New-State Tribune. (Oklahoma City, Okla.), Vol. 17, No. 37, Ed. 1 Thursday, August 10, 1911 Page: 4 of 16
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Criminal CoE^oTAnlf. T !“t“p* '°f th* New 8tate Trlbuns. All decisions of the Supreme Courts and the
are alven in».!■Lhff J' * ,WIb® fo“nd h*r,®’ to0ether with any other official facts concerning the courts. Syllabi
given in full. erever found In the opinion handed down, and where space allows, cases of special interest are
IMPORTANT CASES
BY SUPREME COURT
SYLLABI OF COURT'S OPINIONS
HANDED DOWN AT ITS
RECENT SITTING.
Losing Party Not Entitled to Second
Trial As a Matter of Right.
Iowa Land and Trust Co. vs. Indian
Land and Trust Co., et al. Muskogee
county. Reversed and remanded.
Syllabus.
Under the laws in force in the In
dian Territory at the time of the ere.
tion of the state the losing party in
an ejectment suit was not entitled, as
a matter of right, to a second trial.
(a) As to ejectment actions pend
ing in the United States courts in
the Indian Territory at the time ol
the admission of the state and after
wards transferred to and finally de
termined in a state district court, the
losing party, as a matter of right, was
not entitled to a second trial. Wii
liams, J.
! fifteen Dollars a Sufficient Deposit
To Cover Costs.
John Woods vs. R. 1. Rond. Pitts-
ourg county. Reversed.
Syllabus.
Yv here, in a suit in the district court
plaintiff, a resident# of the county in
| .vnich the suit is brought, before the
summons issues, deposits with the
olerk of the court $15 as security for
costs, pursuant to Wilson’s Stats, o
JlUa., Sec. 4(73, he cannot be required
to make a further deposit. Turner,
0. J.
1911, was a holiday. The time for
serving the case-made expiring on said
day, a holiday, the plaintiff in error
had the next succeeding day in which
to make such service. Williams, J.
Error Must Be Assigned.
J. D. Cox vs. Charles Levine. Wash-
ington county. Affirmed.
Syllabus.
Where the plaintiff in error fails
to assign as error the overruling oi
the motion for a new trial in the pe-
tition in error, no question is properly
presented to this court to review er-
rors allegea to have occurred in the
progress of the trial in the lower
court. Williams, J.
New Trial Is At Discretion of the
Trial Court.
National Refrigerator & Butchers
Supply Co. vs. John Elsing. Pitts-
burg county. Affirmed.
Syllabus.
The granting of u new trial being
so much within the discretion of the
trial court, this comt will not reverse
an order of such court granting a new
trial, unless error is clearly estab-
lished in respect to some pure, simple
and unmixed question of law. Kane, J.
Suit To Recover Usurious Interest Is
Not a Suit On Account.
American National Bank of Tish-
omingo vs. N. E. Roberts, Johnston
county. Reversed.
Syllabus.
A suit before a justice of the peace
to recover alleged usurious interest
on three separate loans, is not a suit
Question Must Go to Jury in Certain
Replevin Cases.
A. L. Damerson vs. J. K. McClaren.
Muskogee county. Reversed and re-
manded.
Syllabus.
1. Replevin is strictly a possessory
action for the recovery of personal
property and where there is any evi
dence adduced at the trial reasonably
tending to join an issue of fact on
the question of the right of possession
or where the facts are uncertain the
question must be submitted to the
jury.
2. A case must be clear and cer-
tain in order to sustain a direction ol
a verdict by the court. Kane, J.
"Daily Legal News” a Legal Publica-
tion.
C. D. Hesler and J. G. Hesler, a
Co-partnership vs. P. A. Coldron. Ok-
lahoma county. Reversed.
Syllabus.
From the evidence in this case the
court holds that the Daily Legal News
was “a newspaper of the county hav-
ing a general circulation therein,
within the contemplation of Wilson’s
Stats, of Okla., Sec. 4006, and that the
certificate required to be published by
YYTlson’s Stats, of Okla., Sec. 3901,
was properly published therein. Tur-
ner, C. J.
j Laws of Sister States Must Be Pleaded
and Proven—Carrier’s Liability
For Household Goods.
i Missouri, Kansas & Texas Ry. Co.
vs. A. T. McLaughlin and Tampa
McLaughlin. Mayes county. Reversed
and remanded.
