graphed to the latter five days after the arrival of the goods at destination as follows: "We will make claim against railroad for entire contents of car at invoice price. Must refuse shipment, as we cannot handle." In the preceding telegrams which passed between the parties the shipment had been adequately identified, so that this final telegram established beyond question the particular shipment referred to. The Circuit Court of Appeals found from this evidence that no claim was filed by the shipper as required by the bill of lading. The Supreme Court, assuming that this finding was in effect a construction of the four-month provision, as requiring a more formal notice than that which was actually sent, held that, as the notice given apprised the carrier of the character of the claim of the plaintiff, it sufficiently complied with the provisions. Similarly in the case at bar it was agreed that no written claim was filed within the period of four months, but it was also stipulated that the parties had negotiated a settlement by letter within that time, which was afterwards repudiated by the company; and, unless we assume that the first part of the stipulation has reference only to a formal claim in writing in strict compliance with the provision, the subsequent part thereof serves As counsel seem to no purpose whatever. agree that the four-month clause cannot be waived, the agreed statement of facts must have been drawn in the form in which we find it for the purpose of presenting the questions whether the negotiated settlement of plaintiff's claim by letter before the expiration of the four-month period constituted a substantial compliance with the four-month clause of the bill of lading, and whether such compliance constituted the making of a claim within the meaning of the provision. Inasmuch as it is now settled that these questions must be answered in the affirmative (Georgia, F. & A. Ry. Co. v. Blish Milling Co., supra), the action of the trial court to that effect must be affirmed. All the Justices concur. (68 Okl. 59) LONDON et al. v. MERCHANTS' NAT. error and move to stay execution. Motion praying for stay of execution overruled. London & London, Neal & Neal, and Bag well & Ellerbee, all of Poteau, for plaintiffs in error. Oglesby, Cravens & Oglesby, of Ft. Smith, Ark., and McAdams & Haskell, of Oklahoma City, for defendants in error. KANE, J. This cause comes on to be heard upon the motion of the plaintiffs in error, wherein they pray for an order commanding the sheriff of Le Flore county to refrain from selling the land involved at foreclosure sale pending the determination of the question involved in the above-entitled proceeding in error. It seems that the district court of Le Flore county rendered a certain judgment in favor of the Merchants' National Bank of Ft. Smith, Ark., and against Horace F. Rogers and Stella W. Rogers, for the sum of $11,587.71, together with interest, costs, and attorney's fees, and for the purpose of satisfying said judgment decreed the foreclosure of a mortgage on certain lands situated in said county, and on the same day overruled the motion of the plaintiffs in error herein to be made parties to said suit; that thereafter the plaintiffs in error herein lodged in this court their petition in error, with a transcript of the record and proceedings of the district court of Le Flore county, Okl., attached, for the purpose of reviewing the action of the trial court in overruling said motion to be made parties to said suit. Thereupon the motion now under consideration was filed as above stated. The defendants in error appear for the purpose of resisting this motion, and say that the same ought to be overruled for the following reasons, to wit: (1) The Supreme Court is without jurisdiction of said proceedings in error for the reason that no notice of the appeal was given by the plaintiffs in error, as required by law; (2) the questions sought to be presented by plaintiffs in error, to wit, the action of the trial court in overruling their motion to be made parties to said cause is not reviewable by this court on a transcript of the record in the absence of a case-made or bill of exceptions. As the last (Supreme Court of Oklahoma. March 12, 1918.) of these grounds for denying the relief prayed (Syllabus by the Court.) APPEAL AND ERROR -545 NECESSITY OF A motion for leave to be made a party to an action and the ruling of the court thereon, not constituting a part of the record, cannot be reviewed on appeal, unless made a part of the record by case-made or bill of exceptions. for seems to us to be well taken, we do not deem it necessary to notice the other two. It has been the rule in this jurisdiction from a very early date that motions and the rulings thereon cannot be reviewed upon a transcript of the record; the reason assigned therefor being that such motions, without a bill of exceptions or case-made, do not constitute Error from District Court, Le Flore a part of the record below and therefore County; W..H. Brown, Judge. Action by the Merchants' National Bank and others against John London and another. Judgment for plaintiffs, and defendants bring cannot be brought to the Supreme Court by transcript. McMechan v. Christy, 3 Okl. 301, 41 Pac. 382. Applications of this rule to many different sorts of motions may be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes found illustrated in the following cases: Stonebraker-Zea Cattle Co. v. Hilton, 34 Okl. 225, 124 Pac. 1062; Singleton v. Kennamer, 27 Okl. 564, 112 