleadings. 12 740. Before whom taken "Depositions may be taken in this state before a judge or clerk of a court of record, before a county clerk, justice of the peace, no- tary public, or before a master commissioner, or any person em- powered by a special commission; but depositions taken in this state, to be used therein, must be taken by an officer or person whose authority is derived within the state." 13 "The [Corporation] Commission is authorized to have deposi- tions taken upon the application of either party to any cause pend- ing before it, or upon its own motion; and to designate a person to take depositions under such rules and regulations as may be prescribed by the commission: Provided, that any party to a Rev. Laws 1910, 5053. 10 Rev. Laws 1910, 5060. 11 In re Davis, 16 P. 790, 38 Kan. 408; In re Cubberly, 18 P. 173, 39 Kan. 291. 12 Brinkmeier v. Missouri Pac. Ry. Co., 105 P. 221, 81 Kan. 101, judgment affirmed 32 S. Ct. 412, 224 U. S. 268, 56 L. Ed. 758. is Rev. Laws 1910, 5075. (63G) Art. 1) DEPOSITIONS 741- T14 proceeding before the commission may take depositions in the same manner as in actions pending in the courts of the state." 14 741. Depositions taken out of state "Depositions may be taken out of this state by a judge, justice or chancellor of any court of record, a justice of the peace, notary public, mayor or chief magistrate of any city or, town corporate, or any person authorized by a special commission from this state." 15 742. Officer disinterested "The officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding." 16 A notary public is not disqualified to take depositions by reason of the fact alone that he is the bookkeeper of the plaintiff. 1 ' 7 743. Coimmission "Any court of record of this state, or any judge thereof, is au- thorized to grant a commission to take depositions within or with- out the state. The commission must be issued to a person or per- sons therein named, by the clerk, under the seal of the court grant- ing the same ; and depositions under it must be taken upon written interrogatories, unless the parties otherwise agree." 18 744. Notice "Prior to the taking of any deposition, unless taken under a special commission, a written notice, specifying the action or pro- ceeding, the name of the court or tribunal in which it is to be used, and the time and place of taking the same, shall be served upon the adverse party, his agent or attorney of record, or left at his usual place of business or residence. The notice shall be served so as to allow the adverse party sufficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sunday, i* Rev. Laws 1910, 1203. is Rev. Laws 1910, 5076. le Rev. Laws 1910, 5077. 17 Palmer v. Hudson River State Hospital, 61 P. 506, 10 Kan. App. 98. is Rev. Laws 1910, 5078. (637) 744 DEPOSITIONS AND AFFIDAVITS (Ch. 12 and the day of service; and the examination may, if so stated in the notice, be adjourned from day to day." 19 Where the caption of a notice to take depositions includes the name of the court and the title of the action, and the body of the notice specifies that the deposition to be taken is "to be used on the trial of the above-entitled action," it substantially complies with the requirement that the notice shall specify the action or proceed- ing, and the name of the court in which it is to be used. 20 Depositions taken upon the notice prescribed are admissible whether taken within or without the state. 21 A notice to take depositions need not set out the names of the witnesses. 22 The adverse party has a right to be personally present at the tak- ing of any deposition pursuant to notice. 23 A notice which would require a party to start at midnight is in- sufficient, 24 as is also a notice requiring a party to use the day on which the deposition is to be taken in traveling to the place of taking. 25 Where notices are served to take depositions at two or more places on the same day, the parties served may attend at either is Rev. Laws 1910, 5079. In an action against a railroad company for the death of a stallion, occa- sioned by injuries received during shipment, a notice of taking depositions as to the condition of the stallion before shipment, served on a station agent, who has no authority in or connection with the cause, is not such notice as is contemplated by Code, 352, providing that, prior to the taking of any deposition, notice shall be served on "the adverse party, his agent or attorney of record." Atchison, T. & S. F. R. Co. v. Sage, 31 P. 140, 49 Kan. 524. A notice to take depositions is not "process," within the Kansas Code of Civil Procedure, which provides (section 68a) that every railroad company shall designate some person residing in each county into which the line runs, on whom "all process and notices issued by any court" may be served, and (section 68c) that on failure to designate such person "such process" may be served on any ticket agent in the county; and a notice to take depositions, served on a ticket agent, is insufficient. Atchison, T. & S. F. R. Co. v. Sage, 31 P. 140, 49 Kan. 524. 20 Sparks v. Sparks, 32 P. 892, 51 Kan. 195. 21 J. M. Hoard, Jr., Co. v. Grand Rapids Showcase Co. (Okl.) 173 P. 844. 22 Dietrich v. Dr. Koch Vegetable Tea Co., 56 Okl. 636, 156 P. 188. 23Gillis v. First Nat. Bank of Frederick, 47 Okl. 411, 148 P. 994; Evans v. Rothschild, 39 P. 701, 54 Kan. 747. 24 Helms v. Southwest Missouri R. Co., 152 P. 632, 96 Kan. 568. 25 Hartley v. Chidester, 13 P. 578, 36 Kan. 363. (638) Art. 1) DEPOSITIONS 744-745 place and disregard the other notices, and depositions taken at places where he does not attend should be suppressed. 28 Mere irregularities may be waived. For example, a deposition taken in the absence of the opposing party, a short distance from the place stated in the notice, will not be suppressed, where it ap- pears that on the same day the counsel for the opposing party ap- peared, and by consent of all the deposition was opened, and the witness recalled and cross-examined. 27 The designation of the place where the depositions are to be taken is sufficient, where it so describes it that it can be identified by the exercise of reasonable diligence. 28 It has been held that, in the absence of any showing of prejudice, a notice to take depo- sitions that designates the place as "at the office of R. L. McDou- gal, in the city of Marysville, in the county of , in the state of Missouri," was sufficient. 29 745. Publication notice "When the party against whom the deposition is to be read is absent from or a nonresident of the state, and has no agent or attorney of record therein, he may be notified of 'the taking of the deposition by publication. The publication must be made three consecutive weeks, in some newspaper printed in the county where the action or proceeding is pending, if there be any printed in such county, and if not, in some newspaper printed in this state, of general circulation in the county. The publication must contain all that is required in a written notice ; and may be proved in the manner prescribed for service by publication at the commence- ment of the action." 30 26 Gillis v. First Nat. Bank of Frederick, 47 Okl. 411, 148 P. 994; Evans v. Rothschild, 39 P. 701, 54 Kan. 747. 27 Southern Kansas Ry. Co. v. Robbins, 23 P. 113, 43 Kan. 145. 28 The fact that the notice of a deposition specified that it would be taken at the office of "Dan. Ray," whereas the deposition showed that it was- taken at the office of "Daniel E. Wray," does not render the notice misleading so as to invalidate the deposition where Wray was identified in the notice as an attorney at law of the place where the deposition was . to be taken, and there was no other person of that name or having one s-ounding like it in that place. Sparks v. Sparks, 32 P. 892, 51 Kan. 195. 29 Atcbison, T. & S. F. R. Co. v. Pearson, 49 P. 681, 6 Kan. App. 825. so Rev. Laws 1910, $ 5080. (639) 746-748 DEPOSITIONS AND AFFIDAVITS (Ch. 12 746. Contempt Refusal to testify A witness may be punished for contempt for refusing to testi- fy or answer questions propounded to him on the taking of his deposition, though he act on the advice of counsel. 31 The power to punish for contempt in such cases is vested in justices of the peace and judges of courts of record, including judges of county courts. 32 747. Writing of depositions "The deposition shall be written in the presence of the officer taking the same, either by the officer, the witness or some disin- terested person, and subscribed by the witness, or the deposition may be taken in shorthand by the officer or some disinterested per- son, and if so taken and after being transcribed shall be subscribed by the witness as though taken in long hand in the first in- stance." 33 748. Filing "The deposition, so taken, shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the court where the action or proceeding is pending. It shall remain under seal until opened by the clerk by order of the court, or at the re- quest of a party to the action or proceeding, or his attorney." 3 * Where all legal requisites have been complied with in sealing and indorsing depositions to be transmitted by mail, and where such depositions are actually received by the district clerk with- out being separated or mutilated, the mere fact that the envelope containing such depositions has been broken or injured during transmission will not justify a court in suppressing the deposi- tions. 35 Where an envelope containing a deposition is indorsed with the si In re Merkle, 19 P. 401, 40 Kan. 27. 32 Waugh v. Dibbens, 61 Okl. 221, 160 P. 589, L. R/A. 1917B, 360. ss Rev. Laws 1910, 5081. 34 Rev. Laws 1910, 5082. Depositions, the taking of which was begun before and completed after ad- mission of state, held properly filed with the clerk of the district court to which the action was transferred. Scott v. Vulcan Iron Works Co., 122 P. 1S6, 31 Okl. 334. as Commercial Nat. Bank v. Atkinson, 64 P. 617, 62 Kan. 775. (640) Art. 1) DEPOSITIONS 749-750 names of the plaintiff and defendant, and that of the officer before whom it was taken, and is addressed to the clerk of the district court where the case is pending, the title and cause are sufficiently described. 86 749. Authentication "Depositions taken pursuant to this article, by any judicial or other officer herein authorized to take depositions, having a seal of office, whether resident in this state or elsewhere, shall be ad- mitted in evidence, upon the certificate and signature of such offi- cer, under the seal of the court of which he is an officer, or his official seal ; and no other or further act of authentication shall be required. If the officer taking the same have no official seal, the deposition, if not taken in this state, shall be certified and signed by such officer, and shall be further authenticated, either by parol proof, adduced in court, or by the official certificate, and seal of the secretary of state or other officer of the state keeping the great seal thereof, or of the clerk or prothonotary of any court having a seal, attesting that such judicial or other officer was, at the time of taking the same, duly qualified, and acting as such officer. But if the deposition be taken within this state by an officer having no seal, or within or without this state under a special commission, it shall be sufficiently authenticated by the official signature of the officer or commissioner taking the same." 87 750. Certificate "The officer taking the deposition shall annex thereto a certifi- cate, showing the following facts: That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth ; that the deposition was reduced to writing or taken in short- hand and transcribed by some proper person, naming him; that the deposition was subscribed in the presence of the officer certi- fying thereto ; that the deposition was taken at the time and place specified in the notice." 88 SB Whittaker v. Voorhees, 15 P. 874. 38 Kan. 71 : Babb v. Aldrich, 25 P. 558, 45 Kan. 218. ST Rev. Laws 1910, 5085. ss Rev. Laws 1930, . 5086. Where a notice states that the deposition will be taken at the storehouse of M., in Bismarck, Dakota territory, on the 13th day of April, between the HON.PL.&PRAC. 41 (641) 750-751 DEPOSITIONS AND AFFIDAVITS (Ch. 12 The certificate is defective, requiring the deposition to be sup- pressed, where it fails to show the place of taking and the adverse party was not present, 39 where it shows, relative to the oath tak- en, merely that deponents were sworn to testify the whole truth of their knowledge touching the matter in controversy, 40 and where it fails to state by whom the deposition was reduced to writ- ing. 41 But mere informalities will be disregarded, and will not require that the deposition be suppressed, where the adverse par- ty appeared by counsel at the taking of the deposition and cross- examined the witness. 42 Failure to comply with additional provisions made by stipulation of the parties will not require that the depositions be suppressed. 43 Thus, that depositions were taken between 8 a. m. and 6 p. m., in- stead of 9 a. m. and 4 p. m., as" stipulated in agreement, was not a ground for their suppression. 44 Testimony "on information and belief" is not sufficient to over- come the certificate of a notary public before whom a deposition was taken that he was not an attorney for either party, or otherwise in- terested in the case. 46 751. When to be filed "Every deposition intended to be read in evidence on the trial, must be filed at least one day before the day of trial." 46 This means one clear day, both the day on which they are filed and the day of trial being excluded. 47 Where depositions are re- hours of 8 a. m. and 6 p. m., and the certificate attached to the deposition states that it was taken at the store of M., in Bismarck, Dakota territory, on the 13th day of April, as specified in the notice attached, held, that "as specified in the notice" relates to the place, the day, and the hours of the day, as stated in the notice. Whittaker v. Voorhees, 15 P. 874, 38 Kan. 71. 39 Dunham v. Holloway, 2 Okl. 78, 35 P. 949. 40 Western Union Tel. Co. v. Collins, 25 P. 187, 45 Kan. 88, 10 L. R. A. 515 ; Atchison, T. & S. F. R. Co. v. Pearson, 49 Pac. 681, 6 Kan. App. 825. 41 Atchison, T. &, S. F. R. Co. v. Pearson, 49 P. 681, 6 Kan. App. 825. 42 St. Louis & S. F. Ry. Co. v. French, 44 P. 12, 56 Kan. 584. 43 Knapp v. American Hand-Sewed Shoe Co., 66 P. 996, 63 Kan. 698. 44 Scott v. Vulcan Iron Works Co., 122 P. 186, 31 Okl. 334. 45 Wagstaff v. Challiss, 1 P. 631, 31 Kan. 212. 46 Rev. Laws 1910, 5088; Chicago, R. I. & P. Ry. Co. v. Jackson, 63 Okl 32, 162 P. 823. 47 Garvin v. Jennerson, 20 Kan. 371. (642) Art.l) DEPOSITIONS 751-753 ceived in time, and the clerk fails to mark them "Filed," they should be received in evidence, if otherwise regular. 48 Depositions may be treated as affidavits, and used in evidence in a hearing upon a motion, although they have not been on file one day before the time of such hearing. 49 752. Fees for taking "The following fees shall be allowed for taking depositions in this state, viz. : Swearing each witness, ten cents ; for each subpoena, attachment or order of commitment, fifty cents ; for each hundred words contained in such deposition and certificate, fifteen cents, and no more ; and such officer may retain the same until such fees are paid ; such officer shall also tax the costs of the sheriff "or other officer who shall serve the -process aforesaid, and fees of the witnesses, and may, also, if directed by the person entitled thereto, retain such deposition until the said fees are paid." 80 There is no merit in exceptions to a deposition on the ground that the attorney procuring its taking inclosed therewith a letter con- taining a statement of the fees to the notary public, witnesses, and stenographer. 51 753. Exceptions "Exceptions to depositions as a whole shall be in writing, spec- ifying the grounds of objections, and filed with the papers in the cause before the commencement of the trial." 52 It is no excuse for failure to comply with this statute that counsel for the party taking the deposition opened same and has ever since had it in his possession. 63 An objection to a deposition, because a United States revenue stamp is not attached, must be made in writing and filed before the commencement of the trial, 54 as must exceptions to depositions on the ground that the notice did not properly specify the action. 55 Where depositions are filed on day of but before trial, as known 48 Hogendobler v. Lyon, 12 Kan. 276. 49 Bank of Santa Fe v. Haskell County Bank, 53 P. 132, 59 Kan. 354. eo Rev. Laws 1910, 5089. si Chicago, R. I. & P. Ry. Co. v. Jackson, 63 Okl. 32, 162 P. 823. 2 Rev. Laws 1910, 5090. 63 Bagg v. Shoenfelt (Okl.) 176 P. 511. 6* MacRae v. Kansas City Piano Co., 68 P. 54. 64 Kan. 580. BS Clark v. Ellithorpe, 51 P. 940, 7 Kan. App. 337. (643) 754-756 DEPOSITIONS AND AFFIDAVITS (Ch. 12 to party against whom they are to be used, and where both parties announce ready, and such party does not request additional time to file exception, he waives time allowed by statute, and a formal verbal objection when depositions are offered is properly over- ruled. 56 754. Requisites and sufficiency Where a party desires to object to a deposition, he must spec- ify each question or answer on which he desires a ruling, and the particular grounds thereof, unless he objects to the admissibility of the deposition as a whole, in which case he should specify the grounds therefor; a general objection is insufficient to exclude the entire deposition because a part was incompetent. 67 An objection to a deposition, based on the fact that the name of the officer taking it is not indorsed on the envelope, containing it, is not pointed out by a'n objection that the deposition was not sealed up by the officer taking it. 68 . 755. To be decided before trial "The court shall, on motion of either party, hear and decide the questions arising on exceptions to depositions as a whole, before the commencement of the trial." 69 756. Incompetency and irrelevancy Objections to the taking of depositions other than for incompe- tency and irrelevancy are waived, unless made and filed before the trial; 60 but the objections of incompetency and irrelevancy may be made on the trial, without written objection filed before the trial. 61 Such objections should be heard and decided usually during the progress of the trial. The court can properly refuse to hear them before the trial commences. 62 By appearing at the taking of the deposition of an adverse wit- ness, and not objecting to his testimony on the ground that it is in- 56 Wichita Falls & N. W. Ry. Co. v. Davern (Okl.) 177 P. 909. 57 State v. Simmons. 88 P. 57, 74 Kan. 799. cs Neosho Valley Inv. Co. v. Hannum, 66 P. 631, 63 Kan. 621. 6 Rev. Laws 1910, 5092. eo Root v. Coyle, 82 P. 648, 15 Okl. 574; Rockford Ins. Co. v. Farmers' State Bank, 31 P. 1063, 50 Kan. 427. ex In re Schaffner's Estate, 141 P. 251, 92 Kan. 570. 2 Tays v. Carr, 14 P. 456, 37 Kan. 141. (644) Art. 1) DEPOSITIONS 756-757 competent, a party does not waive the right to make such objection at the trial of the case, when such deposition is offered in evi- dence. 68 An objection to the incompetency of a witness making a deposi- tion, not reaching the incompetency or irrelevancy of the evidence given by him, should not be heard where no written exception to the deposition is filed. 64 757. Motion to suppress Form A motion to suppress depositions must be in writing and be made before trial. It is error to entertain such a motion after the jury has been impaneled and sworn. 65 A motion to suppress a deposi- tion must clearly point out the objection. 66 Depositions will not be suppressed, because not certified, sealed, indorsed, transmitted, and opened as required by law, unless such grounds are set up in motion to suppress, and unless record sup- ports such ground. 67 Where portions of a deposition are admissible, the deposition should not be suppressed; 68 nor should a deposition be suppressed because the officer taking it does not certify that he is not related to either of the parties, unless there is some affirmative showing of such relationship. 69 It has been held not error to overrule a motion to quash a second deposition, where it did not appear that the question and answer in the original deposition differed from those in defendant's possession and used in cross-examination at the trial. 70 Where a deposition is taken without notice, and the opposing party cross-examines the witness, and the testimony is taken by a stenographer and transcribed and read by the witness and sub- scribed in the presence of the officer, no objection being made to the manner of taking the deposition that the deposition was not es Griffith v. McCandless, 59 P. 729, 9 Kan. App. 794. s* Crebbin v. Jarvis, 67 P. 531, 64 Kan. 885. 65 St. Louis & S. F. Ry. Co. v. Morse, 16 P. 452, 38 Kan. 271; Welch v. Church, 55 Okl. 600, 155 P. 620; Bagg v. Shoenfelt (Okl.) 176 P. 511. ee Neosho Valley Inv. Co. v. Hannum, 66 P. 631, 63 Kan. 621. 67 Oklahoma Hay & Grain Co. v. T. D. Randall & Co. (Okl.) 168 P. 1012. 68 Griggs v. Corson, 81 P. 471, 71 Kan. 884. 69 Eldridge v. Compton, 30 Okl. 170, 119 P. 1120, Ann. Cas. 1913B, 1055. Chicago, R. I. & P. Ry. Co. v. Jackson, 63 Okl. 32, 162 P. 823. (645) 757-758 DEPOSITIONS AND AFFIDAVITS (Ch. 12 written in the officer's presence will be deemed waived, and cannot be raised for the first time to suppress the deposition. 71 Overruling a motion, presented after the jury was sworn, to sup- press depositions on the ground that the evidence was incompetent and hearsay, and reserving a ruling on the evidence till offered at the trial, is proper practice. 72 MOTION TO SUPPRESS DEPOSITION (Caption.) Conies now the above named defendant, C. D., and moves the court to suppress the deposition of E. F., taken on behalf of the plaintiff, A. B., and filed herein on the day of , 19 , for the following reasons, to wit: 1. That the notice to take said deposition was not served on this defendant in the manner required by law. 2. That sufficient time was not allowed between the time of the alleged service and the taking of said deposition to allow this de- fendant to attend, by the usual route of travel, and one day for preparation, exclusive of Sunday and the day of such alleged service. 3. That said deposition shows that it was not taken on the day of , 19 , the date stated in the notice, but was taken one day later, on the day of , 19 . 4. That the certificate to said deposition does not show that said witness, E. F., was first duly sworn to testify the truth, the whole truth, and nothing but the truth. (Other reasons, if any.) X. Y., Attorney for Defendant. 758. Objections at hearing "Where the adverse party appears at the taking of the deposition, no objections to questions propounded therein shall be considered unless stated at the time and set forth in the deposition : Provided, that it may be otherwise stipulated by the parties at the time of taking the deposition, and such stipulation set forth in the deposition and certified to by the officer taking the same." 7S TiTrower v. Roberts, 30 Okl. 215, 120 P. 617. 72 Hilt v. Griffin, 90 P. SOS, 77 Kan. 783. is Rev. Laws 1910, 5091. (646) Art. 1) DEPOSITIONS 758-761 An objection on the trial to the introduction of evidence contained in a deposition must state the particular evidence objected to. 7 * Objection to questions and answers in deposition, taken when objector did not appear at the taking thereof, should be interposed when question or answer is offered in evidence by the taker. 75 But where both parties were represented at the taking, and there was no objection to the questions and answers, objections made to the questions at the trial should not be entertained. 76 759. Waiver of objections Where a deposition is taken in the absence of the opposing par- ty, nothing is waived, and the absent party has the right to presume that the deposition will be taken in strict conformity with the statute. 77 Where a deposition has been read in evidence at one trial, with- out objection, it is too late thereafter to raise purely technical objec- tions apparent on the face of the deposition prior to the first trial. 78 Where a plaintiff in an action takes testimony by deposition, and much of such testimony is hearsay, and incompetent, and the de- fendant offers and reads such deposition to the jury, he cannot be heard to complain, pf the testimony which he himself offers. 79 760. Perpetuating testimony The perpetuation of testimony is permitted only to prevent a failure of justice. 80 "The testimony of a witness may be perpetuated in the manner hereinafter provided." 81 761. Petition Form "The applicant shall file in the office of the clerk of the district court a petition, to be verified, in which shall be set forth, specially, the subject-matter relative to which testimony is to be taken, and the names of the persons interested, if known to the applicant; and T* Gano v. Wells, 14 P. 251, 36 Kan. 688. 75 Hart v. Frost (Okl.) 175 P. 257. 76 Oklahoma State Bank v. Buzzard (Okl.) 175 P. 750. 77 Atchison, T. & S. F. R. Co. v. Pearson, 49 P. 681, 6 Kan. App. 825. 78 Eldridge v. Compton, 30 Okl. 170, 119 P. 1120, Ann. Gas. 1913B, 1055. 7 Roller v. James, 49 P. 630, 6 Kan. App. 919. so Guinan v. Readdy, 79 Okl. Ill, 191 P. 602. si Rev. Laws 1910, 5116. (647) 761 DEPOSITIONS AND AFFIDAVITS (Ch. 12 if not known, such general description as he can give of such per- sons, as heirs, devisees, alienees or otherwise. The petition shall also state the names of the witnesses to be examined, and the inter- rogatories to be propounded to each ; that the applicant expects to be a party to an action in a court of this State, in which such testi- mony will, as he believes, be material, and the obstacles preventing the immediate commencement of the action, where the applicant expects to be plaintiff." 82 PETITION FOR PERPETUATING EVIDENCE In re Application of A. B. to Perpetuate Evidence. Comes now A. B., and respectfully represents and shows to the court : 1. That your petitioner, A. B., expects to be a party to an action in a court of this state, involving the title to the following described real estate: (Describe same.) 2. That the names of all the persons who are or will be interested in said action are, so far as the same are known to your petitioner, as follows : (Naming them.) 3. That your petitioner believes that the testimony of C. D., and E. F., of , will be material in said action, relative to (state subject-matter relative to which testimony is desired to be taken). 4. That your petitioner desires that the testimony of said wit- nesses concerning said matters be perpetuated, so that the same may be available in said action, if any such action shall ever be be- gun, and desires that same witnesses be examined and the following interrogatories be propounded to each of said witnesses: (Set forth interrogatories to be propounded.) Wherefore your petitioner prays the court to make an order al- lowing the examination of said witnesses, and fixing the time and place of said examination and the time and manner in which the parties interested shall be notified thereof, and that upon such ex- amination the interrogatories above set forth be propounded to each of said witnesses and their answers thereto taken, and that the depositions of said witnesses when so taken be filed in this court. (Verification.) X. Y., Attorney for Petitioner. 2 Rev. Laws 1910, 5117. (648) Art. 1) DEPOSITIONS 762 762. Order for examining witnesses Form "The court, or a judge thereof, in vacation, may forthwith make an order allowing the examination of such witnesses. The .order shall prescribe the time and place of the examination, how long the parties interested shall be notified thereof, and the manner in which they shall be notified." 88 ORDER FOR EXAMINING WITNESSES TO PERPETUATE TESTIMONY In re Application of A. B. to Perpetuate Evidence. Upon reading and filing the attached verified petition of A. B. to perpetuate evidence, it appearing to the court that said petitioner expects to be a party to an action in a court of this state involving the title to the real estate therein described, and that the testimony of C. D. and E. F., of , will be material to said action : It is ordered that the day of , 19 , at the hour of o'clock M., at in the city of , in the county of and state of , be and the same is hereby fixed as the time and place when the deposition of said witnesses shall be taken, and that of the county of and state of , is hereby commissioned, authorized, and empowered to take said depositions, and that at said time and place said commissioner shall propound to each of said witnesses the interrogatories set forth in the attached petition, and set down in writing their answers there- to. It is further ordered that a copy of this order shall be personally served on , the parties interested in the subject-matter of said depositions, at least days before said depositions are to be taken, and that said parties, if they so desire, may file herein such cross-interrogatories as they desire propounded to said witnesses, such cross-interrogatories to be filed herein on or before the day of , 19 , and that said cross-interrogatories, if any there be, shall be propounded to said witnesses, and their answers thereto taken in the same manner as the interrogatories of the petitioner herein. It is further ordered that said depositions, when so taken, shall be returned by said commissioner to the court clerk of this court, for the approval of this court. Dated . , Judge. ss Rev. Laws 1910, 5118. 763-767 DEPOSITIONS AND AFFIDAVITS/ (Ch. 12 763. Cross-interrogatories "When it appears satisfactorily to the court or judge that the parties interested cannot be personally notified, such court or judge shall appoint a competent attorney to examine the petition, and prepare and file cross-interrogatories to those contained therein. The witnesses shall be examined upon the interrogatories of the applicant, and upon cross-interrogatories, where they are required to be prepared, and no others shall be propounded to them; nor shall any statement be received which is not responsive to some one of them. The attorney filing the cross-interrogatories shall be al- lowed a reasonable fee therefor, to be taxed in the bill of costs." 84 764. Before whom taken "Such depositions shall be taken before some one authorized by law to take depositions, or before some one specially authorized by the court or judge, and shall be returned to the -office of the clerk of the court in which the petition was filed." 85 765. Filing and use Costs "The court or judge, if satisfied that the depositions have been properly taken, and as herein required, shall approve the same and order them to be filed; and if a trial be had between the parties named in the petition, or their privies or successors in interest, such depositions or certified copies thereof may be given in evidence by either party, where the witnesses are dead or insane, or where attendance for oral examination cannot be obtained or required; but such depositions shall be subject to the same objections for irrelevancy and incompetency as may be made to depositions taken pending an action. 86 "The applicant shall pay the costs of all such proceedings." 87 766. Error waived by not excepting "Errors of the court in its decisions upon exceptions to deposi- tions, are waived, unless excepted to." 88 767. When deposition may be used "The deposition of any witness may be used only in the follow- ing cases : f s* Rev. Laws 1910, 5119. ? Rev. Laws 1910, 5122. as Rev. Laws 1910, 5120. Rev. Laws 1910, 5093. se Rev. Laws 1910, 5121. (650) Art. 1) DEPOSITIONS 767-768 "First. When the witness does not reside in the county where the action or proceeding is pending or is sent for trial by change of venue, or is absent therefrom. "Second. When, from age, infirmity or imprisonment, the witness is unable to attend court or is dead. "Third. When the testimony is required upon a motion, or in any other case where the oral testimony of the witness is not requir- ed." 89 768. Unavailability of witness "When a deposition is offered to be read in evidence, it must ap- pear to the satisfaction of the court that for some legal cause the attendance of the witness cannot be procured." 90 Hence a deposition cannot be read in evidence when the deponent is in court and capable of being examined. 81 It is error to permit the use of the deposition of a resident of the county where it is not shown that his presence at the trial cannot be had. 92 No person can be compelled to attend for examination on the trial of a civil action except in the county of his residence; and the fact that a witness is temporarily in or passing through another county at the time and place of the trial therein is no objection to the reading of his deposition previously taken for use at such trial. 93 Where a witness does not reside in a county where a trial of a civil action is to be held, and his deposition is regularly taken in the county of his residence, and filed in the district court of the proper county, it is not a good objection, when the deposition is of- fered, merely to state "that the witness has been in attendance up- on" the court, and is at present, it is believed, on his way to the place of trial." 84 It is not prejudicial error to admit deposition of ss Rev. Laws 1910, 5073. so Rev. Laws 1910, 5087. i Chicago, K. & W. R. Co. v. Prouty, 40 P. 909, 55 Kan. 503. 92 Chicago, K. & N. Ry. Co. v. Brown, 24 P. 497, 44 Kan. 384; Frankhouser v. Neally, 39 P. 700, 54 Kan. 744; Atchison, T. & S. F. R. Co. v. Snedegfer, 49 P. 103, 5 Kan. App. 700. 93 Waite v. Teeters, 14 P. 146, 36 Kan. 604. * Eby v. Winters, 33 P. 471, 51 Kan. 777. (651) 768-770 DEPOSITIONS AND AFFIDAVITS (Ch. 12 resident of county usually employed outside the state, where both parties have used their best efforts to compel his attendance. 95 When a witness is not herself suffering from an infirmity at the time of trial, the fact that, at the time of the taking of a deposition, she was in attendance upon her sick husband is not ground for the admission of such deposition. 96 On petition after adjournment to vacate a judgment on the ground of fraud, perjury, conspiracy, etc., the rule applies that affi- davits and depositions cannot be used as original evidence when the witness is present in court. 97 769. Deposition as evidence "The deposition taken pursuant to this article shall be admitted in evidence on the trial of any civil action or proceeding, pending before any justice of the peace, mayor or other judicial officer, arbi- trator or referee." 98 770. May be read when "When a deposition has been once taken, it may be read in any stage of the same action or proceeding, or in any other action or proceeding upon the same matter between the same parties, sub- ject, however, to all such exceptions as may be taken thereto under the provisions of this article." 99 A deposition taken at the instance of one party to an action, and not used by him, may, if competent, be read in evidence by the opposite party, against the objection of the party at whose instance it was taken. 1 Where a party takes a deposition on notice as provided by law, but does not file it in court, it is not error to refuse to order the deposition to be brought into court where the application is made for the first time during the progress of the trial. 2 In an action to set aside a deed, where plaintiff took the deposition of a grantee, and filed it in court, but did not offer it in evidence, 5 Griffith v. Midland Valley R. Co., 100 Kan. 500, 166 P. 467. ee Boise v. Atchison, T. & S. F. R. Co., 51 P. 662, 6 Okl. 243. , T Fullenwider v. Ewing, 1 P. 300, 30 Kan. 15. 8 Rev. Laws 1910, 5083. Rev. Laws 1910, 5084. 1 Rucker v. Reid, 13 P. 741, 36 Kan. 468. 2 Martin v. Chicago, R. I. & P. Ry. Co., 105 P. 451, 81 Kan. 344, 27 L. R. A. (N. S.) 164. (G52) Art. 1) DEPOSITIONS 771-773 taking of the deposition was waiver of any objection to defendants' testimony, and the deposition might properly be read in evidence on behalf of the defendant grantee. 8 771. Admission of part of deposition Where answers to questions on direct examination in a deposi- tion are inadmissible and are excluded, the cross-examination on the subject-matter so excluded is equally inadmissible. 4 A portion of a deposition is admissible in evidence without the remainder, if the portion so introduced is all deponent said on the subject to which such portion relates, and, in the absence of a showing to the contrary, it will be presumed that such was the case. 5 Permission to a party to offer in evidence part of a deposition only, is not error where the adverse party is permitted to use all or any part of the deposition as evidence. 6 772. Copies Where the original of a deposition duly taken and filed with the clerk of court is lost, a copy thereof, transcribed and attested by the witness producing it, may be admitted as secondary evidence of its contents. 7 When a deposition is taken in a foreign jurisdiction, and the witness produces a record and submits it to the notary, who takes a copy, such copy is admissible on a reading of the deposition. 8 773. Interpleader Where a party obtained permission to file an interplea in a case where depositions are taken and are on file, he is bound with the knowledge of the condition of the record, and such depositions should not be excluded for the reason that the interpleader was not served with notice of their taking. 9 Golder v. Colder, 102 Kan. 486, 170 P. 803. * Bertenshaw v. Laney, 94 P. 805, 77 Kan. 497. s Mecartney v. Smith, 62 P. 540, 10 Kan. App. 580 ; Sealey v. Smith (Okl.) 197 P. 490. e Oklahoma State Bank v. Buzzard (Okl.) 175 P. 750. 7 Gilmore v. Butts, 59 P. 645, 61 Kan. 315. s McCord-Collins Mercantile Co. v. Dodson, 121 P. 1085, 32 Okl. 561 ; T. D. Turner & Co. v. Dodson, 121 P. 1087, 32 Okl. 566. Miller v. Campbell Commission Co., 74 P. 507, 13 Okl. 75. (653) 774 DEPOSITIONS AND AFFIDAVITS (Ch. 12 774. Forms NOTICE TO TAKE DEPOSITIONS (Caption.) The said plaintiff (or defendant), A. B., and his attorney of rec- ord X. Y., will take notice that on the day of , A. D. 19 , the defendant (or plaintiff) above named will take the deposi- tion of sundry witnesses to be used as evidence on behalf of the defendant (or plaintiff) in the trial of the above entitled cause, at (state office or street number), in the city of , in the county of , in the state of , between the hours of eight o'clock a. m. and six o'clock p. m. of said day, and that the taking of the same will be adjourned and continued from day to day, at the same place between the same hours, until they are completed. G. H., Attorney for Defendant (or Plaintiff). Service of the above notice is hereby acknowledged to have been made on plaintiff (or defendant) the day of , 19 . X. Y., Attorney for Plaintiff (or Defendant). AFFIDAVIT OF SERVICE State of Oklahoma, County. G. H., being duly sworn, states that he made service of the within notice on the plaintiff, A. B., by delivering to X. Y., his at- torney of record, a duplicate thereof at , State of Oklahoma, on - day of , 19. G. H. Subscribed in my presence, and sworn to before me, , this day of , 19. HEADINGS TO DEPOSITIONS Depositions of witnesses taken to be used in an action pending in the court, within and for the county of , in the state of Oklahoma, wherein is plaintiff, and is defendant. In pursuance to the notice hereto attached and at the time and place therein stated, the said , plaintiff, appeared in own behalf (or by , attorney) and the said , defendant, in own behalf (or by , attorney, or if the adverse party does not appear nothing need be said as to his appearance), and thereupon the said produced the following witnesses in or- (654) Art.l) DEPOSITIONS 774 der to wit: , of lawful age, who, being first duly sworn, deposeth and saith ; also - , who, being first duly sworn, deposeth and saith, etc. (Where the witness is examined by questions the form will be as the above, adding, after "saith," in reply to the interrogatories pronounced, to wit, etc.) CERTIFICATE ATTACHED TO DEPOSITION I, (justice of the peace, judge, notary, etc.) within and for the county of , in the state of Oklahoma, do hereby certify that the above named , the witnesses whose names are sever- ally subscribed to the foregoing depositions were by me first duly sworn (or affirmed) to testify the truth, the whole truth, and noth- ing but the truth, in the case aforesaid, and that the depositions by them respectively subscribed were reduced to writing by , who is not attorney for of related to either of said parties or other- wise interested in the event of said action or proceeding, and sub- scribed by the respective witnesses in my presence, and the same were taken on the day of , A. D., 19 , between the hours of 8 o'clock a. m. and 6 o'clock p. m., of said day at the office of , in the town of , in the county of and of , as specified in the notice thereto attached, and I am not attorney for or related to either of said parties or otherwise in- terested in the event of said action. ENDORSEMENT ON ENVELOPE In the Court of County, State of Oklahoma. County, -, Plaintiff. v. -, Defendant. To the Court Clerk of State of Oklahoma, Oklahoma. K ss. : Signed . (Deposition taken by me) (Seal) Title of officer (655) 775-776 DEPOSITIONS AND AFFIDAVITS (Ch. 12 ARTICLE II AFFIDAVITS Sections 775. Definition. 776. Use. 777. Jurat. 778. Before whom taken. 779. By whom made. 780. Forms. 775. Definition "An affidavit is a written declaration, under oath, made without notice to the adverse party." 10 776. Use "An affidavit may be used to verify a pleading, to prove the service of a summons, notice or other process in an action, to ob- tain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion, or in any other case permitted by law." X1 An affidavit may be used only in the cases enumerated in this statute and in chancery proceedings, unless specially authorized by law. It cannot be used in evidence where an issue is made and triable. 12 Where in specific performance, the plaintiff had furnished the defendant an abstract showing title, ex parte affidavits accompany- ing the abstract to show who were the heirs of a decedent were held admissible. 13 To be used as evidence an affidavit should state facts positively, and not merely on belief. 14 When a verified petition is used as an affidavit, its allegations must be construed as those of an affidavit, and must be such state- ments of fact as would be proper in the oral testimony of a witness. Allegations which are simply conclusions of law, whether suffi- cient or not as matter of pleading, are incompetent as testimony. 16 10 Rev. Laws 1910, 5068. 11 Rev. Laws 1910, | 5071. 12 Watkins v. Grieser, 11 Okl. 302, 66 P. 332. is Barrel v. Neef, 102 P. 838, 80 Kan. 348. i* Shanholtzer v. Thompson, 103 P. 595, 24 Okl. 198, 138 Am. St. Rep. 877. 10 State v. Missouri & K. Tel. Co., 77 Kan. 774, 95 P. 391. (656) Art. 2) AFFIDAVITS 777-778 777. Jurat The statutory certificate for the authentication of depositions, cannot be used on an ordinary affidavit, and no form of jurat to be appended to such affidavits is prescribed by the Code. 16 The fact that a notary public, before whom a claim of mechanic's lien is verified, fails to add after his official signature the date of the expiration of his commission, does not render such lien void ; since the statute requiring such addition on the part of the notary does not attempt to avoid the affidavit on account of such omission, but simply subjects the notary to a penalty therefor. 17 The words, "subscribed and sworn to before me," in the certifi- cate of the officer before whom an affidavit is made, are a suffi- cient compliance with the statute. 18 If a declaration has been made under oath it is an affidavit though no jurat be attached, the jurat being simply evidence that an oath was duly administered. 19 When a paper purporting to be an affidavit has been approved by the court as such, and has been the basis of judicial action as if au- thenticated, the omission of the jurat is a mere irregularity which will not expose the proceeding to collateral attack. 20 778. Before whom taken "An affidavit may be made in and out of this State, before any per- son authorized to take depositions, and must be authenticated in the same way, except as provided for the verification of plead- ings." 21 It is improper for a lawyer to take acknowledgments to affidavits, to be used in the trial of a case in which he is the attorney. 22 Such affidavit is voidable, on being assailed for that reason, 23 but it may be amended, 24 and, when amended and filed, it will relate back to the original affidavit. 25 IB James v. Logan, 108 P. 81, 82 Kan. 285, 136 Am. St. Rep. 105. IT Phelps & Bigelow Windmill Co. v. Baker, 30 P. 472, 49 Kan. 434. is Pallady v. Beatty, 15 Okl. 626, 83 P. 428. is Id. 20 Id. 21 Rev. Daws 1910, 5072. 22 Crawford v. Ferguson, 115 P. 278, 5 Okl. Cr. 377, 45 L. R. A. (N. S.) 519. 23 Shanholtzer v. Thompson, 103 P. 595, 24 Okl. 198, 138 Am. St. Rep. 877. 24 Swearingen v. Hows-er, 14 P. 436, 37 Kan. 126. 26 Board of Com'rs of Cheyenne County v. Walter, 112 P. 599, 83 Kan. 743. HON.PL.& PRAC.-42 (G57) 779-780 DEPOSITIONS AND AFFIDAVITS (Ch. 12 779. By whom made Where a statute requires an affidavit to be made by the judgment creditor or his attorney, such affidavit cannot be made by an agent not an attorney. 26 780. Forms AFFIDAVIT State of Oklahoma,! * s Y ss. : County of . J A. D., being first duly sworn, upon oath alleges and states: (Set forth the facts concisely.) A. D. , Subscribed and sworn to before me this day of , 19. (If before notary, add:) J. B., (Official Title.) My commission expires , 19 . ze in re Heath, 19 P. 926, 40 Kan. 333. (658) 13Ch. ) TRIAL 781-782 CHAPTER XIII TRIAL Sections 781-795. Article I In general- 796-801. Article II. Argument and conduct of counsel. 802-824. Article III. Issues and trial thereof. 802. Division I. Issues in general. 803-824. Division II. Taking case or question from jury. ARTICLE I IN GENERAL Sections 781. Definition. 782. Time of trial. 783. Waiver of right. 784. Docket. 