the same identical benefit to each and every | certainly will not admit that they are operatmember when distress and disaster come was ing at a loss, and if the contract sued on will `and still is the dominant idea; the premor- yield a profit, where does the profit go? The tem assessment followed by the post mortem; insured does not participate, so that the the level premium plan and the reserve fund inevitable conclusion is that the profit either came in, but never had the idea of simplicity will go to the more favored members of the oneness-in rights and obligations been far order or to a reserve fund for the future departed from; over and against the complex-members of the order. In either case, there ity, variety, and inequality and want of uni- is a profit to some one other than the insured, formity of the old line life insurance stands in clear violation of the constitutional rethe simplicity, the uniformity, mutuality, quirements of mutuality and uniformity. and oneness of the fraternal benefit type of National Protective Legion v. O'Brien, 102 insurance, and this differentiating test has Minn. 15, 112 N. W. 1050. been carried into our Constitution in language which clearly recognizes a difference between the old line and fraternal insurance and recognizes the several different classes of such organizations. The farm mutuals, trade mutuals, and the fraternals command that the interest of the members of each respectively shall be uniform and mutual; thus in the paramount law of the state is the mandate that the fraternal shall continue to observe the fundamental ideas of uniformity and mutuality which have always characterized such organizations. The plaintiff in error devotes much space to the construction of article 19, § 3, of the Oklahoma Constitution, and obviously it must play an important part in this and all other cases involving the distinction between old line and fraternal benefit insurance. It is contended on behalf of plaintiff in error that this provision of the Constitution merely exempts fraternal beneficiary associations from certain burdens imposed on insurance companies, and in no way restricts fraternal beneficiary associations in writing various kinds and classes of certificates. The acceptTo this test, the Order of Prætorians set ance of this construction would make the violative of the Fourteenth its multiplied variety of certificates, omitting provision even the common form of such certificate, the Amendment of the federal Constitution and ordinary life, does not conform, and by its void. Equal protection of the law guaranteed own acts has taken away the right to claim by this amendment does not permit of impoany of the special privileges given to frater-sition of burdens on one class of persons nal beneficiary associations. Neither by usage, right, or law is an organization warranted in transacting the usual life insurance business of the old line company in the guise of a fraternal beneficiary association. It is true that the fraternal beneficiary association can engage in old line insurance, but when it does the day of its special privileges is gone, nor does the order meet the requirements that the fraternal association must be conducted without profit. Each of the certificates sued on provides for fixed, certain, and invariable premium payments and provides for a fixed, certain, and invariable benefit. Haydel v. Association, 104 Fed. 718, 44 C. C. A. 169; Mrs. Knott v. Insurance Co., 161 Mo. App. 579, 144 S. W. 178. No provision is made in this certificate for participation of the insured in the profits, and each has the character of a profit-making contract; each is to endure for 20 years, unless insured die within the term. Certainly it requires no argument to show that a contract of this description, requiring certain fixed and unalterable premium payments and providing a certain fixed and unalterable benefit mentioned, yielded a profit or loss. The necessary result is that if the rate is adequate there must be a profit. All mutual life old line policies and many stock companies meet this uniformity of written law by incorporating a participating feature, in which particular they are more fair and equitable than the contracts sued on. The Prætorians engaged in a certain business and allow the exception of others engaged in precisely the same kind of business. While classification is not prohibited, it is only permissible when based on some reasonable ground; some difference which bears a just and proper relation to the classification, and not a mere arbitrary selection (Magoun v. Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; McPherson v. Blocker, 146 U. S. 1, 13 Sup. Ct. 3, 36 L. Ed. 869); and on this principle it has been held that a statute which imposes obligations on old line insurance companies which are not imposed on fraternal beneficiary associations is a violation of that section of the federal Constitution, if it enables both to write pre cisely the same policy of insurance (State v. Vandiver, 213 Mo. 187, 111 S. W. 911, 15 Ann. Cas. 283). There is no great difficulty in reaching the true meaning of article 19, § 3, of the Constitution, because by its clear effect of exempting fraternal beneficiary associations from certain burdens imposed on old line insurance companies, it recognizes the fact that old line and fraternal insurance are essentially different, and requires the state to provide for the fraternal company, divides the insurance of the latter character in certain definite classes, prohibits profit, and requires the rights of the members