New-State Tribune. (Oklahoma City, Okla.), Vol. 17, No. 36, Ed. 1 Thursday, August 3, 1911 Page: 4 of 16
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Page Four
Xkw State 1i<ihune, Thursday, August 3, 1911.
falling on and flowing over and across
said lands, and on account of said em-
bankment, caused to be filled up a nat-
ural water course across said land
which caused the surface water to
stand and back up on his crops grow-
ing on said lands, to his damage; states
rrl £eP\rtn1/?t 18 f ^*ture of the New State Tribune. All decisions of the Supreme Courts and the (...,lse of actlon of.PaRionPd ,,v thn
ikws.rS'ss:
_______________ uer> c. J.
IMPORTANT CASES
BY SUPREME COURT
Garfield county.
ander T. Cox, et al
Affirmed.
Syllabus:
Where the last item of charge but
one of an itemized account and lien
statement filed by a subcontractor, pur-
—— j oiaioimim iueu uy a suocoiuraccor, pur-
SYLLABI OF COURT’S OPINIONS j suant to Snyder’s Stats, of Okla. (1909),
Secs. U151-G153, was for material l'ur-
HANDED DOWN AT ITS
RECENT SITTING.
Plaintiffs Seeking to Rescind Contract
Secured by Fraud, Must Bring Action
Within Reasonable Time, and De-
lays Must Be Explained.—Such Con-
tracts Not Void But Voidable,
itettie Skinner and W. J. Skinner vs.
William Scott and Isabella Scott. Lo-
gan county. Affirmed.
Syllabus:
1. Where plaintiffs, who seek the
aid of a court of equity to rescind a
contract alleged to have been procured
by fraud, have been guilty of great and
unreasonable delay after discovery of
the fraud in instituting and prosecuting
their action, they must not only allege
the impediments w’hich prevented them
from instituting and prosecuting their
action, but must also produce evidence
explaining their delay; and if they fail
to do so, the court, upon its own mo-
tion, may refuse to grant relief.
2. Where plaintiffs wait six months
after discovery of an alleged fraud to
institute an action to be relieved there-
from, and after the action has been
pending for two and a half years, suf-
fer the same to be dismissed for want
of prosecution, and no steps are taken
to reinstate tlio cause until the lapse
of another three and a half years, and
after a motion to re instate is denied, i
nished and actually used in the con-
struction of the building and the last
item of charge was for material not
actually so used, Held: That the lat-
ter material was not “furnished” with-
in the contemplation of the statute and
that the statutory sixty days within
which to file said lien statement began
to run from the date of said last item
but one and, having ran at the time
of the filing of said statement, no lien
was fastened upon the property. Tur-
ner, C. J.
Judgment Will Be Affirmed.
H. C. Hampton vs. James A. Cub-
bertson, administrator. Grady county.
Affirmed.
Syllabus:
Where the evidence reasonably tends
to support the verdict, the judgment of
the trial court will be affirmed. Tur-
ner, C. J.
Cnattel Mortgage Must Be Signed by
Two Witnesses.
Note or Copy Must Be Shown In Evi- !
dence.
Alteration of Instrument by Obligors
Does Not Affect Validity.—Certain
Errors to be Disregarded by Court.
J. G. Diamond and G. M. Swanson
vs. Inter-Ocean Newspaper company.
Muskogee county. Affirmed.
Syllabus:
1. On the principle that no one can
take advantage of his own wrong, an
alteration of an instrument by one of
several obligors or promisors does not
affect the validity thereof as against
the party making the alteration.
2. The court, in every stage of ac-
tion, must disregard any error or de-
fect 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.
Kane, J.
W. H. McNary, et al., vs. The Farm-
ers National Bank. Pottawatomie j
county. Reversed and remanded.
Syllabus:
An action on a promissory note by j
one as the endorsee thereof, in the
absence of introduction in evidence of
the original note sued on, or after I
proper showing, a copy, there Is not j
sufficient legal evidence upon which to j
predicate a judgment for plaintiff. Tur
George R. Ray vs. The Southern
Trading Co. Kiowa county. Reversed.