785. Copy for bar. 786. Presence of judge. 787. Presence of parties and attorneys. 788. Conduct and remarks of judge. 789. Consolidation. 790- Separate trials Several defendants. 791. Reporter Duties. 792. Order of trial Issues Damages Motions Objections. 793. Waiver of right to object. 794. Issues Trial by court or jury. 794a. Trial by court- 794b. Agreed statement of facts. 795. Submission without suit- 781. Definition "A trial is a judicial examination of the issues, whether of law or fact, in an action." 1 782. Time of trial "Actions shall be triable at the first term of court, after or dur- ing which the issues therein, by the time fixed for pleading are, or shall have been made up. When the issues are made up, or when the defendant has failed to plead within the time fixed, the cause shall be placed on the trial docket, and if it be a trial case shall stand for trial at such term ten days after the issues are made up, i Rev. Laws 1910, 4988, (659) 782 TRIAL (Ch. 13 and shall, in case of default, stand for trial forthwith. When any demurrer shall be adjudged to be frivolous the cause shall stand for hearing or trial in like manner as if an issue of fact had been joined in the first instance." 2 When the issues have been fully made up, this statute has spent its force, and any subsequent change in the issues does not neces- sarily work a delay of the trial. 8 Where a party to an action deliberately puts himself in default, so far as he is concerned, the action may be tried at any time there- after. 4 2 Rev. Laws 1910, 5043; Conwill v. Eldridge, 130 P. 912, 35 Okl. 537. Where one defendant joined issue and another appeared at a term and adopted the answer of his codefendant on condition that case immediately proceed to trial, it was reversible error to overrule plaintiffs' motion to strike case from trial docket and to compel them to go to trial over their objection. Harn v. Interstate Building & Loan Co. (Okl.) 172 P. 1081. Civ. Code Prac. 315, provides for the making out of the trial docket 10 days before the first day of the term. A demurrer to a petition was over- ruled and leave to answer given. Held, that the case was not triable on the issues of fact joined at the term of the court wlien such ruling was made. City of Eureka v. Ross, 67 P. 849, 64 Kan. 372. Upon the overruling of a motion to quash a summons and set aside the service, if it appears that the motion is not made in good faith or is frivolous, it is within the discretion of the court to continue the case for the term, or to assign it for hearing at the same term ; reasonable time being given to make up the issues. Jones v. American Cent. Ins. Co., 1^9 P. 1077, 83 Kan. 44. Where the question of law raised on a motion to quash a summons and set aside the service had been determined by the court about 16 years before the motion was filed, and 22 days were given to make up the issues and pre- pare for trial, the court did not abuse its discretion in assigning the case for hearing at the same term after overruling the motion. Id. Where defendants were required over their objection to defend the cause upon its merits at a term when it was not triable except by consent, and before the issues were framed, a new trial ought to be granted. Harris v. Anthony Salt Co., 45 P. 58, 57 Kan. 24. 3 King v. King, 141 P. 788, 42 Okl. 405. A case stands for trial when issues have been made up for 10 days, and a motion directed to defendant's answer, filed beyond the time allowed for filing pleadings, does not revive operation of statute. Blackert v. Lankford (Okl.) 176 P. 532. Any subsequent change in issues by new or amended pleadings does not necessarily work a delay of trial. Childs v. Cook (Okl.) 174 P. 274 ; Swope v. Burnham, 52 P. 924, 6 Okl. 736. A motion directed to the answer, after the time allowed for filing pleadings and more than ten days after the issues have been made up, does not prevent the cause from standing for trial. Chicago, R. I. & P. Ry. Go. v. Pitchford, 44 Okl. 197, 143 P. 1146. * Herman v. Gardener, 103 Kan. 659, 175 P. 971. (660) Art. 1) IN GENERAL 782-786 When, a nonfrivolous demurrer has been overruled, the case is not triable on issues of fact until 10 days after the filing of the an- swer. 5 The trial of an issue of fact, and the assessment of damages, in any case, shall be in the order in which they are placed on the trial docket, unless the court, in its discretion, shall otherwise di- rect. 6 783. Waiver of right The right of a litigant under this statute is waived by failing to object that the case is improperly set for trial, and moving for a continuance for absence of witnesses. 7 Such right is waived where defendant announces ready for trial ; 8 also where, upon a case be- ing called, both parties announce ready and a jury is impaneled and sworn and defendant amends with leave.* 784. Docket "A trial docket shall be made out by the clerk of court, at least twelve days before the first day of each term of the court, and the actions shall be set for particular days in the order prescribed by the judge of the court, and so arranged that the cases set for each day shall be considered as nearly as may be on that day." 10 785. Copy for bar ' "The clerk shall make out a copy of the trial docket for the use of the bar, before the first day of the term of court and cause the same to be printed." 1X 786. Presence of judge During the trial it is error for trial judge to absent himself from trial room so as to lose immediate and instant control of proceed- ings. 12 B City of Ardmore v. Orr, 129 P. 867, 35 Okl. 305. e Burr v. Honeywell, 51 P. 235, 6 Kan. App. 783. 7 Conwill v. Eldridge, 130 P. 912, 35 Okl. 537. s Chicago, R. I. & P. Ry. Co. v. Pitchford, 44 Okl. 197, 143 P. 1146. Oklahoma Trust Co. v. Stein, 136 P. 746, 39 Okl. 756. 10 Rev. Laws 1910, 5040. 11 Rev. Laws 1910, 5041. 12 Peters Branch of International Shoe Co. v. Blake (OkL) 176 P. 892. (661) 787-788 TRIAL (Ch. 13 787. Presence of parties and attorneys When a cause is regularly set for trial, it is not trie duty of the court to call counsel when absent, and it is no abuse of discretion to proceed to trial when the cause is reached, where no postpone- ment has been taken, and no leave of absence has been granted to parties or their counsel. 13 788. Conduct and remarks of judge The jury is the exclusive judge of the weight to be given the testimony of any witness, and a remark or the demeanor of the trial judge amounting to an opinion as to the truthfulness of a wit- ness is reversible error. 14 The court should not by his; remarks mislead a party into be- lieving that the decision will be in his favor, 15 but may reprimand a party for trifling with the court, 16 and may make mention of an obvious fact. 17 He may reprimand a witness who, contrary to is North v. Hooker (Okl.) 172 P. 77; Buchanan v. Fireman's Ins. Co. of Newark, N. J., 146 P. 411, 94 Kan. 132. It is no abuse of discretion to proceed to trial in the absence of one of the parties or his counsel, where no postponement had been granted or per- mission given to be absent. Linderman v. Nolan, 83 P. 796, 16 Okl. 352; Comstock-Castle Stove Co. v. Galland, 49 P. 690, 6 Kan. App. 831. i* City of Newkirk v. Dimmers, 87 P. 603, 17 Okl. 525. is During the progress of a trial to the court, the judge informed defendant, before he had introduced all his evidence, that the court was ready to de- cide the case without further evidence, and that he did not think additional testimony would affect the decision, but would hear anything of a different nature from that already offered. The evidence preponderated largely in favor of defendant, and the decision of the court was against him. . Held, that the remarks of the court had a tendency to mislead defendant into the belief that the decision would be in his favor, and prevent him from hav- ing a fair and impartial trial, and a new trial should be granted. Harrison v. Harrison, 29 P. 572, 48 Kan. 443. IB When plaintiff asks for continuance after jury is called, on the ground that he is too ill to be present at the trial, but on examination states that he is able to be about town, and finally that he is able to proceed to trial, and then asks for delay to call his witnesses to determine whether he will ask for a continuance on account of absent witnesses, it is not improper for the court to characterize his conduct as trifling. Krapp v. Hauer, 16 P. 702, 38 Kan. 430. 3 1 Where the depositions of a witness for both parties were palpably con- flicting, it was not prejudicial error for the court to remark that the wit- ness "must be an awful liar." Connor v. Wilkie, 41 P. 71, 1 Kan. App. 492. In an action against a levying officer for conversion, a remark of the court to counsel for plaintiff that he was trying the case as though defendant were (662) Art. 1) IN GENERAL 788-790 its admonition, persists in making voluntary statements not elicit- ed by his examination. 18 It is error for the court to comment in the presence of the jury on the effect answers to special questions will have on the rights of the parties. 19 A remark of the court that he was going to take a recess, and that he was tired of lawyers questioning witnesses and objecting to everything, did not constitute reversible error. 20 789. Consolidation An application for the consolidation of actions is a matter within the discretion of the trial court. 21 790. Separate trials Several defendants "A separate trial between the plaintiff and any or all of several defendants may be allowed by the court, whenever justice will be thereby promoted." 22 It is within the discretion of a trial court to allow separate trials to the several defendants, or to refuse the same. 23 Its ruling will never be reversed unless it can be clearly seen that it abused its discretion. 24 a common thief, trying to get away with somebody's property does not re- quire a 'reversal. Cone v. Smyth, 45 P. 247, 3 Kan. App. 607. is jEtna Life Ins. Co. v. Kramer (Okl.) 165 P. 179. 19 Atchison, I T. & S. F. R. Co. v. Ayers, 42 P. 722, 56 Kan. 176- 20 Love v. Reynolds. 128 P. 242. 36 Okl. 297. 21 Readicker v. Denning, 122 P. 103, 86 Kan. 617, judgment reversed on rehearing 125 P. 29, 87 Kan. 523. 22 Rev. Laws 1910, 4995. 23 Herbert v. Wagg, 117 P. 209, 27 Okl. 674. The allowance of a separate trial is wholly within the discretion of the trial court. Gregg v. Berkshire, 62 P. 550, 10 Kan. App. 579. Where persons in possession of separate parts of tract without common in- terest are joined in ejectment for whole tract, and where defendants rely upon different sources of title, the court may order separate trials. Mullen v. Carter (Okl.) 173 P. 512. 24 Hoskinson v. Bagby, 27 P. 110, 46 Kan. 758. In suit to recover real estate, commission alleging a conspiracy between vendor and purchaser, wherein vendor filed a cross-petition against purchaser, the refusal of separate trials of the issues was a proper exercise of trial court's discretion. Prather v. Eden, 171 P. 635, 102 Kan. 545. In an action to recover damages occasioned by negligently setting out a fire, in which a partnership, which was engaged in operating a railroad in connection with a railroad company, was made defendant jointly, with the railroad company, it is not prejudicial error, nor an abuse of discretion, for (663) 791-792 TRIAL (Ch. 13 791. Reporter Duties The statute making it the duty of the court reporter to take down in shorthand all the proceedings upon the trial of any cause, as well as statements of counsel, does not contemplate that the entire ar- gument of the counsel to the jury should be taken down, but applies to all statements which counsel have a right to have taken down concerning the cause which might be properly made a part of the case made for appeal. 25 The matters which counsel may demand taken down by the ste- nographer at the trial, are only such as may properly be made part of the case-made, and do not include matters foreign to the case being tried. 26 It is error for county court to refuse to permit stenographer to incorporate in records of trial all exceptions that attorney may de- sire to reserve to action of court in giving or refusing instructions. 27 Under the statute, the court on request must require the court reporter to take and transcribe evidence. 28 792. Order of trial Issues Damages Motions Objections "The trial of an issue of fact, and the assessment of damages in any case, shall be in the order in which they are placed on the trial docket, unless by the consent of the parties or the order of the court they are continued or placed at the heel of the docket, unless the court, in its discretion, shall otherwise direct. The court may, in the trial court to refuse a separate trial to such partnership, for the reason that a different rule as to the burden of proof applies to them than to the railroad company, under the statute, where the evidence establishing the origin of the fire, and the culpable negligence of the parties in starting it, is clear, convincing and undisputed. Xatham v. Brown, 29 P. 400, 48 Kan. 190. In an action on a promissory note against two defendants, one the guaran- tor, and the other the maker, the latter pleaded want of consideration and the fraud of his co-defendant in procuring the note as a defense, and asked that the note sued on be declared void, and that he have judgment against his co-defendant for the amount he had been obliged to pay in settlement of another note given at the same time and in the same transaction with the one sued on. Held, that said guarantor's demand for a separate trial of the issues between himself and the maker of the note was properly overruled. Crane v. Cox, 49 P. 796, 6 Kan. App. 405. 26pickinson v. Whitaker, 75 Okl. 243, 182 P. 901; Rev. Laws 1910, 1786. 26 Dabney v. Hathaway, 51 Okl. 658, 152 P. 77. 27 Methvine v. Fisher (Okl.) 166 P. 702; Anoatubby v. Pennington, 46 Okl. 221, 148 P. 828. 28 Cherry v. Brown, 79 Okl. 215, 192 P. 227. (664) Art. 1) IN GENERAL 792 its discretion, hear at any time a motion, and may by rule prescribe the time for hearing motions." 29 This statute vests a large discretion in the trial court to dispose of the causes in such order as will most speedily dispose of the busi- ness before the court. 80 Calling a case which stands on a day's calendar for trial without notice to the attorney is no abuse of discretion, where no request is made for postponement and no permission to be absent has been given. 31 "When the jury has been sworn, the trial shall proceed in the fol- lowing order, unless the court for special reasons otherwise directs : "First. The party on whom rests the burden of the issues may briefly state his case, and the evidence by which he expects to sustain it. "Second. The adverse party may then briefly state his defense, and the evidence he expects to offer in support of it. "Third. The party on whom rests the burden of the issues must first produce his evidence; after he has closed his evidence the adverse party may interpose and file a demurrer thereto, upon the ground that no cause of action or defense is proved. If the court shall sustain the demurrer, such judgment shall be rendered for the party demurring as the state of the pleadings or the proof shall demand. If the demurrer be overruled, the adverse party will then produce his evidence. . "Fourth. The parties will then be confined to rebutting evidence unless the court, for good reasons in furtherance of justice, per- mits them to offer evidence in the original case. "Fifth. When the evidence is concluded and either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered, and signed by the party or his attorney asking the same, and delivered to the court. The court shall give general instructions to the jury, which shall be in writing, and be numbered, and signed by the judge, if required by either party. "Sixth. When either party asks special instructions to be given to the jury, the court shall either give such instructions as re- 2 Rev. Laws 1910, 5042. o Linderman v. Nolan, 83 P. 796, 16 Okl. 352. Lindsy v. Goodman, 57 Okl. 408, 157 P. 344. (665) 792-794 TRIAL CCh. 13 quested, or positively refuse to do so ; or give the instructions with modification in such manner that it shall distinctly appear what in- structions were given in whole or part, and in like manner those refused, so that either party may except to the instructions as asked for, or as modified, or to the modification, or to the refusal. All instructions given by the court must be signed by the judge; and filed together with those asked for by the parties as a part of the record. "Seventh. After the instructions have been given to the jury the cause may be argued." 82 The definition, timeliness, requisites, form, entry, materiality, and withdrawal of exceptions is treated elsewhere. 33 793. Waiver of right to object Where a party voluntarily goes to trial upon all the issues ten- dered, this objection that the statutory order of procedure was not observed, made at the time of the motion for a new trial, is too late. 84 Any error in trying issues between plaintiff, a garnishee, and in- tervening claimants, before the entry of judgment against the prin- cipal defendant, is waived by proceeding to trial without objection or request for delay. 35 794. Issues Trial by court or jury "Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery, of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter pro- vided." 36 "All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by jury, or refer- red as provided in this Code." 37 32 Rev. Laws 1910, 5002. 33 See post, 2409 et seq. 34 Smith v. Smith, 89 P. 896, 75 Kan. 847. as Greenwood County Bank v. O. B. Walker Telephone Co., 128 P. 357, 88 Kan. 287. se Rev. Laws 1910, 4993. 87 Rev. Laws 1910, 4994. (666) Art. 1) IN GENERAL 794a 794a. Trial by court "The provisions of this article respecting trials by jury apply, so far as they are in their nature applicable to trials by the court." 88 "Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the ques- tions of law involved in the trial ; in which case the court shall state in writing, the conclusions of fact found, separately from the con- clusions of law." 39 The refusal of the court to state findings of fact in writing and conclusions of law on them, when requested so to do by either party to a suit, before judgment, is reversible error. 40 But a party cannot ss Rev Laws 1910, 5039. 3 Rev. Laws 1910, 5017. The fact that findings of fact and conclusions of law were prepared by coun- sel at the request of the court, and, after an examination, were adopted, is not objectionable. Howard v. Howard, 34 P. 1114, 52 Kan. 469. It is proper for the trial court to call on the attorney of the successful par- ty to write out findings of fact in the case in accordance with the decision as announced orally. English v. English, 35 P. 1107, 53 Kan. 173. Where the facts have been found at the trial, but are not reduced to writing when judgment is rendered, they may thereafter be written out by the court, by agreement of the parties, and filed as of the date of the judgment Ran- dolph v. Campbell, 47 P. 560, 5 Kan. App. 880. An agreement by the parties that the findings of fact may be written out and filed after the date of the judgment cannot be established by parol, but must be shown by a duly-re- corded order of court made pursuant to the agreement. Id. 40 Rogers v. Bonnett, 37 P. 1078, 2 Okl. 553 ; Bryan v. Okmulgee County Business Men's Ass'n (Okl.) 176 P. 226; Insurance Co. of North America v. Taylor, 124 P. 974, 34 Okl. 186 ; Thompson v. Russell, 32 P. 56, 1 Okl. 225. Under the express provisions of Rev. Laws 1910, 5017, the district court, on a trial without a jury, should on request find the material facts established by the evidence, so that exceptions may be taken to its view of the law in- volved in the trial. Allen v. Wildman, 38 Okl. 652, 134 P. 1102. On trial of a question of fact by the district court, it must, on request find the material facts established by the. evidence, so that exceptions may be tak- en to its views of the law involved in the trial. Shuler v. Lashhorn, 74 P. 264, 67 Kan. 694. In a suit to abate a mill dam, which subjects the plaintiff's land to over- flow, and for damages, the court may make findings of fact in addition to those made by the jury. Drinkwater v. Sauble, 26 P. 433, 46 Kan. 170. Refusal oa timely request to make findings of fact on material issuable mat- ters put in issue by the pleading and on which evidence was introduced held error. Nordman v. Johnson, 146 P. 1125, 94 Kan. 409. Where a case is tried to the court, it is error to refuse to make separate 794a TRIAL (Ch. 13 dictate how a fact shall be found, 41 though he can and should make a proper and timely request. 42 It is not necessary for the court to findings requested, or to make them so definite that the party may have a fair opportunity to except on the conclusions of law involved. Vickers v. Buck's Stove & Range Co., 79 P. 160, 70 Kan. 584. A party to an action tried by the court without a Jury is entitled, on re- quest, to have all or any of the issuable facts on which there is any evidence found separate from the conclusions of law. Seward v. Rheiner, 43 P. 423, 2 Kan. App. 95. Rev. Laws 1910, 5017, as to separate findings of law and fact, where re- quested, was intended to enable parties to have placed on record the facts on which litigated rights depend, as well as court's conclusions of law, so that exceptions thereto may be taken. Coleman v. James (Okl.) 169 P. 1064. In an action without a jury, the court was asked to state its findings of fact and conclusions of law separately, and acceded to the request, but sub- sequently declined to make such findings and conclusions. Held, that the record showing that the refusal was made with the consent of the plaintiff in error was not ground of error. Sails v. Barons, 20 P. 485, 40 Kan. 697. It is the duty of the court to comply with a request at the commencement of a trial to prepare findings of fact and conclusions of law, and if such find- ing state in separate paragraphs the facts presented so that they may be readily understood, and so it will be apparent what conclusions were reached and the facts upon which such conclusions were founded, it will be deemed a sufficient compliance with the request, though some of the paragraphs contain a compound of fact and law, and do not in every instance separate with tech- nical accuracy the findings of fact from the conclusions of law. Harper v. Harper, 113 P. 300, 83 Kan. 761. Caulk v. Lowe (Okl.) 178 P. 101. Where, in a trial without a jury, the court states the findings and conclu- sions contemplated by statute, error cannot be predicated on the court's re- fusal to answer questions of fact. M. R. Smith Lumber Co. v. Russell, 144 P. 819, 93 Kan. 521. 42 Right of parties under Rev. Laws 1910, 5017, to require special finding of facts and separate conclusions of law, is waived, where no request is made until after court has announced general findings and conclusions. German State Bank of Elk City v. Ptachek (Okl.) 169 P. 1094. In the absence of a special request for a finding on a material issue in a case, it is not error for the court to fail to make such finding. Kellogg v. Bis- santz, 32 P. 1090, 51 Kan. 418. A request to the court to state separately findings of fact and conclusions of law is too late, when made after the conclusion of the trial, and after a general finding has been announced. Allen v. Dodson, 17 P. 667, 39 Kan. 220. Where, in an action tried by the court without a jury, the judgment is rendered on March 30, 1885, and the motion for a new trial is not argued and decided until April 25, 1885, and no request or intimation is given to the court by either party that it is desirable that the court should state its conclusions of fact and law separately, in writing, before it announces its findings, and not until the motion for a new trial is overruled and final judgment entered, the request is made too late, and the court commits no error in refusing, upon a Art. 1) IN GENERAL 794a state its findings, except generally, unless a request therefor was made. 48 The trial court's findings of fact, reasonably supported by evi- dence, will not be disturbed. 44 A general finding is a special finding of everything necessary to sustain it. 45 It has the weight of a verdict. 46 But the court's opin- ion does not constitute a finding of fact within this rule. 47 request made at such time, to state in writing its findings. Wilcox v. Bying- ton, 12 P. 826, 36 Kan. 212. Where the trial of a case is submitted to the court without a jury, the court may find generally, and without stating its conclusions of fact found separate- ly from its conclusions of law, unless requested to find specially before the general finding is made, and the judgment rendered thereon. Smythe v. Par- sons, 14 P. 444, 37 Kan. 79. Judgment will not be reversed for trial court's failure to make detailed spe- cial findings of fact, where no findings were presented by parties, and where court makes special findings, somewhat general in nature, but covering all is- sues involved in action. Harris v. Morrison, 163 P. 1062, 100 Kan. 157. A party violating a rule of court that an application for separate findings of fact and conclusions of law shall be made before the introduction of evidence cannot complain of the failure to comply with an untimely request for sepa- rate findings of fact and conclusions of law. Smith v. City of Washington, 141 P. 250, 92 Kan. 646. 43 Cook v. State, 130 P. 300, 35 Okl. 653. 44 Union Sav. Ass'n v. Cummins, 78 Okl. 265, 190 P. 869. Findings of fact and conclusions of law made in a will contest held too gen- eral to meet requirements of Rev. Laws 1910, 5017. Coleman v. James (Okl.) 169 P. 1064. 45 Miller v. Thompson, 80 Okl. 70, 194 P. 103; Myers v. Hubbard, 80 Okl. 97, 194 P. 433 ; Weaver v. Drake, 79 Okl. 277, 193 P. 45 ; Elwood Oil & Gas Co. v. Gano, 76 Okl. 287, 185 P. 443; Theodore Maxfield Co. v. Andrus, 56 Okl. 247, 155 P. 1163; Shenners v. Adams, 46 Oki. 368, 148 P. 1023; Deskins v. Ro- gers (Okl.) 180 P. 691; In re Hoover's Estate, 104 Kan. 635, 180 P. 275: Gor- man v. Carlock (Okl.) 179 P. 38; Jackson v. Bates (Okl.) 170 P. 897; Daris v. First State Bank of Norman, 51 Okl. 498, 152 P. 122 ; Conner v. Warner, 52 Okl. 630, 152 P. 1116 ; Limestone Rural Telephone Co. v. Best, 56 Okl. 85, 155 P. 901 ; Shawnee Life Ins. Co. v. Watkins, 53 Okl. 188, 156 P. 181 ; Tripp v. Deupree, 60 Okl. 47, 158 P. 923 ; Schaf er v. Midland Hotel Co., 137 P. 664, 41 Okl. Ill ; J. I. Case Threshing Mach. Co. v. Lyons & Co., 138 P. 167, 40 Okl. ' 356; D. J. Faour & Bros. v. Morad, 139 P. 833, 40 OkL 597; Wrought Iron Range Co. v. Leach, 123 P. 419, 32 Okl. 706; Funk v. Shawnee Fire Ins. Co., 125 P. 35, 87 Kan. 568; Brady v. Farmers' Co-op. Creamery & Supply Co., 154 P. 220, 97 Kan. 13. A general finding in favor of a prior settlement made of property rights by 46 Barnett v. Barnett, 78 Okl. 249, 189 P. 743. 47 Rogers v. Harris, 76 Okl. 215, 184 P. 459. (609) 794a TRIAL (Ch. 13 Findings of the trial court must be read as a whole to determine their sufficiency. 48 Where the court makes a general finding for plaintiff and certain special findings, but fails to cover all the issues involved, and de- fendant fails to call attention to the omission, his right to com- plain of omission is waived. 49 However, where the findings of fact and conclusions of law fully protect the rights of parties, a refusal to make further findings and conclusions is not error. 50 A finding consisting only of conclusions from basic facts found in detail cannot be upheld, where it is in conflict with them. 51 Conclusions of law, based upon findings of fact outside the issues raised by the pleadings, cannot be sustained, and will not support a judgment. 52 a written agreement between a husband and wife implied a finding that such settlement was just. Howell v. Howell, 141 P. 412, 42 Okl. 286. A general finding that plaintiff was entitled to land under her deed, held to include a finding that the deed had been properly delivered to her, or that its delivery had been ratified, where such facts were an essential part of her claim. Oland v. Malson, 39 Okl. 456, 135 P. 1055. A journal entry disclosing that "the evidence being heard and the argu- ments of counsel and the court, being fully advised, doth find for the defend- ant on the issues joined," constituted a finding for defendant on the disputed facts in issue. Mason v. Harlow, 142 P. 243, 92 Kan. 1042, denying rehearing 139 P. 384, 91 Kan. 807. A finding of the court that at the time of alleged contract, "plaintiff's mind was in an abnormal condition, superinduced by drunkenness," is sufficiently exact and certain to show that he was then mentally incapable of making a contract. Franks v. Jones, 17 P. 663, 39 Kan. 236. Though, in an action to determine adverse claims to a tract of school land, the findings of fact do not specifically state which one of the several claim- ants first settled thereon, a judgment against one of them necessarily deter- mines the fact of whether he made the first settlement against him, where it is essential to support the judgment, and is not in conflict with the findings made. Christisen v. Bartlett, 95 P. 1130, 78 Kan. 118. 48 (Okl. 1897) El Reno Electric Light & Telephone Co. v. Jennison, 50 P. 144, 5 Okl. 759. Findings of fact are to be construed t'ogether. Kuhn v. Johnson, 137 P. 990, 91 Kan. 188. 49 Simpson Tp. v. Hill, 137 P. 348, 40 Okl. 233. Where a party is not satisfied with the findings of fact made by the trial court, he should ask the trial court to make further findings or modify those made. Cowling v. Greenleaf, 6 P. 907, 33 Kan. 570. 50 Goodman v. Malcolm, 58 P. 564, 9 Kan. App. 887. si State v. Kirmeyer 128 P. 1114, 88 Kan. 589. 52 Newby v. Myers, 24 P. 971, 44 Kan. 477. It is not proper that the findings be confined to the issues presented in the (670) Art. 1) IN GENERAL 794a~794b Where the conclusions of fact are inconsistent with the conclu- sions of law, the conclusions of fact control. 63 794b. Agreed statement of facts When the parties to an action agree to admit all the facts upon which they desire to have the case submitted to the court, they have agreed upon what the facts in the case are; and when such facts . are communicated to the court for the purpose of having it draw conclusions of law therefrom, and to render judgment thereon, they become an agreed statement of facts. 54 An "agreed statement of facts" is analogous to a special verdict, and must state the ultimate facts. 56 Where a case is presented on an agreed statement of facts, the only question that can be considered is whether they require a judg- ment for the plaintiff as a matter of law, and no inference of fact can be drawn. 66 Agreements made to avoid continuances, or for other specific purposes, by their terms limited to particular occasions, possess no force beyond the occasion or after the purpose has been accom- plished. 67 A written statement of facts, purporting to be the "facts in the above-entitled cause," properly entitled, and signed by the parties to a cause, or their attorneys, and filed in the cause for use as evi- dence, and thereafter so used at the hearing in the probate court, petition. If the findings are in response to the issues presented by all the pleadings taken together, they are pertinent. Boynton v. Hardin, 58 P. 1007, 9 Kan. App. 166. Where defendant, without objection, proved a set-off under a count to which a demurrer had been sustained, after which the court treated the count as part of the pleadings, a finding by the court allowing It was within the issues. Barry v. Barry, 59 P. 685, 9 Kan. App. 884. 53 Board of Com'rs of Wyandotte County v. Arnold, 30 P. 486, 49 Kan. 279. 5* Noble v. Barter, 49 P. 794, 6 Kan. App. 823. BS Longmeyer v. Lawrence, 50 Okl. 457, ICO P. 905. ce Goodwin v. Kraft, 101 P. 856, 23 Okl. 329. 57 Loman v. Paullin, 51 Okl. 294, 152 P. 73. Where, in an action to recover possession of improvements on a town lot, the title to which is in controversy, stipulations are filed, reciting that a con- test was then pending before the Secretary of the Interior, and judgment for plaintiff is reversed, and on second trial plaintiff offers the former agreed statement of facts, its exclusion was proper, where it is shown that after the entering into of the stipulations the contest over the lot had been decided. Capital Townsite Co. v. Brown, 126 P. 722, 34 Okl. 568. (671) 794b-795 TRIAL (Ch. 13 is a general and solemn admission of the facts and binding upon the district court upon appeal, and conclusive in all further proceedings in the cause, unless some portions thereof are uncertain and of doubtful interpretation, in which case evidence aliunde will be re- ceived upon such points of doubtful and uncertain interpretation. 68 A stipulation as to evidence should be so interpreted as to carry into effect the intent of the parties and the promotion of a fair trial. 59 A stipulation by defendant that plaintiff is entitled to recover, un- less an agreed state of facts constitutes a defense, waives any ques- tion of variance. 60 Where an action is tried on an agreed statement of facts and it re- cites a statute of another state as a fact, counsel cannot claim that there are other facts which the court will presume to exist. 61 The matter of permitting a party to withdraw from a stipulation concerning a pending case rests within the sound discretion of the court 62 Where parties stipulated what question should be submitted to the court, it was not an abuse of discretion for the court to refuse to permit one party to withdraw from the stipulation after the ques- tion had been argued. 68 In submitting an action by agreement, on the evidence before the referee, plaintiff waived his motion for judgment on the find- ings of the referee, and submitted the cause on the pleadings and evidence to the court. 64 . 795. Submission without suit "Parties to a question, which might be the subject of a civil ac- tion, may without action agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court, which would have jurisdiction if an ac- es Blankinship v. Oklahoma City Light & Water Power Co., 43 P. 1088, 4 Okl. 242. ea Chicago Live Stock Commission Co. v. Fix, 78 P. 316, 15 Okl. 37; Same v. Connally, 78 P. 318, 15 Okl. 45. so Brennan v. Shanks, 103 P. 705, 24 Okl. 563. ei Williams v. Hirschfield, 122 P. 539, 32 Okl. 598. ez Georgia Home Ins. Co. v. Halsey, 133 P. 202, 37 Okl. 678. 68 Georgia Home Ins. Co. v. Halsey, 133 P. 202, 37 Okl. 678. * Walker v. Walker, 88 P. 1127, 17 Okl. 467. (672) Art. 2) ARGUMENT AND CONDUCT OF COUNSEL 796 tion had been brought. But it must appear, by affidavit, that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The court shall thereupon hear and de- termine the case, and render judgment as if an action were pend- ing." 66 ARTICLE II ARGUMENT AND CONDUCT OF COUNSEL Sections 796. Opening statement. 797. Argument. 798. Right to open and close. 799. Retaliatory statements. 800. Conduct. 801. Objections and exceptions. 796. Opening statement The party who does not have the burden of proof must make his statement immediately after that of the adverse party, unless the court for special reason otherwise directs. 66 Fullness or brevity of an opening statement is largely within discretion and control of trial court. 67 On a motion for judgment on the averments in the petition and the opening statement of counsel, they should be liberally inter- preted. 68 However, if the plaintiff's counsel, in making the open- ing statement of his case to the court and jury, admits or states facts the existence of which absolutely precludes a recovery by him, the court may close the trial at once, and give judgment against plaintiff. 69 es Rev. Laws 1910, 5303. 66 Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606. 7 Caldwell v. Skinner, 101 Kan. 32, 181 P. 568. In making a statement of the case at the trial, either party may make a statement as complete as he desires, or may omit any statement, at his dis- cretion. Glenn v. Missouri Pac. Ry. Co., 124 P. 420, 87 Kan. 391, judgment affirmed on rehearing 128 P. 362, 88 Kan. 235. es Moffatt v. Fouts, 160 P. 1137, 99 Kan. 118. 6 Lindley v. Atchison, T. & S. F. R. Co., 28 P. 201, 47 Kan. 432; Coffeyville Mining & Gas Co. v. Carter, 70 P. 635, 65 Kan. 565 ; Brashear v. Rabenstein, 80 P. 950, 71 Kan. 455 ; Missouri Pac. Ry. Co. v. Hartman, 49 P. 109, 5 Kan. App. 581. The statute authorizing a party on whom the burden rests to state his case HON.PL.&PBAC. 43 (673) 796 TRIAL (Ch. 13 Objection to the plaintiff's opening statement, as not stating facts constituting a cause of action, should be overruled, where the lack of the fullness is supplied by the allegations of the petition. 70 or, if the petition states a cause of action, it is error on motion of the defendant, to dismiss the cause, and render judgment against the plaintiff on the opening statement of the plaintiff's counsel. 71 Oral admission of a material fact by the attorney in his opening statement to the jury, if distinct and formal and made to dispense with the proof of some fact at the trial, is binding upon the party making it; 72 but, where the opening statement is not a solemn ad- mission of some controverted question of fact, it is error to instruct and the evidence by which he expects to sustain it is permissive only, and the issues are made, not by it, but by the pleading, so that, if a party does make such a statement, and there is a substantial variance between the statement and the pleadings, it is no ground on which to base a motion for judgment in favor of the opposite party unless such statement admits facts barring re- covery. Stewart v. Rogers, 80 P. 58, 71 Kan. 53. In action for damages for false representations inducing a purchase of an interest in an insolvent business, refusal to direct a verdict upon the open- ing statement of plaintiff's counsel held not an abuse of discretion. Abmeyer v. German-American State Bank, 103 Kan. 356, 179 P. 368. Motion for judgment on opening statement of counsel should be denied, un- less such statement solemnly admits facts made to remove such facts from controversy and which facts so admitted show that party making statement is not entitled to recover. Brady v. Ratkowsky (Okl.) 171 P. 717. Opening statement made by defendant in an action upon an account for goods sold held not sufficient upon which to predicate a judgment for plaintiff. Id. Where the petition alleges a cause of action, and reply to answer is suffi- cient, a peremptory instruction for defendant on the pleadings and plaintiff's opening statement is error, unless statement contains admissions barring a re- covery. King v. Lane (Okl.) 169 P. 901, L. R. A. 1918C, 351. Where defendant by answer admits the usurious character of a note and denies no fact essential to plaintiff's recovery of the penalty provided for by Const, art. 14, 3, except knowledge of such usurious character, and in his opening statement to the jury assumes the same attitude, a motion for a di- rected verdict on the opening statement is properly granted. First State Bank of Keota v. Bridges, 39 Okl. 355, 135 P. 378. In a suit on an insurance policy, plaintiff's counsel, in stating his case to the jury, said: "The reason that we make this proof is to show you that an insurance company cannot issue a policy, take a man's money and give him something in return which is absolutely worthless the moment it is issued not worth the paper it is written on." Held, that there was no prejudicial error. Phenix Ins. Co. of Brooklyn v. Weeks, 26 P. 410, 45 Kan. 751. 70 Noble v. Frack, 48 P. 1004, 5 Kan. App. 786. 71 Sullivan v. Williamson, 98 P. 1001, 21 Okl. 844. 72 Hunt v. W. T. Rawleigh Medical Co. (Okl.) 176 P. 410. (674) Art. 2) ARGUMENT AND CONDUCT OF COUNSEL 796~797 that it contains a conclusive admission, the question being one for the jury. 73 Where plaintiff's counsel in his opening statement recites a con- dition of facts which would entitle him to recover only certain damages, and such statement is a departure from the facts alleged in the petition, it is prejudicial error to overrule an objection there- to, and try the case without either having the petition amended or striking out one or the other of such causes of action. 74 Where, in ejectment, the counsel in his opening statement spoke of the defendant's conversion of plaintiff's personalty, and the court without objection permitted evidence as to damages for such conversion, though it was not pleaded, the pleading should be con- strued as broad enough to include those elements of damage, or it should be considered that the issues were enlarged by consent of parties. 75 797. Argument A party is entitled to be heard by counsel in the argument of a question of fact submitted to the jury. 76 It is within the court's discretion to limit the time of argu- ment; 77 and where the case is tried by the court, and it is satis- 73 A distinct and formal oral admission of a material fact made in the opening statement to dispense with proof is conclusive on the party making same, but an alleged admission of doubtful meaning is not conclusive, espe- cially where nullified by other statements. Patterson v. Morgan, 53 Okl. 95, 155 P. 694. 74 Hunter Milling Co. v. Allen, 69 P. 159, 65 Kan. 158. That plaintiff in his petition designated certain property as "merchandise," while in his opening statement to the jury he referred to it as "household goods," did not constitute such variance as to authorize the direction of a verdict for defendant. Red Ball Transfer & Storage Co. v. Deloe, 30 Okl. 522, 120 P. 575. 7 s Custer v. Royse, 104 Kan. 339, 179 P. 353. 7 a Ely Walker Dry Goods Co. v. Blake, 59 Okl. 103, 158 P. 381. In a case tried by jury, where particular questions of fact were allowed and settled before argument, it was error for the court to refuse to allow coun- sel, in argument, to call the attention of the jury to each question, or to sug- gest or advise them what answers should be made thereto from the evidence heard. Stacy v. Cook, 61 P. 399, 62 Kan. 50. 77 It was not an abuse of discretion to limit the argument of counsel to 15 minutes. Murphy v..Colton, 44 P. 208, 4 Okl. 181. .The action of the court in limiting the time of argument of counsel held not an abuse of discretion. Diamond v. Perry, 46 Okl. 16, 148 P. 88. It is not an abuse of discretion, in an action tried by the court alone, where (075) 797 TRIAL (Ch. 13 fied as to the evidence and the law, it is not compelled to listen to any argument. 78 No error can be predicated on the interruption of counsel for the purpose of excluding from the consideration of the jury im- proper testimony admitted in his client's behalf; counsel being permitted ample time thereafter to discuss the evidence properly received in the case. 79 The opening argument should be a complete presentation of the counsel's theory of the case, and, when the opposing counsel elects not to reply, no further argument by the opening counsel should be allowed except in the discretion of the trial judge; 80 but, if the plaintiff's counsel is permitted to reargue the case, it is re- versible error to refuse defendant's request to answer. 81 only the construction of a plain, unambiguous statute is to be determined, to refuse to hear arguments of counsel. Godfrey v. Wright, 56 F. 1051, 8 Okl. 151. 78 Barnes v. Benham, 75 P. 1130, 13 Okl. 582. 79 Dunn v. Jaffray, 13 P. 781, 36 Kan. 408. so Atchison, T. & S. F. Ry. Co. v. Lambert, 123 P. 428, 32 Okl. 665. Where on the trial the arguments are limited to one hour on each side, and the party on whom rests the burden of the issue announces that he de- sires to occupy only 30 minutes, and requests the court to inform him when the time has expired, which the court does, and thereupon the attorney for the opposing party asks that the case be submitted without further argument, it is prejudicial error to permit another attorney to address the jury in be- half of the first party. St. Louis & S. F. R. Co. v. Vanzego, 80 P. 944, 71 Kan. 427. Where the trial court informs the attorneys that each side will be given an hour and a quarter for argument, and plaintiff's attorney announces that he will consume 30 minutes only in opening, and requests the court to notify him when 30 minutes have expired, and the court acts upon his suggestion, defend- ant's attorney, by waiving all argument upon his part, is not guilty of mis- conduct, and the court does not commit error in refusing, in its discretion, fur- ther time for plaintiff's attorney to argue his case. Southern Kansas Ry. Co. v. Michaels, 30 P. 408, 49 Kan. 388. On a trial without a jury, plaintiff's counsel waived argument and asked defendant's counsel, in the presence of the court, if they wished to argue the case. Defendant's counsel kept silent, and did not demand a right to argue, and the court then decided the case. Held that, after the decision, defendant could not content that he had not waived argument. Piatt v. Head, 10 P. 822, 35 Kan. 282. si Plaintiff is not entitled to reargue the case after defendant has waived argument ; and, where he is permitted to do so, it is reversible error to refuse defendant's request to answer. Board of Com'rs of Nemaha County v. Albert, 51 P. 307, 6 Kan. App. 165. (676) Art. 2) ARGUMENT AND CONDUCT OF COUNSEL 797 Permitting counsel to instruct the jury that it is improper to ar- rive at a verdict by addition and division is not reversible error, when he did not advise them how to reach a verdict. Judgment 51 P. 623, 6 Kan. App. 585, affirmed. 82 In an action for injury by defendant's automobile, that certain slight references to a casualty company were withdrawn with an instruction to disregard them is not material error. 83 In an action for personal injuries, a statement by the attorney for the plaintiff, that, if the jury answer a certain special question "yes," then their verdict must be for the defendant, is not ground for reversal as stating to the jury that their answers to a special question of fact must be consistent with their general verdict. 84 In an action for personal injury from an automobile collision, it is not error for counsel in his closing argument to comment on the meaning of a statute when no objection is made thereto. 