Pac. 1026; Masoner v. Bell, 20 Okl, 618, 95 Pac. 239, 18 L. R. A. (N. S.) | 166; Lamb v. Young, 24 Okl. 614, 104 Pac. 335. GALBRAITH, C. This is an action to recover the amount of a benefit certificate issued by the plaintiff in error to John E. Bobbitt, and was commenced by Cora B. Terry, claiming to be the beneficiary named in the said certificate. This is the second appeal in this case. The Although this seems to be the first case in decision of the first appeal was filed Decemwhich we have been called upon to determine ber 21, 1915. See Modern Woodmen of Amerwhether a motion for leave to be made a ica v. Terry, 153 Pac. 1127. The appeal in party to an action and the ruling thereon can this case was prosecuted from the ruling of be reviewed without case-made or bill of the trial court in sustaining a demurrer to exceptions, it seems to us that the cases cited certain parts of the answer of the defendant are in point in principle. The precise therein, wherein was set up certain defenses question has arisen in several other juris- to the plaintiff's claim, and the history of the dictions whose courts hold with practical issuance of the certificate to Bobbitt was set unanimity that even where the parties seek-out. ing to intervene have gone so far as to file pleadings without obtaining leave of court to intervene, the pleadings so filed by them constitute no part of the record, unless made so by bill of exceptions. Carpenter v. Bell, 25 S. W. 109, 15 Ky. Law Rep. 649; United States Fid. & Guar. Co. v. Rainey, 120 Tenn. 357, 113 S. W. 397; Shaeffer v. Central of Georgia Ry. Co., 6 Ga. App. 282, 64 S. E. 1107. For the reason stated, the motion praying for stay of execution must be overruled. It is so ordered. All the Justices concur. MODERN WOODMEN OF AMERICA v. It was admitted therein that the assured had died while in good standing, and that proper proof of his death had been submitted, but it was alleged that the company was not liable because the beneficiary named in the original certificate issued to Bobbitt in 1900, wherein his mother was named as beneficiary, had been changed and his wife named as beneficiary in the new certificato issued in 1905, and that his wife was a resi dent of the state of Washington and beyond the jurisdiction of this court, and was making claim for the amount of the certificate from the defendant, and that the application of the assured to change the beneficiary of his certificate, signed by him July 9, 1912, requesting that the plaintiff, Cora B. Terry, his sister, be named beneficiary therein, had been (Supreme Court of Oklahoma. March 12, 1918.) received by the company July 17, 1912, one (Syllabus by the Court.) 1. APPEAL AND ERROR 1001(1), 1010(1) VERDICT OR FINDINGS-CONCLUSIVENESS. Where the evidence reasonably tends to support the verdict of the jury or the finding of the court, such verdict or finding is conclusive on this court upon appeal. SECOND 2. APPEAL AND ERROR ~1097 (1) In a legal action, like the present, in which the plaintiff seeks only a money judgment, she cannot be compelled to bring in and to admit other parties than those whom she has chosen as defendants. Commissioners' Opinion, Division No. 2. Error from District Court, Okmulgee County; Earnest B. Hughes, Judge. day prior to the death of the assured, and that the new certificate, naming Cora B. Terry as beneficiary, was not issued until July 30th, after the death of the assured, and therefore the change in the beneficiary was never properly made, and the plaintiff had no right to maintain suit. The trial court held that this matter constituted no defense to the plaintiff's claim, and sustained a de murrer thereto. This court affirmed that ruling on appeal, and announced the law of the case so far as the issues presented upon that appeal are concerned. One of the issues presented on that appeal was whether or not the steps taken July, 1912, to change the beneficiary in the certificate in compliance with the written request of the assured, dated July 9, 1912, was sufficient to effectuate such change. This court returned an affirmative answer to that question. When the mandate was returned to the trial court the defendant amended its answer setting up two affirmative defenses, to wit: One, that the request for the change of the beneficiary made July 9, 1912. Truman Plantz, of Warsaw, Ill., Geo. G. was executed at a time when the assured did Perrin, of Rock Island, Ill., and Geo. L. Bow-not have mental capacity to make such a reman, of Kingfisher, for plaintiff in error. W. quest, and, another, that Aurene C. Bobbitt, W. Wood and W. W. Witten, both of Okmul- wife of assured, had brought suit in the gee, for defendant in error. courts of the state of Washington to recover Action by Cora B. Terry against the Modern Woodmen of America. Judgment for plaintiff, and defendant brings error. Affirmed. the amount of said certificate, and that that, defeat one or both claims. This object cansuit was still pending and undetermined, not be accomplished in the manner attempted. and on that account no cause of action accrued to the plaintiff in this action. The language to the prayer was, "Therefore no right of action accrued to the plaintiff herein." [1, 2] The law of this case has been determined by this court on the first appeal. There is little left for determination on the second appeal. The first ground of the affirmative defense set up in the amended answer, namely, that the assured was without mental capacity to request the change of beneficiary in the