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It appears from the opinion that the agree ment of submission was duly entered into and acknowledged on August 6, 1902, and that on the 14th of said month the arbitrators duly qualified by taking the statutory oath. In the agreement of submission it is stipulated that the "arbitration shall take place" (begin) on September 30, 1902, and "shall be concluded on or before the 1st day of December, 1902," In the agreement the arbitrators were given all the powers provided for by the statutes of this state. One of the powers conferred is the right to adjourn from time to time pending the hearing. The award was reduced to writing and signed on October 14, 1902, within the time fixed by the agreement of submission. On the day fixed by the agreement of submission for the arbitration to begin, the arbitrators met, and on that day, as the record shows, the appellant "introduced his case and made a statement thereof to said arbitrators." Following this, to wit, on October 2, 1902, the agreement of submission was filed, and the clerk duly made the entries as required by law. After hearing appellant's statement of his case on September 30th, the day fixed for the arbitration to begin, the arbitrators adjourned the hearing to October 13, 1902, at which time, the record shows, they all met, "and, the witnesses being sworn, testimony was given on both sides." On the following day the award was duly made in writing, signed by all the arbitrators, as required by the statute. It will thus be seen that every requirement of chapter 40, under which the arbitration was had, was substantially complied with.

Was it necessary to file the agreement for submission before the hearing was actually entered upon? We think not. Section 3223, so far as material here, provides: "It may be stipulated in the submission that it be entered as an order of the district court.

• When so entered the stipulation cannot be revoked without the consent of both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment. If the submission is not made an order of the court, it may be revoked at any time before the award is made." When the submission is made an order of the court, then, as provided by section 3227, the award must be filed with the clerk. In neither of these sections is the time of filing mentioned or made of the essence. By section 3223 the object of filing the submission with the clerk is clearly intended for the purpose of conferring power upon the court to compel an award by the arbitrators, and to enforce it when made, and to compel the attendance of witnesses. The only effect the filing has upon the parties is that, after the submission is filed, neither party may revoke it. The object, therefore, is not for the purpose of conferring power

upon the arbitrators to hear the matters submitted to them, but to bring them and the parties within the jurisdiction of the court. Therefore, from the time the submission is filed, if filed within the time fixed by the agreement for concluding the arbitration, or, if no time is fixed, before an award is made, we think the court acquires jurisdiction. But up to the time it is so filed a party may revoke the submission, and the court can neither compel the arbitrators to make an award, nor enforce it if made. If a time be specified in the submission, as in the case at bar, when the arbitration must be concluded, then it must be concluded within this time limit, or the arbitrators will lose jurisdiction to act further without the express consent of the parties. But the mere fact that the arbitrators comply with the agreement of submission in entering upon the hearing of the matters submitted to them before the submission is filed in no way affects their jurisdiction, nor does it affect the jurisdiction of the court, provided the submission be actually filed and the proper entries made at any time within which the agreement itself is in full force and effect; that is, before the time has expired within which the arbitrators may, by the terms of the submission, make an award.

As we construe section 3223, the effect of a failure to file the submission in court is that it permits the parties to revoke it, and the court acquires no jurisdiction until it is filed. If, however, the submission is filed and the entries required by the statute are made at any time before the award is made by the arbitrators, or, in case a time is specified within which an award must be made, before such time expires, then the court acquires power to act. From the time the submission is filed, as aforesaid, the district court acquires jurisdiction of the arbitration, and the proceeding is then pending in court. After the award is rendered, either party may, at any time, as pointed out in the original opinion, file it and have judgment entered; or may attack the award upon the grounds named in the statute, and may appeal from the action of the district court to this court. By this means every right contemplated by the statute is preserved to either party, and the very purpose of the submission agreement is effectuated; while, if appellant's contention were granted, any irregularity would defeat the arbitration, and thus destroy the very purpose of the statute.

We have carefully read all the cases cited by counsel upon this question, and, as we read them, nothing is contained in any of them that is contrary to the conclusions reached by us.

It follows, therefore, that the application should be, and accordingly is, denied.

MCCARTY, C. J., and STRAUP, J., concur

(19 Okl. 339)

KIMMELL v. POWERS et al. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. PRINCIPAL AND AGENT RELATIONSHIPEVIDENCE.