of every class to be mutual and uniform. Not only does this provision require the fraternal companies to conform to certain rules not in conflict with the classifications and the policies attempted by the Prætorians, but in itself the Constitution classifies the fraternal, and in so doing fixes the limit of the classifications, beyond which these associations must not go. The reading of this provision of the Constitution shows that the state recognizes three classes of insurance organizations not conducted for profit. In the case under consideration we are concerned with the class which is specified as third, and this third class does not authorize all kinds of life, accident, and health insurance, but only fraternal life, health, and accident insurance, and it is then provided that in all of them the interest of members of each respectively shall be uniform and mutual; another characteristic of fraternal insurance. The Constitution makes the classification, and the right of further classification by the fraternity is usually denied. Thomas v. Achilles, 16 Barb. (N. Y.) 491; Walker v. Giddings, 103 Mich. 344, 61 N. W. 512; Na-2. APPEAL AND ERROR 1000_EQUITY tional Protective Legion v. O'Brien, 102 Minn. 15, 112 N. W. 1050. to fraternal beneficiary associations. The rights given it must be measured by the general insurance law, and, as that law precludes the reception in evidence of application and medical examination referred to in the policy unless true copy is attached thereto, judgment of the lower court is therefore affirmed. PER CURIAM. Adopted in whole. [3, 4] While uniformity and mutuality is not required between the life, health, and accident, it is expressly required when any further classification is attempted of either of the three constitutional classes. It is at this point that the plaintiff in error seems to fail. The order in its various certificates is attempting to make a classification beyond the Constitution, and doing so in the face of the constitutional requirement of uniformity and mutuality, for its life certificates do not give the required mutuality and uniformity of interest. The word "mutual" in this connection denotes a common interest. Robison v. Wolf, 27 Ind. App. 683, 62 N. E. 74. Uniformity has been said to indicate sameness, a conformity to one pattern. McConihe v. State, 17 Fla. 238; Town v. State, 29 Fla. 128, 10 South. 740. Clearly it is a violation of the essential ideas to attribute uniformity and mutuality of interest as a result of 10 and 20 year certificates of insurance. In the one case, the insured is only interested in the integrity and solvency of the insurer for a period of 10 years; in the other, the interest is more extended, and it is still further extended when renewable term and annuity benefit contracts come into comparison. We can conceive of circumstances which would make the interest of the several classes of certificate holders positively hostile, and the 'members impelled by self-interest to oppose one another. The conclusion, we think, is that the plaintiff in error is not writing fraternal benefit insurance within the meaning of the Constitution and statutes of this state, but engaged in a life insurance business which is not fraternal in character, and is not entitled to any of the privileges applied GAMEL v. HYNDS et al. (No. 6071.) 1. APPEAL AND ERROR 1065-EQUITY may call a jury or consent to one for the pur- 389 JUDGMENT BASED ON FINDINGS OF court in such cases to finally determine all ques- Parol evidence is inadmissible to prove the existence of a foreign judgment. Commissioners' Opinion, Division No. 3. Error from District Court, Pontotoc County; J. W. Bolen, Judge. Suit by J. C. Hynds and another against J. A. Gamel. Judgment for plaintiffs, and defendant brings error. Reversed, and remanded for new trial. J. F. McKeel, of Ada, for plaintiff in error. Robert Wimbish, B. H. Epperson, and Tom D. McKeown, all of Ada, for defendants in error. HOOKER, C. This suit was instituted in the lower court by Gamel against J. C. and Agnes Hynds to recover a personal judgment upon three promissory notes for $800 each with 8 per cent. interest from the date, August 17, 1906, and to establish and foreclose a vendor's lien upon certain real estate described here. And it was alleged that said notes had been executed to N. B. Breckinridge as a part of the purchase price for real estate conveyed by Breckinridge to Hynds, and that said notes had been assigned and transferred before maturity for a valuable consideration to the plaintiff in error who upon default and maturity thereof instituted this action. N. B. Breckinridge, on his application, was made a party defendant to this action in the court below, and he filed an answer in "This question was submitted to the jury, and the jury found that there was evidence of fraud; however, the court is not fully satisfied on that question. It further appears to the court that there were two law propositions that should have been presented to the jury in the court's ion that if those propositions of the law had instructions. The court is of the opinbeen submitted to the jury, as the evidence warranted, the verdict of the jury might have been different. The court is frank to say that this would not be the judgment of the court if it was left entirely with the court; while under the rules of law the court is of the opinion that the motion for a new trial should be overruled, which is hereby ordered." * his own behalf which admitted the execution | der of the court overruling the motion for a of said notes to him