certificate, in July, 1912, and therefore no change of beneficiary could have been made in compliance with the request made therefor, apparently seeks to open up and relitigate an issue that was determined by the decision of the first appeal. Ordinarily this cannot be done. Modern Brotherhood of America v. Beshara, 158 Pac. 613; Krauss v. Potts, 156 Pac. 1162; Bash v. Howald, 157 Pac. 1154. But, assuming that such a defense was avoidable at that time, it only presented a question of fact for the determination of the trial court. The court upon all the evidence found that the insured was competent to make the request, this finding, being supported by the evidence is therefore binding on this appeal. Berryhill v. Thrailkill, 160 Pac. 875; Frazier Brick Co. v. Herber, 162 Pac. 205. [3] The fact that Mrs. Bobbitt was making claim to the fund and had instituted suit in the courts of the state of Washington to enforce that claim, and that such suit was pending and undetermined, was insufficient to establish that a cause of action did not accrue to Mrs. Terry in the instant case. This was an action at law, wherein Cora B. Terry sought a money judgment only. The rule is announced by this court in the second paragraph of the syllabus in Goodrich v. Williamson, 10 Okl. 588, 63 Pac. 974, as fol lows: the plaintiff seeks nothing but a money judg"In a legal action, like the present, in which ment, he cannot be compelled to bring in and to admit other parties than those whom he has chosen as defendants." In the case relied upon by the plaintiff in error (Rumsey v. New York Life Insurance Co., 59 Colo. 71, 147 Pac. 337) the contract of insurance was different from that involved in the instant case, in this, that the New York Life policy required, as a condition to a change in the beneficiary named in the policy, that the name of the new beneficiary shall be indorsed on the policy by the company at the home office. In that case the request for the change of beneficiary had been made and received by the home office of the insurance company, but the indorsement of the change had not been made on the policy, In support of the second ground of defense for the reason that the beneficiaries named set up in the amended answer, it is contended therein resided at Honolulu and had refused that Mrs. Bobbitt, a resident of the state to surrender the policy for such indorsement of Washington, had filed suit in the courts of to be made upon request therefor. Rumsey that state, seeking to enforce her claim, and brought suit on the policy in the courts of asking that the society pay her the amount Colorado without making the beneficiary a of the certificate, and that that suit was still party thereto, on the theory that everything pending and undetermined, and that by rea- required of him had been done in order to efson of that fact no cause of action accrued fectuate a change of the name of the benefito Cora B. Terry in this action, and that her ciary, and therefore it should, in equity, be action should be dismissed. If the insurance held that the change had in fact been made. association wished to avoid the possibility The court held that this would require a deof a double liability on this certificate, by cision relative to the rights of the beneficireason of their being two claimants as bene-ary, who had possession of the policy, but ficiaries, they had a perfect right under the procedure to have paid the fund into court and to have asked that the claimants thereto be brought in and requested to establish their respective claim in order that the rightful claimant to the fund might be determined in the action, and this action might have been abated until the necessary steps had been taken to have done this. Section 4696, Rev. Laws 1910. Mrs. Bobbitt acquired no vested interest in the certificate prior to the "It is earnestly argued by the plaintiff in erdeath of Bobbitt. Grand Lodge, K. of P., of as a defendant, and that this action cannot be ror that J. B. Murphy is an indispensable party Oklahoma v. Moore et al., 168 Pac. 659. Par- maintained without his being made a party, ties without the jurisdiction of the court and that, in the event that he could not be might have been brought in by substitute action should be dismissed. brought within the jurisdiction of the court, the Ergo, if this poservice, as provided by section 4722, Rev. sition is sound, the same objection could be Laws 1910. The association did not elect made to any action brought by Murphy, and to proceed as these statutes directed, but obtain a judgment in both cases for its costs. the insurance company would go scot free, and sought to take advantage of the situation to Nevertheless, if the law casts upon the defend was not a party to the suit, and that this could not be done, and granted a nonsuit. It was this ruling of the trial court that was affirmed by the Supreme Court of Colorado in the above case. That Cora B. Terry could not be compelled to make Mrs. Bobbitt a party to this action is sustained by the federal court in New York Life Ins. Co. v. Smith, 67 Fed. 696, 14 C. C. A. 637, as shown by the following excerpt from the opinion: 171 P.