A contract, whereby the owner of an addition to a town gives to another the management and exclusive sale of the same for a period of 10 years, and agrees to pay to such person 25 per cent. of the proceeds of sales, after deducting the current expense, and also agrees that, if any part of the addition remains unsold at the end of that time, it shall be appraised and the owner to have three-fourths thereof, and the other party one-fourth, constitutes the relation of principal and agent, and does not vest the agent with any interest in the real estate itself. 2. SAME TERMINATION-DEATH OF PARTY

Where the relation of principal and agency exists, the death of either party terminates the agency, except where the agent has a pecuniary interest of his own in the execution of the agency.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 67-71, 74, 75.] 3. PLEADING-DEMURRER.

Where a petition neither states a cause of action in equity or at law, a demurrer thereto should be sustained.

(Syllabus by the Court.)

Error from District Court, Comanche County; before Justice Frank E. Gillette.

Action by Cyrus Kimmell against Oliver Powers, executor, and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Black & Trosper, for plaintiff in error. Stevens & Myers and Hudson & Keys, for defendants in error.

BURWELL, J. James R. Woods was the owner of a valuable claim adjoining the city of Lawton, which was afterwards platted and known as Woods' Addition to that city. on March 5, 1902, Mr. Woods died, and the legal title to this land became vested in his wife, who was a daughter of the plaintiff. After the death of James R. Woods, the plaintiff, or October 17, 1902. entered into a written contract with his daughter. Alta M. Woods, whereby it was agreed that the plaintiff should have charge of the selling and management of this addition, as well as the management of investments to be made with Mrs. Woods' money. The contract is as follows: "This contract made and entered into this 17th day of October, 1902, by and between Alta M. Woods, of Lawton, Oklahoma, or Norton, Kansas, party of the first part, and Cyrus Kimmell, of El Reno, party of the second part, witnesseth: That said party of the second part does hereby covenant with the party of the first part, her heirs, executors, and assigns, to take charge of all the business interests of the party of the first part in Lawton, Oklahoma, and elsewhere, consisting of the sale of lots, blocks, adjusting legal difficulties, railway right of way case, and all matters pertaining to the Woods' Addition whatsoever. That the party of the second part shall have control of the

sale of the Woods' Addition in Lawton, Oklahoma, for a period of ten years hereof, and shall receive for such services twenty-five (25) per cent. of the proceeds of such sales, after deducting current expenses of the same, such division to be made on or about the first day of January of each year during the term of this contract, and before investing the proceeds of the sales and other income for the previous year, provided, however, that the party of the second part shall not receive a per cent. of the settlement for the right of way through said addition which may be granted to the Oklahoma City & Western Railway Company, and that the party of the second part shall have full control of each investment for a period of ten years from date of each investment, but in all matters of investment, whenever practical, before investing said money, is to counsel with the party of the first part regarding such investment. That he shall seek, according to his best judgment, safe and conservative investments for all moneys received from the above-described real estate and belonging to the party of the first part after deducting all current expenses for the year. That such investment shall be made in the name of Alta M. Woods, party of the first part. That he is to receive all money derived from the sale of the Woods' Addition and deposit the same in the banks of El Reno and Lawton, in the name of the party of the first part. That the party of the second part shall receive for the management of such investments belonging to the party of the first part thirty-seven and one-half per cent. of the net profits of all such investments, after deducting all expenses of said business. That on or about the first day of January of each year during the term of this contract the books of the business for the previous year shall be closed, and dividends declared and divided between the parties according to this contract. That, if the profits upon said investment belonging to the party of the first part are reinvested, such money reinvested is to be managed on the same terms as the original investment. And it is agreed further that if at the expiration of ten years from this date either party may wish to sever their business relations, and terminate this contract, that all the property of the Woods' Addition remaining unsold shall be appraised by three competent, disinterested parties, and that such value shall be a fair cash valuation, and it shall be divided between the parties hereto, the first party receiving seventy-five per cent., and the second party twenty-five per cent., of all such unsold property either in lots. stock, notes, mortgages, or cash, as they may agree, provided, however, that should the parties hereto arrive at a valuation of such unsold property without the intervention of outside parties, a settlement may be made and the appraisement waived. It is provided that, in the event of the death