85 In an action against a railroad company for personal injuries, a statement of plaintiff's counsel in his argument that "it matters not if this railroad company has among its stockholders counts and princes and a young girl who has been sold to a count," though im- proper, did not require a reversal, where the verdict was for a small amount, and counsel failed to request the court to admonish the jury not to consider same. 86 Where the plaintiff, an employe of a railway-construction com- pany, who was injured while at work on a tower wagon standing on the tracks of a street railway over which cars were running, brought action against both companies, and a dem'urrer by the railway company to the evidence was sustained, it was proper for the court to refuse to permit counsel for the construction company in an argument to the jury to comment on that part of the petition setting forth the averments against the railway company. 87 Allowing plaintiff's attorney in his closing argument in a civil 82 Missouri, K. & T. Ry. Co. v. Steinberger, 55 P. 1101, 60 Kan. 856. . ss Stafford v. Noble, 105 Kan. 219, 182 P. 650. 84 Missouri, K. & T. Ry. Co. v. Wade, 85 P. 415, 73 Kan. 359. SB in action for personal injury from automobile collision, closing arguments of plaintiffs counsel as to meaning of Gen. St. 1915, 507, not then objected to, held not unreasonable or unfair. Rudy v. Headley, 103 Kan. 417, 173 P. 913. ss St. Louis, I. M. & S. Ry. Co. v. O'Connor, 142 P. 1111, 43 Okl. 268. 87 North American Ry. Const. Co. -v. Patry, 61 P. 871, 10 Kan. App. 55. (677) 797-798 TRIAL (Ch. 13 action to accuse defendants, husband and wife, with being persist- ent violators of the prohibitory law, and with having been in jail for such offenses, is ground for reversal. 88 Where, in an action against a city for damages sustained by plaintiff falling into a ditch dug by an electric company under a franchise, there was no issue involving indemnity by the electric company to the city for any damages sustained by reason of its negligence in constructing the ditch, the admission in evidence of an ordinance containing a section by which the electric company agreed to indemnify the city against such damages was not evi- dence to prove the agreement of indemnity so as to justify argu- ment of plaintiff's counsel that the city did not care whether judg- ment went against it or not. 89 The scope of argument of the counsel allows a reference to evi- dence and deductions therefrom. 90 798. Right to open and close The party bearing the burden of proof has the right to open and close the argument, 91 but such right my be waived by the absence ss Bean v. Kinseder (Kan.) 135 P. 1180. 89 City of Shawnee v. Sparks, 110 P. 884, 26 Okl. 665, 28 L. R. A. (N. S.) 519, Ann. Cas. 1912B, 505. so Spann v. State, (Okl. Or. App.) 197 P. 531. Where, in an action for injuries it Was proved that defendant sent its phy- sician to attend plaintiff, argument of plaintiff's counsel, in which he sought to draw deductions as to the reasons why defendant sent its physician, is not error. Enid City Ry. Co. v. Reynolds, 126 P. 193, 34 Okl. 405. i Atchison, T. & S. F. Ry. Co. v. Lambert, 123 P. 428, 32 Okl. 665; Baugh- man v. Baughman, 4 P. 1003, 32 Kan. 538 ; Degan v. Tufts, 56 P. 1126, 8 Kan. App. 338; Congdon v. McAlester Carriage & Wagon Factory, 56 Okl. 201, 155 P. 597. Where the pleadings do not disclose the exact amount plaintiff is entitled to?, defendant, before being entitled to open and close the argument, should admit such amount in open court. Where defendant failed, until after open- ing statements were made and introduction of some evidence, to claim his right to open and close the argument, the question of granting or refusing his request rested in the court's discretion. Congdon v. McAlester Carriage & Wagon Factory, 56 Okl. 201, 155 P. 597. Where defendant to a suit for libel or slander pleads justification, he as- sumes the burden of proof, and is entitled to open and close. Stith v. Fullin- wieder, 19 P. 314, 40 Kan. 73. Since, where the answer in an action on an accepted order admitted the execution and acceptance of the order, but stated that plaintiff had wrong- fully obtained possession of it, the burden was on defendant to prove that (678) Art. 2) ARGUMENT AND CONDUCT OP COUNSEL 798~799 of a timely request, 92 and by waiving the opening a party waives a right to close, if the other party also waives argument. 93 Where the party having the burden of proof makes an inade- quate opening argument, and the opposing party does not reply, no further argument should be allowed, unless the court in its dis- cretion permits the opening party to make a further argument, in which event the opposing party should be allowed to answer, and the party upon whom the burden rests should be allowed to close. 9 * When a case involves two causes of action and the burden in the first is on plaintiff and in the second on defendant, it is not important which litigant opens and closes so long as each has a fair opportunity to argue his side. 95 799. Retaliatory statements An irrelevant statement of counsel in condemnation of defend- ants for violating the prohibitory laws is not ground for reversal, where it is to some extent induced by argument of opposing coun- sel. 96 A new trial will not be granted because counsel for plaintiff made improper statements to the jury, where defendant's counsel also made improper statements, and both were equally at fault. 97 the possession was wrongfully acquired, defendant had the right to open and close. Bartholomew v. Fell, 139 P. 1016, 92 Kan. 64. In an action on note where an averment of partnership of defendants was denied under oath but admitted before trial, plaintiff was not entitled to the opening and closing. Murchison v. Nies, 123 P. 750, 87 Kan. 77. The party upon whom rests the burden of proof may open and close the argument. Bass & Harbour Furniture & Carpet Co. v. Harbour, 140 P. 956, 42 Okl. 335* Where defendant, without objection, assumes the burden of proof in the introduction of evidence, his answer will J)e treated as amended to sustain his right to open and close. 92 Congdon v. McAlester Carriage & Wagon Factory, 56 Okl. 201, 155 P. 597 ; Lynde-Bowman-Darby Co. v. Huff, 124 P. 1085, 33 Okl. 239. 93 St. Louis & S. F. R. Co. v. Johnson, 86 P. 156, 74 Kan. 83. a* Fire Ass'n of Philadelphia v. Farmers' Gin Co., 39 Okl. 162, 134 P. 443. 95 White v. White, 160 P. 993, 99 Kan. 133. 96 Bean v. Kindseder, 139 P. 1024, 92 Kan. 254, reversing judgment on re- hearing 135 P. 1180. 97 Atchison, T. & S. F. R. Co. v. Dickerson, 45 P. 975, 4 Kan. App. 345. (679) 800-801 TRIAL (Ch. 13 800. Conduct That counsel for the plaintiff in a personal injury case repeated- ly asked that the jury might be permitted to examine plaintiff's hip in the jury room is not ground for reversal. 98 In negligence cases where there may be indemnity insurance, and questions to jurors as to whether they are interested in in- demnity insurance companies are therefore competent, counsel cannot be charged with misconduct in asking such questions on the ground that they are asked for the purpose of prejudicing jurors." 801. Objections and exceptions Statements of a case at the commencement of the trial are not pleadings, and cannot be attacked by demurrer. 1 A mere exception to the language of counsel in his argument to the jury, which is not preceded by any ruling of the court, is in- sufficient to raise a question as to the propriety of the language used. 2 It is error for the trial court to refuse and neglect to sustain an objection to prejudicial remarks of counsel and to neglect to prop- erly admonish the jury in regard thereto. 3 An attempt by the plaintiff's counsel to state that the defendants were indemnified against any loss, which was stopped by the court and the jury carefully instructed to disregard same is not so preju- dicial as to require the discharge of the jury. 4 s Missouri Pac. Ry. Co. v. Johnson, 53 P. 129, 59 Kan. 776. Swift & Co. v. Platte, 74 P. 635, 68 Kan. 1. 1 Glenn v. Missouri Pac. Ry. Co., 124 P. 420, 87 Kan. 391, judgment affirm- ed on rehearing 128 P. 362, 88 Kan. 235. ^ 2 City of Kansas City v. McDonald, 57 P. 123, 60 Kan. 481, 45 L. B. A. 429. 3 St. Louis & S. F. R. Co. v. Stacy, 77 Okl. 165, 171 P. 870. * Russell v. Watts, 150 P. 600, 96 Kan. 275. (680) Art. 3) ISSUES AND TRIAL THEREOF 802-803 ARTICLE III ISSUES AND TRIAL THEREOF DIVISION I. ISSUES IN GENERAL Sections 802. Issues not pleaded. DIVISION II. TAKING CASE OB QUESTION FROM JURY 803. In general. 804. Retrial. 805- Questions of law and fact. 806. Negligence in general. 807. Contributory negligence Assumption of risk. 808. Agency. 809. Will contest. 810- Malicious prosecution. 811. Libel and slander. 812. Weight of evidence and credibility of witnesses. 813. Uncontroverted evidence. 814. Motions and demurrer. 815. Demurrer to evidence. 816. Effect as admission. 817. What rulings proper. 818- Cure of error. 819. Trial by court. 820. Ruling and judgment sustaining demurrer. 821. Form. 822. Direction of verdict. 823. Effect of motion. 824. Form of motion. v DIVISION I. ISSUES IN GENERAL 802. Issues not pleaded "There can be no feigned issues; but a question of fact, not put in issue by the pleadings, may be tried by a jury upon an order for the trial, stating distinctly and plainly the question of fact to be tried; and such order is the only authority necessary for a trial." 5 DIVISION II. TAKING CASE OR QUESTION FROM JURY 803. In general A demurrer to the evidence may be sustained, a nonsuit granted defendant, or a verdict may be directed in favor of either of the par- o Rev. Laws 1910, 4652. (681) 803 TRIAL (Ch. 13 ties when the testimony is insufficient to support a different ver- dict. 6 In other words, where there is any evidence tending to sup- port the issues in the case, although slight, it should be submitted to the jury, and it is error to order a nonsuit or direct a verdict. 7 Holm v. Waters, 56 P. 507, 8 Kan. App. 859 ; Tingling v. Redwine, 69 P. 810, 12 Okl. 64; Kentucky Refining Co. v. Purcell Cotton Seed Oil Mills, 73 P. 945, 13 Okl. 220; Watkins v. Havighorst, 74 P. 318, 13 Okl. 128; Pringey v. Guss, 86 P. 292, 16 Okl. 82, 8 Ann. Cas. 412. 7 Sullivan v. Phoenix Ins. Co., 8 P. 112, 34 Kan. 170 ; Benninghoff v. Cub- bison, 26 P. 14, 45 Kan. 621; McMullen v. 'Carson, 29 P. 317, 48 Kan. 263; Snyder v. Stribling, 89 P. 222, 18 Okl. 168, judgment affirmed Same v. Rosen- baum, 30 S. Ct. 73, 215 U. S. 261, 54 L. Ed. 186. The court should not take the case from the jury unless, as a matter of law, no recovery can be had upon any view which can properly be taken of the evidence. St. Louis & S. F. Ry. Co. v. Knowles, 51 P. 230, 6 Kan. App. 790; Union Tp. v. Hester, 54 P. 923, 8 Kan. App. 725. Where plaintiff has made a prima facie case, it is error to take the case from the jury. Terry v. Anderson, 51 P. 800, 6 Kan. App. 921. The court is not justified in taking a case from the jury where the state of proof is such that reasonable minds might reach different conclusions from the evidence offered. Chicago, R. I. & P. Ry. Co. v. Wood, 72 P. 215, 66 Kan. 613; Lane v. Choctaw, O. & G. R, Co., 91 P. 883, 19 Okl. 324; Duncan v. Huse, 85 P. 589, 73 Kan. 432 ; Avery v. Union Pac. R. Co., 85 P. 600, 73 Kan. 563 ; Darling v. Atchison, T. & S. F. Ry. Co., 93 P. 612, 76 Kan. 893, rehear- ing denied 94 P. 202, 76 Kan. 893 ; Crane v. Cox, 49 P. 796, 6 Kan. App. 405 ; Cole v. Missouri, K. & O. R. Co., 94 P. 540, 20 Okl. 227, 15 L. R. A. (N. S.) 268; St. Louis- & S. F. R. Co. v. Jamieson, 95 P. 417, 20 Okl. 654; Citizens' Bank of Wakita v. Garnett, 95 P. 755, 21 Okl. 200; Missouri, K. & T. Ry. Co. v. Walker, 113 P. 907, 27 Okl. 849. Where there is some evidence tending to support the affirmative of an issue it cannot be taken from the jury. Harter v Atchison, T. & S. F. R. Co., 38 P. 778. 55 Kan. 250; City of Ft. Scott v. Peck, 50 P. 870, 58 Kan. 816; Loob v. Fenaughty, 55 P. 841, 60 Kan. 570; Gifford v. Griffin Ice Co., 66 P. 998, 63 Kan. 716; Burnett V. Hinshaw, 67 P. 1101, 64 Kan. 886; Electric Ry., Light & Ice Co. v. Brickell, 85 P. 297, 73 Kan. 274 ; Steelsmith v. Union Pac. R. Co., 40 P. 992, 1 Kan. App. 10; City of Wichita v. Coggshall, 43 P. 842, 3 Kan. App. 540; Hagan v. American Building & Loan Ass'n, 43 P. 1138, 2 Kan. App. 711 ; Cherokee & P. Coal & Mining Co. v. Britton, 45 P. 100, 3 Kan. App. 292; Niagara Ins. Co. v. Knapp, 47 P. 628, 5 Kan. App. 880; Skin- ner v. Mitchell, 48 P. 450, 5 Kan. App. 366 ; Atchis-on, T. & S. F. R. Co. v. Chenoweth, 49 P. 155, 5 Kan. App. 810; Hanlen v. Baden, 49 P. 615, 6 Kan. App. 635 ; St. Louis & S. F. Ry. Co. v. Toomey, 49 P. 819, 6 Kan. App. 410 ; McCormick. Harvesting Mach. Co. v. Hayes, 53 P. 70, 7 Kan. App. 141; Weatherford v. Strawn, 55 P. 485, 8 Kan. App. 206; Douglass v. Muse, 55 P. 856, 8 Kan. App. 856; Continental Ins. Co. of New York v. Gaston, 56 P. 1129, 8 Kan. App. 857; City of Atchison v. Acheson, 57 P. 248, 9 Kan. App. 33 ; Gilmore v. Bank of Garnett, 63 P. 89, 10 Kan. App. 496 ; Suess* v. Board of Com'rs of Lane County, 63 P. 451, 10 Kan. App. 583; Burnett v. Hinshaw, (682) Art. 3) ISSUES AND TRIAL THEREOF 803 But where the only issue under the evidence is one of law, the court may withdraw the case from the jury and render judgment. 8 Where, in a civil case, it is sought to prove a fact by circum- stantial evidence, and the circumstances taken separately or col- lectively reasonably tend to support the facts sought to be proved, it is a question for the jury to determine which of two theories the circumstances tend more reasonably to support. 9 The court must construe unambiguous written instruments in- troduced in evidence, and instructions submitting to jury construc- tion of such written instruments constitute error. 10 63 P. 461, 10 Kan. App. 583; Belcher v. Whitlock, 56 P. 23, 6 Okl. 691; Myers v. First Presbyterian Church of Perry, 69 P. 874, 11 Okl. 544. It is error to withdraw from a jury the consideration of a material issue of fact Richardson v. Fellner, 60 P. 270, 9 Okl. 513; Farmers' State Bank v. Spencer, 73 P. 297, 12 Okl. 597. It is only where a statement or admission made to a jury will as a matter of law preclude a party from recovering on his cause or defense that the court has authority to withdraw such cause or defense from the jury. Hall v. Davidson, 84 P. 556, 73 Kan. 88. Where an issue of fact is presented in respect to whether a writing was delivered upon a condition precedent to its effectiveness, it is- error to so in- struct as to take such issue from the jury. Williamson v. Scully, 52 OkL 531, 152 P. 839. s Akin v. Baldwin Piano Co., 62 Okl. 239, 162 P. 221. Where no question of fact arises in a case, and the only question to be decided is one of law alone, it is not error for the trial judge to discharge the jury, and decide the case. Brown v. Cory, 59 P. 1097, 9 Kan. App. 702. In suit by trustee in bankruptcy to quiet title and to cancel deed to bank- rupt's wife, with cross-petition claiming title, undisputed evidence showing that deed was void raised no issue for jury as to wife's right to recover property, and court properly discharged jury and rendered judgment for plaintiff, in view of Rev. Laws 1910, 4993. Plante v. Robertson (Okl.) 175 P. 840. Where, in replevin, limitations had been suspended pending the removal of property from the state, and since its return three years had not expired, the court did not err in refusing to submit the issue of limitations. Vaut v. Gatlin, 31 Okl. 394, 120 P. 273. a Missouri, K. & T. Ry. Co. v. Simerly (Okl.) 180 P. 551. 10 Littlefield Loan & Investment Co. v. Walkley & Chambers (Okl.) 166 P. 90. Ordinary railroad rules as to operation of trains at crossings, etc., con- taining no term the meaning of which is not clear, ought to be so interpreted by the court, which must determine in every instance whether it needs any evidence in aid of interpretation. Missouri, K. & T. Ry. Co. v. Missouri Pac. Ry. Co., 103 Kan. 1, 175 P. 97. The question whether certain written correspondence discloses a settlement between the parties at a certain time is for the court to determine, and not for the jury. Dobbs v. Campbell, 72 P. 273, 66 Kan. 805. (683) 803-805 TRIAL (Ch. 13 What is the law of another state, though a question of fact, is ordinarily determined by the court without a jury. 11 804. Retrial "In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again imme- diately, or at a future time, as the court may direct." 12 805. Questions of law and fact Where the evidence is conflicting on any issue, the determination of such issue is a question of fact, which in a jury trial should be submitted to jury, and not be decided by the court as a matter of law, by taking the case or issue from the jury, directing a verdict, or sustaining a demurrer to the evidence. 13 11 Hutchings, Sealy & Co. v. Missouri, K. & T. Ry. Co., 114 P. 1077, 84 Kan. 479, 41 L. R. A. (N. S.) 500, rehearing denied 121 P. 360, 86 Kan. 585. 12 Rev. Laws 1910, 5009. 1 3 Katterhenry v. Williamson (Okl.) 190 P. 404. Where evidence presents issue of fact,_whether clear or obscure, it is duty of court to submit it to jury. Blair v. Lewis, 57 Okl. 707, 157 P. 905 ; State Bank of Westfield v. Kiser, 46 Okl. 180, 148 P. 685. Whether' the cause of action sued on is the same on which a former sxiit was based, and whether the former suit was disposed of before the second was commenced, are questions of fact properly submitted to a jury. Ball v. Biggam, 49 P. 678, 6 Kan. App. 42. Meld for tJie jury. Whether plaintiff was guilty of contributory negligence, and whether defendant was negligent. Clark v. St. Louis & S. F. R. Co., 108 P. 361, 24 Okl. 764. Which carrier's negligence was the proximate cause of plaintiff's injury. Atchison, T. & S. F. Ry. Co. v. St. Louis & S.-^F. Ry. Co., 41 Okl. 80, 135 P. 353, 48 L. R. A. (N. S.) 509. Whether persons whose negligent acts caused injury were in employ or acting under direction of defendant railroad. Gulf, C. & S. F. Ry. Co. v. Beasley (Okl.) 168 P. 200. Compress company's negligence in weighing cotton. Sapulpa Co. v. Kimball & Reading, 59 Okl. 93, 158 P. 935. Defendant's negligence in allowing oil to overflow a question for the jury. Standard Oil Co. v. Glenn (Okl.) 176 P. 900. The railroad's negligence in starting a train. St. Louis & S. F. R. Co. v. Cole, 49 Okl. 1, 149 P. 872, L. R. A. 1915F, 866. In an action under the federal Employers' Liability Act (U. S. Comp. St. 8657-8665), that provision of the Oklahoma Constitution (Const, art. 23, 6) requiring submission to the jury of the defense of assumption of risk does not apply. Chicago, R. I. & P. Ry. Co. v. Jackson, 61 Okl. 146, 160 P. 736. Whether the building material placed in a street by an abutting owner remained in the street an unreasonable time, and whether reasonable care was exercised to prevent interference with the property or business of an (684) Art. 3) ISSUES AND TRIAL THEREOF 805 j adjacent owner. Culbertson v. Alexander, 87 P. 863, 17 Okl. 370, 10 Ann. Cas. 916. In an action for the price of goods sold, whether an order was accepted on the terms proposed, and whether there was a delivery. Humphrey v. Tim- ken Carriage Co., 75 P. 528, 12 Okl. 413. What constitutes a reasonable time within which objection must be made to a statement of account. Lamont Mercantile Co. v. Piburn, 51 Okl. 618, 152 P. 112. In a physician's action for services rendered in attending an injured em- ploye 1 of defendant at the request of defendant's agent, whether defendant was notified of plaintiff's employment. Roff Oil & Cotton Co. v. King, 46 Okl. 31, 148 P. 90. Which parent had the care of a minor during parents' separation. Alberty v. Alberty (Okl.) 180 P. 370. Plaintiff's right in replevin for two mules claimed under a chattel mort- gage. Gerlach Bank of Woodward v. Herd, 60 Okl. 186, 159 P. 901. The question of actual and punitive damages. Edwards v. Warnkey, 66 P. 987, 63 Kan. 889. W T hile malice may be inferred from tne intentional use of a deadly w.eapon, the weight to be given it is for the jury considering the character of the in- strument, the manner of its use, and attending circumstances. Eckerd v. Weve, 118 P. 870, 85 Kan. 752, 38 L. R. A. (N. S.) 516. The question whether it was intended to waive the limitation of time within which to make claim for damages to live stock, ot. Louis & S. F. R. Co. v. James, 128 P. 279, 36 Okl. 196 ; St. Louis & S. F. R. Co. v. Ladd, 124 Pac. 461, 33 Okl. 160. Whether there was an implied waiver of a stipulation limiting the time to sue under a live stock transportation contract. St. Louis, I. M. & S. Ry. Co. v. Patterson (Okl.) 177 P. 898. The reasonableness of a provision for notice to carrier of injury to a ship- ment of cattle. St. Louis & S. F. R. Co. v. Ladd, 124 P. 461, 33 Okl. 160. Whether stock when received by the carrier was in-bad condition. Wichita Falls & N. W. Ry. Co. v.,Benton (Okl.) 167 P. 633. * The questions of what is a reasonable time for transportation of cattle and the sufficiency of the excuse for the delay. Dickinson v. Seay (Okl.) 175 P. 216. Whether a carrier of an intrastate shipment of cattle exercised ordinary care in dipping them. Missouri, K. & T. Ry. Co. v. Williamson (Okl.) 180 P. 961. The question of the defendant carrier's negligence in transporting cattle. St. Louis & S. F. R. Co. v. Shepard, 139 P. 833, 40 Okl. 589. Whether property was listed with an agent, and whether the agent's serv- ices were the procuring cause of the sale. Harris v. Owenby, 58 Okl. 667, 160 Pac. 596 ; Chickasha Inv. Co. v. Phillips, 58 Okl. 760, 161 P. 223 ; Yar- borough v. Richardson, 38 Okl. 11, 131 P. 680 ; Eichoff v. Russell, 46 Okl. 512, 149 P. 146. The question whether brokers had acted in bad faith. Heath v. Chowning, 142 P. 1108, 43 Okl. 274. The questions of the terms on which property was listed and the procuring cause of the sale. Schlegel v. Fuller, 48 Okl. 134, 149 P. 1118. Terms of a sale. Culbertson v. Mann, 30 Okl. 249, 120 P. 918. Whether a contract for the sale of realty making time of payment of the (G85) 805 TRIAL (Ch. 13 essence was forfeited, or performance waived, and an extension of time granted. Livengood v. Ball, 63 Okl. 90, 162 P. 766. The issue of the lessor's infancy. Giles v. Latimer, 137 P. 113, 40 Okl. 301. Whether goods purchased were accepted. Goldstandt-Powell Hat Co. v. Cuff, 91 P. 862, 19 Okl. 243. Whether representations constituted a fraud on the vendee. Abmeyer v. First Nat. Bank of Horton, 92 P. 1109, 76 Kan. 877. Whether legal services were authorized by defendant. Turner v. Maxey, 45 Okl. 125, 144 P. 1064. The questions of undue influence and testamentary capacity. Bilby v. Stewart, 55 Okl. 767, 153 P. 1173. Whether a flood was so unusual as to amount to an act of God. Chicago, R. I. & P. Ry. Co. v. McKone, 127 P. 488, 36 Okl. 41, 42 L. R. A. (N. S.) 709. Whether the complainant was guilty of laches was one of fact. Osincup v. Henthorn, 130 P. 652, 89 Kan. 58, 46 L. R. A. (N. S.) 174, Ann. Cas. 1914C, 1262. Whether a new promise was made which operated to renew the claim. Higgins v. Butler, 62 P. 810, 10 Okl. 345. Whether an officer taking an acknowledgment to a deed is financially or beneficially interested in the transaction. Hilsmeyer v. Blakej 125 P. 1129, 34 Okl. 477. Whether the payee of a note assigned by him with guaranty of payment was entitled to relief because of the holder's negligence in forcing collection on the assignor's demand while the makers of the note were solvent. Stetler v. Boling, 52 Okl. 214, 152 P. 452. Whether plaintiff had relinquished his parental control and turned over to another the duty of support and education. Shawnee-Tecumseh Traction Co. v. Campbell, 53 Okl. 172, 155 P. 697. Whether consent to an operation was implied from the circumstances. Rolater v. Strain, 137 P. 96, 39 Okl. 572, 50 L. R. A. (N. S.) 880. Whether a warehouseman used ordinary care in protecting meats placed in cold storage. Muskogee Crystal Ice Co. v. Riley Bros., 108 P. 629, 24 Okl. 114. Whether a person who, in self-defense, shot at an assailant, and, missing him, accidentally wounded a bystander, was guilty of negligence. Shaw v. Lord, 137 P. 885, 41 Okl. 347, 50 L. R. A. (N. S.) 1069, Ann. Cas. 1916C, 1147. Whether or not there has been a material alteration in a note after de- livery. Cavitt v. Robertson, 142 P. 299, 42 Okl. 619. Whether a fence through which a hog broke was proof against all except breachy hogs, and whether a particular hog was more than ordinarily breachy. Sharrock v. Pryor, 128 P. 243, 36 Okl. 305. Whether plaintiff was misinformed or misled by the carrier's servants as to the regular stopping place of the train and whether he was thereby in- duced to believe that the train would stop at his destination. Chicago, R. I. & P. Ry. Co. v. Sheets, 54 Okl. 586, 154 P. 550. Whether a second mortgage constituted payment or merely renewal of a first mortgage. Ford v. Coweta Hardware Co., 49 Okl. 523, 153 P. 865. Not held for jury. Where contract is in writing, or its terms are undis- puted, though resting in parol, and where but one inference can be drawn from evidence, court must determine whether relation is that of employer and (686) Art. 3) ISSUES AND TRIAL THEREOF 805 This rule has been applied to cases wherein are presented various defenses, 14 such as fraud, 15 bad faith, forgery, 10 usury, 17 insufficient independent contractor, or master and servant. Gulf, C. & S. F. Ry. Co. v. Beasley (Okl.) 168 P. 200. In action for injuries against railroad and employe, where railroad, if lia- ble at all, is liable on the principle of respondeat superior, and the court directs verdict for defendant employe, it is error to submit issue of negli- gence of railroad. Kansas City, M. & O. Ry. Co. v. Leuch, 60 Okl. 19, 158 P. 1146. i* Under evidence authorizing conflicting inferences, the. question whether the parties intended that acceptance of an offer to sell goods should be made by some other means than through the mail was for the jury. Farmers' Prod- uce Co. v. McAlester Storage & Commission Co., 48 Okl. 488, 150 P. 483, L. R. A. 1916A, 1297 ; Same v. Central Fruit & Produce Co., 48 Okl. 754, 150 P. 664. In the original seller's action against a second purchaser who had assumed the original obligation held error to instruct as a matter of law that de- fendant was so subrogated to the original purchaser's right on a warranty in the sale. Walrus Mfg. Co. v. McMehen, 136 P. 772, 39 Okl. 667, 51 L. R. A. (N. S.) 1111. Where, in an action to recover a publicly offered prize, plaintiff's right to recover depends upon whether the prize has been awarded under stated con- ditions and the testimony is conflicting, the issue is for the jury. Southwest- ern Land Co. v. McCallam, 136 P. 1093, 41 Okl. 657. is In action on a note defended on ground of payee's fraud in obtaining it, question whether any suspicious facts and circumstances amounted to bad faith, though the holder was guilty of gross negligence, was for the jury. Mangold & Glandt Bank v. TJtterback (Okl.) 174 P. 542. In a suit on an insurance policy, evidence held insufficient to take to the jury insured's contention that a compromise agreement was not binding be- cause the result of fraud, or not his free act. Pacific Mut. Life Ins. Co. of California v. Coley, 62 Okl. 161, 162 P. 713. In an action on notes, evidence held sufficient to take the case to the jury on the question whether the execution of the notes was obtained by fraud. Gilpin v. Netograph Mach. Co., 108 P. 382, 25 Okl. 408, 29 L. R. A. (N. S.) 477 ; Edwards v. Miller, 30 Okl. 442, 120 P. 996 ; Jef ress v. Phillips, 31 Okl. 202, 120 P. 916. Whether a sale contract, for breach of which the action was brought, was procured by fraud without having been read by defendant, held a question for the jury. George O. Richardson Machinery Co. v. Duncan, 46 Okl. 21, 148 P. 80. Where an injured person has been given eight days within which to decide whether he would accept an offer of settlement, and after acceptance he re- is Where plaintiff in ejectment claims to be a purchaser in good faith and there is evidence from which bad faith may reasonably be inferred, such as a forgery in the second degree under Rev. Laws 1910, 2646, it is error to sustain a demurrer to defendant's evidence and take the case from the jury. Baldridge v. Sunday (Okl.) 176 P. 404. 17 See note 17 on following page. (687) 805 TRIAL (Ch. 13 execution of a written instrument, 18 accord and satisfaction, 19 ac- ceptance, and waiver. 20 It has been applied to such issues as the ceives its benefits for several months, evidence that he was told he would be stricken from the pay roll unless he signed the settlement is insuflicient to justify the submission of the cause to the jury on the issue of fraud in the procurement of the compromise. Pioneer Telephone & Telegraph Co. v. Gri- der, 124 P. 949, 44 Okl. 206. 17 Where interest reserved by note and mortgage is shown by their terms to be within the legal limit, question as to whether amount charged borrower was in good faith claimed as a commission or was an evasion of the law against usury was for the jury. Tuttle v. F. O. Finerty & Co. (Okl.) 171 P. 39. Whether the fact that a note for a loan was made to surety on borrower's note and by indorsement to the lending bank constituted a bona fide sale of note at a discount to the bank, or was a device by which bank collected usu- rious interest, held for the jury. Bristow v. Central State Bank (Okl.) 173 P. 221. The question of intent in usury cases is a question of fact for the jury, un- less it clearly appears from the face of the instrument itself that usury has been charged. Deming Inv. Co. v. Grigsby (Okl.) 163 P. 530. Borrower's con- tract to pay all future taxes assessed against all interest in realty owned by him, including the interest granted to the lender by virtue of mortgage, was not conclusively an usurious contract. Id. Whether a collateral instrument or commissions were taken and reserved with intent to charge usury, and whether the transaction was a device to evade the law against usury, held to be a question of fact, where the prin- cipal instruments were valid on their face. Garland v. Union Trust Co., 49 Okl. 654, 154 P. 676. is Under conflicting evidence in a controversy between a purchaser and mortgagee, held, that the questions whether the original mortgage bore a seal, no seal being shown by the mortgage as recorded, and whether the purchaser had actual knowledge of the mortgage, were for the jury. Rollow v. Frost & Saddler, 54 Okl. 578, 154 P. 542. 19 Where accord and satisfaction was set up as a defense held, that wheth- er there was a meeting of minds on the new promise and whether it was intended to discharge the prior obligation necessary to such defense was a question of fact. Gentry v. Fife, 56 Okl. 1, 155 P. 246. Whether a note of a debtor taken for a pre-existing debt extinguishes the debt is a question of fact for the jury. Ohio Cultivator Co. v. Dunkin (Okl.) 168 P. 1002. 20 Mere occupancy and use of a building by an owner does not, as a matter of law, constitute an acceptance and waiver of nonperformance by the con- tractor, or ordinarily justify an inference of acceptance. Wiebener v. Peo- ples, 44 Okl. 32, 142 P. 1036, Ann. Gas. 1916E, 748. Mere part payment does not as a matter of law constitute an acceptance of the work of constructing a building, and a waiver of nonperformance, except, perhaps, to the extent of such payment where such acceptance and waiver is consistent with all the pertinent facts. Id. Waiver, involving intention to abandon or relinquish a right, is a question for the jury. American Cent. Ins. Co. of St. Louis, Mo., v. Sinclair, 61 Okl. 17, 160 P. 60. (688) Art. 3) ISSUES AND TRIAL THEREOF 805 reasonableness of a contract provision for notice, 21 delivery of the contract sued on, 22 abandonment of contract 23 and of contract rights, 24 fraud and misrepresentation, 25 abandonment of a home- stead, 20 good faith, 27 mutual mistake, 28 existence of facts -essential to a valid marriage, 29 and to rights, duties, and liabilities as be- tween carrier and passenger under the circumstances of particular 21 Whether the time provided by a contract of shipment for giving notice to the railroad company of injury to the shipment is reasonable is a question of fact. St. Louis & S. F. R. Co. v. Phillips, 87 P. 470, 17 Okl. 264. 22 Where the pleadings and evidence presented an issue of fact whether the contract sued on was delivered on a condition precedent to its effectiveness, it was error to so instruct as to take such issue from the jury. Rutherford v. Holbert, 142 P. 1099, 42 Okl. 735, L. R. A. 1915B, 221. 23 Whether a contract is abandoned is a question of fact, to be determined from all the circumstances of the particular case. Martin v. Spaulding, -137 P. 882, 40 Okl. 191. 2* Under conflicting evidence, held, that whether a transaction constituted a relinquishment by the buyer of his contract rights or an oral sale of the personal property, valued at $150, back to the seller, which would be void under the statute of frauds (Rev. Laws 1910, 941), was for the jury. Elsing v. Noah, 51 Okl. 558, 152 P. 101. 25 in action for fraud and deceit by which value of corporate stock or plaintiff was destroyed, where there was evidence of promises and represen- tations by defendants on which he relied and which were untrue, peremptory instruction for defendants was error. Harbison v. White, 56 Okl. 566, 156 P. 335. 26 Elliott v. Bond (Okl.) 176 P. 242. The issue whether or not a homestead has been abandoned presents a ques- tion of fact for the jury. Carter v. Pickett, 39 Okl. 144, 134 P. 440. Upon issue whether or not a homestead has been abandoned, the main question is that of the real intent of homestead claimant, determination of which involves a question of fact. Russell v. Roller (Okl.) 174 P. 560; Mc- Canimon v. Jenkins, 44 Okl. 612, 145 P. 1163. 27 The good faith and genuineness of a sale, and all the circumstances which tend to exhibit the transaction in its true light, are for the jury, who must find from the evidence whether the sale was in good faith, and wheth- er there was a sufficient change of possession as against the seller's creditors. Masters v. Teller, 56 P. 1067, 7 Okl. 668, 8 Okl. 271. 2 s Where a contracting party had weak eyes, was a poor reader, and was misled by a statement of the other party, whether he was entitled to relief for mutual mistake was for the jury. McDonald v. McKinney Nursery Co., 44 Okl. 62, 143 P. 191. 29 Where, in an action to recover land, the issue of heirship depended upon the validity of a marriage, the existence of facts essential to a valid marriage under the Creek laws and whether a marriage was to be inferred from cohabi- tation and reputation were questions, for the jury. Fender v. Segro, 137 P. 103, 41 Okl. 318. HON.PL.& PEAC. 44 (689) 805 TRIAL (Ch. 13 cases; 30 also as between carrier and shipper, 81 rights and liabilities so Where one who had been carried on a freight train for less than full fare was informed when the train reached a station that he could be carried no further, and that he must procure .& ticket, held that the question whether he was a passenger in going to the station #s directed was for the jury- Chicago, R. I. & P. Ry. Co. v. Shadid, GO Okl. 188, 159 P. 913. In an action for injuries to a passenger, evidence held sufficient to carry the question of defendant's negligence to the jury. St. Louis & S. F. R. Co. v. Walker, 122 P. 492, 31 Okl. 494. Where plaintiff's evidence in a passenger's action for injuries made out a prima facie, case, the court properly refused to take the case from the jury, though such evidence was rebutted by that of the carrier. St. Louis & S. F. R, Co. v. Pitts, 140 P. 144, 40 Okl. 685, L. R. A. 1916O, 348. Derailment. Whether the evidence rebutted the presumption of the car- rier's negligence, arising from the derailment of a train, held a question for the jury. Midland Valley R. Co. v. Hilliard, 46 Okl. 391, 148 P. 1001. Infirm passenger. Whether passenger comes, within excepted class so as to impose duty on carrier to give special assistance is ordinarily for jury. St. Louis & S. F. Ry. Co. v. Dobyns, 57 Okl. 643, 157 P. 735. Whether a passenger, by reason of sickness, age, or infirmity, comes within the class as to whom carrier owes a duty to assist in alighting from a train, Is for the jury. Dickinson v. Tucker (Okl.) 176 P. 949. Carrier's duty to assist sick, aged, or infirm passengers to alight depends upon the circumstances of case; but, where there is no evidence that a passenger falls within such ex- ception to general rule, the submission of carrier's negligence in not assisting him to alight is reversible error. Id. In action for damages for wrongful ejection from a train, held, that whether plaintiff, by reason of infirmity, was, in exception to the general rule, entitled to personal service or attention, was for the jury. Dickinson v. Bryant (Okl.) 172 P. 432, L. R. A. 1918E, 978. Injuries vn> alighting. Evidence in a passenger's action for injuries, re- ceived while alighting from a train held sufficient to warrant submitting to the jury whether plaintiff's injuries were caused by defendant's negligence. Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okl. 1, 134 P. 388, Ann. Cas. 1915D, 760. Where plaintiff, with assurance of defendant's conductor that he will have time to do so, goes into a train to assist his wife and children to a seat, and the train starts, and he attempts to get off at the vestibule at which he en- tered, but the door is closed and the brakeman directs him to the next vesti- bule door, and in getting off he is injured, it cannot be said as a matter of law that the negligence of defendant was not the proximate cause of his injury. Chicago, R. I. & P. Ry. Co. v. McAlester, 39 Okl. 153, 134 P. 661. Whether a person who had entered a train to assist a passenger was negll- si Where a carrier seeks to avoid liability on account of a snowstorm, and the evidence is conflicting as to whether the carrier, notwithstanding the storm, could have prevented the loss by ordinary care, the court should re- fuse a peremptory instruction for defendant. St. Louis & S. F. Ry. Co. v. Dreyfus, 141 P. 773, 42- Okl. 401, L. R. A. 1915D, 547. (690) Art. 3) ISSUES AND TRIAL THEREOF 805 as between the insurer and the insured, 32 whether a promise is orig- gent in attempting to alight from the train while it was moving held for the jury. St. Louis & S. F. R. Co. v. Isenberg, 48 Okl. 51, 150 P. 123. It is not contributory negligence per se for a person to alight from a moving street car, and the question of such negligence depends on the speed, the plac?, and other circumstances. Oklahoma Ry. Co. v. Boles, 30 OkJ. 764, 120 P. 1104. Evidence held sufficient to go to jury on question of whether defendant railroad, through its agents, had notice that deceased entered the train to seat his wife, a passenger. Chicago, R. I. & P. Ry. Co. v. Brooks (Okl.) 179 P. 924. Evidence held sufficient to go to jury on question of carrier's negligence in suddenly starting train without allowing reasonable time for deceased to procure a seat for his wife, a passenger, and leave train in safety. Id. Place of waiting and riding. In an action by a passenger for injuries claim- ed to be the result of the carrier's failure to furnish a sufficient waiting room, the question whether the injuries were from resulting exposure held for the jury. Chicago, R. I. & P. Ry. Co. v. Gilmore, 52 Okl. 296, 152 P. 1096. Whether the place on a railway station platform, where an implied invitee was injured was a place where she would naturally and ordinarily be likely to go held a question for the jury. St. Louis & S- F. R. Co. v. Stacy, 77 Okl. 165, 171 P. 870. That a negro passenger waiting for a train in a cold, negro waiting room de- clined to accept the invitation of defendant's station agent to pass through the waiting room for white persons and sit by the fire in his office, held not to render her, as a matter of law, guilty of contributory negligence, which was the proximate cause of her suffering from cold. St. Louis, I. M. & S. Ry. Co. v. Lewis, 136 P. 396, 39 Okl. 677. In railway mail clerk's action for personal injury, evidence held sufficient to take case to jury on question of defendant's negligence in failing to fur- , nish a car properly heated, in consequence of which clerk contracted a severe cold developing into facial paralysis. St. Louis & S. F. R. Co. v. McClain, 60 Okl. 75, 162 P. 751. In railway's mail clerk's action for personal injury, evi- dence held to take case to jury on the question whether defendant's negligence was proximate cause of the injury. Id. A passenger on a box car who places himself near the open door while the train is slackening speed for his destination cannot recover for injuries re- ceived by being thrown out of the car by the stoppage of the train. Atchison. T. & S. F. R. Co. v. Johnson, 41 P. 641, 3 Okl. 41. Under the statutes it was not negligence per se for a passenger on a mixed railroad train to occupy a seat in a baggage car. Lane v. Choctaw, O. & G. R. Co., 91 P. 883, 19 Okl. 324. Whether a train was overcrowded or rules posted warning passengers not to ride in baggage cars are questions for the jury and not the court. Lane v. Choctaw, O. & G. R. Co., 91 P. 883, 19 Okl. 324. s 2 Application for insurance. The intent of insured, and whether certain answers given to the questions in the application were false, held a question of fact. Shawnee Life Ins. Co. v. Watkins, 53 Okl. 188, 156 P. 181. In an action on an insurance policy, where a false and fraudulent misrep- resentation is alleged and the evidence is conflicting, the question is for the jury. Springfield Fire & Marine Ins. Co. v. Null, 133 P. 235, 37 Okl. 665. The questions of the falsity of statements contained in an insurance policy (691) 805 TRIAL (Ch. 13 inal or collateral, 33 loss of earning capacity, 34 extent of injury, 35 and of the applicant's intent in making them are ordinarily for the jury. Con- tinental Casualty Co. v. Owen, 38 Okl. 107, 131 P. 1084. Under the evidence in an action on an accident insurance policy, held a question for the jury whether insured was suffering from a "defect in the body," within the mean- ing of that phrase in his statement indorsed on the policy. Id. The truth of warranties in an application for insurance held for the jury under conflicting evidence. National Council, Knights and Ladies of Security, v. Owen, 47 Okl. -64, 149 P. 231. A representation in a fire policy if false and material avoids the policy, though the question of falsity and materiality is ordinarily for the jury. Orient Ins. Co. v. Van Zandt-Bruce Drug Co., 50 Okl. 558, 151 P. 323. In action upon life policy defended on ground that insured's statements were false, the materiality of such statements and the insured's intent to de- ceive are questions for the jury. American Bankers' Ins. Co. v. Hopkins (Okl.) 169 P. 489. Whether a statement of insured, in an application for a life policy warrant- ed to be true, is untrue is ordinarily a question for the trier of facts. Na- tional Union v. Kelley, 140 P. 1157, 42 Okl. 98. In action on benefit certificate, truth or falsity of warranties in application is for the jury, where the evidence conflicts. National Council Knights and Ladies of Security v. Owen, 61 Okl. 256, 161 P. 178. Proof of loss. Whether a statement made in the proof of loss was material, false to assured's knowledge, and willfully made with intent to deceive, held for the Jury. Royal Ins. Co. Limited v. Scritchfield, 51 Okl. 523, 152 P. 97. Life insurance. The good faith of insured, a bank cashier, in issuing a draft for his premium held a question for the jury. Mutual Life Ins. Co. v. Chattanooga Savings Bank, 47 Okl. 748, 150 P. 190, L. R. A. 1916A, 669. Evidence in an action on a life policy, held to require submission to the 33 The question whether a verbal promise to repay borrowed money is origi- nal or collateral is for the jury. Waldock v. First Nat. Bank of Idabel, 143 P. 53, 43 Okl. 348. Under the evidence, held that the question whether W.'s promise to repay money advanced to R. was an original or collateral promise was for the jury. Id. Evidence held to present a question of fact whether a promise to pay for advancements to be made to another was primary or collateral. Richardson v. Parker, McConnel & Co., 125 P. 442, 33 Okl. 339. s* Proof of loss of earning capacity need not be wholly clear to go to the jury. Muskogee Electric Traction Co. v. Eaton, 49 Okl. 344, 152 P. 1109. ss in an injury action, where nonexpert witnesses testified that the injury was permanent, and plaintiff's injured hand was exhibited to the jury in corroboration thereof, and several expert witnesses testified that the injury was slight, and that there was a complete recovery, the extent of the injury was a question for the jury. Coalgate Co. v. Bross, 107 P. 425, 25 Okl. 244, 138 Am. St. Rep. 915. Evidence in a passenger's action for injuries held insufficient to warrant submitting to the jury, as elements of plaintiff's damages, whether she suffer- ed from kidney disease and paralysis as a result of her injuries; and hence in- structions withdrawing these elements from the jury were improperly refused. Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okl. 1, 134 P. 388, Ann. Cas 1915D 760. (692) Art. 3) ISSUES AND TRIAL THEREOF 805 amount of damages, 36 rights and liabilities as between employer and employe, 37 or heirs, representatives, and next of kin of the em- ploye, 38 and the proximate cause of injury. 