-46 ant in error the burden of procuring the pres- | citizens of the town of Red Rock, their comence of Murphy, it would be her misfortune if plaint alleging in substance that Red Rock is she had not or could not do so. We are of the a town of about 600 inhabitants; that the opinion that the law imposes upon her no such burden." station, as now located, is almost one-half mile from the principal street of the town; that the present location of the depot is down in a bottom, where Red Rock crees overflows the land on the west side, where people have to cross to get to the depot, making it muddy the greater part of the time in wet weather, and sometimes working a hardship on every one; that the site selected for a new depot is situated near the principal street of the town, is high and dry, and an ideal place for a depot; that as the station is now located the inhabitants of the town cannot build a sidewalk to the depot, for the reason that there are two Indian allotments and a section line between the town and the depot. It may be unfortunate for the insurer that it took the chance of a double liability on the certificate involved in this action, but Cora B. Terry is in no way responsible for such hazard. She seems to have been clearly within her rights in prosecuting her claim and in seeking to establish her right to this fund in the manner she did as disclosed by No prejudicial errors having been shown by a consideration of the assignments of error, we conclude that the judgment appealed from should be affirmed. the record. PER CURIAM. Adopted in whole. (68 Okl. 60) ATCHISON, T. & S. F. RY. CO. v. WOLVER- (Supreme Court of Oklahoma. March 12, 1918.) (Syllabus by the Court.) 1. RAILROADS CO-REMOVAL OF STATIONFINDING OF COMMISSION-EVIDENCE. In a hearing before the Corporation Commission, involving the removal of a railway station from its present location to another, which it was alleged would be more convenient for the inhabitants of a nearby village, the probable cost to the company of removing said station and the facilities connected therewith came into question. Qualified witnesses on behalf of the railway company testified that such removal would cost in the neighborhood of $24,000. Without any witnesses testifying to the contrary, the commission found that, "from viewing the grounds and general knowledge of the cost of way and structure" the estimate of the appellant was about twice the actual cost. Held, that such finding was not supported by the evidence. 2. RAILROADS 60-ORDER FOR REMOVAL OF STATION-REASONABLENESS. Record examined, and held, that the order appealed from is unreasonable and unjust. Appeal from Corporation Commission. Proceeding by C. L. Wolverton and others, Red Rock, Okl., and the State of Oklahoma, against the Atchison, Topeka & Santa Fé Railway Company. From an order of the Corporation Commission, the Railway Company appeals. Order set aside. J. R. Cottingham and S. W. Hayes, both of Oklahoma City, for appellant. S. P. Freeling, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for appellees. The grounds urged by the appellant in opposition to the removal of the station to the site selected may be briefly stated as follows: (1) That at the proposed location required by the order the depot and yards of appellant company must be placed in a cut from 8 to 10 feet deep; (2) that in order to re-establish at said location its yards, passing and industry tracks, a very large hole a short distance south of the location must be filled by the company; (3) practically all the company's facilities at the present location of its depot must be removed to the new location, at a total cost of exceeding $24,000. after allowing credit for the use of all the available material in the company's facilities at its present location; (4) that, if the depot is established in the new location upon the expenditure of the foregoing amount, it will be upon a dangerous grade of six-tenths per cent. as against a practicable grade of three-tenths per cent. at its present location; (5) that all of the heavy freight traffic, which comes to the company at this depot, must reach it by coming down an embankment into this 10-foot cut at the new location, and, in being hauled out, must be carried over this elevation; (6) that the drainage into this cut and upon the depot grounds must be taken care of, and can ve done only at expense to the company; (7) after all the expenditures have been made which this order will require, the operation of the company's trains at the new location, because of the steeper grade and because of the location of its facilities and yards in a deep cut, cannot be conducted with the safety and general convenience with which they can be and are carried on at the present location; and (8) 90 per cent. of the patronage of the company at this depot are inconvenienced and not as adequately served by the appellant as at its present location. KANE, J. This is an appeal from an order of the Corporation Commission, requiring the appellant to move its depot from its present location at the town of Red Rock, and to build and maintain a new depot and shipping facilities at a proposed new location, using in the new structure such materials as in the old de-ably tending to support these objections, and pot and platforms may be valuable. The proceeding in which the order complained of was issued was instituted by a number of the The appellant introduced evidence reason. no evidence was offered in opposition thereto. The commission found generally that the allegations of complainants' complaint were es tablished, and further found that, "from the town is the average good country road. viewing the grounds and general knowledge The main section lines north and south and of the cost of way and structures," the esti-east and west cross near the depot at its presmate of the appellant as to the cost of remov-ent location, and