of the party of the first part, this contract is to remain and be in full force and effect, with and against the heirs, executors, and legal assigns of the first party. That, in the event of the death of the party of the second part, there shall be due his estate that portion of twenty-five per cent. of the unsold property which shall correspond to the per cent. of years of this contract which shall have then elapsed." Subsequently, Mrs. Woods married one Oliver Powers, and on September 26, 1903, Mrs. Powers (formerly Mrs. Woods, but to whom we shall hereafter refer as Mrs. Powers) died. The plaintiff commenced this action to compel specific performance of the contract by the executor and the beirs of Mrs. Powers. A demurrer was filed to the first count of the petition and sustained thereto, and this ruling is the only matter involved in this appeal.

The petition is quite long, and it would subserve no useful purpose to copy it in full. We shall only refer to those parts that are vital to a determination of the question involved. In the first place, what is the effect of the contract between the plaintiff and Mrs. Woods? Counsel for the appellants insists that the contract operated as a conveyance of an interest in the land to the plaintiff. With this contention we cannot agree. It is simply a contract appointing the plaintiff as the agent of Mrs. Powers, which agency was to continue, so far as the land is concerned, for a period of 10 years. It is true that the contract also constitutes the plaintiff the agent of Mrs. Powers for the investment of her moneys; but, although the petition contains a count based upon the profits derived from such investments, counsel have waived those matters, and are seeking to enforce only that part that relates to the land. The contract itself plainly shows the intention of the parties. It says that the party of the second part (Kimmell) shall have control of the sale of Woods' Addition in Lawton, Okl.. for a period of 10 years from the date thereof, and that he shall receive for such services 25 per cent. of the proceeds of such sales, after deducting current expenses of the same, and that such division shall be made on or about the 1st day of January of each year during the term of the contract. Kimmell was to sell the land, and he was to receive 25 per cent. therefor. This, it seems to us, was a very liberal commission for such services, and, taking into account the allegation of the petition that the plaintiff is a man of age and business experience, and was familiar with his daughter's business affairs, the contract savors of the elements of unconscionableness.

But it is alleged that there were considerations other than those named in the contract, which influenced its execution. What were they? Let us briefly notice. The petition alleges that the appellant (Kimmell) loaned his daughter and James R. Woods, her

former husband, money with which tú prove up on his claim and with which to live on. These allegations only show acts of kindness from a father to his child, as it is not pretended that these loans were not paid back to Kimmell. There is, however, one allegation in the petition, as follows: "The facts of plaintiff's relationship, his superior age, business experience, intimate knowledge of her affairs, and previous protective acts and services, furnished in part the motive and consideration on the part of said Alta M. Woods for said written contract." It is quite likely that these acts of kindness on the part of Kimmell to his daughter and his superior business experience, etc., influenced in part the making of the contract, and these same considerations would have had an important bearing in giving a similar contract to one who was not a near relative. But these considerations cannot operate to confer upon Kimmell rights which the language of the contract itself does not import. The relation being that of principal and agent, the death of Mrs. Powers terminated the agency. In Bishop on Contracts, § 340, it is said: "The death of either party terminates the agency -that of the agent, because a dead man can perform no act; that of the principal, because his earthly existence has ceased, and in the nature of things there can be no agent without a principal. Even though the death of the principal is unknown to the agent, so that the latter executes in good faith what he believes to be a continuing agency, such execution is void." And see Am. & Eng. Enc. of Law (2d Ed.) p. 1022: "It is a well-established rule of the common law that the death of the principal puts an end to the agency, when the authority is not coupled with an interest, and no act of agency subsequent thereto is binding upon the estate of the principal, for no one can do an act in the name of one who is dead"-citing authorities.