89 jury of the question whether insured was in such mental condition as to be incapable of agreeing to cancellation of policy. Jones v. New York Life Ins. Co., 122 If. 702, 32 Okl. 339. Submission of question as to whether local council had waived conditions of contract, notwithstanding court predicated ,its authority on wrong section of by-laws, was not error, especially where result would have been same. Na- tional Council of Knights and Ladies of Security v. Fowler (Okl.) 168 P. 914, 6 A. L. R. 591. In an action for death benefit, where there was conflicting evidence as to Issue whether insured was in good health when reinstated, case was properly submitted to tne jury. Modern Brotherhood of America v. Beshara, 59 .Okl. 187, 158 P. 613. Fire insurance. What constitutes a reasonable time within which a demand must be made to entitle the insured to appraise and inspect is ordinarily for the jury. Springfield Fire & Marine Ins. Co. v. Hays & Son, 57 Okl. 266, 156 P- 673, L. R. A. 1917A, 1078. Evidence held sufficient to take to the jury the question whether insured complied with a "book warranty clause" of the policy. Scottish Union & Na- tional Ins. Co. v. Moore Mill & Gin Co., 143 P. 12, 43 Okl. 370. In an action on an insurance policy, evidence held sufficient to take to the jury the question of waiver of the iron-safe clause of the policy. Gish v. In- surance Co. of North America, 87 P. 869, 16 Okl. 59, 13 L. R. A. (N. S.) 826. Accident insurance. In an action on an accident policy exempting the in- surer from liability for injury resulting from unnecessary exposure to dan- ger, where the facts are such that reasonable men may fairly differ upon the question as to whether insured died of injuries resulting from such cause, the question is for the jury. Pacific Mut. Life Ins. Co. v. Adams, 112 P. 1026, 27 Okl. 496. Burglary insurance. Evidence, in an action on a policy against burglary of a safe by the use of tools or explosives, held to authorize submitting to the jury the question whether the safe was opened by such means. Fidelity & Casualty Co. of New York v. First Bank of Fallis, 142 P. 312, 42 Okl. 662. s e The amount of damages recoverable in an action for wrongful death is a question for the jury. Missouri, K. & T. Ry. Co. v. West, 38 Okl. 581, 134 P. 655. Where it is apparent that there was some loss of profits by breach of war- ranty of fitness of article for particular purpose, it is for the jury to determine what the loss probably was. Bishop-Babcock-Becker Co. v. Estes Drug Co., 63 Okl. 117, 163 P. 276. 37 Where, in an employe's action for injuries, reasonable men might fairly differ as to whether defendant's negligence was shown, the court properly re- fused to direct a verdict for defendant. Frisco Lumber Co. v. Thomas, 142 P. 310, 42 Okl. 670. Whether a master has been negligent is ordinarily for the jury. Interstate Compress Co. v. Arthur, 53 Okl. 212, 155 P. 861. Where the standard of the 88-38 s ee no tes 38 and 39 on pages 696 to 698. (693) 805 TRIAL (Ch. 13 master's duty Is not fixed, but variable with the circumstances and incapable of being determined as a matter of law, the question whether such duty has been complied with must, if authorized by the evidence, be submitted to the jury. The question of the master's negligence becomes one of law only, where the facts are such that all reasonable men must draw the same conclusions, and then only when no recovery can be had on any view of the facts which the evidence tends to establish. Id. In servant's action for injury, where facts are such that reasonable men may fairly differ as to defendant's primary negligence, question is for the jury. Chicago, R. I. & P. Ry. Co. v. Pruitt (Okl.) 170 P. 1143; Missouri, O. & G. Ry. Co. v. West, 50 Okl. 521, 151 P. 212. Evidence in a railroad employe's action for injuries received in interstate commerce held to authorize the overruling of defendant's demurrer to the evidence and denial of his motion for a directed verdict. St. Louis & S. F. R. Co. v. Brown, 45 Okl. 143, 144 P. 1075. In servant's action, question of master's negligence held for jury. Sulzberger & Sons Co. of Oklahoma v. Strickland, 60 Okl. 158, 159 P. 833. In action by servant for personal injuries, evidence held sufficient to go to jury on question of defendant's negligence. Chicago, R. I. & P. Ry. Co. v. Mayfield, 63 Okl. 71, 162 P. 486. In a mine employe's action for injuries from the derailment of a coal car the question whether the engineer was negligent was for the jury. Great Western Coal & Coke Co. v. Malone, 136 P. 403, 39 Okl. 693. Under the evidence in an engineer's action for injuries to his eye from the explosion of an inadequate water glass which the fireman was attempting to put in place, held, that the question of the negligence of the master and of the fireman was' for the jury. Chicago, R. I. & P. Ry. Co. v. De Vore, 143 P. 864, 43 Okl. 534, L. R. A. 1915F, 21. In an employe's action for injuries received while fixing a coupler, defend- ant's negligence held for the jury. St. Louis & S. F. R. Co. v. Brown, 45 Okl. 143, 144 P. 1075. Whether defendant's engineer was negligent under the doctrine of discov- ered peril, held for the jury. Chicago, R. I. & P. Ry. Co. v. pond, 47 Okl. 161, 148 P. 103. Whether the engineer, in violation of the Federal Safety Ap- pliance Act of March 2, 1893, as amended by acts approved April 1, 1896, and March 2, 1903 (U. S. Comp. St. 8605-8615), failed to use a continuous power brake with which the train was equipped, held for the jury. Id. In action for injuries to employg, evidence held to present a question for the jury whether defendant was guilty of negligence. Enid City Ry. Co. v. Webber, 121 P. 235, 32 Okl. 180, Ann. Cas. 1914A, 569. Whether a master was negligent in the purchasing and furnishing of lubri- cating oil for use of miners in a coal mine is primarily one of fact for the jury. Hailey-Ola Coal Co. v. Parker, 122 P. 632, 32 Okl. 642, 40 L. R. A. (N. S.) 1120. Where the negligence complained of is failure to furnish sufficient assistants to enable plaintiif to perform his work, the question is for the jury where there is any evidence that defendant failed to perform such duty, and that such failure pi-oduced the injury, and could have been reasonably anticipated. Chicago, R. I. & P. Ry. Co. v. Ashlock, 129 P. 726, 36 Okl. 706. Whether the master is negligent in failure to see that fellow servant's previ- ous experience qualifies him for duties to which he is assigned is for the jury. E. Van Winkle Gin & Machine Works v. Brooks, 53 Okl. 411, 156 P. 115L' (694) Art. 3) ISSUES AND TRIAL THEREOF 805 Evidence held to take to jury question whether master failed to 'exercise rea- sonable care to provide plaintiff safe fellow servants. Id. Whether an employe's injury is due to negligence of the employer in failing to furnish competent fellow servants sufficient in number, or to some other cause, is for the jury, where there is any evidence tending to support such cause of action. Sulzberger & Sons Co. v. Hoover, 46 Okl. 792, 149 P. 887. Whether an employer has made reasonable investigation into the character, skill, and qualifications of a servant is a question of fact for the jury. Ardmore Oil & Milling Co. v. Robinson, 116 P. 191, 29 Okl. 79. Existence and nature of relationship. In servant's action for injury, evi- dence held sufficient to justify court in submitting issue of relationship to jury. Wolverine Oil Co. v. Kingsbury (Okl.) 168 P. 1021. In an action for injuries, held that, whether the relation of master and serv- ant existed between plaintiff and defendant was for the jury. Muskogee Elec- tric Traction Co. v. Cox, 49 Okl. 365, 153 P. 125. Under conflicting evidence, the question whether an injured employ^ is protected by the federal Employers' Liability Act (U. S. Comp. $t. 8657- 8665) or by local law may be for the jury. Chicago, R. I. & P. R. Co. v. Feld- er, 56 Okl. 220, 155 P. 529. Scope and nature of employment. In servant's action for injury, issues as to nature of his employment and extent of his duty and authority held to present questions of fact for jury. Sandals v. Mizpah- Mining Co. (Okl.) 168 P. 808. In an action for the death of a servant killed while employed by an elec- tric company in locating "trouble" on electric wires, evidence held sufficient to to go to the jury. Fisher v. Prairie, 109 P. 514, 26 Okl. 337. In an action by a servant for injuries from a defective electric wire pole ob- tained secondhand from another company by plaintiff's foreman, evidence held sufficient to go to a jury on the question whether the foreman was acting within his authority in obtaining the pole and giving it to the members of his gang. Choctaw Electric Co. v. Clark, 114 P. 730, 28 Okl. 399. Safe place and appliances. Under conflicting evidence, the question wheth- er an employer has negligently failed to furnish a reasonably safe place in which to work is for the jury. Producers' Oil Co. v. Eaton, 44 Okl. 55, 143 P 9; Chicago, R. I. & P. Ry. Co. v. Townes, 143 P. 680, 43 Okl. 568. In action for damages proximately resulting from master's failure to prop- erly safeguard machinery, as required by Rev. Laws 1910, 3746, where such failure is specifically denied, the question of the master's negligence is for the jury. Maxia v. Oklahoma Portland Cement Co. (Okl.) 176 P. 907. In an action for injuries to an employe in a mine, where the evidence tend- ed to show that timberman, before dislodging loose rock from the roof of the mine, warned plaintiff, but did not give him sufficient time to reach a point of safety, a demurrer to the evidence held properly overruled. Creek Coal Min- ing Co. v. Paprotta (Okl.) 175 P. 235. In brakeman's action for injury from master's alleged negligence in fur- nishing a brake wheel too small, and in having the brake set too tight, evi- dence held insufficient to go to the jury. Chicago, R. I. & P. Ry. Co. v. Hes- senflow (OkL) 170 P. 1161. Where the evidence in an employe's action for injuries showed a flagrant violation of the Factory Act, the court properly refused to direct a verdict for defendant. Pioneer Hardwood Co. v. Thompson, 49 Okl. 502, 153 P. 137. Evidence in an employe's action for injuries from negligent failure of de- (695) 805 TRIAL (Ch. 13 fendant to comply with the Factory Act held to authorize submitting the cause to the jury on plaintiff's theory. Planters' Cotton & Ginning Co. v. Penny, 53 Okl. 136, 155 P. 516. In absence of rule or recognition requiring use of longer route, question whether continued use of route across elevator implied notice on part of master and consent thereto is for jury, though master would then owe duty of making passage safe by lighting. Prickett v. Sulzberger & Sons Co., 57 Okl. 567, 157 P. 356. Whether maintenance by railway of temporary water plug or other ob- struction near track, endangering operatives in their usual and necessary du- ties, is negligence, is for the jury. Midland Valley R. Co. v. Ogden, 60 Okl. 74, 159 P. 256. In action by railroad employe 1 claimed to have resulted from defective brake, evidence held sufficient to take to jury question of primary negligence of defendant. Lusk v. White, 58 Okl. 773, 161 P. 541. Whether defendant had failed to furnish an injured servant a reasonably safe place in which to work held for the jury. Oklahoma Portland Cement Co. v. Brown, 45 Okl. 476, 146 P. 6. The character of the work held not so complex as to require the master to prescribe rules and regulations, as a mat- ter of law. Id. Whether a spreader was such a guard for a circular saw as is required by ReV. Laws 1910, 3746, held for the jury. Jones v. Oklahoma Planing Mill & Mfg. Co., 47 Okl. 477, 147 P. 999. Plaintiff, an employe" of defendant railway company, was engaged under the supervision of defendant's foreman to load loose dirt into cars of defend- ant at the bottom of an embankment on its line of railway. The embankment was from 10 to 14 feet high, and sloped from the top outward toward the track to the bottom at an angle of about 45 degrees- On the day preceding the accident employe's of the company, under the direction of the same foreman, had gone on top of the embankment, and with line bars and picks had dug six or seven holes three or four feet deep, about two and a half to three feet back from the edge of the embankment, and had cut the roots of a tree standing thereon which extended out through the top dirt of the bank, hold- ing it in place. Plaintiff had never worked at this place before the day of the accident, and had worked there only a few hours on said day before the ac- cident occurred. The evidence tended to show that he had no knowledge of such acts of tne employe's on the day previous, or of the condition of the embankment resulting therefrom, and that the same were not obvious to him upon ordinary observation, and he was not informed thereof by defendant. Plaintiff was injured by the sliding of the top dirt of the embankment down upon him and breaking his leg. Held, that the court did not err in submit- ting to the jury the question whether plaintiff's injury resulted from the neg- ligence of defendant. Ft. Smith & W. R. Co. v. Ketis, 110 P. 661, 26 Okl. 696. In an injury action by a servant evidence of the master's neglect in failing to provide a reasonably safe appliance for performance of the work required of the servant held insufficient to go to the jury. Solts v. Southwestern Cot- ton Oil Co., 115 P. 776, 28 Okl. 706. as in action for damages for death of employe" from defendant's negligence, held, that demurrer to plaintiff's evidence was properly overruled, and that defendant's request for peremptory instructions was properly denied. Lusk v. Phelps (Okl.) 175 P. 756. In action for death of oil company's servant by gas asphyxiation held, on (696) Art. 3) ISSUES AND TRIAL THEREOF 805 the evidence, that court could not say that master's culpability might not be reasonably inferred by jury, where servant had received no special warning as to particular dangers, wbeu circumstances made such information neces- sary to enable him to comprehend dangers. Silurian Oil Co. v. Morrell (Okl.) 176 P. 964. In action for the death of section foreman killed while removing his motor- car from the track, evidence held sufficient to go to the jury on the question of the primary negligence of the railroad company. Dickinson v.^Granbery (Okl.) 174 P. 776. In action for death of a brakeman, held on the evidence, that the negli- gence of defendant, an interstate carrier, in failing to equip freight cars with automatic couplings as required by Federal Safety Appliance Act March 2, 1893 (U. S. Comp. St. 8605-8612) was for the jury. Chicago, R. I. & P. Ry. Co. v. Ray (Okl.) 168 P. 999. , In, an action based on the Federal Employers' Liability Act (U. S. Cornp. St. 8657-8665) and violation of the Safety Appliance Act of March 2, 1893, as amended by Acts approved April 1, 1896, and March 2, 1903 (U. S. Comp. St. 860&-8615) held that whether deceased was an independent contractor was for the court. Chicago, R. I. & P. Ry. Co. v. Bond, 47 Okl. 161, 148 P. 103. Un- der the evidence in an action based on jthe Federal Employers' Liability Act. held, that whether deceased was killed while engaged in interstate commerce was for the jury. Id. In an action for the death of a miner killed by a lump of coal falling down a shaft, the question of defendant's negligence held for the jury. Osage Coa> & Mining Co. v. Miozrany, 143 P. 185, 43 Okl. 453. Whether defendant was negligent in failing to furnish an appliance for the protection of a miner from coal falling down a shaft, held for the jury. Id. Where, in an action for the death of an employe" from a freight elevator accident, there was evidence reasonably tending to prove that the accident was due to negligent construction of the elevator track, and that defendant's rule, prohibiting persons riding on the elevator except at their own risk, had been abandoned, the question of the cause of the injury was for the jury. Selden-Breck Const. Co. v. Linnett, 38 Okl. 704, 134 P. 956. Where, in an action for the death of an employe from a freight elevator accident there was evidence reasonably tending to prove that the accident was due to negligent construction of the elevator track, and that defendant's rule, prohibiting persons riding on the elevator except at their own risk, had been abandoned, the question of defendant's negligence was for the jury. Selden-Breck Const. Co. v. Linnett, 38 Okl. 704, 134 P. 956. Where an employe" is killed, the jury may infer, from proof of the manner of the occurrence and its surroundings, the cause of the accident, provided the inference is a reasonable one. St. Louis & S. F. Ry. Co. v. Clampitt, 55 Okl. 686, 154 P. 40. Under the evidence, in an action for the death of a brake- man killed by falling under a moving train, held that whether the accident was caused by a defective platform was for the jury, though there was no di- rect evidence that such defect caused Iris fall. Id. Evidence, in action for wrongful death of mine driver in defendant's em- ploy, held to make defendant's negligence a question for the jury. Folsom- Morris Coal Mining Co. v. Dillon (Okl.) 162 P. 696. 39 The proximate cause of an injury is ordinarily a question for the jury. St. Louis & S. F. R. Co. v. Davis, 132 P. 337, 37 Okl. 340. Where, in an employe's action for injuries, defendant's negligence was ad- (097) 805 TRIAL (Ch. 13 Where the construction of a contract is a mixed question of law and fact, it is for the jury. 40 But the court should determine the mitted, the question of plaintiff's contributory negligence was for the jury under Const, art. 23, 6. Revel v. Pruitt, 142 P. 1019, 42 Okl. 696. What was the proximate cause of a servant's death is for the jury. Coal- gate Co. v. Hurst, 107 P. 657, 25 Okl. 588, writ of error dismissed 32 S. Ct. 838, 225 U. S. 697, 56 L. Ed. 1262. Whether failure of employer to comply with positive statute relating to safety of employs was proximate cause of injury is question for jury Har- riss-Irby Cotton Co. v. Duncan, 57 Okl. 761, 157 P. 746. In action by railroad employ^, claimed to have resulted from defective brake, evidence held sufficient to take to jury question whether defendant's negligence was the proximate cause of the injury- Lusk v. White, 58 Okl. 773, 161 P. 541. Evidence in an employe's action for injury held to warrant submission of the question of defendant's negligence. Missouri, O. & G. Ry. Co. v. Miller, 45 Okl. 173, 145 P. 367. Under the evidence in an action for injuries from slipping on a pile of coal and falling under a train, held, that the question of the proxi- mate cause was for the jury. Id. In suit for personal injuries, question whether defendant's negligence is proximate cause of injury should be left to jury where evidence is conflicting, or men of ordinary intelligence might differ as to its effect. Clinton & O. W. Ry. Co. v. Dunlap, 56 Okl. 755, 156 P. 654. The question of whether or not defendant's negligence was the proximate cause of plaintiff's injury is for the jury, where the evidence is conflicting. St. Louis & S. F. R. Co. v. Darnell, 141 P. 785, 42 Okl. 394. What constitutes want of ordinary care on the part of a plaintiff, and whether the same is the proximate cause of the injury, are questions for the jury. St. Louis & S. F. R. Co. v. Elsing, 132 P. 483, 37 Okl. 333. The question of what is the proximate cause of an injury, or what is the immediate or proximate result of a given act, is ordinarily one of fact for the jury. Atchison, T. & S. F. Ry. Co. v. St. Louis & S. F. Ry. Co., 41 Okl. 80, 135 P. 353, 48 L. R. A. (N. S.) 509. In action for personal injury in crossing accident, evidence held sufficient to carry case to jury upon question whether defendant's negligence was the proximate cause of injury. Ft. Smith & W. Ry. Co. v. Hutchinson (Okl.) 175 P. 922. In action for personal injury, the submission of question, whether in- jury resulted from plaintiffs act in jumping from wagon, was not error, where there was evidence from which jury might have found that she at- tempted to jump from wagon, though she did not jump clear but fell and had to be helped to ground. Id. In an action for injuries to a child, from the negligent operation of a train, held, that the proximate cause of the injury was for the jury under the facts shown. St. Louis & S. F. R. Co. v. Hodge, 53 Okl. 427, 157 P. 60. In an action for injuries to persons on the track, evidence held to raise an issue as to whether the negligence of plaintiff or of the railroad company was the proximate cause of the injury sufficient to take it to the jury. Chicago, R. I. & P. Ry. Co. v. Martin, 141 P. 276, 42 Okl. 353. 40 Kingfisher Mill & Elevator Co. v. Westbrook (Okl.) 192 P. 209. (698) Art. 3) ISSUES AND TRIAL THEREOF 805 effect as a matter of law of undisputed facts, 41 the construction of a clear and unambiguous contract, 42 not dependent on extrinsic facts in dispute, 43 whether action for breach of contract is barred 4 1 Where the facts are undisputed, it is for the court to determine as a question of law whether such facts show such actual and continued change of possession as will render a transfer of the personal property valid as against creditors of the seller. Cochran Grocery Co. v. Harris, 116 P. 185, 28 Okl. 715. Corap. Laws 1909, 2933. providing that every transfer of personalty is conclusively presumed, if made by a person having possession, not accompanied by immediate delivery, and followed by actual change of possession, to be void against creditors, does not apply to a mortgagee's sale, and does not ren- der such sale void as a matter of law, though the purchaser leaves the prop- erty in possession of the mortgagor. Taylor v. Wooden, 30 Okl. 6, 118 P. 372, 36 L. R. A. (N. S.) 1018. 42 Brown v. Coppadge, 54 Okl. 88, 153 P. 817; Waldrep v. Exchange State Bank of Keifer (Okl.) 197 P. 509. Whether a party to an unambiguous contract is an independent contractor is a question of law to be determined by the court from an inspection of the cdiitract in the light of surrounding circumstances. Pressley v. Incorporated Town of Sallisaw, 54 Okl. 747, 154 P. 660. When a letter is introduced to show a promise or agreement, it is generally the court's duty to construe the terms of the letter, and not to submit it to the jury. Comanche Mercantile Co. v. Wheeler & Motter Mercantile Co., 55 Okl. 328, 155 P. 583. Where a contract consists of letters and telegrams containing no technical words or terms of art and not dependent upon extrinsic facts for its meaning, its construction is wholly for the court. J. Rosenbaum Grain Co. v. Higgins, 136 P. 1073, 40 Okl. 181; American Jobbing Ass'n v. James, 103 P. 670, 24 Okl. 460; Brown v. Davidson, 142 P. 387, 42 Okl. 598. Whether work sued for comes within the contract relied upon for recovery, and whether the value of the work is to be measured by the contract, are questions of law. Oklahoma County v. Blakeney, 48 P. 101, 5 Okl. 70. Where the contract consists of several written instruments, it is the duty of the court to determine what the contract is. Bales v. Northwestern Consol. Milling Co., 96 P. 599, 21 Okl. 421. 43 The determination of the meaning of a written contract is ordinarily a question for the court, and not one of fact for the jury, but where the con- struction depends upon extrinsic facts as to which there is a dispute, its con- struction is a mixed question of law and fact, and is for the jury under proper instructions from the court. Rider v. Morgan, 31 Okl. 98, 119 P., 958. Where a contract of employment is in writing, the question of the relation between the parties is ordinarily for the court, but if oral and the evidence is conflicting, or where the written contract has been modified by the practice under it, the question is for the jury. Chicago, R. I. & P. Ry. Co. v. Bennett, 128 P. 705, 36 Okl. 358. Where a contract of employment is oral, and there is no dispute as to its terms, or only one inference can be drawn, the ques- tion of the relation created is for the court. Id. (699) 806 TRIAL (Ch. IS by limitations, 44 whether correspondence constitutes a contract, 45 whether a contract is against public policy, 46 and the validity of a deed, where the pertinent facts are not in dispute. 47 806. Negligence in general Negligence is always a question for the jury when reasonable men may differ as to the facts or inferences to be drawn. 48 It is only where the facts are such that' all reasonable men must 44 Froage v. Webb (Okl.) 165 P. 150. 45 Where a transaction consists entirely of letters and telegrams, the ques- tion whether such correspondence constitutes a contract is for the court. J. Rosenbaum Grain Co. v. Higgins, 136 P. 1073, 40 Okl. 181; American Jobbing Ass'n v. James, 103 P. 670, 24 Okl. 460; Atwood v. Rose, 122 P. 929, 32 Okl. 355.' 46 Whether a contract is against public policy is for the court. Huber v. Gulp, 46 Okl. 570, 149 P. 216. Evidence in an action on a contract, made by defendant in an alienation suit, to reimburse the wife for the amount she might lose by a settlement with her busbar '. held to show the contract with sufficient definiteness to require submission of the case to the jury. Id. 47 Where cancellation of a deed is sought because not joined in by the husband, execution and acknowledgment thereof by the wife being admitted, its validity is for the court. Wesley v. Diamond, 44 Okl. 484, 144 P. 1041. 48 Chicago, R. I. & P. Ry. Co. v. Schands, 57 Okl. 688, 157 P. 349; Chicago, R. I. & P. R. Co. v. Felder, 56 Okl. 220, 155 P. 529; Chicago, R. I. & P. Ry. Co. v. Rogers, 60 Okl. 249, 159 P. 1132; Rock Island Coal Mining Co. v. Davis, 44 Okl. 412, 144 P. 600; St. Louis & S. P. R. Co. v. Williams, 122 P. 152, 31 Okl. 450; Muskogee Vitrified Brick Co. v. Napier, 126 P. 792, 34 Okl. 618; Mean v. Callison, 116 P. 195, 28 Okl. 737; Neeley v. South- western Cotton Seed Oil Co., 75 P. 537, 13 Okl. 356, 64 L. R. A. 145; Okla- homa Gas & Electric Co. y. Lukert, 84 P. 1076, 16 Okl. 397; Choctaw, O. & W. Ry. Co. v. Wilker, 84 P. 1086, 16 Okl. 384, 3 L. R. A. (N. S.) 595; Home Oil & Gas Co. v. Dabney, 79 Kan. 820, 102 P. 488 ; St. Louis & S. F. R. Co. v. Copeland, 102 P. 104, 23 Okl. 837; Patterson v. Missouri, K. & T. Ry. Co., 104 P. 31, 24 Okl. 747. St. Louis, I. M. & S. Ry. Co. v. Weldon, 39 Okl. 369, 135 P. 8. In action for injuries to a child from the exhaust pipe of a stationary engine extending out of a building, whether the premises constituted an at- tractive nuisance and defendant was guilty of negligence in respect thereto, held for the jury. Chicago, R. I. & P. Ry. Co. v. Wright, 62 Okl. 134, 161 P. 1070. In an action for injuries from falling into an excavation on a lot adjoining premises occupied by plaintiff, due to the giving way of a path which ran near the edge of the excavation, the question whether defendants were neg- ligent in failing to wall up such excavation held for the jury. Connally v. Woods, 39 Okl. 186, 134 P. 869. Where an occupant of premises adjoining a lot upon which an excavation has recently been made is injured from fall- ing into the excavation while following a path near its edge, which path gives way for want of lateral support, and it appears that she had been ac- (700) Art. 3) ISSUES AND TRIAL THEREOF 806 draw the same conclusion from them, that the question of negli- gence is ever considered as one of law for the court. 49 However, customed to use this path for several months, she is not guilty of contribu- tory negligence, as a matter of law. Id. Issues as to negligence and contributory negligence and the proximate cause of an injury are for the jury, where the evidence is conflicting, and where different minds might reasonably draw different conclusions. St. Louis & S. F. R. Co. v. Copeland, 102 P. 104, 23 Okl. 837 ; Harris v. Missouri, K. & T. Ry. Co., 103 P. 758, 24 Okl. 341, 24 L. R. A. (N. S.) 858. Streets and parking places. In action against a city for damages for fall- ing into open catch-basin on public street, evidence held sufficient, as against a 'demurrer to the evidence, to charge city with notice of open condition of catch-basin. City of Ada v. Smith (Okl.) 175 P. 924. In action against city for personal injury to servant of abutting owner impliedly authorized to enter parking space to mow grass thereon, held, on the evidence, that city's negligence in not keeping space in a condition rea- sonably safe for use was for jury. City of Shawnee v. Drake (Okl.) 171 P. 727, L. R. A. 1918D, 810. Railroad and crossing accidents. In an action for injury, at a r'ailroad crossing, held, on the evidence, that court did not err in submitting the ques- tion of negligence to the jury. Ft. Smith & W. R. Co. v. Moore (Okl.) 169 P. 904. Evidence held to present question for jury whether there was excessive speed of train by which plaintiff crossing the track was injured. Chicago, R. I. & P. Ry. Co. v. Barton, 59 Okl. 109, 159 P. 250. Under the evidence in an action against a railroad company, for injuries from failure to restore a highway to proper condition, held, that whether the highway had been restored, as required by Comp. Laws 1909, 1360, 7498, was for the jury. St. Louis & S. F. R. Co. v. Bell, 58 Okl. 84, 159 P. 336, L. R. A. 1917A, 543. Evidence, in an action for damages from collision between a train and plaintiff's wagon at a crossing, held sufficient to take the case to the jury on the question of negligence and contributory negligence. St. Louis & S. F. R. Co. v. Clark, 142 P. 396, 42 Okl. 638. Under the evidence, in an action for injuries from being thrown from a buggy on a dark night into an open unguarded sewer at an unlighted rail- road crossing, held, that the question of the defendant railway company's negligence was for the jury. St. Louis, I. M. & S. Ry. Co. v. O'Connor, 142 P. 1111, 43 Okl. 268. Whether defendant's violation of an ordinance requiring safety gates and competent persons to operate same caused plaintiff's injury was for the jury. St. Louis & S. F. R. Co. V. Hart, 45 Okl. 659, 146 P. 436. In an action for injuries at a crossing, evidence held sufficient to take to the jury the question of proximate cause. St. Louis & S. F. Ry. Co. v. Krai, 122 P. 177, 31 Okl. 624. Where, in an action for death at a crossing, the evidence is conflicting as to whether the engineer used ordinary care to prevent injuring the man, the , 48 St. Louis-San Francisco Ry. Co. v. Teel (Okl.) 198 P. 78; Prickett v. Sulzberger & Sons Co., 57 Okl. 567, 157 P. 356. (701) 806 TRIAL (Ch. 13 negligence is so much a mixed question of law and fact that courts are seldom justified in saying that all reasonable men will agree question was for the jury. Atchison, T. & S. F. Ry. Co. v. Baker, 130 P. 577, 37 Okl. 48. Where a, footpath across and along a railroad track has been habitually used by the public for many years, it is a question of fact whether the rail- road company has not acquiesced in such use. Wilhelm v. Missouri, O. & G. Ry. Co., 52 Okl. 317, 152 P. 1088, L. R. A. 1916C, 1029. In action for the death of a telegraph company's employ struck by de- fendant's train, evidence as to whether engineer and fireman saw deceased in a place of peril in time to have avoided the injury by the exercise of ordinary care held to make a question for the jury. Lusk v. Haley, 75 Okl. 206, 181 P. 727. "Whether certain place constitutes part of station grounds, or public high- way, where railway company is by statute exempt from maintaining fence, is a question of fact for the jury. Missouri, K. & T. Ry. Co. v. Bandy, 75 Okl, 57, 181 P. 313. In an action against a railroad company for injuries to cattle, because of unfenced station grounds, the question of the necessity of such grounds is for the jury. Dickinson v. Stewart (Okl.) 174 P. 233. In an action against a railroad company for injuries to cattle, because of unfenced station grounds, where there is no evidence controverting the necessity of such grounds, the court must instruct for defendant. Id. Where in a stock-killing case, plaintiff's right of recovery depended on neg- ligence, and there was no evidence of negligence or circumstances from which negligence might reasonably be inferred, the court should have directed a verdict for defendant. Ft. Smith & W. R. Co. v. Dixon, 51 Okl. 722, 152 P. 350. Where uncontroverted evidence of engineer and fireman shows that they did all they could have done on discovering cow on track to prevent injury, verdict should be directed for railroad. Missouri, K. & T. Ry. Co. v. Raines, 59 Okl. 52, 158 P. 936. Whether a railroad company is liable for injuries caused to stock in a field, frightened by steam, is for the jury where reasonable men might differ as to the conclusions to be drawn from the circumstances. Chicago, R. I. & P. R. Co. v. Hine, 59 Okl. 143, 158 P. 597. Question whether the place of accident was such as Rev. Laws 1910, 1435 (Comp. Laws 1909, 1389), required to be fenced or was a part of the station grounds or she is unable to consent. People v. MacDonald, 140 P. 256, 167 Cal. 545. Where, in an action for the killing of a hog struck by a train, the uncon- tradicted evidence showed that the railroad company had used ordinary care to prevent the injury, it was error to refuse a peremptory instruction for defendant. St. Louis & S. F. R. Co. v. Higgs, 141 P. 10, 42 Okl. 171. Where, in a stock-killing case, there is no evidence of negligence or circum- stances from which negligence may be reasonably inferred, a verdict should be directed for defendant. Missouri, K. & T. Ry. Co. v. Box, 48 Okl. 402, 150 P. 111. Where the testimony of the engineer and fireman is positive that the alarm was sounded, emergency brakes applied as soon as stock was discovered (702) Art. 3) ISSUES AND TRIAL THEREOF 806 with them on question whether given facts constitute ordinary care. 50 Where standard and measure of duty is defined by law, and is same under all circumstances, its omission is negligence, and may be so declared- by court. 51 Where the standard of duty to use care is not fixed, and shifts with circumstances, it is not determin- able as matter of law, and must be submitted to jury. 62 The jury has no exclusive province, unless there is an issue as to the existence of such an act of omission or commission as in law would constitute negligence. 58 It has been held a question for the jury whether a city had suffi- cient notice of defects in its public ways. 54 on the track, and everything possible done, and there is no testimony to show negligence, the court should direct a verdict for defendant. St. Louis & S. F. R. Co. v. Webb, 128 P. 252, 36 Okl. 235. Where, in an action for killing plaintiff's horse, there was no evidence from which negligence on defendant's part could be inferred, the court should have directed verdict for defendant. St. Louis & S. F. R. Co. v. Mc- Clelland, 128 P. 1081, 36 Okl. 573. In an action by a widow for killing of her husband by defendant's train, evidence held not to warrant submission of the last clear chance rule. Mis- souri, O. & G. Ry. Co. v. Lee (Okl.) 175 P. 367. Fires. It was a question of fact whether the company was negligent in permitting inflammable material to accumulate on the right of way. Missouri, O. & G. Ry. Go. v. Gentry, 122 P. 537, 31 Okl. 579. Allowing combustible material to accumulate on right of way is not negligence per se, and the railway company is not negligent unless such accumulations w^ere such as would not have been permitted by an ordinarily prudent man on his own premises. Id. Where it appeared that a fire was started on the right of way by a loco- motive, held the province of the jury to determine whether the presumption of negligence was overcome. St. Louis, I. M. & S. Ry. Co. v. Marlin, 128 P. 108, 33 Okl. 510. so Prickett v. Sulzberger & Sons Co., 57 Okl. 567, 157 P. 356. sild. 52 id; Littlejohn v. Midland Valley R. Co., 47 Okl. 204, 148 P. 120. B3 Smith v. Acme Milling Co., 126 P. 190, 34 Okl. 439. It is only when the facts are such that all reasonable men must draw the same conclusions that the question of negligence, other than failure to per- form a statutory duty, becomes a question of law for the court. Farrier v. Colorado Springs Rapid Transit Ry. Co., 95 P. 294, 42 Colo. 331, 126 Am. St. Rep. 158; Missouri, K. & T. Ry. Co. v. Shepherd, 95 P. 243, 20 Okl. 626; Metropolitan Ry. Co. y. Fonville, 91 P. 902, 19 Okl. 283; Sans Bois Coal ^Bellevue Gas & Oil Co. v. Carr (Okl.) 161 P. 203; City of Lawton v. Hills, 53 Okl. 243, 156 P. 297; Cleveland Trinidad Paving Co. v. Mitchell, 140 P. 416, 42 Okl. 49; City of Woodward v. Bowder, 46 Okl. 505, 149 P. 138. (703) 807 TRIAL (Ch. 13 807. Contributory negligence Assumption of risk "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury." 5B This provision is not merely declaratory of the common law, but requires that these defenses be left to the jury in all cases. 56 It has been frequently applied in actions for injuries to employes, 57 and other persons; 58 as has the general rule requiring submission Co. v. Janeway, 99 P. 153, 22 Okl. 425 ; Independent Cotton Oil Co. v. Beach- am, 31 Okl. 384, 120 P. 969. Where from the evidence, though undisputed, reasonable men might draw different conclusions as to negligence or contributory negligence, such ques- tions are for the jury. Sans Bois Coal Co. v. Janeway, 99 P. 153, 22 Okl. 425. 55 Const. Okl. art. 23, 6; Wichita Falls & N. W. Ry. Co. v. Groves (Okl.) 196 P. 677; Hailey-Ola Coal Co. v. Morgan, 39 Okl. 71, 134 P. 29; City of Ada v. Smith (Okl.) 175 P. 924. In view of this provision, the jury's finding is conclusive upon the court. Dickinson v. Cole (Okl.) 177 P. 570. 56 Dickinson v. Cole (Okl.) 177 P. 570; Dickinson v. Whitaker, 75 Okl. 243, 182 P. 901; Lusk v. Phelps (Okl.) 175 P. 756; St. Louis & S. F. R. Co. v. Long, 137 P. 1156, 41 Okl. 177, Ann. Cas. 1915C, 432; St. Louis & S. F. R. Co. v. Hart, 45 Okl. 659, 146 P. 436; Oklahoma Ry. Co. v. Milam, 45 Okl. 742, 147 P. 314 ; Chicago, R. I. & P. Ry. Co. v. Hill, 129 P. 13, 36 Okl. 540, 43 L. R. A. (N. S.) 622; Thorp v. St. Louis & S. F. R. Co. (Okl.) 175 P. 240; St. Louis & S. F. R. Co. v. Boush (Okl.) 174 P. 1036 . The court should not instruct that certain circumstances or facts do or do not constitute contributory negligence. Wichita Falls & N. W. Ry. Co. v. Woodman, 64 Okl. 326, 168 P. 209. 67 Oklahoma Coal Co. v. Corrigan (Okl.) 168 P. 1024 ; Chicago, R. I. & P. Ry. Co. v. Warren, 63 Okl. 190, 163 P. 705; St. Louis & S. F. R. Co. v. Long, 137 P. 1156, 41 Okl. 177, Ann. Cas. 1915C, 432 ; .Osage Coal & Mining Co. v. Sperra, 142 P. 1040, 42 Okl. 726 ; Sulsberger & Sons Co. v. Castleberry, 139 P. 837, 40 Okl. 613; Frisco Lumber Co. v. Thomas, 142 P. 310, 42 Okl. 670; Dewey Portland Cement Co. v. Blunt, 38 Okl. 182, 132 P. 659; Chicago, R. I. & P. R. Co. v. Duran, 38 Okl. 719, 134, P. 876; Petroleum Iron Works Co. v. Wantland, 114 P. 717, 28 Okl. 481 ; Chicago, R. I. & P. R. Co. v. Felder, 56 Okl. 220, 155 P. 529; Dickinson v. Whitaker, 75 Okl. 243, 182 P. 901 ; Mid- land Valley R. Co. v. Cox (Okl.) 170 P. 485; Sandals v. Mizpah Mining Co. (Okl.) 168 P. 808. <>8 In action for injuries from falling into excavation in a street, held, that a refusal to instruct on contributory negligence of which there was evi- dence was error, under Const, art. 23, 6. City of Poteau v. Delaney, 48 Okl. 361, 150 P. 208. Whether the negligence of the chauffeur was to be imputed to deceased, who was riding with him on invitation of the owner of the car, held a ques- tion of law for the court and not one of contributory negligence for the jury, (704) Art. 3) ISSUES AND TRIAL THEREOF 807 to the jury of all controverted questions of fact, including contribu- tory negligence and assumption of risk. 59 In a few instances it under Const, art. 23, 6. St. Louis & S. F. K. Co. v. Bell, 58 Okl. 84, 159 P. 336, L. R. A. 1917A, 543. Under Const, art. 23, 6 (Williams Ann. Const. 355), providing that the defense of contributory negligence shall always be left to the jury, it is error to take the case from the jury, where there is any competent testimony which, when considered in the light most favorable to plaintiff, reasonably tends to show a primary negligence. Anthony v. Bliss, 39 Okl. 237, 134 P. 1122. Where, in an action for personal injuries at a crossing, the evidence was conflicting as to whether plaintiff looked and listened before crossing the track, the question of contributory negligence was for the jury under Wil- liams' Ann. Const, art. 23, 6. Midland Valley R. Co. v. Shores, 136 P. 157, 40 Okl. 75, 49 L. R. A. (N. S.) 814. As contributory negligence is, under Const, art. 23, 6, a question of fact, court, in motorman's action for injury from collision with defendant's en- gine, properly left that question to jury under proper instructions. St. Louis & S. F. Ry. Co. v. McFall, 63 Okl. 124, 163 P. 69. 59 Personal injuries, A person who receives an injury on account of a de- fective sidewalk is not necessarily precluded from recovering damages there- for merely because of his previous knowledge of the defect, but such knowl- edge is an element for the jury to consider in determining the question of ordinary care. City of Ottawa v. Black, 61 P. 985, 10 Kan. App. 439; Pit- man v. City of El Reno, 37 P. 851, 2 Okl. 414, judgment reversed Pittman v. Same, 46 P. 495, 4 Okl. 638. It is not contributory negligence per se to use a sidewalk with knowledge of its defective condition. City of Highlands v.' Raine, 47 P. 283, 23 Colo. 295 ; City of Guthrie v. Finch, 75 P. 288, 13 Okl. 496. The question as to whether or not the whole width of a street of a city must be kept in a safe condition for travel is a question of fact for the jury. City of Guthrie v. Swan, 41 P. .84, 3 Okl. 116. Where, in an action for a fall received in passing over a partially graded street at night, on which there were no barriers, the evidence was conflicting as to the condition of the street, and as to whether it was lighted, and plaintiff claimed not to know the condition of the street, the question of contributory negligence is for the jury. Id. Where a traveler on horseback, passing along a street, saw a light, which he presumed to be a danger signal, some 40 feet from him, and, failing to slacken speed to investigate, fell into an excavation which extended beyond the signal, the question of his contributory negligence was for the jury. City of Oklahoma City v. Welsh, 41 P. 598, 3 Okl. 288. Whether one injured while walking on a sidewalk at night, with knowledge that it is defective, and looking for the defect at the time, is guilty of con- tributory negligence, is a question for the jury. Pitman v. City of El Reno, 37 P. 851, 2 Okl. 414, judgment reversed Pittman v. City of El Reno, 46 P. 495, 4 Okl. 638. Where, in an action against a city for injuries resulting from a defective sidewalk, defendant demurred to the evidence, which showed contributory negligence, it was the duty of the court under Code 1890 to say whether or HON.PL.& PBAC.-^S (705) 807 TRIAL (Ch. 13 t has been applied in actions for damages to property. 80 It does not apply, however, where there is no evidence of negligence by the defendant. 61 not plaintiff was guilty of contributory negligence as a matter of law. Pitt- man v. City of El Reno. 46 P. 495, 4 Okl. 638. The plaintiff tripped in the darkness over a piece of wire stretched across the sidewalk, in connection with a building in process of construction. The usual city electric light near that point was not burning, and there was no danger signal. The plaintiff's testimony was that she was passing quietly and carefully along ; that she passed the point several times a day, but had not seen the sidewalk in that condition before, nor knew that the sidewalk had been taken up; and that, as well as she could see, there was plenty of room to walk. Held, that the question of her negligence was for the jury. City of Guthrie v. Thistle, 49 P. 1003, 5 Okl. 517. The sufficiency of a highway is usually a mere question of fact to be de- termined by the jury under the evidence concerning its actual condition. City of Guthrie v. Swan, 51 P. 562, 5 Okl. 779. Plaintiff was injured while passing by a point of danger upon one of defendant's streets. She was not acquainted with the danger. The night was particularly dark. She was walking slowly and carefully. There were no lights either danger signals or the usual electric light near the point. No barriers to protect travelers from the place of danger were erected. When she discovered an obstruction, 60 In an action against a railroad company for failure to ship certain seed, the question of contributory negligence in exposing the seed to rains, and permitting it to remain so exposed for a period during which rains would likely fall upon it, whereby it would heat and spoil, thereby contributing to the injury, is for the jury. Chicago, R. I. & P. R. Co. v. Beatty, 116 P. 171, 27 Okl. 844. Where, in an action for damages to an automobile at a crossing, there was evidence tending to prove that defendant's negligence proximately caused the injury, it was not error, under Const, art. 23, 6 (Williams' Ann. Const. 