and his transfer thereof new trial we find the following: to Gamel, but he alleged that, after the execution and delivery of said notes and the conveyance of the property for which they were given as a part of the purchase price, he removed from the state of Oklahoma to the republic of Mexico, and while he was there that he was induced by Gamel to purchase an interest in a certain corporation organized by Gamel for the purpose of manufacturing and selling ice and soda water, and that he was induced to take stock in said corporation by means of false and fraudulent representations made by Gamel to him as to the value of the said stock, and that relying upon these representations, he had executed his note for $5,000 to the plaintiff, Gamel, and in order to secure the payment thereof had deposited with Gamel as collateral security the three notes involved in this action; that there was no other consideration for said note other than this worthless stock, and that plaintiff knew at the time he made said representations that they were false and were made by Gamel for the purpose of defrauding him, which it did. As a further defense the said Breckinridge In the instant case the trial court had the alleged that suit had been filed upon the right to disregard the verdict of the jury, $5,000 note against him in the court at Sal- if in his judgment the same failed to speak tillo, Mexico, and that a judgment of the the truth, and to reach his own conclusions court had been rendered there in his favor upon the merits of the cause irrespective of to the effect that said note was void and the verdict. This he did not do, as it plainwithout consideration, and that judgment ly appears by the record, and the trial court's was relied upon by Breckinridge in bar to disapproval of the verdict of the jury under any recovery here. It was further asserted the state of this record, if it were a commonby Breckinridge that there was no consider-law action, would be sufficient to reverse this ation for the notes executed by Hynds to case. This being an equitable case, however, him. To the answer of Breckinridge the plaintiff, Gamel, filed a reply, and upon the issues as presented the cause was tried and a judgment had in favor of the defendants in error, from which an appeal is had to this court. [1, 2] It will be noticed that this is an action of equitable cognizance, as the plaintiff below sought the foreclosure of a vendor's lien upon the property involved. The defendant. Breckinridge, asked that the notes be canceled, that the vendor's lien on said real estate be released, and that his deed to Hynds be canceled and held for naught, and that the court decree the title to said property to him, and the judgment of the court so did. The trial court submitted these issues to the jury under instructions, and a verdict was rendered in favor of the defendants in error. The court below evidently failed to recall that the verdict of the jury was only advisory, and that as the trial court he had the right to disregard the verdict of the jury if same did not meet with his own views as to what the equities of the case demanded. From the record before us the verdict of this jury did not meet with the approval of the trial judge, for in the or This court has often-times held that even in a common-law action it is the duty of the trial court to weigh the evidence and to approve or disapprove the verdict, and if the verdict is such that in the opinion of the trial court it should not be permitted to stand, and it is such that he cannot conscientiously approve it, and he believes it should have been for the opposite party, it is his duty to set it aside and grant a new trial. See White v. Dougal, 159 Pac. 907; Rison v. Harris, 151 Pac. 584. and one wherein the trial court had a right to reach conclusions of his own irrespective of the verdict of the jury, a judgment of the court not sustained by the evidence, and one which he himself does not approve, but being based upon a verdict of the jury with which he does not agree, cannot be permitted to stand. tion presented to the jury, for this court It is unnecessary to consider the instruchas often held that a case of this character will not be reversed on account of improper instructions, where the trial court has the right to disregard the verdict of the jury and reach his own conclusions as to the merits of the cause. This court in Crump v. Lanham et al., 168 Pac. 43, said: "In cases of equitable cognizance the judge may call a jury, or consent to one, for the purpose of advising him on questions of fact, and he may adopt or reject their conclusions, as he sees fit, and instructions offered by the parties furnish no ground of error on appeal. It is not only the right, but the duty, of the court in such cases to finally determine all questions of fact as well as of law." The errors complained of in the instructions will not be considered here, but it was the duty of the trial court to have determined all questions of fact. This he did not do. While we have the right, under repeated decisions of this court, to consider this evidence and render or cause a judgment as we deem proper in the premises, yet, as this evidence is conflicting, the trial court is in a better position to determine the correctness of this controversy than we are. We think the evidence here shows that Ga mel is the owner of this $5,000 note, and the record fails to satisfy our minds by any competent evidence that any judgment has been rendered thereon which would bar a recovery here. If Breckinridge had any such evidence, he should have presented it to the trial court. This he did not do, although this case has been pending since February, 1909. [3] Certain parol evidence was introduced here as to the rendition of that judgment in the Mexico courts, and as to its contents, but that evidence is far from satisfying and is incompetent. R. C. L. vol. 10, p. 1121, says: "Mode of Proof-Copies.