Syllabus:
Under Wilson’s Stats, of Oklahoma,
Sec. 3583, a chattel mortgage must be
executed “in the presence of two
persons, who must sign the same
as witnesses thereto,” in order to en-
title it to be filed for the purpose of
giving constructive notice of its ex-
istence; and such mortgage, when ex-
ecuted in the presence of but one sub-
scribing witness, is void as against
creditors of the mortgagor, although
the same be deposited with (lie register
of deeds of the proper county for the
purpose of being filed. Turner, C. J.
Life Saved at Death’s Door
ner, C. J.
permit four months to expire before in-1 c,A
stituting a second action and there , Suff'c,ency_ °f Answer and When Not
stituting a second action, and there is
no evidence to explain said delays, it
was not error for the trial court to
deny plaintiffs relief and dismiss their
action on account of their laches.
3. Contracts induced by fraud are
not void but voidable. The defrauded
party may elect with knowledge of the
facts concerning the fraud to treat the
contract as valid. If he does so, he
cannot thereafter change his position
and insist that it is valid. Hayes, J.
to Be Raised For First Time In
Supreme Court.
W. A. Bohart vs. Augustus E. Math-
ew’s. Grady county. Affirmed.
Syllabus:
1. Neither any motion having been
made for judgment on the pleadings
nor any objection to the introduction
of evidence on the ground that the
answer did not state facts sufficient
to constitu‘e a defense, but issue being
joined by reply, and evidence received
and the cause determined and final
Commission Order Modified and Af-
firmed.
Pioneer Telephone and Telegraph
Co., vs. Grant County Rural Telephone
Co., et al. Appeal from order of the
Corporation commission. Modified and 1
affirmed.
Syllabus:
The G. C. Rurual Telephone company j
petitioned the Corporation commission
for an order requiring the P. T. & T. i
company to receive and transmit its
messages without delay or discrimi-
nation, and to make connection with its
line under proper rules and regulations.
The commission entered an order re-
quiring such physical connection and
the transmission of messages. JTffs or-
der as modified is affirmed'. Wil-
liams, J.
“I never felt so near my grave,”
writes W. R. Patterson, of Wellington,
Tex., as when a frightful cough and
lung trouble pulled me down to 100
pounds in spite of doctor’s treatment
for two years. My father, mother and
two sisters died of consumption, and
that I am alive today is due solely to
I)r. King’s New Discovery, which com-
pletely cured me. Now I weigh 187
pounds and have been well and strong
for years.” Quick, safe, sure, its the
best remedy on earth for coughs, colds,
lagrippe, asthma, croup, and all throat
and lung troubles. 50c & $1.00. Trial
bottle free. Guaranteed by all drug-
gist!}.
Plaintiff Must Show Hindrance by1 and the cause determined and final
1 „ . .. , . . ; judgment rendered thereon in the low-
Lessor Hindrance by Mere Intruder or court> the 8ufflciency of the answer
Not Sufficient. , j wjh not be permitted to be raised for
W. H. Brown vs. International Land J the first time on review in this court.
Company. Muskogee county. Af- (a) The pleadings here, under such
firmed.
Syllabus:
1. The following clause in a lease
of real estate, construed to be a cov-
enant for quiet enjoyment: “The said
circumstances, will be presumed to
have been amended, if necessary, to
conform to the evidence.
2. Same as that in Bretch Brothers
vs. Winston & Son, decided at the
Party of the first part (the lessor) j May, A. I). 1911, term of this court,
agrees that during the term of this j Williams, J,
lease to defend the party of the second ^
part in peaceable possession of said
premises. In case the party of the
second part should be molested, the
party of the first part and the party ........„KlllD( CL U1
of the second part choose a man each Bowman-Darby Company,
to arbitrate the difference. Should they 1 county. Affirmed,
disagree they choose a third man, and J Syllabus:
Mortgage of Certain Lands by Creek
Indian Allottee Is Valid and Sub-
stantial Security.
William H. Harris, et al., vs. Lynde-
Wagoner
the decision of the three shall be final
without remark.”
2. To sustain an action for the
breach of a covenant for quiet enjoy-
ment in a lease, it is necessary for the
plaintiff to show that he has been pre-
vented from tqking possession of the
A mortgage by an allottee of his
lands, exclusive of his homestead, In
the Creek nation, executed and de-
livered before the expiration of five
years from the date of the approval of
the supplemental Creek agreement,
which was proclaimed by the president
Stillwater Depot Case.
Santa Fe Railroad vs. State of Okla-
homa. Appeal from Corporation com-
mission. Reversed and remanded.