355), to overrule defendant's demurrer to the evidence and motion to instruct a verdict, regardless of any evidence of plaintiff's contributory negligence. St. Louis & S. F. R. Co. v. Model Laundry, 141 P. 970, 42 Okl. 501. Evidence in an action for damages to an automobile at a crossing held sufficient to take to the jury the question whether defendant was guilty of negligence proxi- mately causing the injury. Id. Under the evidence in an action for damages to an avitomobile at a crossing, held not error to submit to the jury the ques- tion whether plaintiff might recover, regardless of his contributory negligence by reason of defendants having been guilty of willful and wanton negligence proximately causing the injury. In an action for damages to an automobile at a crossing, a mere inference of discovery of peril in time for defendant to have avoided the collision by ordinary care, predicated alone on certain circumstances and contradicted by the engineer's positive testimony, held too improbable to warrant submitting to the jury the question of discovered peril. ei Barnsdall Oil Co. v. Ohler, 48 Okl. 651, 150 P. 98; Phoenix Printing Co. v. Durham, 122 P. 708, 32 Okl. 575, 38 L. R. A. (N. S.) 1191; Chicago, R. I. & P. Ry. Co. v. Barton, 59 Okl. 109, 159 P. 250. (706) Art. 3) ISSUES AND TRIAL THEREOF 807 On the issue of an employe's assumption of risk in an action un- der the federal Employers' Liability Act (U. S. Comp. St. 8657- 8665), where the evidence is such that all reasonable men must she stepped down from the sidewalk, and out into the road, where she thought it was smooth. She thought it was only down about a foot, but it proved to be two or three feet, and, in doing so, she was injured. Held, that the question of contributory negligence was for the jury. Id. The sufficiency of notice to fasten liability upon a city 'for a defective side- walk is a question of fact to be determined by the jury under all the cir- cumstances surrounding the particular case. Town of Norman v. Teel, 69 P. 791, 12 Okl. 69. Whether a person injured by a defective sidewalk was in the exercise of ordinary care at the time of the injury is a question of fact for the jury. Id. Negligence is generally for jury, and when competent evidence thereof has been admitted, it is only where standard of duty may be determined as mat- ter of law, or where on undisputed facts reasonable men could not draw dif- ferent conclusions, that courts may take question from jury. City of Cush- ing v. Stanley (Okl.) 172 P. 628. The determination as to what constitutes ordinary care, reasonable pru- dence, and the like is for the jury, unless the facts are such that all rea- sonable men must draw the same conclusion. Dickinson v. Granbery (Okl.) 174 P. 776. Negligence is ordinarily a question of fact for the jury, and where the standard of duty is not fixed, but shifts with the circumstances of the case, and where the evidence is su.TScient, whether duty has been complied with is for the jury. Ponca City Ice Co. v. Robertson (Okl.) 169 P. 1111. Where issue of contributory negligence is raised by pleadings, and there is any evidence to support defense, question is for jury. Enid Mill & Elevator Co. v. Kester, 59 Okl. 13, 157 P. 355. The fact that plaintiff complained to defendant of the defect in a tank placed by defendant in plaintiffs kitchen held not to establish contributory negligence as matter of law precluding recovery for injuries received by the falling of the tank. Moore v. Johnson, 136 P. 422, 39 Okl. 587. Whether the plaintiff in a personal injury case has exercised ordinary care to avoid injury is for the jury. Cleveland Trinidad Paving Co. v. Mitchell, 140 P. 416, 42 Okl. 49. In an action for injuries, the questions of negligence and contributory neg- ligence are primarily for the jury, and only become questions of law when there is no dispute in the evidence and but one inference can be reasonably drawn therefrom. Kimic v. San Jose-Los Gatos Interurban Ry. Co., 104 P. 986, 156 Cal. 379 ; Rudd v. Byrnes, 105 P. 957, 156 Cal. 636, 26 L. R. A. (N. S.) 134, 20 Ann. Cas. 124; St. Louis & S. F. R. Co. v. Loftis, 106 P. 824, 25 Okl. 496. Where the evidence is conflicting, or where the facts are undisputed, and different minds might reasonably draw different conclusions from them, the question of negligence is for the jury, and hence it was not negligence per se for a person approaching a railroad crossing, who had once looked and listened at a distance of about 50 feet from the track, and seeing no train approaching within the distance of 500 or 600 feet, for which distance the (707) 807 TRIAL (Ch. 13 reach the same conclusion, the question is one of law; but, where the facts are controverted, or where different inferences may be drawn therefrom, the question is for the jury. 62 view was unobstructed, to attempt to cross without again looking and listen- ing. Clark v. St. Louis & S. F. R. Co., 108 P. 361, 24 Okl. 764. Failure of a person, driving a wagon which was struck by a street car at a street intersection, to look and listen held not contributory negligence per se. Chickasha St. Ry. Co. v. Marshall, 141 P. 1172, 43 Okl. 192. Under con- flicting evidence, in an action for injuries from collision between a street car and a wagon, held, that the questions of defendant's negligence and plain- tiff's contributory negligence were for the jury. Id. Injuries to employes. Where it is contended that injured servant was guilty of negligence, that question is for jury under proper instructions. Sulzberger & Sons Co. of Oklahoma v. Strickland, 60 Okl. 158, 159 P. 833; Chicago, R. I. & P. Ry. Co. v. Lillard, 62 Okl. 63, 161 P. 779; Dickinson v. Granbery (Okl.) 174 P. 776; Oklahoma Coal Co. v. Corrigan (Okl.) 168 P. 1024; San Bois Coal Co. v. Resetz, 143 P. 46, 43 Okl. 384; Missouri, O. & G. Ry. Co. v. Miller, 45 Okl. 173, 145 P. 367 ; Choctaw Cotton Oil Co. v. Pope, 47 Okl. 333, 148 P. 170; Enid City Ry. Co. v. Webber, 121 P. 235, 32 Okl. 180, Ann. Cas. 1914A, 569 ; Chicago, R. I. & P. Ry. Co. v. Hill, 129 P. 13, 36 Okl. 540, 43 L. R. A. (N. S.) 622; Chicago, R. I. & P. Ry. Co. v. Wright, 39 Okl. 84, 134 P. 427. It is not negligence per se for foreman of section crew to risk his life in attempting to protect the crew and passengers of an approaching train from danger. Dickinson v. Granbery (Okl.) 174 P. 776. t Assumption of risk held for the jury. St. Louis & S. F. R. Co. v. Brown, 45 Okl. 143, 144 P. 1075 ; Choctaw Cotton Oil Co. v. Pope, 47 Okl. 383, 148 P. 170; Chicago, R. I. & P. Ry. Co. v. Lillard, 62 Okl. 63, 161 P. 779; Chicago, R. I. & P. Ry. Co. v. Rogers, 60 Okl. 249, 159 P. 1132; Sandals v. Mizpah Mining Co. (Okl.) 168 P. 808. In action for the death of a railroad employ^ killed by the overturning of a locomotive, evidence held to justify the submission of assumption of risk to the jury. Kansas City, M. & O. Ry. Co. v. Roe (Okl.) 180 P. 371. In determining assumption of risk, whether an employ^ was inexperienced or ignorant of the dangers incident to his employment, whether he was act- ing under his master's orders, and whether the danger was so apparent that he should have refused to obey the orders, are questions for the jury. Enid Electric & Gas Co. v. Decker, 128 P. 708, 36 Okl. 367. The question whether a servant saw and appreciated the danger caused by his master's negligence held for the jury. Missouri, K. & T. Ry. Co. v. Hudson (Okl.) 175 P. ,743, 9 A, L. R. 223. An employs not engaged in making a reasonably safe place dangerous, or an obviously dangerous place safe, was not, as a matter of law, when in- jured by its condition injured by a risk incident to his employment. Chicago, R. I. & P. Ry. Co. v. Townes, 143 P. 680, 43 Okl. 568. 62 Kansas City, M. & O. Ry. Co. v. Roe (Okl.) 180 P. 371. In an action under the federal Employers' Liability Act (U. S. Comp. St. 8657-8665), where all the evidence, including that of plaintiff, showed a (708) Art. 3) ISSUES AND TRIAL. THEREOF 807-808 Whether an injured party has exercised ordinary care to prevent or-lessen his damage is a question of fact. 63 808. Agency Under conflicting evidence on the question of agency, such ques- tion is for the jury, 84 as is also the extent of the agent's authority. 65 clear case of assumption of risk, it is improper to deny motion for directed verdict. Chicago, R. I. & P. Ry. Co. v. Jackson, 61 Okl. 146, 160 P. 736. In an action for injuries to an employs of an interstate carrier, where the evidence was undisputed, and the injury did not result from a violation of the safety act, the employees assumption of risk is a question of law. St. Louis & S. F. R. Co. v. Snowden, 48 Okl. 115, 149 P. 1083. In action under federal Employers' Liability Act, where evidence is un- disputed and injury is not caused by any violation of state statutory pro- visions for protection of employes, assumption of risk is a question of law; Const, art. 23, 6, not applying. Chicago, R. I. & P. Ry. Co. v. Hessenflow (Okl.) 170 P. 1161. Under Const, art. 23, 6, whether the risk is an ordinary risk of employ- ment under federal Employers' Liability Act, or is an ordinary risk known to servant or with knowledge of which he is chargeable is for the jury. Chicago, R. I. & P. Ry. Co. v. Ward (Okl.) 173 P. 212, certiorari granted 39 S. Ct. 10, 248 U. S. 555, 63 L. Ed. - . Under federal Employers' Liability Act, the questions whether an employe" becomes aware of employer's negligence and risks arising therefrom, or wheth- er the danger is so obvious that one of ordinary prudence under circumstances would have realized it, are for the jury. Wichita Falls & N. W. Ry. Co. v. Davern (Okl.) 177 P. 909. ss Blake v. Atlas Supply Co., 51 Okl. 426, 152 P. 81. 64 Iowa Dairy Separator Co. v. Sanders, 140 P. 406, 40 Okl. 656; Central Mortgage Co. v. Michigan State Life Ins. Co., 143 P. 175, 43 Okl. 33 ; Brow- nell v. Moorehead (Okl.) 165 P. 408; Massachusetts Bonding & Ins. Co. v. Vance (Okl.) 180 P. 693 ; Leasure v. Hughes (Okl.) 178 P. 696. The apparent authority of an agent is for the jury under all the facts and circumstances shown. St. Louis Cordage Mills v. Western Supply Co., 54 Okl. 757, 154 P. 646 ; Reeves & Co. v. Phillips, 53 Okl. 375, 156 P. 1179. Question of agency is to be determined by jury upon all facts and circum- stances connected with transaction, under proper instructions as to the law. Emerson-Brantingham Implement Co. v. Ritter (Okl.) 170 P. 482. Where, in a guardian's action on a note, purchasers thereof from a third person to whom the note had been entrusted for sale intervened, claiming to own the note, and the evidence was conflicting, held, that whether such third person was agent of plaintiff or of the interveners was for the jury. Case v. Posey, 55 Okl. 163, 154 P. 1165. es Massachusetts Bonding & Ins. Co. v. Vance (Okl.) 180 P. 693; Central Mortgage Co. v. Michigan State Life Ins. Co., 143 P. 175, 43 Okl. 33. Question of extent of agent's authority is to be determined by jury upon all facts and circumstances connected with transaction, under proper instruc- tions as to the law. Emerson-Brantingham Implement Co. v. Ritter (Okl.) 170 P. 482. (709) 808-809 TRIAL (Ch. 13 That one purports to act as agent for another, stating at the time that he is the agent, is not sufficient evidence on which to submit the question of agency. 66 809. Will contest Under conflicting evidence in a will contest, 67 the due execu- tion of the will, 68 testamentary capacity, 69 and undue influence 7y are questions for the jury; but the interpretation of a will is a se R. p. Smith Sons & Co. v. Raines Dry Goods Co., 130 P. 133, 37 Okl. 39. 67 in determining whether the evidence of contestants in a will contest is sufficient to require submission tA the jury, the same rule applies as in ordi- nary civil cases, so that all the evidence in favor of contestants must be taken as true, and all contradictory evidence disregarded, and, if there is any sub- stantial evidence tending to prove contestants' case, it must be submitted to the jury. In re Arnold's Estate, 82 P. 252, 147 Cal. 583. Where on the first appeal the evidence was held insufficient to warrant de- uyiiig probate, and the contestant on the second trial introduced no further evidence, direction of verdict for the proponent was proper. In re Stone's Es- tate, 174 Cal. 778, 164 P. 643. 68 In re Cullberg's Estate, 169 Cal. 365, 146 P. 888. ealn re Dole's Estate, 81 P. 534, 147 Cal. 188. A finding of testamentary incapacity will not be disturbed, where it Is rea- sonably supported by evidence. Bilby v. Stewart, 55 Okl. 767, 153 P. 1173. The evidence presented by will contestants should be viewed most favorably to them, and all contradictory testimony disregarded before directing a non- suit. In re Ross' Estate, 159 P. 603, 173 Cal. 178. Testator's testamentary ca- pacity held a jury question where he died 9 days after making the will, was 86 years old, had suffered two paralytic strokes, and was unable to remember or carry on a connected conversation. Id. TO in re Daly's Estate, 114 P. 787, 15 Cal. App. 329; In re Welch's Will, 91 P. 336, 6 Cal. App. 44. The court has no authority to grant a nonsuit except in the cases specified in Code Civ. Proc. 581, which does not include the withdrawal from the jury of an issue of undue influence, in a will contest, for alleged lack of sufficient evidence to support it. In re Higgins' Estate, 104 P. 6, 156 Cal. 257; In re Caspar's Estate, 155 P. 631, 172 Cal. 147; In re Flint's Estate, 179 Cal. 552, 177 P. 451. Where there is no evidence which would justify a finding that undue influ- ence was exercised in procuring the execution of a will such issue should not be submitted to the jury, since the presumption of undue influence is not raised by proof of interest and opportunity alone. In re Nelson's Estate, 64 P. 294, 132 Cal. 182. That the jury in a will contest did not find against proponents on the is- sue whether the will was procured by fraud did not preclude it from con- sidering evidence of fraud as bearing on the issue of undue influence. In re Snowball's Estate, 107 P. 598, 157 Cal. 301. (710) Art. 3) ISSUES AND TRIAL THEREOF 809-811 matter of law, to be determined from the language used and the facts and circumstances in proof. 71 Where an application for the probate of a will is contested and tried before a jury ultimate facts only for the jury's finding, as to whether decedent was competent to make a will, and whether his mind was free from fraud, should be submitted, and not mere evi- dentiary facts, from which the court is required to reach a conclu- sion as a matter of law. 72 810. Malicious prosecution In an action for malicious prosecution, what constitutes probable cause is a question of law for the court; 73 but whether certain facts necessary to constitute probable cause exist is for the jury. 74 811. Libel and slander Whether a publication is libelous or privileged is for the court, where the language used is clear and the facts relative thereto are uncontroverted. 75 , Whether a fact which gives a publication a privileged character claimed for it is established by evidence is for the jury, and where evidence is conflicting court may instruct as to facts constituting a conditionally privileged communication, and leave jury to find whether those facts are proven. 76 71 In re Seay's Estate, 180 Cal. 304, 181 P. 58. 72 In re Benton's Estate, 63 P. 775, 131 Cal. 472. 78 Ball v. Rawles, 28 P. 937, 93 Cal. 222, 27 Am. St. Kep. 174; Lacey v. Por- ter, 37 P. 635, 103 Cal. 597; Bell v. Keepers, 14 P. 542, 37 Kan. 64; Hopkins v. Stites (Okl.) 173 P. 449 ; Goad v. Brown (Okl.) 175 P. 767 ; Robberson v. Gib- son, 62 Okl. 306, 162 P. 1120; Dunnington v. Loeser, 48 Okl. 636, 149 P. 1161, rehearing denied 48 Okl. 636, 150 P. 874 ; Eastin v. Stockton Bank, 4 P. 1106, 66 Cal. 123, 56 Am. Rep. 77; Fulton v. Onesti, 6 P. 491, 66 Cal. 575; Smith v. Liverpool & London & Globe Ins. Co., 40 P. 540, 107 Cal. 432; Seabridge v. McAdam, 41 P. 409, 108 Cal. 345 ; Parli v. Reed, 2 P. 635, 30 Kan. 534 ; Mi- chael v. Matson, 105 P. 537, 81 Kan. 360, L. R, A. 1915D, 1. T* Drumm v. Cessnurn, 58 Kan. 331, 49 P. 78; Atchison, T. & S. F. R. Co. v. Smith, 55 P. 272, 60 Kan. 4; Hess v. Oregon German Baking Co., 49 P. 803, 31 Or. 503. " Spencer v. Minnick, 139 P. 130, 41 Okl. 613. Whether the published article is libelous per se is a question of law for the court. McKenney v. Carpenter, 141 P. 779, 42 Okl. 410. Where a publication is conditionally privileged, it is a matter of law for the court to determine whether there is any evidence of malice, and, if there is none, to direct the verdict for defendant. Tuohy v. Halsell, 128 P. 126, 35 Okl. 61, ^3 L. R. A. (N. S.) 323, Ann. Cas. 1916B, 1110. 76 Bland v. Lawyer-Cuff Co. (Okl.) 178 P. 885. Where there is no dispute as to what the publication was, when or about (711) 811-812 TRIAL (Ch. 13 Where the defamatory words are not actionable per se, the court must construe the words, and the jury must determine the intent. 77 It is the duty of the court to determine whether the language used in the publication can fairly or reasonably be construed to have the meaning imputed to it in the petition; 78 but where the evidence wholly fails to connect any of the defendants by positive testimony with acts charged, demurrer to evidence should have been sus- tained. 79 812. Weight of evidence and credibility of witnesses The weight and sufficiency of evidence 80 and the credibility of witnesses, where the evidence is conflicting, are for the jury, 81 what it was made, and the language is unambiguous, the question Whether the publication was privileged was for the court. Cobb v. Oklahoma Pub. Co., 140 P. 1079, 42 Okl. 314. Under conflicting evidence in an action for libel for publishing a report of proceedings, held not error to submit to the jury wheth- er the report was fair or made with malicious intent, and whether plaintiff was falsely charged with crime. Id. Where there is no dispute as to the circumstances under which a publica- tion was made, the question whether the occasion was privileged is for the court, but, if the facts giving the publication a privileged character are es- tablished by evidence, the question is for the jury under an instruction as to what facts constitute privilege. Hubbard v. Cowling, 129 P. 714, 36 Okl. 603. Where the language of an alleged libel is clear and unambiguous, and the facts are uucontroverted with reference to whether or not it was libelous, or its publication privileged, such questions are for the court and not the jury. Bodine v. Times-Journal Pub. Co., 110 P. 1096, 26 Okl. 135, 31 L. R. A. (N. S.j 147. In an action for libel under Rev. Laws 1910, 4959, evidence held to require submission of case to jury. Dawkins v. Billingsley (Okl.) 172 P. 69, 12 A. L. R. 144. 77 Phoenix Printing Co. v. Robertson, 80 Okl. 191, 195 P. 487. 78 Kee v. Armstrong, Byrd & Co., 75 Okl. 84; 182 P. 494, 5 A. L. R. 1349. 79 Hall v. Taylor, 59 Okl. 207, 158 P. 373. so Missouri, K. & T. R. Co. v. L. A. Watkins Merchandise Co., 92 P. 1102, 76 Kan. 813 ; Strickler v. Gitchel, 78 P. 94, 14 Okl. 523 ; Silverwood v. Carpenter, 51 Okl. 745, 152 P. 381. If it is necessary for the court to weigh the evidence and the facts are such that reasonable minds might disagree, it is a question for the jury. Farmers' Nat. Bank of Tecumseh v. McCall, 106 P. 866, 25 Okl. 600, 26 L. R. A. (N. S.) 17. si Silverwood v. Carpenter, 51 Okl. 745, 152 P. 381; Folley v. Chicago, R. I. & P. Ry. Co., 84 P. 1090, 16 Oki. 32; Quapaw Mining Co. v. Cogburn, 78 Okl. 227, ICO P. 416. Where the only testimony is that of an interested party and is inconsistent, the court should not direct a verdict. Moore v. First Nat. Bank of Iowa City, (712) Art. 3) ISSUES AND TRIAL THEREOF 812~813 regardless of the fact that the larger number of witnesses testified for one side. 82 Where different persons might reasonably draw different in- ferences from undisputed facts, the proper inference is a question of fact for the jury. 83 It is the province of a jury to decide upon what facts have been proven, but not to decide upon what an admitted fact tends to prove. 84 813. Uncontroverted evidence The rule that matters shown by uncontroverted evidence need not be submitted to the jury 85 is not absolute ; for, when undisput- 121 P. 626, 30 Okl. 623. The credibility of witnesses and effect to be given to inconsistent testimony held questions of fact. Id. It is the duty of the court to submit a question of fact to the jury, where the evidence in regard thereto is conflicting. Robinson v. Lamoureaux, SO P. 595, 71 Kan. 850 ; Sun Ins. Office of London v. Western Woolen Mill Co., 82 P. 513, 72 Kan. 41 ; Taylor v. Insurance Co. of North America, 105 P. 354, 25 OkL 92, 138 Am. St. Rep. 906. Where issues of fact are presented by the pleadings and supported by con- flicting evidence the case is for the jury. Adams v. Coon, 129 P. 851, 36 Okl 644, 44 L. R. A. (N. S.) 624. Where plaintiff's evidence reasonably tends to sustain the issues, and de- fendant's evidence conflicts therewith, the question is for the jury. Gann v, Ball, 110 P. 1067, 26 Okl. 26 ; Midland Savings & Loan Co. v. Sutton, 30 OkL 448, 120 P. 1007. Questions raised between allegations in original petition and testimony de- nying or explaining allegations is one of fact for the jury. Letcher v. Ma- loney (Okl.) 172 P. 972. 82 Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606. ss Kemp v. Chicago, R. I. & P. Ry. Co., 138 P. 621, 91 Kan. 477. An inference reasonably, though not necessarily, deducible from the evi- dence, will not be withdrawn from the jury. Miller v. Marriott, 48 Okl. 179, 149 P. 1164. In suit for conversion by mortgagee whose mortgage, prior in date, was not witnessed or acknowledged, though filed, against a junior mortgagee who properly recorded his mortgage and sold property and applied proceeds on his debt, and who had seen senior mortgage on file, but deemed it void, wheth- er he was not put upon inquiry which would have shown prior mortgage was for jury, and directed verdict for him was error. Blevins v. W. A. Graham Co. (Okl.) 182 P. 247. In an action against a carrier for negligently billing a shipment for a wrong destination, the issue whether the agent of the company was negligent, or whether the shipper was negligent in failing to examine the bill of lading, was for the jury. Ft. Smith & W. Ry. Co. v. Harrison, 39 Okl. 1, 133 P. 222. s* Atchison, T. & S. F. R. Co. v. Lamoreux, 49 P. 152, 5 Kan. App. 813. ss Facts established by uncontroverted evidence need not be submitted to the jury for finding. Byers v. Ingraham, 51 Okl. 440, 151 P. 1061. (713) 813-815 TRIAL (Ch. 13 ed facts are capable of more than one reasonable inference, the question is for the jury. 86 , Even though testimony is undisputed it should be so convincing that all reasonable men must draw same conclusion from facts proven before the court can sustain a demurrer to the evidence or direct verdict. 87 814. Motions and demurrer Where at the close of all the evidence the defendant demurs to the plaintiff's evidence, the demurrer will be treated as a motion to direct a verdict in the defendant's favor. 88 A motion for a nonsuit is in effect but a demurrer to the evi- dence. 89 A motion to withdraw a case from the jury and render judgment for the plaintiff upon all the evidence presents to the court the same question as a motion to direct the verdict in favor of the moving party, and this should be dorie where the party on whom rests the burden of proof has wholly failed to present any evidence to support his case, and there are no disputed facts for the jury to pass upon. 90 A motion to direct a verdict in favor of the defendant is substan- tially equivalent to a demurrer to the plaintiff's evidence. 91 815. Demurrer to evidence When the party on whom rests the burden of proof has closed his evidence, the adverse party may interpose a demurrer thereto upon the ground that no cause of action or defense is proved. 92 A demurrer in the language of the statute is sufficient. 93 so Waldrep v. Exchange State Bank (Okl.) 197 P. 509. 87 City of Durant v. Allen (Okl.) 168 P. 205. A demurrer to the evidence will not be sustained, nor will a verdict be di- rected, unless the evidence, though undisputed, is so convincing that all rea- sonable men must draw the same conclusion from it. Rogers 'v. O. K. Bus & Baggage Co., 46 Okl. 289, 148 P. 837, Ann. Cas. 1917B, 581. Where defendant offered no evidence in rebuttal, but denied plaintiff's case, sschickasha Inv. Co. v. Phillips, 58 Okl. 760, 161 P. 223; Nail v. State (Okl.' Cr.) 192 P. 592. s Lyon v. Lyon, 39 Okl. Ill, 134 P. 650. 00 Frick v. Reynolds, 52 P. 391, 6 Okl. 638. 01 Sullivan v. Phenix Ins. Co. of Brooklyn, 8 P. 112, 34 Kan. 170. 2 Rev. Laws 1910, 5002, subd. 3. s Hargrove v. Bourne, 47 Okl. 484, 150 P. 121. (714) Aft. 3) ISSUES AND TRIAL THEREOF 815 A demurrer to the evidence will not reach a misjoinder 8 * or de- fect of parties. 95 Where an answer contains several defenses, and at the conclu- sion of defendants' evidence plaintiff interposes a demurrer to the evidence, and the court sustains it as to one defense and overrules it as to the other, it does not withdraw from the jury the evidence applicable to the remaining defenses. 96 It is not error to sustain a demurrer to the evidence on behalf of a part of the defendants, where there is no evidence tending to prove a cause of action against them. 97 That defendant elicits from plaintiff's witness at the end of the cross-examination testimony in support of the defense does not preclude him from challenging the sufficiency of plaintiff's testi- mony by demurrer, or the court from deciding whether plaintiff's evidence was sufficient to establish a cause of action. 98 It is not error for the trial court to overrule a demurrer to the evidence where such demurrer does not tender all of the evidence in the case. 99 In a personal injury action, if the facts proved are sufficient to sus- tain a verdict upon a demurrer filed to the evidence by the defend- ant, it is the duty of the court to call a jury to assess the damages, or assess the damages itself. 1 On a demurrer to plaintiff's evidence in a personal injury action, it is competent to consider the entire conduct of the trial by de- fendant, its pleading, cross-examination of witnesses, and admis- sions; and if these, coupled with the deductions which may be drawn from the evidence, establish a responsibility, the demurrer must be -overruled. 2 and plaintiff's evidence was such that men of ordinary intelligence might draw different conclusions direction of verdict for plaintiff was error. Re- serve Loan Life Ins. Co. v. Isom (Okl.) 173 P. 841. 94 Groenmiller v. Kaub, 73 P. 100, 67 Kan. 844. as Larimore v. Miller, 96 P. 852, 78 Kan. 459. 96 Troutman v. Behoteguy, 76 P. 446, 69 Kan. 176. 7 Barnes v. Davis, 30 Okl. 511, 120 P. 275. 8 Arnold v. C. Hoffman & Son Milling Co., 143 P. 413, 93 Kan. 54. 99 City of Oklahoma City v. Welsh, 41 P. 598, 3 Okl. 288. i Pitman v. City of El Reno, 37 P. 851, 2 Okl. 414, judgment reversed Pitt- man v. Same, 46 P. 495, 4 Okl. 638. a Shawnee Light & Power Co. v. Sears, 95 P. 449, 21 Okl. 13. (715) 815-816 TRIAL (Ch. 13 Where one is sued on a note and on the trial fails to prove any de- fense, a demurrer to his evidence should be sustained and judgment rendered for plaintiff. 8 816. Effect as admission A demurrer to the evidence admits all facts which the evidence tends to establish and all reasonable inferences therefrom, 4 in- cluding legal presumptions and admissions, either in the pleadings or otherwise, 5 and withdraws unfavorable evidence adduced by the demurrant. 6 3 Willoughby v. Ball, 90 P. 1017, 18 Okl. 535. * D'Yarmett v. Cobe, 51 Okl. 113, 151 P. 589; McKone v. McConkey, 77 Old. 3, 185 P. 520; Wm. Cameron & Co. v. Henderson, 140 P. 404, 40 Okl. 648; Crow v. Crow, 139 P. 122, 40 Okl. 455; Midland Valley R. Co. v. Larson, 138 P. 173, 41 Okl. 360 ; Sartain v. Walker, 60 Okl. 258, 159 P. 1096; Ft. Smith & W. R. Co. v. Knott, 60 Okl. 175, 159 P. 847 ; Midland Valley R. Co. v. Ogden, 60 Okl. 74, 159 P. 256; Rose v. Woldert Grocery Co., 54 Okl. 566, 154 P. 531; Marshall Mfg. Co. v. Dickerson, 55 Okl. 188, 155 P. 224; Helm v. Mickleson (Okl.) 170 P. 704; Felt v. Westlake (Okl.) 174 P. 1041; St. Louis & S. F. R, Co. v. Snow- den, 48 Okl. 115, 149 P. 1083; Miller v. Marriott, 48 Okl. 179, 149 P. 1164; J. I. Case Threshing Mach. Co. v. Rennie (Okl.) 177 P. 548 ; Anthony v. Bliss, 39 Okl. 237, 134 P. 1122; Ziska v. Ziska, 95 P. 254, 20 Okl. 634, 23 L. R. A. (N. S.) 1 ; Shawnee Light & Power Co. v. Sears, 95 P. 449, 21 Okl. 13; Anderson v. Kelly, 57 Okl. 109, 156 P. 1167; Wolf v. Washer, 4 P. 1036, 32 Kan. 533; Christie v. Barnes, 6 P. 599, 33 Kan. 317 ; Beutel v. Standou, 7 Kan. App. 813. 53 P. 836; Jaffray v. Wolf, 1 Okl. 312, 33 P. 945; Myers v. First Presbyterian Church of Perry, 69 P. 874, 11 Okl. 544 ; Edmisson v. Drumm-Flato Commis- sion Co., 73 P. 958, 13 Okl. 440; (1905) Conklin v. Yates, 83 P. 910, 16 Okl. 266; Mentze v. Rice, 172 P. 516, 102 Kan. 855 ; Smith v. Rockett, 79 Okl. 244, 192 P. 691 ; Kline v. Kollman, 79 Okl. 179, 192 P. 208 ; Boatman v. Coverdale, 80 Okl. 9, 193 P. 874 ; Singer v. Citizens' Bank of Headrick, 79 Okl. 267, 193 P. 41. A demurrer by defendant to the evidence admits the truth of all the evi- dence offered on the part of plaintiff, together with such inferences and con- clusions as may reasonably be drawn therefrom. Flesher v. Callahan, 122 P. 489, 32 Okl. 283. It is only where the evidence and all the inferences therefrom are insuffi- cient to support a verdict for plaintiff that demurrer thereto can properly be sustained. Petroleum Iron Works Co. v. Bullington, 61 Okl. 311, 161 P. 538. The test on demurrer to evidence is that all the facts which the evidence tends to prove and reasonable inferences therefrom, are admitted, and court cannot weigh conflicting evidence, but must treat as withdrawn that which is most favorable to demurrant. Rawlings v. Ufer, 61 Okl. 299, 161 P. 183. B Bean v. Rumrill (Okl.) 172 P. 452. e Lyon v. Lyon, 39 Okl. Ill, 134 P. 650. Under the provisions of St. 1890 relative to procedure, where defendant de- murs to the evidence, only such evidence as tends to make out plaintiff's case Art. 3) ISSUES AND TRIAL THEREOF 817 817. What rulings proper A demurrer to the evidence should be sustained where all the evidence and inferences deducible therefrom would not support a ' judgment for the adverse party. 7 can beiconsidered, and defendant's evidence must be regarded as withdrawn. Jaffray v. Wolf, 4 Okl. 303, 47 P. 496. On a demurrer to evidence only evidence favorable to the demurree is con- sidered. Smith v. Rockett, 79 Okl. 244, 192 P. 691 ; Missouri Can Co. v. Ross, 83 P. 616, 72 Kan. 669. 7 Hargrove v. Bourne, 47 Okl. 484, 150 P 121; Grossman Co. v. White, 52 Okl. 117, 152 P. 816; Duncan v. Keechi Oil & Gas Co., 75 Okl. 98, 181 P. 709; Vinita Electric Light, Ice & Power Co. v. Carpenter, 46 Okl. 561, 149 P. 126 ; Remarkis v. Reid, 64 Okl. 104, 166 P. 728; Burton v. Doyle (Okl.) 165 P. 169; Bell v. Lynde-Bowman Darby Co., 38 Okl. 172, 132 P. 477 ; Eoff v. Lair (Okl.) 156 P. 185; Farmers' State Bank of Jefferson v. Jordon, 61 Okl. 15, 160 P. 53; New York Plate Glass Ins. Co. v. Wright, 61 Okl. 47, 160 P. 54; Kiff v. At- chison, T. & S. F. R. Co., 4 P. 401, 32 Kan. 263; Gollober v. Lindner, 53 P. 774, 7 Kan. App. 812; Archer v. United States, 60 P. 268, 9 Okl. 569; Schump Land Co. v. Probst, 139 P. 1024, 92 Kan. 103 ; Shawnee Fire Ins. Co. v. Thomp- son & Rowell, 30 Okl. 466, 119 P. 985. In an action to foreclose a mortgage after the death of the makers, where the guardian ad litem of the defendant minor heirs of the makers files a gen- eral denial, and the only evidence is that of the execution of the note and mortgage, it is error to overrule a demurrer to the evidence. Sims v. Hedges, 123 P. 155, 32 Okl. 683. Where a petition, in a widow's action for death of her husband, alleged that no administrator had been appointed and plaintiff offered no proof thereof, it was error to overrule defendant's demurrer to the evidence. Frederick Cot- ton Oil & Mfg. Co. v. Clay, 50 Okl. 123, 150 P. 451. In action for breach of oral contract to put down well and to furnish cas- ings, etc., where petition showed cause of action was barred, and did not al- lege written acknowledgment of liability within limitations, held, that over- ruling of demurrer to evidence was error. Froage v. Webb (Okl.) 165 P. 150. In action by Indian for possession of certain realty claimed under and through plaintiff's security deed and to cancel instruments in writing alleged to cloud plaintiff's title held, in view of Rev. Laws 1910, 1156, 1158, relat- ing to security deeds and notice that the sustaining of a demurrer to plaintiff's evidence was error. Armstrong v. Phillips, 76 Okl. 192, 181 P. 715. Where plaintiff sued for negligent injuries, alleging two causes of action, one of which was for willful and wanton negligence, and the evidence failed to show willfulness or wantonness, a demurrer to the evidence as to that cause of action was improperly overruled. Whitman v. Atchison, T. & S. F. Ry. Co., 116 P. 234, 85 Kan. 150, 34 L. R. A. (N. S.) 1029, Ann. Cas. 1912D, 722. None of the testimony given for plaintiffs, in an action to hold defendant liable for work done by them, being substantially inconsistent with their other testimony that they were subcontractors of one who, to their knowledge, was an independent contractor for doing the work for defendant, a demurrer to (717) 817 TRIAL (Ch. 13 When a party upon whom rests the burden of the issues, upon a trial introduces evidence which, uncontroverted, establishes a cause of action in his favor, and then proceeds to introduce evidence which prima facie defeats his cause of action, and then rests his the evidence was properly sustained. Carter v. Prairie Oil & Gas Co-, 104 P. 563, 80 Kan. 792. In action against drawee bank, buyer, and its agent to recover price of cer- tain hogs, evidence held insufficient to entitle plaintiff to recover against the bank and the buyer, so that its demurrer to the evidence was properly sus- tained. Schenbeck v. First Nat. Bank (Okl.) 169 P. 619, L. R. A. 1918B, 1066. Where the question to be determined was whether a sale of wheat was ac- companied by immediate delivery and change of possession, and there was no evidence from which it could be fairly inferred that any open positive change ever took place, and there was no such evidence of delivery as the circum- stances of the case would reasonably allow, the court, on demurrer to the evi- dence, was bound to hold it as a matter of law that the attempted sale was fraudulent as to the creditors of the vendor. Walters v. Ratliff, 61 P. 1070, 10 Okl. 262. In suit to set aside for insufficient delivery, a deed delivered to third person for delivery to grantees at death of grantor, where at grantor's death deed was turned over to grantees and administratrix of grantor, who placed it of record, demurrer to evidence was properly sustained. Shaffer v. Smith, 53 Okl. 352, 156 P. 1188. Where a petition in an action for the recovery of money alleged that de- fendant appropriated it to his own use, and the evidence does not reasonably tend to show such appropriation, it is not error to sustain a demurrer there- to. Norman v. Groves, 97 P. 561, 22 Okl. 98. In stockholder's action to enjoin other stockholders, and for a receivership and a winding up of the corporation, demurrer to plaintiff's evidence held properly sustained. Bell v. Northrop-Bell Oil & Gas Co. (Okl.) 171 P. 1115. In an action for damages by a wife against her husband's parents for alien- ating her husband's affections, evidence that defendants gave their sou a home, but refused the same to plaintiff; that they had both told her, in her husband's presence, that she was filthy and dirty, and unfit to raise a family; and that plaintiff's father-in-law told a third person, who had given to plain- tiff a temporary home, that he had been trying to separate his son and plain- tiff for some time, and had succeeded, and that now he intended to keep them apart, is insufficient, as against a demurrer to the evidence. Sheriff v. Sheriff, 56 P. 960, 8 Okl. 124. Where a petition states a cause of action, although plaintiff is mistaken as to amount of recovery to which he is entitled, and his evidence reasonably tends to support allegations of petition, a demurrer to the evidence should not be sustained. Deming Inv. Co. v. Britton (Okl.) 179 P. 468. In action for specific performance of agreement between plaintiff's mother and defendant that defendant and her husband would take plaintiff into their home and raise her as their own child, and that on their death she would in- herit as their child as if they died intestate, demurrer to plaintiff's evidence held properly sustained. Pantel v. Bower, 104 Kan. 18, 178 P. 241. (718) Art. 3) ISSUES AND TRIAL THEREOF 817 case, and the opposite party demurs to the evidence, it is error for the court to overrule the demurrer and to render judgment in favor of the party who produced the evidence. 8 On a demurrer to the evidence, that of the party against whom demurrer is sought should be given full credence and considered in the most favorable light. 9 The court may disregard incompetent testimony admitted over proper objections. 10 Conflicting evidence cannot be weighed. 11 Therefore a demurrer to the evidence, or a motion to direct a ver- dict, should not be sustained where there is any substantial con- flict in the evidence. 12 The credibility of a witness cannot be considered, 13 nor should the court determine which one of several fair inferences may be drawn from the proven facts. 14 The sufficiency of the evidence, in law, is the only question. 15 Where evidence is conflicting it is error to sustain a demurrer to the evidence, however strongly the preponderance may be against Kibby v. Gibson, 83 P. 968, 72 Kan. 373. 9 Maryland Casualty Co. v. Cherryvale Gas, Light & Power Co., 162 P. 313, 99 Kan. 563, L. R. A. 1917C, 487; Starkweather v. Dunlap, 103 Kan. 425, 173 P. 1122 ; Bushey v. Coffman, 173 P. 341, 103 Kan. 209; Matassarin v. Wichita R. & Light Co., 163 P. 796, 100 Kan. 119 ; Feighley v. C. Hoffman & Son Mill- ing Co., 165 P. 276, 100 Kan. 430. Where the petition states a cause of action and the proof fairly sustains same, a demurrer to the evidence should be overruled. T. H. Rogers Lumber Co. v. M. W. Judcl Lumber Co., 52 Okl. 387, 153 P. 150. 10 Fuss v. Cocannouer (Okl.) 172 P. 1077; Nance v. Oklahoma Fire Ins. Co., 31 Okl. 208, 120 P. 948, 38 L. R. A. (N. S.) 426; Felt v. Westlake (Okl.) 174 P. 1041. On a demurrer to evidence the trial court may disregard incompetent evi- dence. Thorp Oil & Specialty Co. v. Home Oil Refining Co., 79 Okl. 225, 192 P. 573 ; Gillett v. Burlington Ins. Co., 36 P. 52, 53 Kan. 108. 11 Moss v. Hunt, 40 Okl. 20, 135 P. 282 ; Edmisson v. Drumm-Flato Commis- sion Co., 73 P. 958, 13 Okl. 440; Mottin v. Board of Com'rs of Leaven worth County, 133 P. 165, 89 Kan. 742 ; Kerr v. Kerr, 116 P. 880, 85 Kan. 460 ; Buoy v. Clyde Milling & Elevator Co., 75 P. 466, 68 Kan. 436; Coon v. Atchison, T. & S. F. Ry. Co., 89 P. 682, 75 Kan. 282; Jones v. Adair, 91 P. 78, 76 Kan. 343; Hennis v. Bowers, 100 P. 71, 79 Kan. 463 ; St. Louis & S. F. Ry. Co. v. Toom- ey, 49 P. 819, 6 Kan. App. 410; Fuller v Torson, 56 P. 512, 8 Kan. App. 652: Hyland v. Atchison, T. & S. F. Ry. Co., 151 P. 1107, 96 Kan. 432. 12 Collier v. Gannon, 137 P. 1179, 40 Okl. 275. is Terry v. Kansas Gravel Co., 143 P. 485, 93 Kan. 125. i* Kerr v. Kerr, 116 P. 880, 85 Kan. 460. is Wolf v. Washer, 4 P. 1036, 32 Kau. 533; Coy v. Missouri Pac. Ry. Co., 76 P. 844, 69 Kan. 321. (719) 817 TRIAL (Ch. 13 the party on whom rests the burden of the issues in the opinion of the court. 16 The demurrer should be overruled, where any question of fact is presented. 17 Where the declaration states a cause of action in tort, and fails to state any facts sounding in contract, and the evidence fails to prove the tort, but tends to prove a right of action on contract, the court should sustain a demurrer to the evidence. 18 On the other hand, judgment on the evidence should not be ren- dered where a jury is a matter of- right, and there is evidence au- thorizing submission of the case to the jury. 19 A demurrer to plaintiff's evidence should not be sustained where such evidence does not clearly disprove or fail to establish his is Wingfield v. McClintock, 113 P. 394, 85 Kan. 207, judgment affirmed on rehearing 116 P. 488, 85 Kan. 452. On a demurrer to evidence, the question of preponderance of evidence has no bearing. The evidence must have failed utterly to prove the facts at issue. Brown v. Atchison, T. & S. F. Ry. Co., 1 P. 605, 31 Kan. 1. The court must be able to say as a matter of law that the party introducing the evidence has not proved his case. 'Conklin v. Yates, 83 P. 910, 16 Okl. 266. It is error to sustain a demurrer to the evidence because of contradictious between plaintiff's testimony in chief and on cross-examination, if there is any evidence whatever to support plaintiff's claim. Acker v. Norman, 84 P. 531, 72 Kan. 586. It is error to sustain a demurrer to plaintiff's evidence because it is con- flicting and certain portions of plaintiff's own testimony conflict with other portions thereof. Smith v. Schriver, 138 P. 584, 91 Kan. 582. 17 Thurston v. Fritz, 138 P. 625, 91 Kan. 468, 50 L. R. A. (N. S.) 1167, Ann. Gas. 1915D, 212. A demurrer to evidence of a partner that he did not authorize his copartner to sign the note sued on is properly overruled, where such evidence has any probative value and tends to show nonliability of demurrant. Exchange State Bank v. Jacobs, 156 P. 771, 97 Kan. 798. 18 Ellis v. Flaherty, 70 P. 586, 65 Kan. 621. i O'Neal v. Bainbridge, 146 P. 1165, 94 Kan. 518, Ann. Gas. 1917B, 293; Wichita Falls & N. W. Ry. Co. v. Puckett, 53 Okl. 463, 157 P. 112 ; Zehr v. Champlin, 60 Okl. 242, 159 P. 1185; St. Louis & S. F. R. Co. v. Akard, 60 Okl. 4, 159 P. 344 ; Thorne v. Milliken, 57 Okl. 735, 157 P. 914 ; Rentie v. McCoy, 128 P. 244, 35 Okl. 77; A very v. Howell, 153 P. 532, 96 Kan. 657; Lyon v. Lyon, 39 Okl. Ill, 134 P. 650. Where all the evidence and the reasonable inferences therefrom in defend- ant's favor taken as true, will warrant a verdict in his favor, it is error to sustain plaintiff's demurrer to such evidence. Moppin v. Norton, 137 P. 1182, 40 Okl. 284, Ann. Cas. 1915D, 1042. (720) Art. 3) ISSUES AND TRIAL THEREOF 817 right of recovery. 20 It should be overruled, unless there has been a total failure upon the part of plaintiff to prove a case, or some material fact in issue. 21 20 Walsh v. Kansas Fuel Co., 137 P. 941, 91 Kan. 310, 50 L. R. A. (X. S.) 686; McCall Bros. v. Farley & Skinner, 39 Okl. 389, 135 P. 339; Mentze v. Rice, 172 P. 516, 102 Kan. 855; Holmes v. Culver, 133 P. 164, 89 Kan. 698; Chase v. Atchison, T. & S. F. Ry. Co., 79 P. 153, 70 Kan. 546 ; Davis v. Atchi- son, T. & S. F. Ry. Co., 104 Kan. 604, 180 P. 195; Home v. Hegwer Salt & Lumber Co., 35 P. 200, 52 Kan. 617; Jackson v. Uncle Sam Oil Co. of Kansas, 156 P. 756, 97 Kan. 674; Brownson v. Perry, 81 P. 197, 71 Kan. 578; Mulvane v. Sedgley, 61 P. 971, 10 Kan. App. 574, judgment affirmed 64 P. 1038, 63 Kan. 105, 55 L. R. A. 552; Hughes v. Delautre, 108 P. 803, 82 Kan. 548; Lew- is v. Harvey, 101 Kan. 673, 168 P. 856; Bushey v. Coffman, 173 P. 341, 103 Kan. 209. A demurrer to the plaintiff's evidence will not be sustained, where there are inferences favorable to the plaintiff. Singer v. Citizens' Bank of Headrick, 79 Okl. 267, 193 P. 41. In an action for conspiracy to defraud plaintiff of his stock in a bank and oust him from his position as president, held that a demurrer to plaintiff's evidence was properly overruled. Felt v. Westlake (Qkl.) 174 P. 1041. In an action for an assault, where plaintiff and one other witness testified that the assault was committed, a demurrer to evidence on the ground that no cause of action was proved was properly overruled. Willet v. Johnson, 76 P. 174, 13 Okl. 563. Where, in an action for damages to a shipment of sheep from delay in fur- nishing a car, the evidence reasonably tended to show that plaintiff had sus- 21 Brown v. Atchison, T. & S. F. Ry. Co., 1 P. 605, 31 Kan. 1; Gardner v. King, 15 P. 920, 37 Kan. 671 ; Wilson v. Beck, 24 P. 957, 44 Kan. 497. A demurrer to evidence reasonably sustaining a petition stating a cause of action should be overruled. Missouri, O. & G. Ry. Co. v. Smith, 55 Okl. 12, 155 P. 233; Alexander Drug Oo. v. O'Dell, 52 Okl. 662, 153 P. 114; Hess v. Sturdavent, 59 Okl. 239, 158 P. 905; Sartain v. Walker, 60 Okl. 258, 159 P. 1096 ; Lisle v. Anderson, 61 Okl. 68, 159 P. 278, L. R, A. 1917A, 128 ; Anoatub- by v. Pennington, 46 Okl. 221, 148 P. 828; First State Bank of Addington v. Latimer, 48 Okl. 104, 149 P. 1099; Wm. Cameron & Co. v. Henderson, 140 P. 404, 40 Okl. 648; King v. City of Parsons, 149 P. 699, 95 Kan. 654; Horine v. Hammond, 146 P. 1144, 94 Kan. 579 ; Anderson v. Heasley, 148 P. 738, 95 Kan. 572 ; Moore v. Moore, 150 P. 230, 93 Kan. 697, 96 Kan. 95 ; Kansas City, Ft. S. & G. R. Co. v. Foster, 18 P. 285, 39 Kan. 329; Cargill Commission Co. v. Mowery, 161 P. 634, 99 Kan. 389, judgment modified on rehearing, 162 P. 313, 99 Kan. 389; State v. Gerhards, 16 P. 1149, 99 Kan. 462; Litsch v. Kansas Gas & Electric Co., 148 P. 632, 95 Kan. 496 ; Brown v. Cruse, 90 Kan. 306, 133 P. 865. Where there is a variance in the reply from the cause of action stated in the petition, and the burden of proof is on the defendant, and evidence is of- fered which would sustain a partial defense to the cause of action as modi- fied by the reply, a demurrer should not be sustained to the evidence. Marion Mfg. Co. v. Bowers, 80 P. 565, 71 Kan. 260. HON.PL.& PBAC. 46 (721) 817-818 TRIAL (Ch. 13 A demurrer to the evidence should be overruled, where the evi- dence, with the inferences deducible therefrom, is sufficient to sup- port a verdict for the party offering same. 22 818. Cure of error Any error in overruling demurrer at close of plaintiff's case is cured, where testimony introduced by defendant supplies any de- ficiencies in testimony of plaintiff. 23 tained the damages claimed, and that defendant unlawfully caused same, a demurrer to the evidence was properly overruled. Midland Valley R. Co. v. Larson, 138 P. 173, 41 Okl. 360. In an action by a principal against his agent to recover in part certain commission alleged to have been erroneously paid, where on answer and coun- terclaim for the balance the original action is dismissed, and the case is tried 'on the counterclaim, and the evidence of plaintiff shows that defendant, while his agent in the purchase of lands, unknown to him, received a commission from the agents of the vendor, is a sufficient defense to the action on the counterclaim, and a demurrer to such evidence was wrongfully sustained. Plotner v. Chillson & Chillson, 95 P. 775, 21 Okl. 224, 129 Am. St. Rep. 776. In an action for damages for the wrongful cutting of timber on plaintiff's land, held, that court properly overruled demurrer to plaintiff's evidence. Kilgore v. Rowland (Okl.) 172 P. 43. In action upon notes for balance due after crediting proceeds of chattel mortgage, held, that demurrer to plaintiff's evidence was improperly sustain- ed, in view of admissions made by demurrer. J. I. Case Threshing Mach. Co. v. Rennie (Okl.) 177 P. 548. In suit by surviving husband to quiet title, the sustaining of a demurrer to his evidence was error, where he testified that the realty was purchased after his marriage to defendants' mother, and with proceeds of sale of property owned by him before marriage, excepted from antenuptial contract. Watson v. Stone (Okl.) 171 P. 336. In chattel mortgagee's action for conversion of mortgaged property then in mortgagor's possession, evidence on theory of a suit to impress a trust on proceeds of sale did not support the cause of action, and the overruling of a demurrer thereto was error. First Nat. Bank v. City Nat. Bank of Welling- ton, Tex. (Okl.) 175 P. 253. 