What interest could Kimmell possibly have in the land itself? The petition alleges "that on October 17th, 1902, Alta M. Woods (Powers) was the owner in fee simple, and in possession of the unsold portion of the N. 2 of the S. 1⁄2 of section 31, in township 2 N., of range 11 W., I. M., in Comache county, Okl., which land was platted and generally known and described as the Woods' Addition to Lawton, Okl., which property was then of the value of about $73.395, and she continued to be such owner and in possession of the same up to the time of her death hereinafter mentioned." The plaintiff here states that, on the date the contract in question was entered into, the land was platted, and also that Mrs. Powers continued to be the owner of all of the land referred to in the contract until the time of her death. Hence the plaintiff in this case did not sell a single lot or foot of ground under the contract, and, as he did not claim that he paid any money or other valuable consideration for

the contract, we cannot perceive how he has an interest in the land which should be recognized. He does not even allege that he expended money in preparing the addition for sale or in attempting to make sales. His allegation as to what he did under the contract is "that he has duly performed all the conditions on his part required by said contract; that immediately upon the execution and delivery of said contract he entered upon the performance of his duties and obligations thereunder; that he gave his entire time and attention to the management and control of said business," etc. The plaintiff may have given his time and attention, but he sold no lots. Under the contention of appellant, he could have done nothing for 10 years, and then exacted a one-fourth interest in the entire addition. The contract will not be so interpreted. There was a remote contingency that there might be some lots unsold at the end of 10 years, and, if so, the appellant would be entitled to a onefourth interest in them, or the proceeds therefrom; but that feature of the contract contemplated an honest effort to sell the addition. The appellant could not sit quietly by for months, and then, upon the death of the principal, claim this clause as giving an interest in the lots unsold. Equity will only give him that which, in justice, he is entitled to. The appellant may have expended his time in making investments for Mrs. Powers and in looking after the same, but, as to such services, the contract provides a different compensation, and the presumption is that he has received it.

Nor can the clause in the contract to the effect that, in the event of the death of Mrs. Powers, the contract is to remain and be in full force and effect, be interpreted as continuing the contract of agency after the death of Mrs. Powers. When she died, the interests of the plaintiff, on the one hand, and the heirs of Mrs. Powers, on the other, became fixed. Kimmell could recover that which was due him, if anything, under it, but he could not authoritatively act longer as agent for his principal who was dead.

The petition presents no ground for equitable relief, nor does it state an action at law for damages.

The judgment of the lower court is hereby affirmed, at the cost of the appellant.

All the Justices concurring, except GILLETTE, J., who presided at the trial below, not sitting, and IRWIN, J., absent.

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cause which by inadvertence or mistake the clerk has omitted to record.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 368.]

2. JURY-RIGHT TO JURY TRIAL-WAIVERHABEAS CORPUS.

One who is charged with a crime triable by a jury at common law is required by our statute to be tried by a jury, and cannot waive such right. A judgment of conviction, pronounced by a court upon a plea of not guilty, without the intervention of a jury, is void; and a person imprisoned upon such judgment is entitled to his discharge upon habeas corpus.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Jury, § 198.]

(Syllabus by the Court.)

Application by C. W. McQuown for a writ of habeas corpus. Petitioner discharged.

Geo. T. Webster, for plaintiff. M. L. Holcombe, Co. Atty.. for respondent.

He

BURFORD, C. J. The petitioner was convicted in the probate court of Custer county for a violation of the law for the protection of game, and was sentenced to pay a fine of $100 and costs, and to stand committed to the county jail in default of payment. appealed to the district court, but there dismissed his appeal before trial, and the cause was remanded to the probate court to be executed. The defendant upon arraignment pleaded not guilty, waived a jury, and tried the case to the court.

The original record of the judgment omitted to state that the defendant was ordered committed to jail in default of payment of the fine adjudged against him. or that he waived a jury trial. Subsequently the court, on motion of the county attorney, found that the defendant did, on arraignment, waive a jury, and that in rendering the judgment and pronouncing judgment the court did in fact adjudge that upon failure to pay the fine and costs that the defendant be committed to the county jail of Custer county until the fine and costs should be paid, or until he had served one day for each $2 of said fine and costs, and the court ordered nunc pro tunc that the record be made to speak the truth, which was accordingly done. The petitioner contends that that judgment so entered and recorded is void and of no effect, for the reason that the record was amended after the expiration of the term of court at which the judgment was rendered, and a number of authorities are cited sustaining the proposition that the clerk cannot amend his records after the term at which the proceedings were had. We find no fault with the rule as here contended for, but it has no application to the facts in this case. The orders, judgments, and proceedings of a court of general jurisdiction are required to be recorded by the clerk of the court. The failure of the clerk or recording officer to make such record does not vitiate the proceedings. The clerk may, at any time during the term at which the proceedings are had, correct,