Syllabus:
Per Curiam: It appearing to the
court that appellant, since bringing
here the order complained of, has sub-
mitted new’ plans and specifications for
the construction of a depot at Still-
water, satisfactory to all concerned;
it is therefore ordered that this cause
be reversed and remanded to the com-
mission, that said dejjot may be con-
structed according to said plans and
specifications, but at the cost of appel-
lant, pursuant to stipulation on file
herein between counsel for all parties
in interest.
ROBERT BURNS
ATTORNEY-’Af1 D COUNSELLOR AT LAW
Commercial L aw. Collections and Indian Probate
land tltl#*R will rereive cnerisl
I---- V.IU, VUIICIIIUIIO auu
land titles will receive special attention.
Taxes paid for non residents, and correspondence
with foreign attorneys solicited.
Offices Suite No. 3. City National Bank Building
DUNCAN, OKLAHOMA
Motion For New Trial Is Addressed to
Discretion of the Court.—Ruling
Where Crops Are Damaged by
Water.
~ w ‘ .......* vviiumuu UJ 'lit- pi C'BIUUIll
leased premises, or that his quiet en- [ on August 8, 1902, (32 Stat. Part 2,
joyment has been hindered, or dis- p. 2021; Act of June 30, 1902, 32 Stat
turbed, by the lessor or some person | Part 1, p. 503) bn‘ subsequent to act
deriving their right of title through ! of congress April 21, 1904, (Chap 1402
him, or from a paramount title, a hind- Sec. 1, 33 Statt. 204) the restrictions
’ranee or disturbance by a mere intru-: against the allottee’s alienation of such
der is not sufficient. Kane, J. I land having been removed by the sec-
retary of the interior under said act of
Furnished In Lien
As To Material
Statement.
P. T. Walton Lumber Co. vs. Alex-
April 21, 1904, is a valid and substan-
tial security and may be enforced
Williams, J.
C. R. I. & P. Ry. Co. vs. J. C.
Maynard. Jefferson county. Affirmed.
Syllabus:
1. A motion for a new trial, assign-
ing, in effect, accident and surprise
which ordinary prudence could not
have guarded against, is addressed to
the sound judicial discretion of the
court, and where the court, upon con-
flicting affidavits filed pro and con de-
nied the motion, this court will not,
under the showing made, disturb the
ruling, where there is no abuse of that
discretion.
2. A petition which substantially
slates that plaintiff is in possession,
under lease from the owner, of a cer-
tain tract of land: that defendant’s
line of railway runs through it upon
a grade or embankment higher than
the adjoining lands lying westward;
tb.it defendant lias failed and refused
to establish and maintain proper open-
ings for the outlet of surface water
W. A. Ledbetter H. L. Stuart R. R. Bel
Ledbetter, Stuart & Bell
ATTORNEYS AT LAW
818-823 American National Bank Bids.
OKLAHOMA CITY, OKLAHOMA
BAKER &PURSEL
LAWYERS
Probate and Departmental Courts
Special.
Office Over Postofflce. Muskogee, Okla.
S. J. HOLLIDAY
Attorney and Councellor-At-Law
Office, 321-23 American National
Bank Building. Phone 274.
Ross N. Lillard
ATTORNEY AT LAW
Organizations of Corporations and
Corporation Law a Specialty.
Phone 5004. Rooms 409-10-11 American
National Bank Bldg. Oklahoma City.
Office Phone 3418. Res. or Night Phone 7461
NOTARY PUBLIC
P. C. HUGHES
ATTORNEY AT LAW
Will practice in all courts. Foreclosures and Divorce
Law a specialty. Persons in domestic or busineaa
troubles call or phone 3418. Office open on Friday
and Saturday nights 7 to 9 p. m. Collects ail man-
ner of debts. Pension claims prosecuted.
Room 6, 113 1-2 W. Main Oklahoma City
V
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Haskell, Charles N. New-State Tribune. (Oklahoma City, Okla.), Vol. 17, No. 36, Ed. 1 Thursday, August 3, 1911, newspaper, August 3, 1911; Oklahoma City, Oklahoma. (https://gateway.okhistory.org/ark:/67531/metadc937363/m1/4/: accessed April 23, 2024), The Gateway to Oklahoma History, https://gateway.okhistory.org; crediting Oklahoma Historical Society.