22 Reynolds v. Brooks, 49 Okl. 188, 152 P. 411. Unless the evidence and all the justifiable inferences are insufficient to sup- port a verdict for plaintiff, it is not error to overrule a demurrer thereto. Baker-Hanna-Blake Co. v. Paynter-McVicker Grocery Co. (Okl.) 174 P. 265. In replevin for possession of more than one item of property, if the evidence supports plaintiff's right to recover any one item, a general demurrer to the evidence is properly overruled. Hamilton v. Brown, 31 Okl. 213, 120 P. 950. 23 Beard v. Davis, 57 Okl. 17, 156 P. 631; Rutledge v. Jarvis, 60 Okl. 66, 158 P. 586 ; Gulf, C. & S. F. Ry. Co. v. Beasley (Okl.) 168 P. 200. Where demurrer to plaintiff's evidence was overruled, and defendant there- after offered eivdence on same points and cause was submitted without ex- (722) Art. 3) ISSUES AND TRIAL THEREOF 819 819. Trial by court A demurrer to the evidence may be entertained on a trial by the court without a jury. 24 While the statute does not expressly authorize a demurrer to evi- dence in cases tried to the court without a jury, that practice is followed by the courts. 25 In such case the court's ruling must be tested by the same rules as obtain in jury cases, unless he sustains the demurrer and it affirmatively appears that he afterwards weighed all the evidence as upon final submission. 26 In a suit in equity tried to the court, where there is any evidence reasonably tending to establish plaintiff's petition, it is error to sustain a demurrer to the evidence. 27 ception to sufficiency of evidence and it sustained the judgment, it will not be disturbed. Glaze v. Metcalf Thresher Co. (Okl.) 168 P. 219. Where trial court overruled demurrer to plaintiff's evidence, and thereafter both parties introduced further and additional evidence sufficient to make out a case for plaintiff, a judgment in his favor will not be disturbed, though orig- inal evidence was insufficient. Tankersley v. Castanien, 63 Okl. 18, 162 P. 191. 1 24 Chicago Lumber Co. v. Merrimack River Sav. Bank, 34 P. 1045, 52 Kan. 410. 23 Bailey v. Privett, 64 Okl. 56, 166 P. 150. Where trial is had to the court, it is not error to weigh plaintiff's evidence at the close thereof and pronounce judgment for defendant. Tiger v. Ward, 60 Okl. 36, 158 P. 941. Court trying action without a jury must eventually weigh testimony to de- termine where preponderance is, and may do so at earliest possible time when plaintiff's rights will not be thereby cut off or impaired, and. when plaintiff has put in all his proof his rights will not be impaired if court then deter- mines what has been proven. Lowrance v. Henry, 75 Okl. 250, 182 P. 489. 26 Rev. Laws 1910, 5002, relative to demurrers to evidence, does not ex- pressly authorize such demurrer in cases tried to the court, and the judge in such case may decline to pass upon a demurrer. A demurrer to the evidence, in an action for divorce, withdraws, and requires the court to ignore, a prop- osition of reconciliation made by deniurrant during the trial. Lyon v. Lyon, 39 Okl. Ill, 134 P. 650. In considering a demurrer to evidence in an action tried to the court, it must consider as true all portions of the evidence tending to prove the alle- gations of the petition. Wehe v. Mood, 75 P. 476, 68 Kan. 373. In deciding a demurrer to plaintiffs' evidence, in a court case, the court cannot weigh conflicting evidence or treat the case as submitted by defendant on plaintiffs' showing, but must consider as true all the evidence tending to prove the petition. Farnsworth v. Clarke, 62 P. 655, 62 Kan. 264; Kerr v. Kerr, 101 P. 647, 80 Kan. 83. 27 Fish v. Sims, 141 P. 980, 42 Okl. 535. (723) 820-822 TRIAL (Ch. 13 820. Ruling and judgment sustaining demurrer On sustaining a demurrer to the evidence the court should speci- fy the defect in the proof if an essential fact has been omitted and its view of the law if the controlling question be one of law. 28 Such judgment as the pleadings and proof demand should be rendered without submitting any issue to the jury, since the effect of the demurrer is to refer to the court the application of the law to the ad- mitted facts. 29 Where the court sustains a demurrer to the evidence, it may properly withdraw the case from the jury and render such judgment for demurrant as the pleadings and proof may demand. 80 821. Form DEMURRER TO EVIDENCE (ORAL) And now comes the defendant and demurs to the evidence in- troduced on behalf of the plaintiff, for the reason that the matters and facts shown in evidence by said plaintiff are not sufficient in law to maintain the issue on the part of the plaintiff, and are in- sufficient to support a cause of action in favor of plaintiff and against the defendant, and that the defendant is not bound by law to answer the same. 822. Direction of verdict It is error for the trial court, of its own motion, to direct a ver- dict for the plaintiff before the defendant has rested his case. 31 A case must be clear and certain to sustain a direction of the verdict. 32 It is the duty of the court in directing a verdict to lay out of consideration incompetent evidence received over objection. 33 The question presented on a motion to direct a verdict is whether, admitting the truth of all the evidence in favor of the party against whom the motion is directed, and the reasonable inferences as Holmes v. Culver, 133 P. 164, 89 Kan. 698. 2 Courtney v. Gibson, 52 Okl. 769, 153 P. 677. so Terry v. Haynes, 60 Okl. 34, 158 P. 1195. si Williamson v. Hollo way (Okl.) 172 P. 44. 32 Damerson v. McClaren, 116 P. 792, 29 Okl. 340. s s Hathaway v. Hoffman, 53 Okl. 72, 153 P. 184; Great Western Coal & Coke Co. v. McMahan, 143 P. 23, 43 Okl. 429; Clinton Nat. Bank v. McKennon, 110 P. 649, 26 Okl. 835; Offutt v. Wagoner, 30 Okl. 458, 120 P. 1018. (724) Art. 3) ISSUES AND TRIAL THEREOF 822 and conclusions, there is enough competent evidence to sustain ver- dict. 34 Where the evidence is conflicting, all facts and inferences in con- flict with the evidence against which the action is to be taken must s* Gwinnup v. Walton Trust Co. (Okl.) 172 P. 936; Bowles v. Biffles, 50 Okl. 587, 151 P. 193; Supreme Tribe of Ben Hur v. Owens, 50 Okl. 629, 151 I'. I'.ts. L. R. A. 1916A, 979 ; Shields v. Smith, 50 Okl. 548, 151 P. 207 ; Wichita Falls & N. W. Ry. Co. v. D. Cawley Co. (Okl.) 172 P. 70 ; Chickasha Inv. Co. v. Phil- lips, 58 Okl. 760. 161 P. 223; Homeland Realty Co. v. Robison, 136 P. 585, 39 Okl. 591; Jones v. First State Bank of Bristow, 136 P. 737, 39 Okl. 784 ; Moore v. First Nat. Bank of Iowa City, 121 P. 626, 30 Okl. 623; St. Louis & S. F. R. Co. v. Posten, 124 P. 2, 31 Okl. 821 ; T. S. Reed Grocery Co. v. Miller, 128 I*. 271, 36 Okl. 134. In ruling on motion for directed verdict, all evidence unfavorable to the party against whom the verdict is sought, as well as incompetent evidence, must be disregarded. Sartain v. Walker, 60 Okl. 258, 159 P. 1096; Buckeye Engine Co. v. City of Cherokee, 54 Okl. 509, 153 P. 1166 ; Booker Tobacco Co. v. Walker, 38 Okl. 47, 131 P. 537; Frick-Reid Supply Co. v. Hunter, 47 Okl. 151, 148 P. 83 ; Bank of Commerce of Ralston v. Gaskill, 44 Okl. 728, 145 P. 1131; Frisco Lumber Co. v. JThomas, 142 P. 310, 42 Okl. 670; Duncan Cotton Oil Co. v. Cox, 139 P. 270, 41 Okl. 633; Continental Ins. Co. v. Chance, 48 Okl. 324, 150 P. 114 ; Phinnie v. Atkinson (Okl.) 177 P. Ill ; Oklahoma Automobile Co. v. Goulding (Okl.) 176 P. 400 ; Smith v. Hutchison Box Board & Paper Co., 101 Kan. 274, 166 P. 484 ; Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606; Stothard v. Junior Coal & Mining Co., 160 P. 213, 98 Kan. 756; Case v. Posey, 55 Okl. 163, 154 P. 1165 ; Haddock v. Sticelber & Mong (Okl.) 165 P. 1138 ; Fox v. Campbell, 30 P. 479, 49 Kan. 331 ; Fidelity Mut. Life Ins. Co. v. Stegall, 111 P. 389, 27 Okl. 151; Chestnutt-Gibbons Grocer Co. v. Consum- ers' Fruit Co., 44 Okl. 318, 144 P. 591 ; Hanna v. Mosher, 98 P. 358, 22 Okl. 501; St. Louis & S. F. Ry. Co. v. Clampitt, 55 Okl. 686, 154 P. 40; Abbott v. Dingus, 44 Okl. 567, 145 P. 365 ; First State Bank of Addington v. Lattimer, 48 Okl. 104, 149 P. 1099; Kinney v. Grooms, 63 Okl. 164, 163 P. 531; Gregory v. Harper, 51 Okl. 419, 152 P. 70. In an action for services rendered by attorneys under a written contract, where defendants alleged a failure of consideration, and that the contract had been procured by false representations, and introduced evidence to sus- tain their pleas, it was error to instruct to find for plaintiff. Conner v. Apple & Franklin, 141 P. 424, 42 Okl. 292. Where plaintiff in an action against an officer for an illegal attachment made a prima facie showing of ownership and right of possession of the prop- erty attached as that of another, and the attachment under which the officer justified was held void, it is error to direct a verdict for the oflBcer. Hagar v. Haas. 71 P. 822, 66 Kan. 333. In an action on a note, held, on the evidence, that directed verdict for plain- tiff against all of the defendants was error; there being some evidence to sustain defense of certain of them. Phelps v. Womack (Okl.) 167 P. 478. Under the evidence in a wife's action against her husband, held, that plain- tiff was not entitled to a directed verdict for money expended by her in dis- (725) 822 TRIAL (Ch. 13 be eliminated from consideration, leaving that evidence only which is favorable to the party against whom the motion is directed. 35 It is error to direct a verdict where there is a controverted ques- tion of material fact, 36 or any theory of the. case under which the charging her husband's debt and purchasing pro'perty for him ; the case being for the jury. Sodowsky v. Sodowsky, 51 Okl. 689, 152 P. 390. Where an Indian minor died in October, 1908, leaving a father and mother surviving, and in 1910 the mother and sister gave plaintiff the lease on which he relied, and there was no evidence of the father's death, an instruction to mid for plaintiff was erroneous. Aldridge v. Whitten, 56 Okl. 694, 156 P. 667. Where, in a pledgee's action against an innocent purchaser from the pledg- er, there was evidence that pledgor obtained possession by larceny from the pledgee, it was error to direct a verdict against the pledgee. State Nat. Bank of Shawnee v. McMahan, 45 Okl. 585, 146 P. 1. Counterclaim. Where a counterclaim states a good cause of action against plaintiff, though not a proper counterclaim in the action, and plaintiff alleges an affirmative defense, but offers no evidence to support it, a directed verdict for plaintiff on the issues joined is error. Brisley v. Mahaffey, 64 Okl. 319, 167 P. 984. 35 Baker v. Nichols & Shepard Co., 65 P. 100, 10 Okl. 685; Harris v. Mis- souri, K. & T. Ry. Co., 103 P. 758, 24 Okl. 341, 24 L. R. A. (N. S.) 858 ; Solts v. Southwestern Cotton Oil Co., 115 P. 776, 28 Okl. 706; Chicago, R. I. & P. Ry. Co. v. McCulley, 30 Okl. 178, 120 P. 279 ; Cooper v. Flesner, 103 P. 1016, 24 Okl. 47, 23 L. R. A. (N. S.) 1180, 20 Ann. Gas. 29. On a motion to direct a verdict only the evidence favorable to the opposing party should be considered. Ferris v. Holiman, 78 Okl. 251, 190 P. 409. se Terry v. Gravitt, 56 Okl. 769, 156 P. 633; Johnson v. Rudsisill, 51 Okl. 480, 152 P. 93 ; Chicago, R. I. & P. Ry. Co. v. Brown, 55 Okl. 173, 154 P. 1161 ; Burke v. Smith, 57 Okl. 196, 157 P. 51 ; Phoenix Ins. Co. of Hartford v. Newell, 60 Okl. 207, 159 P. 117; Modern Brotherhood of America v. Beshara, 142 P. 1014, 42 Okl. 684 ; Hogan v. Milburn, 44 Okl. 641, 146 P. 5 ; Brown & Bridge- man v. Western Casket Co., 30 Okl. 144, 120 P. 1001; Wade v. Sumner, 30 Okl. 784, 120 P. 1011; Schaefer v. Arkansas Valley Interurban Ry. Co., 104 Kan. 740, 181 P. 118; Fulsom-Morris Coal & Mining Co. v. Mitchell, 132 P. 1103, 37 Okl. 575; Gamble v. Riley, 39 Okl. 363, 135 P. 390; Young v. Irwin, 79 I'. 678, 70 Kan. 796 ; Kelley v. Ryus, 29 P. 144, 48 Kan. 120. Where there is any evidence reasonably tending to establish plaintiff's claim, it is error to direct a verdict for defendant. Scott v. Moore, 52 Okl. 200, 152 P. 823. Where there was evidence fairly tending to support defendants' contention, it was error to direct a verdict for plaintiff. Citizens' State Bank of Grain- field v. Houser, 148 P. 740, 95 Kan. 351. It is error to direct a verdict when there is a disputed question of fact touching the amount which plaintiff should recover. Brown v. Baird, 48 P. 180, 5 Okl. 133. Where the evidence is conflicting, and such that the jury might reasonably find for plaintiff a less sum than directed, it is error to direct a verdict for plaintiff for a specific sum. Miller v. Oklahoma State Bank of Altus, 53 Okl. 616, 157 P. 767. In personal isjury case, where amount of damage was not precisely ueter- (726) Art. 3) ISSUES AND TRIAL THEREOF 822 opposite party could recover. 37 In other words where the evidence clearly shows plaintiff is entitled to recover, and the only dispute is as to immaterial issues, it is not error to direct a verdict, and where the evidence is undisputed on all the issues necessary for plaintiff's recovery, the court should instruct to find for plaintiff, though there may be a dispute in the evidence as to other imma- terial issues. 38 However, where evidence on certain issues clearly establishes plaintiff's right to recover, verdict may be directed for plaintiff notwithstanding other conflicts. 39 A verdict should be directed only when the facts are such that all reasonable men must draw the same conclusion from them, 40 and mined, It was not error for court to overrule defendant's motion for instruct- ed verdict for plaintiff in given sum. Bartlesville Zinc Co. v. James (Okl.) 166 P. 1054. Refusal to direct a verdict for a street car passenger injured in attempting to alight held not error, where the evidence was conflicting as to negligence and contributory negligence. Christian v. Union Traction Co., 154 P. 271, 97 Kan. 46. Where the evidence as to every issue of fact was conflicting, court under Rev. Laws 1910, 4993, cannot direct verdict. Abraham v. Southwestern Cot- ton Oil Co. (Okl.) 169 P. 618. In action for compensation for procuring exchange of land, where question of condition of agreement between the principal and brokers was controverted, both in pleadings and in testimony, direction of verdict for plaintiffs was er- ror. \ Campbell v. Thomas, 56 Okl. 779, 156 P. 647. 87 Sovereign Camp, Woodmen of the World, v. Welch, 83 P. 547, 16 Okl. 188. Where the evidence was sufficient to support a verdict for plaintiff, the court properly refused to withdraw the case and render judgment and in- struct for defendant. City of Ardmore v. Fowler, 54 Okl. 77, 153 P. 1117. Where the evidence of defendant reasonably tends to support his answer and cross-petition, it is error to instruct a verdict for plaintiff. Fakler v. Summer Mercantile Co., 55 Okl. 264, 155 P. 559. as Choctaw, O. & G. R. Co. v. Garrison, 90 P. 730, 18 Okl. 461. 39 Dickerson v. Incorporated Town of Eldoraro, 64 Okl. 142, 166 P. 708. Where plaintiff under the pleadings is entitled to recover unless certain af- firmative defenses are sustained and where no evidence was produced reason- ably tending to support such defenses, a verdict should be directed for plain- tiff. Conwill v. Eldridge (Okl.) 177 P. 79; Frank H. Harrah & Co. v. First Nat. Bank of Tonkawa, 26 Okl. 620, 110 P. 725 ; Offutt v. Wagoner, 30 Okl. 458, 120 P. 1018 ; Fitzpatrick v. Nations, 30 Okl. 462, 120 P. 1020. 40 Continental Casualty Co. v. Owen, 38 Okl. 107, 131 P. 1084; Campbell v. Thomas, 56 Okl. 779, 156 P. 647. The court may direct a verdict only where the evidence is undisputed or such that the court would set aside a verdict in opposition to it. Moore v. First Nat. Bank of Iowa City, 121 P. 626, 30 Okl. 623. Where the evidence of plaintiff was sufficient to support his action, and (727) 822 TRIAL (Ch. 13 not when it is necessary to weigh the evidence to determine where the preponderance lies. 41 On the other hand where the facts are un- disputed or of such conclusive character that the court in its discre- tion would be compelled to set aside a verdict returned in opposi- tion thereto, a verdict may be directed. 42 there was no substantial evidence for defendant, it was error to refuse to in- struct to find a verdict for plaintiff. Hussey v. Blaylock, 38 Okl. 204, 132 P. 821. A verdict cannot be peremptorily instructed against a party where the evi- dence would sustain one in his favor. Jones v. Citizens' State Bank, 39 Okl. 393, 135 P. 373. Where the evidence reasonably tends to establish the truth of the allega- tions of a petition stating a cause of action, it is error to instruct a verdict for defendant. Stewart v. Lafayette, 55 Okl. 411, 153 P. 847. Where there is any evidence tending reasonably to sustain the petition, ver- dict should not be directed, the jury being the sole judges of the facts and in- ferences to be drawn therefrom. Midland Valley R. Co. v. Rippe, 61 Okl. 314, 161 P. 233. Where evidence in a shipper's action for damages to stock does not show negligence by carrier refusal of peremptory instruction for defendant held error. St. Louis & S. F. R. Co. v. Waggoner, 52 Okl. 1, 152 P. 448. 41 Freeman-Sipes Co. v. Henson, 110 P. 909, 26 Okl. 799; Lower v. Shorthill, 103 Kan. 534, 176 P. 107; National Council of Knights and Ladies of Securi- ty v. Fowler (Okl.) 168 P. 914. Evidence in an action for breach of a building contract and for compensa- tion for extra work held to reasonably sustain the allegations of plaintiff's petition and render erroneous the direction of a verdict for defendant. Stew- art v. Lafayette, 55 Okl. 411, 153 P. 847. 42 Sartain v. Walker, 60 Okl. 58, 159 P. 1096; Ewing v. United States, 89 P. 593, 11 Ariz. 1; Hanenkratt v. Hamil, 61 P. 1050, 10 Okl. 219; Neeley v. Southwestern Cotton Seed Oil Co., 75 P. 537, 13 Okl. 356, 64 L. R. A. 145; Guss v. Federal Trust Co., 91 P. 1045, 19 Okl. 138; Murphy v. Cobb, 5 Colo. 281; Denver Jobbers' Ass'n v. Rumsey, 71 P. 1001, 18 Colo. App. 320; Haner v. Northern Pac. Ry. Co., 62 P. 1028, 7 Idaho, 305 ; Barr v. Irey, 45 P. Ill, 3 Kan. App. 240; St. Louis & S. F. R. Co. v. Bloom, 39 Okl. 78, 134 P. 432; Vin- son v. Los Angeles Pac. R. Co., 82 P. 53, 147 Cal. 479; Sanders v. Chicago, R. I. & P. Ry. Co., 61 P. 1075, 10 Okl. 325; Conklin v. Yates, 83 P. 910, 16 Okl. 266; Creagh v. Equitable Life Assur. Soc., 52 P. 526, 19 Wash. 108; Chicago, R, I. & P. Ry. Co. v. McCulley, 30 Okl. 178, 120 P. 279. The direction of a verdict for defendants held not error, where there was no evidence, tending to support plaintiffs cause of action. Stroud v. Elliott, 45 -Okl. 447, 145 P. 804. Where plaintiff's evidence made out a case, and defendants introduced, no evidence in rebuttal, the court properly instructed a verdict for plaintiff. Moore v. Leigh-Head & Co., 48 Okl. 228, 149 P. 1129. Where the evidence was insufficient to sustain a verdict for plaintiff, a ver- dict was properly directed for defendant. Flamm v. Wineland, 139 P. 961, 41 Okl. 688. A peremptory instruction may and should be given, when the evidence in (728) Art. 3) ISSUES AND TRIAL THEREOF 822 Where there is no competent testimony offered sustaining aver- ments of plaintiff's petition, it is not error to direct verdict for de- fendant. 43 favor of one of the parties is uncontradicted. Smoot & Abbott v. W. L. Moody & Co., 125 P. 1134, 34 Okl. 522 ; Eminent Household of Columbian Woodmen v. Prater, 133 P. 48, 37 Okl. 568. Where plaintiff offers no evidence even reasonably tending to support his al- legations, it is not error to direct a verdict for defendants. Burris v. Leet, 51 Okl. 741, 152 P. 352. 43 Grand Lodge K. P. of North America, etc., v. Farmers' & Merchants' Bank of Boley, 64 Okl. 225, 166 P. 1080. Where the evidence for plaintiff is sufficient to prove his cause of action, and there is no substantial evidence for defendant, it is not error to direct a verdict for plaintiff. Cockrell v. Schmitt, 94 P. 521, 20 Okl. 207, 129 Am. St. Eep. 737. AVhere the only defense is the statute of limitations, and the undisputed evidence shows that plaintiff's cause of action is not barred by the statute, it is error to refuse a peremptory instruction for plaintiff. Fidelity & Deposit o. v. Sheahan, 133 P. 228, 37 Okl. 702, 47 L. R. A. (N. S.) 309. Where the petition, in a widow's action for death of her husband, alleged that no administrator had been appointed and there was no proof thereof, it was error to refuse a peremptory instruction for defendant. Frederick Cot- ton Oil & Mfg. Co. v. Clay, 50 Okl. 123, 150 P. 451. Where demurrer to plaintiff's evidence was properly overruled and defendant failed to introduce new evidence, a verdict was properly directed for plain- tiff. Kilgore v. Rowland (Okl.) 172 P. 43. Where the evidence introduced by plaintiff fails to support the allegations of the bill of particulars, it is the duty of the court, on motion, to instruct the jury to return a verdict for defendant. Barr v. Irey, 45 P. Ill, 3 Kan. App. 240. In a suit for the price of a car of flour, where there was a plea of payment and a cross-action in damages alleging that the flour was defective, and its use injurious to defendant in his business as a baker, where the evidence proved payment, it was error to refuse to instruct to find for defendant on his plea, of payment, and that nothing remained to consider except the issues on his cross- petition. Bales v. Northwestern Consol. Milling Co., 96 P. 559, 21 Okl. 421. It is not error to instruct the jury to return a verdict for defendant, where the action is founded on a specific agreement, and plaintiff's evidence shows that its performance had by consent of both parties been waived and a differ- ent agreement had been made. Peckinpaugh v. Lamb, 79 P. 673, 70 Kan. 799. Where plaintiff has clearly made out his case, and there is no contrary evi- dence, it is proper for the court to direct a verdict in his favor. Hillis v. First Nat. Bank, 38 P. 565, 54 Kan! 421. Where plaintiff sues to recover possession of real estate as his homestead, but on the trial offered no proof to sustain such claim, it is not error to direct a verdict against him. KeUey v. Reynolds, 128 P. 116, 35 Okl. 37. Where, in a purchaser's suit to recover the purchase money paid, it ap- peared that the contract provided that the money should be returned upon a failure to do certain things, and the undisputed evidence showed such failure, (729) 822 TRIAL (Ch. 13 Where the evidence on behalf of plaintiff is sufficient to prove his cause of action, and there is no substantial evidence offered by a directed verdict for plaintiff was proper. Farm Land Mortgage Co. v. Wilde, 136 P. 1078^ 41 Okl. 45. Where, in an action for legal services, plaintiffs' testimony showed that two defendants had paid their share of the fee, a verdict was properly directed for such defendants. Kappler v. Storm, 54 Okl. 493, 153 P. 1142. Where the payment of a sum certain is a condition precedent to a right to surrender a lease, and on a suit for rent a prior surrender is pleaded, but there is no evidence that said sum certain was ever paid or tendered, it was not error to direct a verdict for plaintiff. Burress v. Diem, 101 P. 1116, 23 Okl. 776. Where evidence fails to show malice in instituting proceedings and absence of probable cause, it is the duty of the court, on request, to direct a verdict for defendant. Jones Leather Co. v. Woody (Okl.) 169 P. 878. Where the undisputed evidence showed that the purchaser was in default and had been for some time before the vendor's action in eiectment, and where no defense was offered, a directed verdict for the vendor was proper. Lons- dale v. Reinhard (Okl.) 176 P. 924. In action involving title to realty where uncontradicted evidence shows the legal and equitable title in plaintiffs and defendant offers no evidence to show a superior title in himself or any defense, it is not error to instruct a verdict for plaintiff. Longest v. Langford (Okl.) 172 P. 927. Where plaintiff's evidence is uncontradicted, and not inherently improbable, and is sufficient to prove its case, and defendant offers no evidence, it is not error to instruct for plaintiff. Hamilton v. Blakeney (Okl.) 165 P. 141. Direction of verdict in an action on a verified account held not error, where defendant offered no evidence controverting plaintiff's right to recover. N. S. Sherman Mach. & Iron Works v. R. D. Cole Mfg. Co., 51 Okl. 353, 151 P. 1181. Bills and notes. Where two parties are jointly sued on a note and on an account, and the evidence shows that both signed the note, but there is no evi- dence of liability of one party on the account, the court should instruct that such party is not liable. Stuckey v. Irwin, 163 P. 621, 100 Kan. 57. , In action on note for price of land, where there was no proof of rescission or abandonment of contract, verdict was properly directed for plaintiff. Soot- er v. Janes, 57 Okl. 368, 157 P. 28. In an action on a draft by the holder thereof who acquired it for value be- fore maturity without notice against an indorser from whom the draft is ob- tained by fraud, the knowledge of the facts which would put a prudent man on inquiry is not sufficient to defeat the right to recover, and the court may di- rect a verdict for the holder where the circumstances are not sufficiently strong for it to be said as a matter of law that bad faith may be reasonably inferred therefrom. Forbes v. First Nat. Bank of Enid, 95 P. 785, 21 Okl. 206. Under the evidence in an action on a negotiable note, held that the court should have instructed that plaintiff was an innocent purchaser and that the defenses set up were not available. Showalter v. Webb, 141 P. 439, 42 Okl. 297. Under Rev. Laws 1910, 4759, where in an action against an indorser who files an unverified answer plaintiff introduces the note in evidence and d*- (730) Art. 3) ISSUES AND TRIAL THEREOF 822 defendant the court may properly instruct the jury to return a ver- dict for plaintiff. 44 fendant offers no testimony, the court may direct a verdict for plaintiff. Home v. Oklahoma State Bank of Atoka, 139 P. 992, 42 Okl. 07. Where there is no substantial evidence to authorize a verdict for a defend- ant, in an action against him on a negotiable note, bought by plaintiff in good faith before maturity, it is not error for the court to direct a verdict for plaintiff for the full amount thereof. McCormick v. Holmes, 21 P. 108, 41 Kan. 265. On the trial to a jury of a suit on a note, the court has the right to com- pute the amount of recovery, and direct a verdict, when the state of the evi- dence justifies it. MacRitchie v. Johnson, 30 P. 477, 49 Kan. 321. Insurance. Where the uncontradicted evidence showed, as to the only issue involved, that the insurance policy sued on had been issued and was in effect, it was error to deny a directed verdict for plaintiff. Van Arsdale-Osborne Brokerage Co. v. Wiley, 140 P. 153, 40 Okl. 651. In an action on a fidelity bond, where the giving of the bond, the defalca- tion, and the amount thereof were admitted, defendant claiming that the plaintiff had breached the warranties, the burden of proof on this issue be- ing on the defendant, and where the evidence, with all the inferences that the jury would properly gather from it, was insufficient to support a verdict for the defendant, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the plaintiff, providing his case has been properly made out. Southern Sure- ty Co. v. Tyler & Simpson Co., 30 Okl. 116, 120 P. 936. Where the widow of insured in an action on a policy introduces evidence that the insured made application for a "Standard Life Insurance Policy," and that such policy was delivered to insured, and rests her case, and defendant introduces conclusive proof that the policy was not a standard policy, but a "sub-standard policy," differing in many important particulars from that call- ed for by the application, it is not error to direct a verdict for defendant. Keel v. New York Life Ins. Co., 94 P. 177, 20 Okl. 195. Where, in an action on a life insurance policy, the only defense was fraud in the procurement of the insurance, and there was no evidence to establish it, it was proper to direct a verdict for plaintiff. Eminent Household of Colum- bian Woodmen v. Prater, 133 P. 48, 37 Okl. 568. Where, in an action on a fire policy requiring proofs of loss, there was no evidence that such proofs were furnished a demurrer to the evidence and. a motion for an instructed verdict for defendant should have been sustained. Palatine Ins. Co. v. Lynn, 141 P. 1167, 42 Okl. 486. Where the petition and evidence show a cause of action on a life policy which is incontestable after two years from date of issue, and the only defense is breach of warranties pleaded more than two years after its date, the court should direct a verdict for plaintiff. Mutual Life Ins. Co. of New York v. Buford, 61 Okl. 158, 160 P. 928. Negligence. Where the evidence failed to show causal connection between 44 Ketchum v. Wilcox, 48 P. 446, 5 Kan. App. 881 ; Irwin v. Dole, 52 P. 916, 7 Kan. App. 84; Underwood v. Stack, 46 P. 1031, 15 Wash. 497; Carmack v. Drum, 67 P. 808, 27 Wash. 382. (731) 822-823 TRIAL (Ch. IS Where defendant, by his answer and evidence, admits all the allegations of plaintiff's petition, the court may instruct the jury to return a verdict for plaintiff. 45 When the evidence shows without dispute that the plaintiff is entitled to recover and the defendant elects to stand upon a de- murrer to the evidence, it is proper to direct a verdict for the plaintiff. 46 823. Effect of motion Where an answer denying execution of a note is not verified as required by statute, but plaintiff joins issue thereon by general de- nial in reply, a motion to direct a verdict for plaintiff after the close of the evidence does not question the sufficiency of the an- swer. 47 A motion by each party that a verdict be directed is not a waiv- er of the right to have the facts passed upon by the jury, or an agreement to submit them to the trial judge if the motion be de- nied. 48 the negligence averred and the damages suffered, the court should direct a verdict for defendant. Patterson v. Seals, 51 Okl. 347, 151 P. 591. Where the evidence does not entirely fail to show negligence by defendant, the court should submit the case to the jury, but where the evidence fails en- tirely to show negligence, a verdict should be instructed for defendant. New York Plate Glass Ins. Co. v. Katz, 51 Okl. 713, 15 P. 353. A verdict held properly directed in an action by a miller whose han'd was >. in an action by or against him, as to what she does and says in relation there- with. McDonald v. Cobb, 52 Okl. 581, 153 P. 138. 20 State Mut. Ins. Co. v. Green, 62 Okl. 214, 166 P. 105. L. R. A. 1917F, 663. 21 Atchison Sav. Bank v. Means, 58 P. 989, 61 Kan. 857. 22 Van Valkenburg v. Lynde, 66 P. 994, 63 Kan. 887. (763) 865 WITNESSES (Ch. 14 A husband is a competent witness in an action brought by his wife as an executrix of the estate of a deceased person. 23 The wife is incompetent to testify, where the husband is inter- ested in the result of the case, though the action is in the name of a third party. 24 The clause forbidding a husbaad or wife testifying concerning communications made by one to the other during marriage is not ' affected by their being joint parties and jointly interested in the action, or by one having acted as the agent of the other. 25 A husband cannot testify to a communication made by him to his wife concerning property claimed by her. 26 In an action by a husband for alienating the affections of his wife, he is not incompetent to testify as to transactions or communica- tions not had by him with his wife. 27 A conversation between husband and wife in the presence or hear- ing of another is not a confidential communication. 28 The wife of one who is interested in an action only as the next friend of a minor plaintiff is a competent witness in the case. 29 In husband's action for personal injury, the wife was a competent *, 23 Van Fleet v. Stout, 24 P. 960, 44 Kan. 523. 24 Western Nat. Life Ins. Co. v. Williamson-Halsell-Frazier Co., 131 P. 691, 37 Okl. 213. 25 Marshall v. Marshall, 80 P. 629, 71 Kan. 313. The plaintiff caused the deposition of one of the defendants to be taken prior to the trial, in which the witness gave testimony concerning communi- cations had with her husband during the marriage, and prior to his death. Held, that the testimony falls within the prohibition of the Code which for- bids husband or wife "to testify concerning any communication made by one to the other during marriage, whether called while that relation subsisted or afterwards," and its admission over the objection of the defendants was er- ror. French v. Wade, 11 P. 138, 35 Kan. 391. 26 Van Zandt v. Schuyler, 43 P. 295, 2 Kan. App. 118. Under Civ. Code, 323, providing that in no case can either the husband or wife testify concerning any communication made by one to the other dur- ing the marriage, a husband cannot so show his life interest in property stand- ing in his wife's name. Chicago, K. & N. Ry. Co. v. Ellis, 34 P. 352, 52 Kan. 48. 27 Roesner v. Darrah, 70 P. 597, 65 Kan. 599. Husband suing for damages for the alienation of the affections of his wife and her seduction is a competent witness, except as to his transactions or communications with her. Potter v. Womach, 63 Okl. 107, 162 P. 801. 28 State Bank v. Hutchinson, 61 P. 443, 62 Kan. 9; State v. Gray, 39 P. 1050, 55 Kan. 135. 29 Potter v. Stamfli, 44 P. 46, 2 Kan. App. 788. (764) Art. 3) COMPETENCY AND PRIVILEGE 865~866 witness to testify as to the fact of her telephone conversation with defendant's wife, and to detail the message received for her hus- band. 30 The mother, who was divorced from the child's alleged father, is a competent witness as to the child's paternity. 81 That husband and wife were not married at the time the trans- action occurred does not qualify them. 32 The. incompetency of a husband to testify must be raised by objec- tion to competency as a witness, and not merely by an objection to the competency, relevancy, or materiality of the testimony. 38 The prohibition against husband and wife being witnesses against each other is for the benefit of the husband and wife, and may be waived. 34 866. Attorney and client It is also incompetent for an attorney to testify "concerning any communications made to him by his client, in that relation, or his advice thereon, without the client's consent." 85 so Brownell v. Moorehead (Okl.) 165 P. 408. si Lyon v. Lash, 99 P. 598, 79 Kan. 342. 32 Sands v. David Bradley & Co., 129 P. 732, 36 Okl. 649, 45 L. R. A. (N. S.) 396. In an action under Rev. Laws 1910, 5281, for wrongful death, by a woman suing as widow of decedent, and as next friend to his children, the testimony of her present husband was incompetent under Rev. Laws 1910, 5050, where he had not acted as her agent and was not a party. Smith v. Chicago, R. I. & P. Ry. Co., 142 P. 398, 42 Okl. 577. The statute does not prevent one from testifying against the other after the marriage relation has terminated regarding independent facts which are not privileged communications. Adkins v. Wright, 131 P. 686, 37 Okl. 771. Where plaintiff offers a witness in his behalf and defendant objects on the ground that she is the wife of the plaintiff, it is not error to admit in evidence a decree of divorce to show that the relations theretofore existing between them had been dissolved, and that she was a competent witness for plaintiff. Easterly v. Gater, 87 P. 853, 17 Okl. 93, 10 Ann. Cas. 888. 33 Muskogee Electric Traction Co. v. Mclntire, 133 P. 213, 37 Okl. 684, L. R. A. 1916C, 793. In an action to cancel a mortgage by a husband and his wife, the objection that the testimony of the wife was incompetent was not well taken. Hartzell v. Hartzell, 141 P. 772, 42 Okl. 390. An objection to a wife as a witness be- cause incompetent, to be available must be made on the ground of her in- competency. An objection on the ground that the testimony is incompetent does not raise the question of the competency of the witness. Id. s* Hampton v. State, 123 P. 571, 7 Okl. Cr. 291, 40 L. R. A. (N. S.) 43. 35 Rev. Laws 1910, 5050. An attorney is incompetent to testify as. to confidential communications with (765) 866 WITNESSES (Ch. 14 A communication from a client to his attorney may be admitted in evidence, but the attorney, without his client's consent, is pre- vented from testifying concerning such communication. 30 No one other than the client or one in privity with him can raise the ques- tion of privilege between client and attorney ; S7 nor can an attor- ney disclose privileged matter as a basis for an opinion that a client was of unsound mind at the time of a consultation had with him. 38 However, an attorney may express an opinion regarding the sanity of his client, from observations made in common with others in a nonprofessional capacity, or from facts which did not come to his knowledge because his professional advice had been sought. 89 An attorney may testify that a certain person is his client, for this is not a privileged communication. 40 his client. Pearson v. Yoder, 39 Okl. 105, 134 P. 421, 48 L. R. A. (N. S.) 334. Ann. Cas. 1916A, 62. Good-faith communications between an attorney and his client, relating to the best method of protecting the client's interests, are privileged. Emerson v. Western Automobile Indemnity Ass'n, 105 Kan. 242, 182 P. 647. An attorney cannot testify concerning any communication made to him by a client or his advice thereon without the client's consent. Brown v. State, 9 Okl. Cr. 382, 132 P. 359. Communications made by complaining witness to the prosecuting attorney as to his knowledge of matters relating to probable guilt are privileged, and cannot be given in evidence over his objection in an action against him for malicious prosecution. Michael v. Matson, 105 P. 537, 81 Kan. 360, L. R. A. 1915D, 1. In a proceeding by writ of error coram nobis to obtain relief from a sen- tence of imprisonment imposed seven years before on a plea of guilty obtain- ed by duress, the deposition of plaintiff in the proceeding, who was still in prison, and not present at the trial, stated that one K. had never acted as his attorney, but on the trial K. testified that he was counsel for plaintiff when a certain conversation between them occurred. Held, that the action of the lower court in excluding this conversation as a privileged communication would not be disturbed. State v. Calhoun, 32 P. 38, 50 Kan. 523, 34 Am. St. Rep. 141, 18 L. R. A. 838. This statute is but declaratory of the common law, and is for the benefit of the client, and not the attorney. Evans v. State, 115 P. 809, 5 Okl. Cr. 643, 34 L. R. A. (N. S.) 577. v 36 Tays v. Carr, 14 P. 456, 37 Kan. 141. 37 Matthews v. McNeill, 157 P. 387, 98 Kan. 5. 38 Sheehan v. Allen, 74 P. 245, 67 Kan. 712. 3 Sheehan v. Allen, 74 P. 245, 67 Kan. 712. 40 Arkansas City Bank v. McDowell, 52 P. 56, 7 Kan. App. 568. Where a will is attacked for alleged undue influence, evidence of the attor- ney who drew the will as to who gave him the data therefor, and whose in- structions he followed in preparing the same, was not objectionable as a dis- (766) Art. 3) COMPETENCY AND PRIVILEGE 866 In order for a communication from a client to his attorney to be confidential, and to impose upon the attorney the duty of not dis- closing the same, it must be of a confidential chaVacter and so re- garded, at least by the client, at the time, and must relate to a mat- ter which is in its nature private and properly the subject of con- fidential disclosure. 41 Communications made to an attorney who was acting for both parties, and made in the presence of both parties, are not privi- leged. 42 An attorney may be compelled to produce papers belonging to his client, where the knowledge of their contents is accessible to others or to the public. 43 He may be compelled to produce any paper in his possession belonging to his client, which the client him- self could be compelled to produce. 44 An attorney may testify in behalf of his client, and the fact that his compensation as an attorney in the action is contingent on the result of the litigation does not render him incompetent, but goes to his credibility. 43 Where statements are made to an attorney when no employment as an attorney is suggested or anticipated, and the relation of at- closure of confidential communications. Kerr v. Kerr, 116 P. 880, 85 Kan. 460. 41 In re Elliott, 84 P. 750, 73 Kan. 151. 42 Sparks v. Sparks. 32 P. 892, 51 Kan. 195. Testimony of an attorney who acted for grantor and grantee in preparing a contract as to a conveyance in fraud of the grantor's creditors held not privileged. Chicago Lumber Co. v. Cox, 147 P. 67, 94 Kan. 563. 4s Pearson v. Yoder, 39 Okl. 105, 134 P. 421, 48 L. R. A. (N. S.) 334, Ann. Oas. 1916A, 62. 44 Id. After a party to a cause has voluntarily procured a reading of his un- filed pleading by a nonprofessional stranger, has published its contents in a newspaper interview, and spread it on the record of a court of general juris- diction, in pleading against the attorney who assisted in preparing it, the privileged character of the document is waived, and the attorney is released from the confidential relation he bore before its publication, and his produc- tion of it for use in evidence against the party is not a breach of privilege. In re Burnette, 85 P. 575, 73 Kan. 609. 45 Central Branch Union Pac. R. Co. v. Andrews, 21 P. 276, 41 Kan. 370. Code Civ. Proc. Kan. 321 (Gen. St. Kan. 1909, 5914), does not prohibit an attorney from testifying relative to the preparation and execution of a will drawn by him. including information imparted by testator, in a proceed- ing to contest the will for fraud and undue influence. Black v. Funk, 143 P. 426, 93 Kan. 60. 866 WITNESSES (Ch. 14 torney and client does not exist, the communications are not priv- ileged. 46 Professional communications between a lawyer and his client are not privileged, when such communications are had for the pur- pose of being guided or assisted in the commission of a crime. 47 The rule that privilege may not be urged respecting communica- tions relating to perpetration of fraud is limited, ordinarily, to cases of actual fraud involving moral turpitude. 48 An attorney is employed in his professional capacity when he is voluntarily listening to his client's preliminary statement, and it is not necessary that any retainer should have been promised, charged, or demanded, and it makes no difference, though the serv- ices are gratuitous. 49 Where a client testifies as to confidential communications made by her to her attorney and as to his advice thereon, this operates as a consent that the attorney may testify as to what actually tran- spired between him and his client. 50 46 State v. Herbert, 66 P. 235, 63 Kan. 516 ; Robinson's Ex'rs v. Blood's Heirs, 62 P. 677, 10 Kan. App. 576. A lawyer, who prepared a contract for decedent, may testify as to a con- versation with the decedent when the contract vas executed, to show that the deceased knew and understood the contents of the contract, if the rela- tion of attorney and client did not exist between the witness and the dece- dent. Grimshaw v. Kent, 73 P. 92, 67 Kan. 463. Where a person communicated to an attorney certain facts, which became Important as evidence against the person making them in an action subse- quently brought in which he was a party, and the attorney, without the con- sent of the person making such communication, was called by the adverse party as a witness, and the court excluded such testimony as being privileged, it was error, where the advice of the attorney was gratuitously given, and it was not known that he was an attorney, and the communications were not made under the seal of professional confidence. Union Pac. R. Co. v. Day, 75 P. 1021, 68 Kan. 726. There was no relation of attorney and client between the defendants in a prosecution for criminal libel and the prosecuting officer, so as to exclude evi- dence of such officer, as to communications falsely charging a third person with crime. State v. Wilcox, 132 P. 982, 90 Kan. 80, 9 A. L. R. 1091. 47 Morris v. State, 115 P. 1030, 6 Okl. Cr. 29. 48 Emerson v. Western Automobile Indemnity Ass'n, 105 Kan. 242, 182 P. 647. 49 Evans v. State, 115 P. 809, 5 Okl. Or. 643. 34 L. R. A. (N. S.) 577. so Brown v. State, 9 Okl. Cr. 382, 132 P. 359. In a partition suit, that defendants had taken and filed, but had not used, the deposition of a witness claimed to be incompetent under Code Civ. Proc. Kan. 321 (Gen. St. Kan. 1915, 7223), respecting communications by a cli- (768) Aft. 3) COMPETENCY AND PRIVILEGE 867~868 867. Clergyman or priest It is incompetent for a clergyman or priest to testify "concerning any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs, without the consent of the person making the confession." 81 868. Physician and patient It is incompetent for a physician or surgeon to testify "concern- ing any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge ob- tained by a personal examination of any such patient: Provided, that if a person offer himself as a witness, that is to be deemed a consent to the examination; also, if an attorney, clergyman or priest, physician or surgeon on the same subject, within the mean- ing of the last three subdivisions of this section." 2 This provision of the Code merely grants a privilege to render physicians and surgeons incompetent to testify to certain commu- nications. 153 ent to his attorney, constituted a waiver of the privilege. Watson v. Wat- son, 104 Kan. 578, 180 P. 242. In an action in conversion, where conspiracy is charged, it is not error to permit an attorney to testify that he had advised one of the defendants that an abstract of title showed defective title, for the purpose of showing notice of bad title ; no objection being made that the conversation was privileged. American Trust Co. v. Chitty, 129 P. 51, 36 Okl. 479. 51 Rev. Laws 1910, 5050. 