Syllabus.
1. In order to take advantage of
, ,, i a law of a sister state it must be
on account within the contemplation i pleaded and proven, otherwise it will
of YY'ilson s Stats, of Okla., Sec. 4312, | be presumed to be the saihe as the
and if it were, proof thereof w'ouid i law of the state of the forum on the
not be dispensed with under said stat- I same subject
ute by general verification of the bill I 2. Under the law in force in Okla
of particulars. Turner, C. J.
As To Waiving Errors of Law.
John A. Deering vs. J. F. Myers.
Garvin county. Affirmed.
Syllabus.
YY’here plaintiff waived all errors or
law, if any, committed on the trial
by failing to file a motion for a new7
trial, and there is no error apparent
on the face of the record there is
nothing presented to this court for
review. Turner, C. J.
homa prior to statehood, a provision
in a shipping contract limiting, in con
sideration of a reduction in freight
charges, the liability of a carrier for
household goods lost in transit to a
stipulated sum, was lawful and en-
forceable. Kane, J.
Description of Property, When Suffi-
cient; Sufficient Definiteness of
Petition Cannot Be Raised
By Demurrer.
A Similar Case.
A. T. & S. F. Ry. Co. vs. L. H. John
son and Mrs. L. H. Johnson. Tulsa
county. Reversed.
Syllabus.
Same as in above case.
Time In Which To Serve Case-mades.
Boynton Land, Mining & Investment
----------- ; Company vs. Charles F. Runyan. Mus-
H. C. Wey, et al. vs. The City Bank, kogee county. Motion to dismiss ovei
et al. Kiowa county. Reversed and ruled.
Petition In Land Suit Held Sufficient
When Attacked By Demurrer.
Milo E. Lawrence vs. Katie M
Estes and the Unknown Heirs of Jul
ius M. Estes, Deceased. McIntosh
county. Reversed.
Syllabus.
A petition which alleges that the
plaintiff claims the title in fee simple
to the lands in controversy, describ
ing them, and is in the actual posses-
sion thereof; that the defendants
claim an estate therein adverse to the
plaintiff, the nature of which is sei I
out in general language, and then !
prays that the defendants and each
of them may be required to set forth
the nature of their respective claimi
to said premises, that this court de
cree that plaintiff's claim to and title
in said premises is valid and perfect
and that the defendants, and each
and all of them, have no right to an.'
claim thereto, and that they and eacl
and every one of them have no estate
or interest in or to said premises, oi
any part thereof, and that they, and
each of them, be perpetually barret
and enjoined from asserting any clain
to said premises adverse to that oi
the plaintiff; and for such other re
lief as may be equitable and proper,
and for costs, will be held sufficient
under Sec. 6121, Compiled Laws ol
Oklahoma, 1909, when such petition is
attached by demurrer upon the
ground that it fails to state facts
sufficient to state a cause of action
Kane, J.
liam C. Garrett, His Next Friend vs.
American Baptist Home Mission So-
ciety, a Corporation; Henry L. Dawes,
Tams Bixby, Thomas L. Needles, Clif-
ford R. Breckenndge, Members of tl
Commission to the Five Civiiizt *•
Tribes; Mildred Sanders, John Sa1,11
ders, and the Creek Nation. Musk “
gee county. Affirmed.
Syllabus.
A religious society complied with
the provisions of Article 13 of the
treaty of the United States with the
Creek tribe of Indians (14 U. S. Stat.
at L., p. 190) by obtaining from the
tribal authorities consent to erect
buildings for educational purposes
within the Creek country and by erect-
ing said buildings and selcting 157.12
acres of land so as to include said
improvements, and has continuously
maintained thereon an institution for
the education of Creek Indians;
HELD: That the society thereby be-
came vested, under the provisions of
said treaty, with such title and vested
right in the lands selected that it
could not be deprived thereof by Sec.
24 of the agreement with the Creek
Indians, approved March 1, 1901, (31
Q. S. Stat. at L„ p. 868), which at-
tempts to provide that all of said
!ands selected by the society, except
forty acres, shall -be subject to allot-
ment by members of the tribe. Hayes,
Trustee In Bankruptcy Cannot Be Sub-
stituted As Plaintiff In Damage
Suit For Libel.