—A judgment and the proceedings in the cause in which it has been rendered properly are proved by the record itself or by certified copy. Indeed, except in case of the loss or destruction of the record, it cannot be proved otherwise than by the original or by a duly authenticated copy. In most of the states there are statutes providing for the introduction of certified copies of judicial as well as nonjudicial records. *So a judgment cannot be proved by the testimony of a witness that while he was clerk of the court certain papers shown to him were issued and filed by him, and he believes they are the records of the court. Other authorities supporting this rule are: Lyon v. Bolling, 14 Ala. 753, 48 Am. Dec. 122; Hammatt v. Emerson, 27 Me. 308, 46 Am. Dec. 598; Eyler v. Crabbs, 2 Md. 137, 56 Am. Dec. 711; Tuttle v. Jackson, 6 Wend. (N. Y.) 213, 21 Am. Dec. 306. This cause is reversed, and remanded for a new trial. PER CURIAM. Adopted in whole. (68 Okl. 92) NATIONAL SURETY CO. v. SCALES. (No. 8611.) (Supreme Court of Oklahoma. March 26, 1918.) (Syllabus by the Court.) 1. APPEAL AND ERROR 1231-SUPERSEDEAS to the action. against the surety company on the supersedeas bond the evidence established the above facts, and that the same did not constitute a defense 2. APPEAL AND ERROR 1231 - DISMISSAL BY STIPULATION-LIABILITY OF SURETY ON APPEAL BOND. Where an appeal is dismissed in the Suthe attorneys for the plaintiff in error and the preme Court upon the written stipulations of attorney for the defendant in error, such dismissal does not release the surety from liability on the appeal bond. Error from District Court, Hughes Action by Grace Scales against the National Surety Company. Judgment for plaintiff, and defendant brings error. Affirmed. Maxey & Brown, of Muskogee, for plaintiff in error. for defendant in error. W. T. Anglin, of Holdenville, RAINEY, J. The facts necessary to a determination of the questions involved in this case are substantially as follows: In March, 1911, Grace Scales, plaintiff in this action, secured a judgment in the district court of Hughes county against the Missouri, Oklahoma & Gulf Railway Company in the sum of $1,177, as payment for a right of way through her land in said county. From this judgment the railroad company appealed to the Supreme Court of this state, and, for the purpose of superseding the judgment and staying execution, executed a supersedeas bond in the sum of $2,345, with the National Surety Company, defendant herein, as surety thereon. On the 10th day of September, 1913, the appeal was dismissed by the Supreme Court, pursuant to the following stipulation: "Stipulation for Dismissal. "It is hereby stipulated and agreed by and between the parties hereto that the above and foregoing appeal may be dismissed with prejudice to future action at the cost of plaintiff in ` The judgment not having been paid by the railroad company, Grace Scales instituted the instant action to recover against the National Surety Company on the supersedeas bond. The defense alleged in the answer of the surety company is that after the appeal was timely filed in the Supreme Court, BOND-RIGHT OF ACTION. and in the latter part of the year 1912, and Grace Scales, a minor, recovered a judgment in the sum of $1,177 against the Missouri, Okla- in the early part of the year 1913, negohoma & Gulf Railway Company, as payment tiations were entered into between Grace for right of way through her land in Hughes Scales, the plaintiff, and the Missouri, Okcounty. From this judgment the railway com- lahoma & Gulf Railway Company, for a pany appealed to the Supreme Court, and for the purpose of superseding the judgment exe- compromise of the judgment, as a result of cuted a supersedeas bond with the National which an agreement of settlement was Surety Company as surety thereon. Pending reached between the said Grace Scales and the appeal negotiations for a settlement of the judgment were entered into between the attor- the Missouri, Oklahoma & Gulf Railway neys for Grace Scales and the attorneys for the Company, whereby the railroad company railroad company, but were never completed, paid to Grace Scales the sum of $150 cash and pending the negotiations the case was dis- and gave its duly executed note for the sum missed in the Supreme Court upon stipulation signed by the attorneys for the respective par- of $877.14; that said note was delivered to Held, that in an action by the plaintiff the plaintiff and the cash paid was accepted ties. by her in full satisfaction of the judgment; of Grace Scales, and in the same letter inthat the plaintiff had entered into the stipulation above recited for a dismissal of the suit pending in the Supreme Court; and that the said acts were without the knowledge or consent of the surety company. The evidence discloses that Warren & Miller and Ralph P. Welch, attorneys of Holdenville, Okl., represented Grace Scales in the condemnation proceedings and in the negotiations for the settlement of the judgment after the case was appealed to the Supreme Court, and that the railroad company was represented by its attorneys, J. C Wilhoit and E. R. Jones. On October 15, 1912, the attorneys for the railroad company