52 Rev. Laws 1910, 5050. ss Armstrong v. Topeka Ry. Co., 144 P. 847, 93 Kan. 493. In bastardy proceedings, where the relatrix and the defendant agreed that a physician should make an examination for the purpose of determining the duration of pregnancy, statements made by the relatrix to the physician dur- ing the examination as to the date of her first intercourse with defendant were competent. Clark v. State, 61 P. 814, 8 Kan. App. 782. Statements made by an injured employe" to a surgeon called to attend him as to the position of the employe 1 immediately preceding the accident are not privileged. Kansas City, Ft. S. & M. R. Co. v. Murray, 40 P. 646, 55 Kan. 336. Code Civ. Proc. Kan. 323, as amended in 1909 (Code Civ. Proc. Kan. 321 [Gen. St. Kan. 1909, 5915]), do not excuse a physician from testifying as to the time, manner, and circumstances of a street car accident resulting in injuries to a passenger. Armstrong v. Topeka Ry. Co., 144 P. 847, 93 Kan. 493. A physician was employed to attend a patient, and afterwards the family physician took charge of the case. Within a few hours the physician first called again visited the patient, when a statement was made as to the cause of the injury. The patient stated that he regarded the doctor as his physi- HON.PL.& PBAC.-^9 (769) 868 WITNESSES (Ch. 14 Testimony of a physician as to any communication made by his patient as to her disease, or knowledge obtained by him, may be giv- en, if the patient testifies on the same subject. 64 So, too, the heirs at law of one who has been treated by a physi- cian may waive the privilege of making a physician incompetent to testify to any knowledge obtained in his professional capacity from his patient. 55 A physician is not incompetent to testify as to communications by a patient or to knowledge obtained by a personal examination, where third persons were present. 50 cian, but the doctor stated that he did not regard himself as such. Held, that the exclusion of the statement as privileged was not error. E. Patter- son & Son v. Cole, 73 P. 54, 67 Kan. 441. s* Roeser v. Pease, 131 P. 534, 37 Old. 222 ; Fulsom-Morris Coal & Mining Co. v. Mitchell, 132 P. 1103, 37 Okl. 575. Where plaintiff testified as to the nature of her injuries, and the time and place of treatment, she waived the privilege granted by Comp. Laws 1909, 5842, and rendered admissible the testimony of her physician on these sub- jects. City of Tulsa v. Wicker, 141 P. 963, 42 Okl. 539. Where, in personal injury action, plaintiff testified that he had never suf- fered similar injury prior to accident, and denied that he had stated to his physician that he had suffered a similar injury, physician called by plaintiff as witness may be cross-examined as to such statement. Chicago, R. I. & P. Ry. Co. v. Hughes, 64 Okl. 74, 166 P. 411. An applicant for life insurance may contract with the insurer waiving the privilege afforded him by Code Civ. Proe. 323 (Gen. St. 1901, 4771), ren- dering a physician incompetent to testify to professional communications from his. patient. Metropolitan Life Ins. Co. v. Brubaker, 96 P. 62, 78 Kan. 146, 18 L. R. A. (N. S.) 362, 130 Am. St. Rep. 356, 16 Ann. Cas. 267. A patient's consent that his physician shall testify to confidential commu- nications is implied from failure to object when the physician is called to testify, provided the patient has opportunity to make objection. Id. A physician may, with his patient's consent, testify to confidential commu- nications. Id. Under Code Civ. Proc. 1901, 323, as amended in 1909 (Code Civ. Proc. 321 [Gen. St. 1909, 5915]), the giving of testimony by a patient without ob- jection is equivalent to consent that the physician may testify to the same matter. Id. 55 Bruington v. Wagoi\er, 164 P. 1057, 100 Kan. 10, 439. The heirs at law of one who has been treated by a physician may waive the provisions of the statute making a physician incompetent to testify to any knowledge obtained in his professional capacity from the patient. Fish v. Poorman, 116 P. 898, 85 Kan. 237. 66 In re Swartz's Will, 79 Okl. 191, 192 P. 203. (770) Art. 3) COMPETENCY AND PRIVILEGE 869-871 869. Construction of statutes Statutes in derogation of the competency of witnesses will be strictly construed in favor of competency. 57 Statutes excluding certain persons from testifying will be strictly construed, and the exclusion will not be extended by implication to a class not named, but a witness will be deemed competent unless clearly rendered incompetent by the terms of the statute. 88 870. Conviction of crime The fact that a witness has been convicted of any felony except perjury does not disqualify him. 59 871. Self-incrimination No person shall be compelled to give evidence which will tend to incriminate him, except as i - the Constitution provided. A per- son having knowledge of facts that tend to establish the guilt of any other person charged with an offense shall not be excused from giving testimony on the ground that it may tend to incriminate him, but no person shall be prosecuted on account of any transac- tion concerning which he may so testify. A person under examina- tion before a county judge in an investigation into supposed vio- lations of the prohibitory law is not obliged to answer questions, where his answers will tend to incriminate him, unless the inquisi- tion is held to inquire into a complaint made, supported by affidavit charging an offense against the prohibitory law. 60 57 Armstrong v. Topeka Ry. Co., 144 P. 847, 93 Kan. 493. s s Savage v. Modern Woodmen of America, 113 P. 802, 84 Kan. 63, 33 L. R. A. (N. S.) 773. It is not against public policy to require a banker to disclose the amount of a depositor's balance, nor are the transactions between him and the depos- itor privileged in a legal sense. In re Davies, 75 P. 1048, 68 Kan. 791. 59 price v. State, 9 Okl. Cr. 359, 131 P. 1102. St. 1893, 2578, providing that a person sentenced to imprisonment for life is deemed civilly dead, does not affect his competency as a witness. Martin v. Territory, 78 P. 88, 14 Okl. 598. St. 1893. 4209, provides that no person shall be disqualified as a witness because of his conviction of a crime, but such conviction may be shown to affect his credibility. Section 5207 provides that the rules of evidence in civil cases except as otherwise provided are appli- cable to criminal cases. Held, that one under sentence for life is not dis- qualified from testifying in a criminal case. Id. eo EX parte Gudenoge, 100 P. 39, 2 Okl. Or. 110. Const. Bill of Rights, 21, 27. In inquisition under Laws 1917, c. 39S, to determine origin of a fire, a wit- (771) 871 WITNESSES (Ch. 14 The manifest purpose of the constitutional provisions, both of the United States and of the state, is to prohibit the compelling of evidence of a self-criminating kind from a witness. 61 No statute, which leaves a party or witness the subject of pros- ecution after he answers the incriminating question put to him, can have the effect of supplanting the privilege conferred by the Con- stitution, but to be valid the statute must afford absolute immunity against future prosecution. 62 The constitutional provisions must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall be given in evidence, or in any manner used against him in any criminal proceeding or for the enforcement of any penalty or forfeiture. 63 The privilege against self-crimination does not protect the offi- cers of an insolvent institution in resisting production of the books, ness may claim his constitutional privilege of refusing to give incriminating answers. State v. Harris, 103 Kan N 347, 175 P. 153. A justice of the peace, acting as a coroner at an inquest for murder, can- not compel a witness to answer incriminating questions. Faucett v. State, 10 Okl. Or. Ill, 134 P. 839, L. R. A. 1918A, 372. Where a defendant offers the testimony of a codefendant jointly indicted with him, it is not error to refuse to compel the witness to answer any ques- tion which the witness claims will incriminate him, and which he declines to answer on that ground. Anderson v. State, 126 P. 840, 8 Okl. Or. 90, Ann. Gas. 1914O, 314. Where, in a prosecution for bastardy, a witness declines to answer the question as to whether he had intercourse with the relatrix, on the ground that his answer might render him liable to a criminal prosecution, he can- not be required to answer if it reasonably appear that the answer would expose him to such prosecution, or if the fact on which he is interrogated would lead to his conviction of a crime. Stevens v. State, 32 P. 350, 50 Kan. 712. It is improper for prosecuting attorney to demand accused in the presence of the jury to produce any document referred to containing evidence tending to incriminate him. Crump v. State, 124 P. 632, 7 Okl. Cr. R. 535. Code, Kan. 482, "in aid of execution," authorizing the district judge to require a judgment debtor to appear before him to answer concerning his property, which he unjustly refuses to apply towards the satisfaction of a judgment rendered against him, and to order any money in his actual pos- session and under his control, not exempt by law, to be applied to the satis- faction of the judgment under which the proceedings are had, and to enforce said orders by proceedings for contempt in case of refusal or disobedience, does not violate Bill of Rights, 10, providing that no person shall be a wit- ness against himself. In re Burrows, 7 P. 148, 33 Kan. 675. 61 Ex parte Gudenoge, 100 P. 39, 2 Okl. Cr. 110. 62 Id. es Id. (772) Art. 3) COMPETENCY AND PRIVILEGE 871-872 records, and papers, because such documents may tend to incrim- inate them. 64 A state statute providing that no person giving evidence shall be prosecuted for any violation of the act about which he may tes- tify, a witness cannot refuse to testify on the claim that the im- munity afforded does not afford protection against the possibility of his evidence being used against him in a prosecution for vio- lations of a federal statute. 65 This is because the privilege cannot be claimed by a witness when by the terms of an immunity stat- ute the immunity afforded is coextensive with the constitutional privilege of silence. 66 872. Waiver Where a defendant exercises his privilege to testify in his own feehalf, he waives his constitutional privilege and is -subject to the same rules of cross-examination as other witnesses. 67 The election to testify having once been made, the privilege of not testifying is waived at every subsequent stage. 08 However, e* Burnett v. State, 129 P. 1110, 8 Okl. Cr. 639, 47 L. R. A. (N. S.) 1175. 65 State v. Jack, 76 P. 911, 69 Kan. 387, 1 L. R. A. (N. S.) 167, 2 Ann. Gas. 171, judgment affirmed Jack v. State of Kansas, 26 S. Ct. 73, 199 U. S. 372, 50 L. Ed. 234, 4 Ann. Gas. 689 ; In re Bell, 76 P. 1129, 69 Kan. 855. 66 Id. Laws 1897, p. 485, c. 265, 10, providing for the examination of witnesses as to their knowledge of violations of the anti-trust law, and declaring that any person subpoenaed and examined shall not be liable to criminal prosecution for any violation of the act about which he may testify, affords to the wit- ness an immunity coextensive with the constitutional privilege that no per- son shall be a witness against himself, so that he cannot claim the privilege of that provision. Id. 67 Smith v. State, 14 Okl. Cr. 348, 171 P. 341. Where a party jointly charged with defendant, but not himself on trial, voluntarily elects to become a witness, he cannot claim on cross-examination any exemptions from answering incriminating questions growing out of the transaction under consideration. Bryan v. State, 11 Okl. Cr. 180, 144 P. 392. The defendant as a witness is subject to the ordinary rules of evidence. McNeill v. State (Okl. Cr. App.) 192 P. 256. The privilege does not bar such evidence, but merely gives a right which may be waived if not asserted in ample time. Scribner v. State, 9 Okl. Cr. 465, 132 P. 933, Ann. Cas. 1915B, 381. es State v. Simmons, 98 P. 277, 78 Kan. 852. Where a prisoner on trial for a crime voluntarily takes the stand, he waives all privileges to which he is entitled by remaining silent, and may be asked if he has not made certain statements inconsistent with his testimony in the cause, and if he admits doing so, he may show the conditions under (773) 873 WITNESSES (Ch. 14 this privilege of a witness is personal to the witness, and not avail- able to accused as a basis of objection. 69 873. Transactions with decedent "No party to a civil action shall be allowed to testify in his own behalf, in respect to any transaction or communication had person- ally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where such party has acquired title to the cause of action immediately from such deceased person ; nor shall the assignor of a thing in action be allowed to testify in behalf of such party concerning any transaction or com- munication had personally by such assignor with a deceased per- son in any such case; nor shall such party or assignor be com- petent to testify to any transaction had personally by such party of assignor with a deceased partner or joint contractor in the ab- sence of his surviving partner or joint contractor, when such sur- viving partner or joint contractor is an adverse party. If the testi- mony of a party to the action or proceeding has been taken, and he afterwards die, and the testimony so taken shall be used after his death, in behalf of executors, administrators, heirs at law, next of kin, assignee, surviving partner or joint contractor, the other party, or the assignor, shall be competent to testify as to any and all matters to which the testimony so taken relates." 70 This statute operates to disqualify such a witness rather than to restrict his testimony as evidence. 71 The word "transaction," with- in the meaning of this statute, means a matter participated in by the witness and the decedent. 72 which they .were made, and if he denies such statements, the prosecution on rebuttal may prove them, though they would not have been admissible had ho remained silent, because not voluntary. Harrold v. Territory, 89 P. 202, 18 Okl. 395, 10 L. R. A. (N. S.) 604, 11 Ann. Cas. 818, judgment reversed 169 F. 47, 94 C. O. A. 415, 17 Ann. Cas. 868. Under Rev. Laws 1910, 5046, 5881, 5882, where a codefendant avails him- self of the privilege given by section 5881, to become a witness, he is a com- petent witness for all purposes, either for or against himself, or for or against his codefendant. Buxton v. State. 11 Okl. Or. 85, 143 P. 58. ea Castleberry v. State, 139 P. 132, 10 Okl. Cr. 504. TO Rev. Laws 1910, 5049. 71 Hunger v. Myers, 153 P. 497, 96 Kan. 743. 72 Words and Phrases, vol. 6, pp. 5365, 5366 ; vol. 8, p. 7061. This statute should be strictly construed. Sarbach v. Sarbach, 122 P. 1052, (774) Art. 3) COMPETENCY AND PRIVILEGE 873 This statute does not prohibit a party to such action from testi- fying as to any matter relevant to the issues therein, except as to transactions or communications had personally with the deceased. 73 86 Kan. 894. It applies to the testimony of a widow in a suit against the administrator of her husband's estate. .Vance v. Whitten, 51 Okl. 1, 151 P. 567. In an action on a rejected claim against an estate, plaintiff's testimony as to the transactions involved in such claim had personally with the deceased was properly excluded. .Richardson v. Strother, 55 Okl. 348, 155 P. 528. No party may testify in his own behalf as to transaction with decedent when adverse party is executor, personal representative, heir, next of kin, surviving partner, or assignee of decedent, where party has acquired title to cause of action from decedent. Lindsey v. Goodman, 57 Okl. 408, 157 P. 344. No party may testify in his own behalf as to any transaction had with a deceased person when the adverse party is the representative of the deceas- ed person. Wadleigh v. Parker, 124 P. 957, 34 Okl. 213. No party may testify in his own behalf as to any transaction with a de- ceased person when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner, or assignee of the deceased person, where they have acquired title to the cause of action from such deceased person. MacDonald v. McLaughlin, 123 P. 158, 32 Okl. 584. In an action by a grantor to set aside a deed against a person who had acquired title immediately from the deceased grantee of such grantor, such grantor could not testify in his own behalf to any transactions or commu- nications with the decedent, whether such transactions or communications were oral or in writing. Conklin v. Yates, 83 P. 910, 16 Okl. 266. In a suit on a note by an administrator, where defendant pleaded usury, and a statement partly in the handwriting of the decedent was offered in evidence, testimony of defendant that the items shown on the statement rep- resented the usurious transaction and that he paid a usurious rate of inter- est related to a transaction with the deceased person and was inadmissible. Wadleigh v. Parker, 124 P. 957, 34 Okl. 213. A Creek freedman allottee is not competent to prove conversation with her grantee, since deceased, to show that her deed was in ratification of former void deeds given during minority. Bell v. Mills, 60 Okl. 72, 158 P. 1173. Evidence as to the rendition of services for a decedent of such a character as must have been rendered in the presence of decedent and with his knowl- edge and consent, or at his request, is objectionable. Clifton v. Meuser, 100 P. 645, 79 Kan. 655. A claimant for services in nursing, caring for, and boarding decedent is incompetent to prove the fact of their performance, if, in describing what he did, he necessarily attributes to decedent some act or attitude with respect thereto. Id. Where, before trial of an action of ejectment by a landlord against a ten- ant, who, during the tenancy, purchased an outstanding title, defendant died, plaintiff could not testify as to the making of the lease. Cunningham v. Phillips, 44 P. 221, 4 Okl. 169. It is error to permit a witness' to testify as to a conversation with deceas- 73 Park v. Ensign, 63 P. 280, 10 Kan. App. 173. C775) 873 WITNESSES (Ch. 14 Advantage can only be taken by a specific objection at the proper time, 74 and the incompetency of a witness to testify in his own ed, where witness acquired title or cause of action immediately from such deceased. American Trust Co. v. Chitty, 129 P. 51, 36 Okl. 479. A party to civil action against administrator is incompetent to testify, in his own behalf, to facts which will raise implied contract between party and decedent. Fuss v. Cocannouer (Okl.) 172 P. 1077; Wallace v. Wallace, 165 P. 838, 101 Kan. 32. In an action by an alleged heir against his mother, claiming to be widow of testator, and persons claiming under testator's will, to set aside the will, and for partition, where the widow answered, asking the same relief de- manded by plaintiff, and the validity of the marriage between testator and the widow was in issue, and the latter was permitted to testify to facts re- lied on in proof of the marriage, the widow did not, by disclaiming at the close of the evidence all interest in the property in her own behalf, render her testimony competent in behalf of plaintiff. Shorten v. Judd, 42 P. 337, 56 Kan. 43, 54 Am. St. Rep. 587. Kansas cases. The statute does not exclude testimony of a witness in such cases whenever a decision for party calling him would inure to his ben- efit. Collins v. Hayden, 104 Kan. 351, 179 P. 308. In suit against the executors for services performed for decedent, plaintiff cannot testify as to her services in nursing and caring for him ana other- personal transactions with him. Heery v. Reed, 102 P. 846, 80 Kan. 380. Where plaintiff in an action testifies in her own behalf to a certain fact relevant to the issues pending, and on cross-examination admits that her only means of knowledge are the statements of the deceased, whose estate was being sued, such evidence is incompetent. Moyer v. Knapp, 59 p. 674, 9 Kan. App. 226. Where the original payee of a note brings an action thereon against the administratrix of the maker, he is incompetent to testify that he saw the maker sign it, when the execution of the same was a part of a trade between the maker and himself; but when the execution of the note is established fully by other and competent evidence, the error in permitting plaintiff to testify is not reversible. Bryant v. Stainbrook, 19 P. 917, 40 Kan. 356. A father gave each of two sons a tract of land, on one of ! which tracts was a mortgage, and to equalize the gifts it was claimed it was agreed each son should pay one-half the mortgage. Before the debt was paid, the son whose land was free from the mortgage died, and the other son sued the decedent's administrator to recover half the mortgage debt. Held, that the plaintiff was incompetent to testify to an agreement made personally between himself and his deceased brother and their father, by which the deceased brother undertook to pay one-half of the mortgage debt on the land conveyed to the plaintiff, and also as to transactions had personally with such deceased broth- er. Miller v. McDowell, 64 P. 980, 63 Kan. 75: In an action against an administrator on a note executed by his decedent, ?4 Where plaintiff took defendant's deposition and required him to testify as to transactions with persons since deceased, he waived his right to object at the subsequent trial that defendant was incompetent to testify as to such transaction, though the deposition was never filed. Cox v. Gettys, 53 Okl. 58, 156 P. 892. Art. 3) COMPETENCY AND PRIVILEGE 873 behalf as to a transaction with a deceased person must be raised by objection to the competency of the witness, and not merely by objection to the competency of the evidence offered. 75 plaintiff's testimony that, on his own knowledge, decedent had made pay- ments preventing the bar of limitations, was ,not inadmissible, where it did not appear affirmatively that the witness" knowledge had come to him through any transaction or communication had by him personally with the decedent. Crebbin v. Jarvis, 67 P. 531, 64 Kan. 885. A widow's testimony that she signed a deed under threats of her husband, and that from what had happened she feared there would be more trouble, held not incompetent. Watts v. Myers, 145 P. 827, 93 Kan. 824. In a suit by a husband to quiet title to property of his deceased wife against her children, both parties claiming to inherit from her, he is prohibit- ed from testifying to transactions and communications had personally with her. Dennis v. Perkins, 129 P. 165, 88 Kan. 428, 43 L. R. A. (N. S.) 1219. The surviving husband was incompetent to testify to a conversation with his wife, since deceased, by which he claimed that the postnuptial contract between them, that he should take nothing of her estate, had been abrogated. Eberhart v. Rath, 131 P. 604, 89 Kan. 329, Ann. Gas. 1915A, 268. The statute does not apply where the adverse party claims as beneficiary of a mutual benefit certificate to such decedent, since the beneficiary in the certificate is not the assignee of the member to whom it was issued, and the fact that the beneficiary is in fact his heir or next of kin is not material where his claim is not founded on that relationship. Savage v. Modern Woodmen of America, 113 P. 802, 84 Kan. 63, 33 L. R. A. (N. S.) 773. In an action by the assignee of an administrator to enforce a chattel mort- gage against one who had the mortgaged property sold under execution and had retained the proceeds, in which the mortgagors were made parties in or- der to reform the mortgage, one of the mortgagors was not an incompetent witness. John T. Stewart's Estate, Inc., v. Falkenberg, 109 P. 170, 82 Kan. 576. Plaintiff's testimony that deceased had made payments to him on the note in suit and that plaintiff had indorsed payments on the note held inadmissi- ble. Broclf v. Corbin, 146 P. 1150, 94 Kan. 542. Where defendant, in an action in ejectment, claims title through an exec- utor's sale of a deceased's real estate, he is not the assignee of such decedent, so that plaintiffs, though they claim title immediately from such decedent, are not incompetent under such section to testify as to transactions with decedent concerning matters in controversy. Powers v. Scharling, 81 P. 479, 71 Kan. 716. When a receiver, in obedience to an order of court, turns over the residu- es Williams v. Joins, 126 P. 1013, 34 Okl. 733. The statute makes the witness incompetent, not the evidence; and hence an objection that evidence is incompetent, within such statute, will not reach the incompetency of the witness. Crebbin v. Jarvis, 67 P. 531, 64 Kan. 885. Where plaintiffs were seeking to keep out incompetent testimony, and not to use disqualified witnesses, rule that incompetency of witness is waived by cross-examining him in respect to transactions with decedent as to new mat- ter does not apply. Randall v. Randall, 101 Kan. 341, 166 P. 516. (777) 873 WITNESSES (Ch. 14 Testimony of a party in an action against an administrator or executor where it contains no communication or transaction with decedent is not incompetent. 76 ary assets of the receivership to a trustee for the interested parties, such' trustee does not become an assignee, within the meaning of Code Civ. Proc. 333, so as to disqualify a witness from testifying in his own behalf, and against the trustee, after the death of the receiver, to transactions had per- sonally with him during his lifetime, concerning the transferred assets. Pul- sifer v. Arbuthnot, 53 P. 70, 59 Kan. 380. All the parties claiming title to certain real estate directly from an an- cestor, as heirs, evidence of the defendants as to communications had per- sonally with him was inadmissible. Renz v. Drury, 45 P. 71, 57 Kan. 84. Plaintiff, seeking to redeem land from a tax deed, had received a deed for the land when a child, and testified that his grantor, for him, accepted an of- fer of a subsequent grantee in the tax deed to pay the taxes for the use of the land. Defendant held by quitclaim from the grantee in the tax deed. Held that, as neither party was executor, administrator, heir at law, or next of kin of the deceased grantor, the evidence was competent. Kington v. Ewart, 116 P. 495, 85 Kan. 292. A party to an action may testify in respect to transactions or communica- tions had by him with a deceased person, where the adverse party is not the executor, administrator, heir at law, next of kin, surviving partner, or as- 76 Harper v. Harper, 113 P. 300, 83 Kan. 761. A daughter prosecuting a claim against the estate of a mother can testify to conversations between her mother and a third person in the presence and hearing of the witness. Griffith v. Robertson, 85 P. 748, 73 Kan. 666. Admission of defendant's testimony in an action of conversion that she had in her possession for a certain period of time the bank books of deceased, held not violative of statute restricting the admissibility of evidence of trans- actions with a person since deceased. Manning v. Maytubby, 141 P. 781, 42 Okl. 414. Defendant's testimony as to a conversation between a deceased person and a stranger, heard by defendant, but in which he did not participate, was ad- missible, as it did not come within statutory prohibition of evidence as to transactions with decedents. State Bank of Downs v. Abbott, 104 Kan. 344, 179 P. 326. The fact that the declarations made by an engineer after his injury, as to the cause of the accident resulting in his death, were made to the superin- tendent of the defendant company, does not render him incompetent to prove them in behalf of the company. Walker v. Brantner, 52 P. 80, 59 Kan. 117, 68 Am. St. Rep. 344. A party to the record is not necessarily incompetent to testify to transac- tions as between deceased and his co-defendant, where he took no part there- in. Eddy v. O'Brien, 57 P. 244, 9 Kan. App. 882. When it is alleged that a deed was procured by the undue influence of a son upon his mother, since deceased, he may state whether at any time he requested her to make such deed, where the manifest object of the question is to show that he did not. Cobleutz v. Putifer, 125 P. 30, 87 Kan. 719, 42 L. R. A. (N. S.) 298. (778) Art. 3) COMPETENCY AND PRIVILEGE 873 A denial by a witness that he delivered to the deceased in her lifetime a certain deed was not evidence of the transaction with the decedent, but a mere denial that a transaction was had." gtgnee of such deceased person, and where the title to tho cause of action was not acquired immediately from him. Reville v. Dubach, 57 P. 522, 60 Kan. 572. In action against heir for specific performance of deceased's oral contract to devise property, plaintiff's testimony that she had had such an agreement with deceased, and as to unpaid services rendered to deceased, was incompe- tent. James v. Lane, 103 Kan. 540, 175 P. 387. Where the party on one side of a controversy is the executor, administra- tor, heir at law, or next of kin of the decedent, and has acquired title direct- ly through said deceased person, the adverse party is incompetent to testify to any transaction or communication with the decedent. Roach v. Roach, 77 P. 108, 69 Kan. 522. Under Laws 1911, c. 229, in action by assignee and quitclaim grantee of purchaser of real property against administratrix and heirs of vendor, orig- inal purchaser is incompetent to testify as to any transaction or communica- tion had personally with decedent. Gilmore v. Hoskinson, 157 P. 4*6, 98 Kan. 86. That testimony inadmissible concerning communications with persons since deceased was offered on the issue of decedent's mental capacity held not to render it competent. Brown v. Brown, 152 P. 646, 96 Kan. 510. In an action upon contract to devise property, in which defendant testified that he had never heard of such contract before the action, plaintiff in iv- buttal might testify to conversations with defendant in which conversation with deceased was detailed. Harris v. Morrison, 163 P. 1062, 100 Kan. 157. A witness, incompetent may testify as to his conversation with another witness who in behalf of personal representative of decedent has testified to the conversation, although the incompetent witness therein detailed his per- sonal transaction with decedent. Wallace v. Wallace, 165 P. 838, 101 Kan. 32. *The words "adverse party" are not limited to the adverse positions of plaintiff and defendant, but affect any party, whether plaintiff or defendant, whose interests are actually adverse to those of another party to the action, who appears in the capacity of executor, administrator, heir at law. next of kin, surviving partner, or assignee, where the latter has acquired title to the cause of action immediately from a deceased person. American Inv. Co. v. Coulter, 61 P. 820, 8 Kan. App. 841. Where Code Civ. ; Proc. 320, forbids parol evidence of transactions with deceased persons, proof thereof need not fail, but may be established by cir- cumstantial or other competent evidence. Davis v. Sim, 163 P. 622, 100 Kan. 66. Testimony that a decedent approved of parol gift of land to defendants held incompetent. Cook v. Cook, 161 P. 625, 99 Kan. 351. In an action by heirs against the devisee and executrix to contest a will, the heirs are not competent witnesses to testify in their own behalf concern- ing communications had personally with the deceased testator. Wehe v. Mood, 75 P. 476, 68 Kan. 373. A person who is jointly liable upon the obligation sued on by an executor, 77 Fish v. Poorman, 116 P. 898, 85 Kan. 237. (779) g 873 WITNESSES (Ch. 14 In a will contest for alleged undue influence, it was proper for those charged with having exercised such influence to testify that they had no transactions with testatrix relating to the will. 78 In an action by an administrator, defendants, if otherwise qual- ified, may testify as to the mental capacity of the deceased at the time the contract is claimed to have been made. 79 In a suit attacking a will, testimony of a devisee that he had no communication with testatrix is not rendered inadmissible by a statute which forbids testimony by a devisee in his own behalf in regard to a communication had with testatrix. 80 The incompetency of a witness to testify as to transactions or communications had with a decedent may be waived in certain cases by the acts of the opposite party. 81 The incompetency of a witness to testify to transactions with a person since deceased is waived, where the objecting party shows on cross-examination that the transaction occurred. 82 Facts which constitute fraud on the part of a decedent neces- sarily include personal transactions with such decedent. 83 Witnesses who are not parties to the suit or controversy are com- and has a separate suit pending to determine the extent thereof, cannot tes- tify in relation to conversations had by him with the deceased in relation to the matter in controversy. Park v. Ensign, 63 P. 280, 10 Kan. App. 173. In action between children of decedent for partition depending on her de- livery of certain deeds, testimony of defendant that decedent had given her deed was properly stricken because of witness' incompetency to testify there- to. Randall v. Randall, 101 "Kan. 341, 166 P. 516. 78 Kerr v. Kerr, 116 P. 880, 85 Kan. 460. Grimshaw v. Kent, 73 P. 92, 67 Kan. 463. so Gaston v. Gaston, 109 P. 777, 83 Kan. 215. si The issue being whether a deed from a parent to a child was made as an advancement, a statement by the grantee as a witness that no consideration was paid for it is testimony as to the transaction between him and the gran- tor, and, if brought out by questions of his opponent, qualifies him to relate all the attendant circumstances, though he would otherwise be incompetent to do so because the evidence related to personal transactions with a person since deceased. Plowman v. Nicholson, 105 P. 692, 81 Kan. 210, judgment af- firmed on rehearing Plowman v. Same, 106 P. 279, 81 Kan. 210. 82 poole v. Poole, 150 P. 592, 96 Kan. 84, Ann. Cas. 1918B, 929. The incompetency of a witness to testify as to transactions or communica- tions had with one since deceased is waived, where the objecting party on cross-examination elicits testimony as to such transactions, or shows that such transactions occurred. Conwill v. Eldridge (Okl.) 177 P. 79. ss Conklin v. Yates, 83 P. 910, 16 Old. 266. (780) Art. 3) COMPETENCY AND PRIVILEGE 873 petent to testify to conversations with a decedent ; and this is true, though the witness be interested in the outcome. 84 The statute does not prohibit a person from testifying in a case between others as to transactions and communications with a dece- s* In action to set aside will, lawyer who drew It may testify to conversa- tion had with testator at the time. Durant v. Whitcher, 156 P. 739, 97 K:in. 603. In action by one to whom decedent had contracted to leave his property against executor and beneficiary under will, plaintiff's husband, not a party to action, was a competent witness to prove the alleged contract, though hus- band and wife occupied part of disputed land as homestead. Harris v. Mor- rison, 163 P. 1062, 100 Kan. 157. Rev. Laws 1910, 5049, held not to render incompetent a conversation had with a person since deceased by plaintiffs agent and manager, where such agent was not a party to the action or interested in it. First Nat. Bank of El Reno v. Davidson-Case Lumber Co., 52 Okl. 695, 153 P. 836. In action by administrator, widow and stepdaughter of deceased, neither being party to action, are competent to testify to transactions had personally by defendant with deceased. Alexander v. Bobier (Okl.) 166 P. 716. On a petition by administratrix of a partner for directions whether to treat decedent's real estate as individual or partnership property, in which vari- ous creditors were parties, and also decedent's brother, who was the sur- viving partner, the brother was not incompetent to testify to transactions with decedent, over objection of a creditor. Sarbach v. Sarbach, 122 P. 1052, 86 Kan. 894. Plaintiff, suing to recover land claimed as being the wife of the dece- dent, where defendants are the grandchildren and great-grandchildren of the decedent who acquire their interest through the daughter of the decedent, is not prohibited from testifying to transactions personally had with tbfe dece- dent, as the parties adverse did not acquire their title immediately from the decedent. Williams v. Campbell, 113 P. 800, 84 Kan. 46, judgment affirmed on rehearing 118 P. 1074, 85 Kan. 631. Testimony of a maker of a note, not made a party in a suit thereon, that he was the principal and defendant a surety, and that the deceased payee had, for a valuable consideration and without the knowledge of the surety, extended the time of the payment thereof, is admissible. Roger v. Arm- strong, 83 P. 1029, 72 Kan. 691. The fact that a witness was a party to an action to which the representa- tives of a decedent were parties did not preclude him from testifying as to matters occurring in decedent's lifetime, where he had no interest in the sub- ject-matter of the suit, and made a disclaimer. Murphy v. Colton, 44 P. 208, 4 Okl. 181. A father gave each of two sons a tract of land, on oner of which tracts was a mortgage, and in order to equalize the gifts it was claimed that it was agreed each son should pay one-half of the mortgage. Before the debt was paid, the son whose land was free from incumbrance died, and the other son sued the decedent's administrator to recover half the mortgage debt. Held, that the mother, who joined the father in the conveyance not being an as- signor of the thing in action, was not precluded from testifying as to the (781) 873 WITNESSES (Ch. 14 dent from whom the parties claim title. 85 It does not prohibit proof of transactions and communications had personally between a party to the suit and the deceased grantee of such person by disinterested witnesses or other competent evidence, other than that of a party to the suit. 96 The word "party" within the Code provision prohibiting a party from testifying concerning personal transactions and communica- tions with a person since deceased, does not include one not tech- nically a party to the action, however much he may be interested in the result thereof. 87 A party to an action may testify to conversations occurring in his presence between deceased persons, where the opposite party claims as heir of one of such deceased persons. 88 The statutory provisions relating to testimony as to transactions or communications with a decedent do not apply where the trans- action or communication was not between the witness and the de- ceased person, but was between the latter and a third party, and agreement with reference to the mortgage debt. Miller v. McDowell, 64 P. 980, 63 Kan. 75. Neither a sheriff levying an attachment on personalty nor the attachment creditor is an "assignee" of the attachment debtor; and hence a vendee of a deceased attachment debtor may, in an action by him against the sheriff and the attaching creditor for conversion of the property, testify in his own behalf to the transaction whereby he claims title from decedent. Burlington Nat. Bank v. Beard, 42 P. 320, 55 Kan. 773. An objection to the introduction of the stenographer's transcript of testi- mony of a deceased grantor as incompetent was properly overruled. New v. Smith, 145 P. 880, 94 Kan. 6, L. R. A. 1915F, 771, Ann. Gas. 1917B, 362. ss Hess v. Hartwig, 132 P. 148, 89 Kan. 599. ss Conklin v. Yates, 83 P. 910, 16 Okl. 266. It does not apply to an agent of a party to the action, such agent not being a party to the action, nor having any legal interest in the result of it. Car- roll v. Chipman, 57 P. 979, 8 Kan. App. 820. ST Hess v. Hartwig, 112 P. 99, 83 Kan. 592. In suit on note and to foreclose mortgage, plaintiff's testimony, transac- tions with a decedent, as to execution of note and mortgage, was admissible, where he was neither executor, administrator, heir at law, next of kin, sur- viving partner, nor assignee of deceased. Phinnie v. Atkinson (Okl.) 177 P. 111. That witness might be interested in outcome of suit does not render her incompetent. Alexander v. Bobier (Okl.) 166 P. 716. Nor does it exclude the officers of a corporation which may be a party, or other interested persons not parties to the action. Mendenhall v. School Dist. No. 83, Jewell County, 90 P. 773, 76 Kan. 173. ss Page v. Sawyer, 101 Kan. 612, 168 P. 878. (782) Art. 3) COMPETENCY AND PRIVILEGE 874 was not taken part in by the witness. 89 So, too, the letters of a deceased do not come within the prohibitions of the Code. 90 874. Witness privileged from being sued "A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county, while going, returning or attending, in obedience to a subpoena." 91 89 Fry v. Fry, 43 P. 235, 56 Kan. 291. o Letters written by a person since deceased to his son, who is seeking to recover property deeded by his father to another, -held admissible to show mental capacity of deceased when they were written and the deed executed. Munger v. Myers, 153 P. 497, 96 Kan. 743. In action to enforce promise of decedent to devise property to plaintiffs, testimony as to the receipt of letters, which in the opinion of the witness were in the handwriting of decedent, held not objectionable as stating a per- sonal transaction with decedent. Dillon v. Gray, 123 P. 878, 87 Kan. 129. The statute has no application to the adinissibility in evidence, in an ac- tion to establish a resulting trust, of a letter written by defendants' intestate to plaintiff, wherein he stated that he held the real estate in question as her agent. Garten v. Trobridge, 104 P. 1067, 80 Kan. 720. In an action by an administrator to recover money lent to defendant by decedent, testimony by defendant that money for payment of the debt was inclosed in an envelope, taken to the post office, and that certain steps were there taken to have the postmaster register the letter and send it to decedent In a distant state, and also that in due time defendant received a writing acknowledging receipt of the money, which writing was identified and intro- duced in evidence was not incompetent. Bryan v. Palmer, 111 P. 443, 83 Kan. 298, 21 Ann. Cas. 1214. i Rev. Laws 1910, 5064. Where one of the parties to an action is an heir of a deceased person, who claims that the title to the land in controversy was transferred to his an- cestor by the adverse party, such adverse party may testify that he had no transaction personally with the deceased, and that no transfer of title was ever made by him to the deceased. Murphy v. Hindman, 48 P. 850, 58 Kan. 184. (783) 875 WITNESSES (Ch. 14 < ARTICLE IV CREDIBILITY AND IMPEACHMENT Sections 875. Credibility. 876. Corroboration. 877. Impeachment. 878. Impeaching own witness. 879. Character and conduct of witness. 880. Reputation Place and time of acquiring. 881. Particular facts. 882. Conviction of crime. 883. Cross-examination to test reliability or to discredit. 884. Conduct in reference to the case. 885. Inconsistent statements. 886. Contradicting witness. 887. Prior corroborating statements. 888. Sustaining evidence- 875. Credibility A witness may be examined as to occupation, social connections, and manner of living to affect his credibility. 92 The jury are the exclusive judges of the credibility of witnesses and the weight of the evidence, and the value to be given to their testimony, and they may, if they think proper, reject the whole of the testimony of such witness, who they may find has willfully tes- tified falsely to a material fact, or may give it such weight where it has been corroborated by credible evidence as they may deem it entitled to have. 93 92 Musgraves v. State, 106 P. 544, 3 Okl. Cr. 421. 3 Henry v. State, 119 P. 278, 6 Okl. Cr. 430. Jury is sole judge of credibility of witnesses, and whether witness has in- terest in outcome of trial is proper to be elicited for jury's consideration. Jones v. State, 15 Okl. Cr. 547, 179 P. 619. An instruction that, if the jury believed that any witness has willfully testified falsely in a material matter, they may disregard his entire testimony, need not make an exception in favor of such portion thereof as is corrobo- rated. Robert Burgess & Son v. Alcorn, 90 P. 239, 75 Kan. 735. . An instruction that if the jury believe a witness has sworn falsely, they may reject his testimony or any part of it, is erroneous; as, unless the tes- timony was willfully false, it is no ground for disregarding the entire testi- mony of the witness. Barney v. Dudley, 19 P. 550, 40 Kan. 247. The fact that a person may voluntarily come from another state and with- out process appear and testify in court does not impair his competency as a witness, nor necessarily deprive his testimony of probative force. Tiinina v. Timma, 82 P. 481, 72 Kan. 73. (784) Art. 4) CREDIBILITY AND IMPEACHMENT 876~878 876. Corroboration Where no attack is made upon the credibility of a witness his prior statements are inadmissible. 94 On a trial to a jury, where the defendant testifies in his own be- half and is not impeached, it is reversible error to permit him to introduce evidence of his general reputation for truth and verac- ity. 95 . 877. Impeachment Where a person does not testify at the trial, his reputation for truth cannot be made an issue of the cause. 90 A notary public is a ministerial officer, and his evidence is com- petent to impeach his certificate. 97 878. Impeaching own witness The rule that a litigant cannot impeach his own witnesses usual- ly forbids his attempt to impeach a witness whom he himself first uses, though the witness is afterwards called to testify on behalf of the adverse party. 98 The court may, however, in its discretion, in the interest of truth and justice, permit a party to impeach his own witness. 99 94 Jones v. State, 9 Okl. Cr. 646, 133 P. 249, 48 L. R. A. (X. S.) 204. 95 First Nat. Bank v. Blakeman, 91 P. 868, 19 Okl. 106, 12 L. R. A. (X. S.) 364. as State v. Chenute, 70 P. 870, 65 Kan. 862. 97 Effenberger v. Durant, 57 Okl. 445, 156 P. 212. 98 Johnston v. Marriage, 86 P. 461, 74 Kan. 208, rehearing denied 87 P. 74, 74 Kan. 208 ; McCauley v. Custer, 143 P. 489, 93 Kan. 27. A party introducing a witness in his behalf cannot impeach his character for truth and veracity. National Surety Co. v. Oklahoma Nat. Life Ins. Co. (Okl.) 165 P. 161. A party offering a witness should not be permitted to discredit his testi- mony, but, when the testimony is in the nature of conclusions, it is the duty of the court to say what facts are established thereby. Wass v. Tennent- Stribbling Shoe Co., 41 P. 339, 3 Okl. 152. A party cannot impeach his own witness by showing his general bad character for truthfulness. Sturgis v. State, 102 P. 57, 2 Okl. Cr. 362. Nor can a party placing a witness on the stand, with notice that he will testify adversely, claim surprise and be per- mitted to impeach him. Id. In a criminal case the state cannot impeach the general character for truth and veracity of one of its own witnesses. State v. Keefe, 38 P. 302, 54 Kan. 197. 