the bulk of the freight ing the station was about twice the actual shipped from Red Rock consists of live stoek, cost, unless it is its intention to make an al- grain, and hay, which do not come from the lowance of something like $10,000 for a depot town of Red Rock, but from the surrounding building. Thereupon, without making any country, and the depot at its present location findings as to the existence or nonexistence of is most available for that class of business. the grounds urged by the appellant against the The present site for the location of the deremoval of the station, the commission en- pot was selected with the view of the locatereu its order requiring such removal, condi- tion of the present system of side tracks, etc., tioned upon the citizens of the town of Red for the accommodation of the patrons of the Rock acquiring and furnishing to the appel- railway, and the present facilities are located lant title to a strip of land sufficient for a in the best possible manner for the operation station site, and further conditioned that of the road. A station located at the new said citizens acquire and open up as a public site would be in a cut about 10 or 12 feet highway the land necessary for the extension deep, a great part of which is solid rock, and of Main and Fourth streets, from the east to make a location at this point would require limits of the town to the intersection with the the excavation of earth, loose rock, and solid west line of additional right of way to be ac- rock 10 or 12 feet high and 100 feet wide, and quired. would require a fill-in to the south at about Fourth street, and the taking out of a cast iron drain box theretofore placed by the comsive area contiguous to the company's right pany for the purpose of draining the extenof way. The construction of the depot at the end of Main street would require the town to do heavy excavating to get anything like down to the bottom of the cut, and would an easy approach from the street to the depot create a drainage area which would cause the water to flow down to the depot grounds and result in a great inconvenience to the patrons of the road. In addition to this, the trains of the company would have to stop on almost a maximum grade, which would make the operation nearly impossible, as well as dan"Neither the commission nor the court, as a south on Fourth street would require a great gerous, and the placing of the depot farther matter of law, takes notice of such matters." [1] The first assignment of error argued by counsel for appellant in their brief is to the effect that the finding of the commission that the estimate of the appellant as to the probable cost of removal was about twice what it would actually cost is entirely unsup ported by the evidence. We are unable to find any evidence in the record supporting this finding. Indeed, the finding does not purport to be based upon evidence given by witnesses whose testimony we can weigh on appeal, but purports to be based merely upon a view of the grounds by one or more of the commissioners and their general knowledge of the probable cost of such work. In St. L. & S. F. R. Co. v. Sutton et al., 29 Okl. 553, 119 Pac. 423, it was held: In these circumstances, there being no evidence in the record on this point, except that of the witnesses for the appellant, we must rely upon the evidence given under oath, and not upon the estimate of the commission, based upon a view of the grounds and general knowledge, the extent of which we have no means of determining. Taking this as a basis for reviewing the record before us, we find the uncontradicted evidence establishes substantially the following state of facts: [2] The station at Red Rock, which was built several years prior to the location of the present town of Red Rock, is comfortable and in good repair, and the passenger facilities are ample for the business offered and transacted at that point. The depot is a few hundred feet less than a half mile from the main street of the town of Red Rock, not farther in distance and not so far as the distance at several other towns in the state on the line of the appellant. The public road leading from the town down to the depot is the ordinary country road. There are practically no sidewalks in Red Rock, except on Main street, and the road from the depot to deal more filling in and incur great expense to the company; that it would be impossible to remove part of the facilities at Red Rock to the new location, as contemplated by the order of the commission, and leave the remainder at the old location. To do so would practically require a double set of facilities at Red Rock, a town of 500 or 600 people; and to install new facilities at the new location, in the way of side tracks, house tracks, and industrial tracks for the relocation of grain elevators now upon the company's tracks, would be to change these facilities, not so as to increase their convenience to 90 per cent. of the business done at this station, but to endanger and make more inconvenient said facilities to the patronizing public, and, unless the other facilities are moved to the new location, it will require additional expense in station force to operate the same, and, on account of the distance of such facilities from the depot, the danger of operation will be increased. The estimate of the cost of removal was made upon two plans, one of which contemplated the removal of the depot from the present location to the proposed location without reducing the grade, and shows |