wrote Warren & Miller as follows: "Re Grace Scales v. M., O. & G. "Some time ago your Mr. Miller talked with me with reference to the settlement of the condemnation case of Grace Scales. The amount of the judgment was $1,177. I suggested to him that if they would accept a long time not [note] we might effect a settlement and get rid of it. I would be glad to hear from you and see if we cannot get it wiped off. If we cannot make settlement will you kindly sign the inclosed stipulation extending time within which to serve brief." On October 16, 1912, Warren & Miller replied to this letter, stating that Mr. Welch, who was associated with them in the case, had informed them that he was authorized by Mr. Scales, father of Grace Scales, who was a minor, to accept a note bearing interest at 8 per cent., due in one year, provided the $150 was paid at once; that the $150 was their fee; and that they would like to have that paid and a note given for the balance. On October 25th Mr. Jones wrote Warren & Miller asking if they could not persuade their client to take 6 per cent. interest on the note they proposed in settle ment of the judgment in the case. On October 31st Warren & Miller wrote Mr. Jones as follows: closed the stipulation for dismissal of the case in the Supreme Court, and requested two signed copies of the stipulation for dis missal and receipt for the voucher and note. On May 14, 1913, Warren & Miller wrote Mr. Jones as follows: "In the matter of the Scales condemnation case, we have been unable as yet to get any word from Mr. Scales, directing us to settle the case and accept the note sent us. We are writing him again and when we hear from him will let you know. Pursuant to our talk with Mr. Wilhoit, Sunday, we have cashed the voucher for $150, which was to be credited on the amount and used by us as a payment of our fee. This was satisfactory to our coattorney, Mr. Welch, and we divided the fee with him. If Mr. Scales agrees to accept the note in settlement of the suit we will sign the stipulations and return to you. If he does not accept the proposition, we will return the note to you, and this sum of $150 can be credited on the judgment when the case is finally disposed of in the Supreme Court. This arrangement enables us to collect and use our fee now, which is very satisfactory to us, as we do not think we ought to be compelled to wait on Scales until the close of the litigation." On August 13th Mr. Jones wrote Warren & Miller as follows: "I hand you herewith a copy of resolution passed by the executive committee of the board of directors of the railway company on the 11th inst. I take it that this is what you have been looking for for many a day, and I take it further that it will satisfy you in the matter of the acceptance of the note we gave in satisfaction of the Grace Scales judgment, and that you may now dispose of that case in the Supreme Court." On August 15th Warren & Miller wrote Mr. Jones acknowledging receipt of the res olutions of the board of directors in the Scales matter, and that they had been unable to get any answer to letters written to Mr. Scales about the settlement of the case, and that they were holding the papers sent them in hopes that he would some time de Jones, in answer to the letter stated: "In the Scales matter, we have seen our client cide to accept the note, and in the meanand he agrees to accept a note bearing 7 per time they supposed it was just as well to let cent. interest for the balance due after the pay-matters drift. On August 16, 1913, Mr. ment of $150 in cash, the note to be for one year. This is the very best that he will do and we trust that you will execute the note and send same to us with a check for $150 by return mail; otherwise we are directed to push the case in the Supreme Court to as early a determination as possible. Mr. Scales has refused to allow us to stipulate for a continuance of time for filing brief; and he says that unless this offer of his is accepted at once, you may consider it withdrawn." (Italics ours.) On November 3d, in reply, Mr. Jones wrote Warren & Miller that the railroad company would accept their proposition and that he would send the $150 voucher and the note down the first of the week, as soon as Mr. Dewar returned to the city. Nothing further was done until April 29, 1913, when the attorneys for the railroad company wrote Warren & Miller, inclosing voucher for the $150 and a note, dated April 1, 1913, in the sum of $877.14, due in one year, with interest at 7 per cent. in favor "I was under the impression that Mr. Scales had agreed to this settlement and that he agreed to it before we executed the note. The only thing that I care about is that I want the case in the Supreme Court dismissed and don't care to write a brief in the matter and I don't care to have them make an order of dismissal against us. I would rather stipulate for the dismissal." (Italics ours.) On August 30th Warren & Miller wrote Mr. Jones as follows: "We are in receipt of yours of the 29th in reference to the Scales matter and have submitted same to Mr. Welch. We have signed the stipulation for dismissal with two changes, as should be for the dismissal of the appeal, inyou will note. We thought that the stipulation stead of the cause. We do not see the necessity for stating in the stipulation that the cause has been settled. As a matter of fact we have never been able to get Mr. Scales to answer our letters in regard to the settlement, consequently we have stricken out that part of the stipulation, which recites that a settlement has been |