99 Nuzum v. Springer, 156 P. 704, 97 Kan. 744. The question as to whether a party may impeach his own witness is large- ly within the sound judicial discretion of the trial court ; and a slight error HON.PL.& PRAC. 50 (785) 878-879 WITNESSES (Ch. 14 Where a witness has been called by all the parties to the action, cross-examination which tends to impeach him is within trial court's sound judicial discretion. 1 Where witnesses give testimony contrary to former testimony and inconsistent with previous statements, the party calling them may cross-examine and call attention to former evidence and state- ments and offer testimony impeaching the present testimony. 2 Where a judgment pleaded and offered in evidence as res ju- dicata, on its face shows the items on which it was rendered, the party who Telies on it cannot contradict it, and show that it was rendered on items different from those set out. 3 879. Character and conduct of witness The truthfulness of a witness cannot be impeached by proof of general bad character for morality ; 4 or by proof of specific acts showing want of morality ; 5 or by testimony as to general reputa- tion for virtue and chastity. 6 A party is not entitled to show that a witness entertains a disbelief of the existence of God for the pur- pose of discrediting his testimony. 7 Where plaintiff testified in his own behalf, proof of base, dishon- orable, or criminal conduct on his part is admissible to discredit him as a witness and to throw suspicion upon his cause of action. 8 Testimony as to the general character of a witness offered to im- peach him must be as to his reputation for truth, and testimony as to his reputation for being a bootlegger is incompetent. 9 in such a matter, where the testimony of the witness is of small importance, is not ground for reversal. St. Louis & S. F. Ry. Co. v. Weaver, 11 P. 408, 35 Kan. 412, 57 Am. Rep. 176. It was discretionary with the court to permit the state to prove that a witness for the state was drunk at a certain time about which he testified both on direct and on cross examination. State v. Alexander, 131 P. 139, 89 Kan. 422. - 1 A very v. Howell, 171 P. 628. 102 Kan. 527. 2 State v. Terry, 161 P. 905, 98 Kan. 796. s Guttermann v. Schroeder, 20 P. 230. 40 Kan. 507. 4 Litchfield v. State, 126 P. 707, 8 Okl. Cr. 164, 45 L. R. A. (N. S.) 153. s Litchfield v. State, 126 P. 707, 8 Okl. Cr. 164, 45 L. R. A. (N. S.) 153. e Kennedy v. Pawnee Trust Co., 126 P. 548, 34 Okl. 140. 7 Dickinson v. Beal, 62 P. 724. 10 Kan. App. 233. s St. Louis & S. F. R. Co. v. Walker. 122 P. 492, 31 Okl. 494. s Upton v. State, 12 Okl. Cr. 593, 160 P. 1134, (786) - 4) CREDIBILITY AND IMPEACHMENT 880 880. Reputation Place and time of acquiring Where the purpose of testimony is to impeach a witness for truth and veracity, the inquiry must be as to his general character or reputation for truth and veracity in the community in which he resides. 10 10 Richards v. State, 12 Okl. Cr. 224, 154 P. 72. That witnesses have a reputation in the vicinity of their residence for untruthfulness may be shown for purposes of Impeachment. Stevens v. Blake, 48 P. 888, 5 Kan. App. 124. Under the common law, made applicable by the statute, testimony to im- peach a witness for want of veracity must be confined to his general char- acter or reputation therefor where he resides. Kirk v. State, 11 Okl. Cr. 203, 145 P. 307 ; Rev. Laws 1910, 5543. A witness, who had lived for many years in another state, had removed to his place of residence at the time of the trial only a few months previous thereto. Held, that evidence as to his reputation for truth and veracity in the place of his former residence was competent to impeach him. Coates v. Sulau, 26 P. 720, 46 Kan. 341. Where the prosecutrix has recently lived in the neighborhood of the wit- ness, which is about five miles from her own home, and is generally acquaint- ed in that neighborhood, and such witness knows the general reputation of the prosecutrix for chastity in s'uch neighborhood, but does not know her general reputation for chastity in the particular neighborhood in which she resides at the time of the trial, such witness may be permitted to give evi- dence of her general reputation for chastity in his neighborhood. The means and extent of the witness' knowledge under the circumstances are matters which affect the credibility, but not necessarily the competency, of the wit- ness. State v. Bryan, 8 P. 260, 34 Kan. 63. A person who states that he is not much acquainted with the general rep- utation for veracity of a witness in the community where he lived, and that he cannot say exactly what his reputation is, is not competent to testify as to his reputation. Redden v. Tefft, 29 P. 157, 48 Kan. 302. Where a defendant, on trial for larceny, introduced evidence to establish his good character for honesty, it was error to permit witnesses on behalf of the state to testify in rebuttal that the accused, together with three other persons not on trial, sustained bad reputations in that respect, since the rep- utation of such other persons was not in issue, and the testimony imported a collateral issue into the case. State v. Beaty, 62 P. 658. 62 Kan. 266. In a prosecution for larceny, it was not error to exclude questions asked witnesses tending to show that certain relatives of the prosecuting witness had been convicted of crime and sentenced to the penitentiary. State v. Taw- ney, 112 P. 161, 83 Kan. 603. A witness, who stated that he knew, relative to the character of the prose- cutrix, only what he had heard from several families with whom she bad lived, and that he had no knowledge of her general reputation, held incom- petent to testify as to her general reputation for truthfulness. State v. Evans, 136 P. 270, 90 Kan. 795, judgment anirmed on rehearing 140 P. 892, 92 Kan. 468. A person who had known a witness 20 years and lived near her a large (787) WITNESSES (Ch. 14 It is competent to ask an impeaching witness, who has testified that the general reputation of another witness for truth and verac- ity in the vicinity in which he lives is bad, whether he would give him full credit upon his oath. 11 881. Particular facts The previous occupation, companions, and associates of a wit- ness are proper subjects of inquiry for the purpose of affecting his credibility. 12 He may be cross-examined as to specific facts tend- ing to disgrace or degrade him, although collateral to the main is- sue, and touching on matters of record. 13 Proof of disreputable conduct of a witness should be allowed only in the exercise of a sound judicial discretion. 14 The state may show on cross-examination the relations between a witness and accused, so far as such relation would tend to show bias affecting his credibility, though prejudice to defendant might result therefrom. 10 An examination for the purpose of impeachment must not ques- tion accused's violation of any specific law. 16 A man and his wife, prosecuting witnesses, cannot be compelled portion of the time, though living ten miles distant at the time of the trial, is competent to testify to her reputation for truth. State v. Ball, 144 P. 1012, 93 Kan. 606. 11 State v. Johnson, 19 P. 749, 40 Kan. 266. 12 Terry v. State, 122 P. 559, 7 Old. Or. 430. While it is improper to impeach a witness by showing that he has been in- dicted, arrested, or imprisoned for crime before conviction, yet his occupation and companions may be shown, when they indicate a want of moral charac- ter. Crawford v. Ferguson, 115 P. 278, 5 Okl. Cr. 377, 45 L. R. A. (N. S.) 519. On cross-examination of a witness to affect his credibility, questions as to his social connections and manner of living, or which tend to explain, con- tradict, or discredit his testimony in chief, to show his conviction of crime, are admissible. Murphy v. State, 15 Okl. Cr. 312, 176 P. 417. is State v. Greenburg, 53 P. 61, 59 Kan. 404. For the purpose of impairing his credibility, a witness who gives material evidence may be cross-examined as to his past conduct and character, and as to specific acts tending to discredit him. State v. Abbott, 69 P. 160, 65 Kan. 139. i* Castleberry v. State, 139 P. 132, 10 Okl. Cr. 504. Evidence as to arrest of, a witness for immoral acts with a woman in a rooming house cannot be properly put in evidence to discredit such witness. National Surety Co. v. Oklahoma Nat. Life Ins. Co. (Okl.) 165 P. 161. is Daggs v. State, 12 Okl. Cr. 289, 155 P. 489. ic Sims v. State, 11 Okl. Cr. 382, 14G P. 914. (788) Art. 4) CREDIBILITY AND IMPEACHMENT on cross-examination to answer questions as to their marriage, to affect their credibility. 17 882. Conviction of crime To test the credibility of a witness he may L. R. A. (N. S.) 1033 ; Keys v. United States, 103 P. 874, 2 Okl. Cr. 647. 20 McDaniel v. State, 127 P. 358, 8 Okl. Cr. 209. (789) 882-883 WITNESSES (Ch. 14 Where evidence of a witness' conviction in a foreign state has been admitted, it is not error to exclude facts relating- to the con- viction, but offered to contradict the witness' testimony as to the facts on which the conviction was had. 21 Where a defendant is witness for himself, he may be asked whether he has been convicted of a felony or offense showing want of moral character to affect his credibility as a witness, though an appeal is pending from the conviction in question. 22 Proof of defendant's prior conviction to affect his credibility may be made either by record, or by his cross-examination, as to other separate offenses limited to proof of the offense charged and to matters pertinent to the issue. 23 883. Cross-examination to test reliability of to discredit The scope of cross-examination as to the past conduct of a wit- ness, to discredit him, is largely discretionary. 24 On cross-examination a witness may be asked any question 21 Parker v. Hamilton, 49 Okl. 693. 154 P. 65. 22 Manning v. State, 123 P. 1029, 7 Okl. Cr. 367. Under Rev. Laws 1910, 5046, providing that a witness may be discredited by showing his conviction of a criminal offense, an accused who testifies in his own behalf may be asked on cross-examination whether he has been con- victed of a particular crime. Key v. State, 10 Okl. Cr. 206, 135 P. 950. A defendant in a criminal prosecution who voluntarily becomes a witness in his own behalf is subject to the same rule as any other witness, and may be asked by the state, on cross-examination, if he had not been convicted of larceny at the previous term of the same court in which he was being tried. State v. Probasco, 26 P. 749, 46 Kan. 310, following Same v. Pfefferle, 12 P. 406, 36 Kan. 90. 23 Smith v. State, 14 Okl. Cr. 348, 171 P. 341. To affect the credibility of a witness for plaintiffs, defendants may introduce an authenticated record showing a conviction for felony of a person of the same name as the witness without other proof of identity. Bayha v. Muniford. 49 P. 601, 58 Kan. 445. -* State v. Moberly, 136 P. 324, 90 Kan. 837; Cockrill v. Missouri, K. & T. Ry. Co., 136 P. 322, 90 Kan. 650. Refusing to permit a witness who had turned "state's evidence," being charg- ed with the same crime as defendant, to be cross-examined as to whether the case against her had been set down for hearing, and refusing to permit another witness, who had expressed an opinion that the former should not be prose- cuted, to be cross-examined as to his reasons therefor, all for the purpose of further showing that an agreement had been made not to prosecute the first- named witness, is not an abuse of the discretion vested in the trial court as to the limit of cross-examination to discredit a witness. State v. Nelson, 5- P. 868, 59 Kan. 776. Defendant in an action on a note held entitled to cross-examine plaintiff to (790) Art. 4) CREDIBILITY AND IMPEACHMENT 883 the answer to which would tend to test his means of knowledge, his intelligence, or the reliability of his memory. 25 Where the general reputation of any person is established by the opinions of witnesses as to the general estimate of his char- acter, it is permissible on cross-examination of such witnesses to show the sources of their information, and to call particular facts to their attention, and to ask if they ever heard of them, not to establish the truth of such facts, but to test the credibility of the witnesses, and to ascertain what weight or value is to be given to their testimony. 26 A witness may be asked, on cross-examination, to test his memo- ry, if he was not drunk at the time referred to. 27 He may be asked to whom, if any one, he told the -facts to which he testifies. 28 It is permissible to inquire into the antecedents of a witness, by showing his vocation, manner of life, etc., when the facts so'ught to be elicited are pertinent to the issue. 29 It is improper to ask a witness for the sole purpose of impeach- ment, if he 'had married a woman with whom he had committed adultery. 30 He may be required to answer as to his past conduct and character and certain specific acts. 31 He may be asked any determine the accuracy of his general statement in the nature of a conclusion. Leavens v. Hoover, 145 P. 877, 93 Kan. 661. ?* Henry v. State, 119 P. 278, 6 Okl. Cr. 430. Cross-examination of a defendant on trial for murder which tends to dis credit his statement on direct is proper. Harding v. State, 16 Okl. Cr. 47. 180 P. 391. 26 Stouse v. State, 119 P. 271, 6 Okl. Cr. 415. A witness to good character may be cross-examined as to whether he haa heard rumors of specific charges of commission of acts inconsistent with such good character, in order to test his credibility and the weight of his evidence, though such rumors are inadmissible unless confined to time previous to crime charged. Pope v. State, 15 Okl. Cr. 162, 175 P. 727. 27 State v. Jennings, 121 P. 1131, 86 Kan. 785. On cross-examination, it is proper to inquire whether the witness was drinking intoxicating liquors at the time or shortly before the occurrence as to which he testifies. Rogers v. State. 127 P. 365, 8 Okl. Cr. 226. 28 State v. McKinney, 3 P. 356, 31 Kan. 570. 29 Sights v. State, 13 Okl. Cr. 627, 166 P. 458. 80 Caples v. State, 104 P. 493, 3 Okl. Cr. 72, 26 L. R. A. (N. S.) 1033; Price v. State, 98 P. 447, 1 Okl. Cr. 358. 31 Garvin v. Garvin, 123 P. 717, 87 Kau. 97. A witness may be cross-examined as to his manner of living and his com- panions, as affecting his credibility. Fowler v. State, 126 P. 831, 8 Ok). Cv (791) 883 WITNESSES (Ch. 14 question tending to impeach his accuracy, memory, veracity, or character, though the matters involved in the question go beyond the scope of the examination in chief. 32 On cross-examination, it is competent to prove any facts showing bias, friendship, or relationship. 33 130. A witness may be cross-examined as to his occupation, for the purpose of affecting his credibility. Id. A witness on cross-examination may be interrogated to impair his credibility concerning his past conduct and character and as to specific acts tending TO discredit him, tnough irrelevant and collateral to the principal controversy. State v. Pugh, 90 P. 242, 75 Kan. 792. A witness may be cross-examined as to specific acts tending to discredit her, where relevant to the issue. Cannon v. Territory, 99 P. 622, 1 Okl. Cr. 600. 32 Hopkins v. State, 9 Okl. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736. 33 Gilbert v. State, 129 P. 671, 8 Okl. Cr. 543, denying rehearing 128. P. 1100, 8 Okl. Cr. 543. On cross-examination a witness may be asked any question the answer to which would tend to test his bias, prejudice, or interest in the case. Henry v. State, 119 P. 278, 6 Okl. Cr. 430. An attorney testifying as a witness for his client may be asked on cross- examination if he has an interest in the judgment to be recovered as part of his fees to show bias and to affect his credibility. Wallace v. Kopenbrink, 31 Okl. 26, 119 P. 579. Where a witness though on cross-examination gives testimony adverse to the party cross-examining, showing his interest or bias in the case, or lack of it, such party is not bound to accept the statements of such witness as con- clusive, but may offer proof contradictory thereof and tending to establish the existence of facts to the contrary. Gibbons j. Territory, 115 P. 129, 5 Okl. Cr. 212. In a prosecution for statutory rape, the state, on cross-examination, may show the relations existing between the witness and defendant so far as they might create a bias affecting the witness' credibility, though such evidence would probably prejudice the defendant. Castleberry v. State, 139 P. 132, 10 Okl. Cr. 504. It is not error on cross-examination to ask a witness for defendant any ques- tion reasonably calculated to disclose his interest in the trial, and, where a witness has signed an affidavit for change of venue, the prosecution may ask him in relation thereto. Miller v. Territory, 85 P. 239, 15 Okl. 422, judgment reversed Same v. Territory of Oklahoma, 149 F. 330, 79 C. C. A. 268, 9 Ann. Cas. 38)). It is a general rule that any question may be put to a witness on cross- examination, the answer to which may have a tendency to show bias or prejudice on the part of the witness. State v. Krum, 4 P. 621, 32 Kan. 372. On cross-examination, an adverse witness may be questioned as to his inti- macy with a person wnom the party he is testifying against caused to be arrested, if followed by evidence tending to show a conspiracy between wit- ness and such person to furnish evidence. Id. A witness who admits ill will or prejudice against one of the parties to an (792) Art. 4) CREDIBILITY AND IMPEACHMENT 88'J It is proper to allow a searching cross-examination of detectives to show their interest and thereby affect their credibility. 34 884. Conduct in reference to the case For impeachment purposes, and thereby to throw suspicion on the cause of action, defendant may prove that a witness for plain- tiff, in furtherance of the identical cause, has been guilty of base or criminal conduct. 35 885. Inconsistent statements Where the proper predicate is laid, for purpose of impeachment, it may be shown that the witness has made statements out of court, contrary to what he has testified at the trial. 36 action may nevertheless be cross-examined as to the extent and character of that prejudice. State v. Collins, 5 P. 368, 33 Kan. 77. Accused may bring out on cross-examination of a witness against him, facts showing that the witness' testimony may have been influenced or colored by intimidation or some selfish or personal motive.- State v. Tawney, 105 P. 218, 81 Kan. 162, 135 Am. St. Rep. 355. A witness for defendant, admitting on cross-examination that he had had trouble with plaintiff, growing out of a lawsuit, cannot be asked what judg- ment plaintiff procured against him, as the inquiry would be of no service in determining hostile feeling. Boldon v. Thompson, 50 I'. 131. 00 Kan. 856. On prosecution for murder, it is competent for accused to show, on CTOBfr examination of witness for the state, that the latter, with others, formed a mob for the purpose of hanging defendant. State v. Hamilton, 69 P. 10L'. <',:> Kan. 183. Where a witness testified that he was not defendant's agent, but acted in- dependently for himself in purchasing the goods sold by plaintiff, a letter addressed to plaintiff by the witness, containing statements at variance with his testimony, was properly admitted to contradict him. Gregg v. Berkshire. 62 P. 5oO, 10 Kan. App. 57t). 34 De Graff v. State, 103 P. 538, 2 Okl. Cr. 519. In a prosecution for a second violation of the prohibitory liquor laws, th-- refusal to permit defendant, on cross-examination of prosecuting witness tn ask if he was not paid to secure evidence in the case, intended to show wit- nesses' interest, was error. Files v. State, 16 Okl. Cr. 303, 182 P. 911. Where the testimony for the state was entirely that of two paid detectives. it was error to sustain an objection by the state to a question asked one of the detectives, on cross-examination, concerning the amount paid him by the county attorney for his services. State v. Shew, 57 P. 137, 8 Kan. App. 679. 3 5 Taylor v. J. H. Wade & Co., 44 Okl. 294, 144 P. r.59. 36 Kuykendall v. Lambert (Okl.) 173 P. 657; Smith v. State, 108 P. 418, 3 Okl. Cr. 6z9 ; State v. Hoerr, 129 P. 153, 88 Kan. 573 ; State v. King, 102 Kan. 155, 169 P. 557. On a murder trial, where defendant elects to testify in his own behalf, he may be cross-examined as to admissions voluntarily made that he committed (793) 885 WITNESSES (Ch. 14 The exclusion of impeaching testimony as to statements of a witness is proper, where no foundation was laid therefor by asking the witness as to the statements. 37 the homicide, and, on a denial by him, impeaching testimony may be intro- duced. Btrck v. State, 16 Okl. Or. 356, 182 P. 913. Where a witness has stated his opinion as to the value of the services of attorneys, it is error to refuse to permit him to be cross-examined as to any prior statement or conduct inconsistent with or disprobative of such opinion. Colley v. Sapp, 44 Okl. 16, 142 P. 989, judgment affirmed on rehearing 44 Okl. 16, 142 P. 1193. Where the matter inquired about is relevant to the issue and a witness de- nies having made a statement material thereto, such statement, if contradic- tory to his testimony on the trial, may be shown to impeach him. Hartwell v. State, 15 Okl. Or. 416, 177 P. 383. In action for wrongful death of an employe", contradictory statements to impeach defendant's foreman and assistant foreman held admissible. Griffith v. Midland vaney R. Co., 100 Kan. 300, 166 P. 467. Where a witness testifies to the time and circumstances of defendant's ap- pearance at a certain place to show that he was not present when the al- leged offense was committed, evidence that the witness had previously stated that he was asleep at the time referred to is admissible, after his attention has been directed to the statement on cross-examination. State v. Swartz, 126 P. 1091, 87 Kan. 852. < At the trial of a criminal action wherein the defendant was charged with having committed rape five times upon the witness between the 1st day of April, 1888, and the 1st day of August, of the same year, and her testimony tended to show that the offenses were committed in the months of February, March, and April, 1887, it was proper to ask on cross-examination if she did not swear before the grand jury that the special offense about which she was " Robinson v. State, 130 P. 121, 8 Okl. Cr. 667. An expert who testified as to the cause of a boiler explosion cannot be impeached by proof that he signed a verdict at the inquest, stating the cause to be unknown, where his attention had not been called thereto. Denver v. Atchison, T. & S. F. R. Co., 150 P. 562, 96 Kan. 154, Ann. Cas. 1917A, 1007. Before a witness can be impeached by proof of contradictory statements made in his evidence on a former trial, such contradictions must be called to his attention, and it is error to introduce them without having laid any foun- dation. State v. Cleary, 19 P. 776, 40 Kan. 287. Before a witness can be impeached by proof of contradictory statements out of court, his attention must be called to the time, place, and person in such a manner that there is a reasonable certainty that his attention will be directed to the alleged conversation. Kuhn v. Poole, 112 P. 962, 27 Okl. 534. Where, with a view of impeaching a witness, he is asked if he did not make a certain statement on a previous examination, and he replies that "it amounts to about the same thing," he thereby practically admits the making of the statement, and his answer is insufficient as a foundation for impeachment. State v. Baluwin, 12 P. 318, 5o Kan. 1. (794) Art. 4) CREDIBILITY AND IMPEACHMENT 885 A witness cannot be impeached by contradiction upon a collateral matter brought out on cross-examination. 3 * Previous contradictory statements must be confined to a con- tradiction of the testimony of the wjtness which is injurious to the impeaching party. 39 To impeach a witness by evidence of a former statement, the statement must be material to the issues being tried. 40 Where it is sought to impeach a witness in a criminal case by showing contradictory statements out of court, statements made by then testifying was perpetrated on the 13th day of April, 1888. State v. Spidle, 22 P. 620, 42 Kan. 441. Where, in an action by a head brakeraan against a railway company for in- juries occasioned by a switch stand and the target thereof being too close to the railroad track plaintiff testifies that he had no actual knowledge how close the switch target was to the track prior to his injuries, the exclusion of a question, upon cross-examination, whether after the injury he did not state that he had "repeatedly called the attention of parties to that target," is er- ror. Southern Kansas Ry. Co. v. Michaels, 30 P. 408, 49 Kan. 388. A witness could be asked on cross-examination whether he had not made statements conflicting witu his testimony. State v. Zimmerman, 42 P. s;-_'s. ;; Kan. App. 172. Defendant was prosecuted for assault on the ground that his sons committed the offense in his presence, with his consent. Held, that a witness for the defense, who testified solely as to the details of a trip taken by himself and defendant on the day of the assault to another town, could not, on cross-examination, be asked whether he had not told a certain party that his brother had told witness that he, the speaker, and defendant, witnessed the assault. Id. That a witness testified he had no recollection of a conversation with plain- tiff" as to statements of defendant, but, if he had such conversation, what he said was true, held not to render competent plaintiff's testimony as to what the forgotten statement was. Mallinger v. Sarbach, 146 P. 1148, 94 Kan. 504. 38 State v. Alexander, 131 P. 139, 89 Kan. 422. A witness may not be impeached on any matter collateral to the matter in is- sue with a view of eliciting an admission at variance between his former statements, and those testified to on the trial. Hartwell v. State, 15 Okl. Cr. 416, 177 P. 383. It is not error to refuse to permit the cross-examination of a witness on collateral matters, or to refuse to permit other witnesses to testify to state- ments made by such witness concerning a collateral matter for purposes of impeachment. State v. Sweeney, 88 P. 1078, 75 Kan. 265. A foundation for impeachment cannot be laid by questions on cross-examina- tion which involve collateral issues. State v. Sexton, 136 P. 901, 91 Kan. 171. 3 Sturgis v. State, 102 P. 57, 2 Okl. Cr. 362. 40 Bilby v. Brockman, 55 Okl. 714, 155 P. 257. To impeach a witness by showing that he has made contradictory statements, the statements must be material to the issue. State v. Ray, 37 P. 996, 54 Kan. 160. (795) 885 WITNESSES (Ch. 14 other parties in the presence of the witness are not competent, un- less shown to have been authorized by the witness. 41 The test of admissibility of a contradictory statement -of wit- ness for impeachment is whether such statement could be intro- duced independent of contradiction, and if not, it is on a collateral is- sue and inadmissible for impeachment. 42 Prior contradictory statement of a witness is not substantive tes- timony of proof of the facts then stated, but may be shown only to affect his credibility. 43 Where a party places a witness on the stand, and he testifies unfavorably and differently to prior information given the party, he may be impeached by proof of inconsistent statements. 44 41 Tucker v. Territory, 87 P. 30,7, 17 Okl. 56. The credit of a witness may be impeached by showing that the statements made in his presence by another, and which were assented to and adopted by him as his own, are contrary to what he has testified at the trial. State v. McGaffin, 13 P. 560, 36 Kan. 315. On a prosecution for murder, the exclusion of testimony showing that statements made in the presence of a witness, which were assented to and adopted by him as his own, are contrary to what he has testified at tne trial, where the conviction rests largely upon the evidence giv- en oy the witness sought to be impeached, is material error, for which the judgment should be reversed. Id. 42 Harriss-Irby Cotton Co. v. Duncan, 57 Okl. 761, 157 P. 746. 43 Culpepper v. State, 111 P. 679, 4 Okl. Cr. 103, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668. 44 Bucher v. Showalter, 44 Okl. 690, 145 P. 1143. Where a party had been deceived or entrapped into placing a witness on the stand, having reasonable ground to believe and believing that the witness would testify to facts favorable to such party, and the witness testifies to facts injurious to him and conflicting with his previous statements, such party may show the previous statements. Sturgis v. State, 102 P. 57, 2 Okl. Cr. 362. A party cannot impeach his own witness by introducing conflicting statements: made by him, unless he shall testify injuriously to such party ; and the mere fact that a witness does not testify as the party expected is not sufficient. Id. One is not conclusively bound by the statements which his own witness may make ; and, if he has been deceived by an artful or hostile witness, he may examine such witness as to whether he had not previously made contrary statements, and may, in the discretion of the court, be permitted to show what such contrary statements were. State v. Sorter, 34 P. 1036, 52 Kan. 531. Where a party has been entrapped by an artful or hostile witness, he may examine the witness as to contrary declarations, and may, in the discretion of the court, be allowed to show what such contrary declarations were ; and this rule applies to the cross-examination by the state of its own witnesses. State v. Moon, 80 P. 597, 71 Kan. 349. Where a prosecuting attorney is surprised by unfavorable testimony of his witness, he may read from an affidavit made by the witness, relating to the (790) Art. 4) CREDIBILITY AND IMPEACHMENT 885 ^ A party cannot impeach his own witness by proof of prior con- tradictory statement, where he has not been misled by the witness, who has only failed to testify to matters beneficial to him. 45 The fact that a party to an action in which the bona fides of a transaction is in question uses his adversary as a witness does not preclude him from showing that the adversary had made statements contradictry of his testimony as original evidence of his admis- sions. 40 A witness may be impeached by showing that he has testified in another proceeding involving the same subject-matter in a manner inconsistent with his testimony, sought to be impeached. 47 Where the witness admitted on cross-examination that she gave testimony in another proceeding in conflict with testimony at the trial, it is not error to reject evidence of such former testimony. 48 A witness may explain contradictory testimony. 49 Where a wit- same subject-matter, and inquire if he made such statements. State v. Hughes, 56 P. 142, o Kan. App. 631. 45 Culpepper v. State, 111 P. 679, 4 Okl. Cr. 103. 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668. A party cannot impeach his own witness by proof of prior contradictory statements, where the party has not been misled by the witness, and where the witness has not testified to facts injurious to him. Paris v. United States 115 P. 373, 5 Okl. Cr. 6ul. Where a party has been deceived or entrapped to place a witness on the stand, believing that he will testify to facts favorable 10 sucn party, and the witness testifies to injurious facts conflicting with pre- vious statements, the party can introduce in evidence statements of such wit- ness conflicting with the testimony so given, on the ground of surprise, under Ind. T. Ann. St. 1899, 2016. Id. 46 Gritfis v. Whitson, 43 P. 813, 3 Kan. App. 437. 47 Harmon v. Territory, 79 P. 765, 15 Okl. 147. A question on cross-examination as to whether witness had not given a different account of the affair on a former trial may well be ruled out as im- material, since that evidence couid be introduced to impeach him, without first calling his attention to it. Hughes v. Ward, 16 P. 810, 38 Kan. 452. When, on an application for a continuance to procure the testimony of an aosent witness, the facts set up in the affidavit in support of the application are, by consent, read in evidence, in behalf of the party making the applica- tion, as the deposition of the absent witness, it is error for the court to permit alleged statements of the witness, made out of court, to be introduced to im- peach his evidence in the deposition, his attention at no time having liven called thereto, and he having had no opportunity to explain them. State v. Bartley, 29 P. 701, 48 Kan. 421. 48 Burckhalter v. Vaun. *59 Okl. 114, 157 P. 1148. 49 Testimony of prosecutrix that her mother told her that defendant threat- ened to kill them uoth if they appeared against him held competent to ex- (797) 885 WITNESSES (Ch. 14 ness gave Material evidence for plaintiff, and defendant offered testimony that witness had previously made contradictory state- ments, plaintiff cannot show, to corroborate the witness, that a few days after the occurrence about which the witness testified he had made statements in harmony with her testimony on the trial. 50 Pleadings filed in another action by one of the parties to the action being tried are admissible when offered for the purpose of impeach- ment. 51 Where contradictory statements to impeach a witness consist of writings, they are the best evidence; and, in the absence of a showing that they are lost or destroyed or that they cannot be produced, parol evidence is inadmissible. 52 plain her testimony at a preliminary hearing, when she testified to defend- ant's innocence, htate v. Marsee, 14- P. 833, 93 Kan. 600. 50 Stirn v. Nelson, 70 P. 355, 65 Kan. 419. Where, for the purpose of impeaching a witness for the state, the defendant introduces witnesses who testify that at the preliminary examination they heard the former witness, and that he did not then mention the facts testified to by him on the trial, the state may in rebuttal, call other witnesses, also present at such examination, to testify that they heard the witness, and that he did then mention these facts. State v. McKinney, 3 P. 356, 31 Kan. 570. Where it was sought to impeach a witness for plaintiff, in an action for damages lor wrongful death, by showing that he made statements before the coroner's jury contradicting his testimony at the trial, plaintiff could show in rebuttal that, before the accident causing decedent's death, witness had made statements in harmony with those at trial. Board of Com'rs of Cloud County v. Vickers, 61 P. 391, 62 Kan. 25. si Funnell v. Conrad (Okl.) 176 P. 904. Where plaintiff filed his bill of particulars on April 16th, alleging that de- fendant was indebted to him in the sum of $75, and on May 19th he amended it and asked $200, and defendant offered the original bill of particulars as evidence, an instruction that the pleadings in the case form no part of the evidence was error, since defendant was entitled to have the jury consider the original bill of particulars as affecting the credibility of plaintiff as a witness unless the discrepancy in the pleadings was explained to the satisfaction of the jury. Leavitt v. Deichmann, 30 Okl. 423, 120 P. 983. " Kuhn v. Poole, 112 P. 962, 27 Okl. 534. A written statement by plaintiff soon after the injury held admissible, where it was inconsistent with material parts of her testimony at the trial. Chicago, R. I. & P. Ry. Co. v. Points, 46 Okl. 234, 148 P. 720. A letter which tended to contradict the testimony of the writer and throw some light upon such testimony held properly admitted. Rice v. Woolery, 38 Okl. 199, 132 P. 817. Plaintiff sued for the purchase price of a lot in a new town, conveyed by him to one of defendants. The defense was that it was conveyed in considera- tion of improvements made thereon. Defendants produced as a witness the (798) Art. 4) CREDIBILITY AND IMPEACHMENT 885 Where the 'defendant, for the purpose of impeaching a witness by showing contradictory testimony given by the witness upon a former trial of the case, offers in evidence extracts from the witness' former testimony, reading the same from the official transcript, the prosecution may read from the transcript all the testimony of said witness in relation to the facts involved in the alleged contradiction, for the purpose of rebutting such attempted impeachment. 58 In a criminal trial, the transcript of testimony given at the pre- liminary examination by a witness who testified at the trial should usually be admitted in evidence to discredit his testimony. 54 An official stenographer, who has correctly reported the testi- mony of a witness at a former trial, may read his notes of such testi- mony to impeach the witness at a subsequent trial without making a transcript of the notes. 55 It is competent to contradict a witness by reading a statement from his deposition previously taken after properly calling his at- tention thereto. 58 agent of plaintiff in the disposal of the lots, who testified that he had had correspondence with plaintiff concerning this matter ; and that he first heard that the lot was sold for a money consideration in 1885, though he knew it was conveyed in 1882. Two letters, with memoranda attached, dated in 1882, were identified by witness, in cross-examination, as his handwriting, directed to plaintiff, in which was a list of lots sold, to whom, and for what price, which contained this lot, and showed that it was sold to one of defendants for $75, and not paid for. Held, that they were competent to impeach witness. Anthony v. Jones, 18 P. 519, 39 Kan. 529. 53 Huntley v. Territory, 54 P. 314, 7 Okl. 60. 54 State v. Berger, 124 P. 400, 87 Kan. 479, judgment affirmed on rehearing 128 P. 208, 88 Kan. 406. Defendant, desiring to attack credibility of a witness examined and cross- examined by him at preliminary examination, and at a subsequent mistrial, but who was absent at final trial, because of a material variance between his evidence at preliminary examination and at mistrial, may introduce such parts of evidence given at mistrial as show a variance. Davis v. State, 15 Okl. Cr. 427, 177 P. 625. 55 Johnson v. Moore, 52 Okl. 274, 15^ P. 1073. Where a witness, when asked if he had not testified differently at a previous trial, replied that he did not remember, evidence of the stenographer's notes taken at such former trial is admissible in impeachment ; the material ques- tion being, not what the witness remembers, but what he testified. Johnson v. Moore, 52 Okl. 274, 152 P. 1073. 5 6 State v. Hoerr, 129 P. 153, 88 Kan. 573. Complete parts of the depositions of a person examined as a witness on the (799) 886 WITNESSES (Ch. 14 886. Contradicting witness A witness' answer on cross-examination as to a collateral matter is conclusive and cannot be subsequently contradicted by way of impeachment by the party putting the question. 57 Though a party cannot impeach the credibility of his own witness by evidence of his general reputation, he may show the truth of a particular fact, in contradiction to what such witness may have tes- tified as to it. 58 trial, and not mere detached answers, should be read to show contradictory statements. Terry v. Kansas Gravel Co., 143 P. 485, 93 Kan. 125. Where plaintiff in an action for personal injuries makes statements on the witness stand, substantially different from those contained in a deposition whicn he admits having signed, but denies the entire correctness of, refusing to permit defendant to read in evidence those parts of the deposition tending to contradict his testimony is error, whether such deposition is admissible in evidence or not. Southern Kansas Ry. Co. v. Painter, 36 P. 731, 53 Kan. 414. 57 Payne v. State, 136 P. 201, 10 Okl. Cr. 314; Willis v. State, 13 Okl. Cr. 700, 167 P. 333. If a witness be cross-examined upon a collateral matter, evidence will not be admitted to disprove that matter, in order to discredit the witness. Atchl- son, T. & S. F. R. Co. v. Townsend, 17 P. 804, 39 Kan. 115 ; State v. Ray, 37 P. 906, 54 Kan. 160; Same v. Zimmerman, 42 P. 828, 3 Kan. App. 172; Butler v. Cooper, 42 P. 839, 3 Kan. App. 145 ; State v. Blakesley, 23 P. 570, 43 Kan. 250. Evidence should not be admitted to contradict a statement of a witness elicited on cross-examination on an immaterial collateral matter. State v. McLemore, 164 P. 161, 99 Kan. 777, judgment reversed on rehearing 166 P. 497. 101 Kan. 259. Where defendant offered evidence as to his reputation as- a peaceful, law- abiding citizen his denial on cross-examination that he had stated that he was the father of an unborn child, bound the state on the collateral issue, and it was error to admit rebutting testimony. State v. Smith, 103 Kan. 148, 174 P. 551. In a bastardy proceeding, defendant's denial of improper conduct with a young girl, not the relatrix, after offense charged was purely collateral and binding upon the state, so that it was error to permit it to contradict the denial by evidence of another distinct offense. State v. Stout, 101 Kan. 600, 168 P. 853. 58 William Deering & Co. v. Cunningham, 65 P. 263, 63 Kan. 174, 54 L. R. A. 410. Where the answer and the evidence of defendant tended to show that the price at which a stallion nad been stood was one of the material warranties or representations in the contract for his sale, and that such warranty or representation was false, and the seller, while a witness for the plaintiff to maintain other issues on his part, denied making the warranty as to the price at which the stallion had previously been stood, it was error to exclude evi- dence contradicting his statement as bearing upon the weight to be given his testimony. National Bank of Anadarko v. Oldharn, 109 P. 75, 26 Okl. 139. (800) Art. 4) CREDIBILITY AND IMPEACHMENT 886~888 Where an impeaching question is not on any material issue, and it does not tend to contradict any prior statement made by the wit- ness, an objection thereto should be sustained." 887. Prior corroborating statements Where it is charged that the evidence of a witness is a recent fabrication and is the result of some relation to the parties or cause, or of some personal interest, his evidence may be supported by showing that he has made a similar statement Before that relation or motive existed. 60 888. Sustaining evidence Where the veracity of a witness is called in question, it may be sustained by proof of his general reputation for truthfulness. 81 Such evidence is admissible, where there has been a direct attack on his character by evidence that his reputation for truth and verac- ity is bad, or where the witness has been impeached by evidence 69 Buckhalter v. Nuzum, 61 P. 310, 9 Kan. App. 885. 80 Driggers v. United States, 95 P. 612, 21 Okl. 60, 129 Am. St. Rep. 823, 17 Ann. Gas. 66, reversing judgment 7 Ind. T. 752, 104 S. W. 1166. Statements of a witness made out of court cannot ordinarily be shown by another witness to support his testimony. Chapman v. Blakeman, 3 P. 277, 31 Kan. 684. Evidence of statements before trial by witness consistent with his testimony is not admissible in support thereof. Jackson v. State, 12 Okl. Cr. 40<>. in? P. 945. The testimony of a witness wjiose credibility is attacked may be supported by evidence that he made similar statements about the time of the occurrence testified to. Jones v. State, 9 Okl. Cr. 646, 133 P. 249, 48 L. R. A. (N. S. ) 204. After introduction against plaintiff in an action of impeaching evidence tending to show that he had been silent concerning his claims when he would most likely have asserted them had grounds existed, he may be corroborated by proof of previous consistent claims and statements made and consistent conduct exhibited at a time when their ultimate effect could not in tde nature of things have been foreseen. National Cereal Co. v. Alexander, 89 P. 923, 75 jvan. 537. 61 Gilbert v. State, 127 P. 889, 8 Okl. Cr. 329. Where a material conflict arises in the testimony of two or more witnesses, either side may sustain its witness by proof of general character for veracity. Gilbert v. State, 127 P. 889, 8 Okl. Cr. 329. Where testimony of a witness is contradicted, it is competent to support his testimony by evidence as to his general reputation for truth and veracity. Friel v. State, 119 P. 1124, 6 Okl. Cr. 532. In action for assault, where defendant's testimony contradicted plaintiff's statements on cross-examination as to her reputation for truthfulness, court, in its discretion, might permit her in rebuttal to prove her good reputation for truthfulness. Colvin v. Wilson, 164 P. 284, 100 Kan. 247, 6 A. L. R. 859. HON.PL.& PBAC. 51 (801) 888 WITNESSES (Ch. 14 of particular acts of misconduct, either on cross-examination or by a record of conviction, or where he has been impeached by evidence of corruption on his part in connection with the case at issue, or by contradictory statements admitted on cross-examination or shown by the testimony of other witnesses. 62 Where the state attacked the reputation of defendant, who was a witness, for truth and veracity, and defendant offered to prove that his "character" for truth and veracity was good, an objection on the ground that his "reputation," and not his "character," was involved, was improperly sustained, as the terms are frequently used without discrimination. 63 2 First Nat. Bank v. Blakeman, 91 P. 868, 19 Okl. 106, 12 L. R. A. (N. S.) 364. But where testimony of prosecuting witnesses had been thoroughly im- peached, the state not attempting to show that their reputation for truth and veracity was good, the admission of evidence to bolster the testimony of one of the prosecuting witnesses was prejudicial to defendant. Newton v. State, 14 Okl. Or. 569, 174 P. 289. 63 State v. Tawney, 99 P. 268, 78 Kan. 855. (802) [END OP VOLUME 1] 000690088