S. Epstein vs. H. Handverker. Co-
manche county. Reversed and re-
manded.
Syllabus.
Under Sec. 70 of the act of con-
gress of July l, 1S98, pertaining to
CANCER
M<*v\ it> deal can-
cer or Tumor by a
new home treat-
.. . ment ma fieri free
to all senriine Rririresa Ceriar Hill San-
itarium. 3M Br’dway, Lebanon. Ohio We
refer to any bank or bunlneaa firm In
Annno»
ROBERT BURNS
ATTORNEY A' D COUNfFL' CR AT LAW
Commercial I aw. Collections anJ Indian Probate
and titles will receive special attention
taxes paid for non residents, and correspondence
'Oth fornjrn attorneys solicited.
Offices Suite No. 3. City National Park Building
DUNCAN, OKLAHOMA
W. A. Ledbetter H. L. Stuart R. R. Bel
Ledbetter, Stuart & Bell
ATTORNEYS AT LAW
818-823 American National Bank Bid;}.
OKLAHOMA CUT, . OKLAHOMA
remanded.
Syllabus.
1. Where the petition in replevin
described the property sued for as
“two young mules,” held sufficient
against a general demurrer.
Syllabus.
The motion for new trial was over-
ruled on October 4, 1910, and the
plaintiff in error allowed sixty day?
in which to prepare and serve a case-
made. On November 26, 1910, within
2. Objection to the introduction of such period, the court allowed afurther
evidence on the ground that the peti , extension of thirty days from the third
tion does not state a cause of action j day of December, 1910. The case
is equivalent to a demurrer to the made was served on the third day of
petition. I January, A. D., 1911. The first day of
8. As to a petition being sufficiently j January, A. D„ 1911, falling on Sun
definite and certain, that cannot be day, the following day, Monday, which
raised by demurrer. Williams, J. j was the second day of January] A. D.,
Facts on Cross-examination of Bank
Officials Admissible As Evidence.
First Bank of Hoffman vs. Harry
Harrison. Muskogee county. Af-
firmed.
Syllabus.
1. The issue was as to whether
H. executed a certain mortgage to
F. bank. H. admitted receiving a
certain sum, or sums of money on or
about that time, but contended that
no part thereof was intended to be
secured by such mortgage. HELD:
I hat it was permissible on cross-ex
amination of the officers of F. bank
to bring out facts tending to show
that independent of said mortgage
such sums of money loaned to H.
and repaid by him to said bank.
2. Neither any incompetent evi-
dence having been received, nor any
'ncompetent evidence having been re
jected, and the cause having been
submitted to the jury under proper
instructions, there being a conflict
in the evidence the verdict in favor
of H. will not be disturbed on review
in this court. Williams, J.
BAKER & PURSEL
LAWYERS
Probate and Departmental Courts
Special.
Office Over Postofflce. Muskogee. Okla.
s. J. HOLLJDAY
Attorney and Councellor-At-Law
Office, 321-73 American National
Bank Building. Phone 274.
Ross N. Lillard
ATTORNEY AT LAW
Organizations ol Corporations and
Corporation Law a Specialty.
Phone 5004. Room. 409-10-11 American
National Bank Bldg. Oklahoma City.
Religious Society Acquires Vested
Rights Under Creek Treaty and
Cannot Be Deprived Therof.
Quentin Garrett, a Minor, by Wil-
Office Phone 3418. Re,. or bight Fhone 7461
NOTARY PUBLIC
p. C. HUGHES
ATTORNEY AT LAW
.Wi" Practice in all courts. Foreclosures and Divorce
Law a specialty, Peranna in domestic or business
trouble, call or phone 3418. Office open on Friday
and Saturday nights 7 to 9 p. m. Collect, all man-
n^r of debts Prn*ion claims prourcurrd.
Room 6. 113 1-2 W. Mam Oklahoma City
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Haskell, Charles N. New-State Tribune. (Oklahoma City, Okla.), Vol. 17, No. 37, Ed. 1 Thursday, August 10, 1911, newspaper, August 10, 1911; Oklahoma City, Oklahoma. (https://gateway.okhistory.org/ark:/67531/metadc936670/m1/4/: accessed April 18, 2024), The Gateway to Oklahoma History, https://gateway.okhistory.org; crediting Oklahoma Historical Society.