amend, or supply omissions to make the record speak the truth; and the court may at any time, upon proper application, from the memory of the presiding judge or upon proper showing, by appropriate order nunc pro tunc cause its records to recite the truth, and may supply any omission from its records; and this may be done in a criminal as well as in a civil cause. Such record, when so supplied, relates to the time when the proceedings were in fact had, and may make valid that which was apparently defective. Wight v. Nicholson, 134 U. S. 136, 10 Sup. Ct. 487. 33 L. Ed. 865; Gonzales v. Cunningham, 164 U. S. 612, 17 Sup. Ct. 182, 41 L. Ed. 372; Hyde v. Curling, 10 Mo. 359; State v. Clark, 18 Mo. 432; Nelson v. Barker, 3 McLean (U. S.) 379, Fed. Cas. No. 10,101; State v. Bilansky 3 Minn. 246 (Gil. 169); Bishop's New Crim. Proc. 1345. The proceedings had before the probate court for the purpose of determining what judgment was in fact rendered, and its finding and order for a nunc pro tunc order perfecting the record, are strictly in accord with recognized practice. and conform to what is required by due process of law. We are not permitted in this kind of a proceeding on habeas corpus to review or correct errors, and we need not decide whether the proceedings were in every respect free from error. The court had power to make its records speak the truth, it had jurisdiction of the parties and of the subject-matter, and it proceeded in the manner recognized by law. The proceedings are not void and may be enforced.

The next contention is that the judgment is void for the reason that the petitioner was entitled to a jury trial, and that he could not lawfully waive such right, and that a judgment rendered by the court upon a plea of not guilty, without the intervention of a jury, is void. The statutory provisions involved are as follows: Section 5142, Wilson's Rev. & Ann. St. 1903: "No person can be punished for a public offense except upon legal conviction in a court having jurisdiction thereof." Section 5151: "The procedure. practice and pleadings in the district courts of this territory in criminal actions or in matters of a criminal nature, not specifically provided for in this chapter, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure, practice and pleadings of the United States or federal side of said court." Section 5158: "No person can be convicted of a public offense unless by the verdict of a jury accepted and recorded by the court, or upon a plea of guilty, or upon final judgment for or against him upon a demurrer to the indictment, or upon a judgment of a police or justice's court in cases in which such judgment may be lawfully given without the intervention of a jury or grand jury." Section 5434: "An issue of fact arises, first. upon a plea of not guilty; or, second, upon a plea of a former

conviction or acquittal of the same offense." Section 5435: "Issues of fact must be tried by a jury." Section 5436: "If the indictment is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant. If, however, his presence is necessary for the purpose of identification. the court may, upon the application of the district attorney, by an order or warrant, require the personal attendance of the defendant at the trial."

This brings us to the question: Can a defendant, charged with a crime and entitled to a jury, waive the jury and try the case to the court? Upon this question a casual examination of the decisions would lead to the impression that there is considerable conflict. But a careful and discriminating review discloses the fact that the decisions holding that the accused may waive a jury are based upon statutory or constitutional provisions. A great many of the states of the Union have constitutional or statutory provisions to the effect that a defendant in a criminal cause shall be tried by a jury, unless he waive the jury and consent to trial by the court. We believe the authorities are practically unanimous in holding that a jury cannot be waived, unless such waiver is authorized by statute. In Hughes on Criminal Procedure, § 2979, the author says: "A jury cannot be waived in a felony case, even by agreement or consent of the defendant. It is jurisdictional, and consent can never confer jurisdiction. The defendant may waive his right to a jury trial in a prosecution for a misdemeanor, and be tried by the court instead of a jury, where such waiver has been authorized by statute, and the courts have upheld the constitutionality of statutes providing for such waiver in misdemeanor cases." In Bishop's New Criminal Procedure, § 893, it is said: "One form of waiver is where, authorized by statute and the Constitution not withholding any needful jurisdiction from the tribunal, the defendant consents to be tried by the court without a jury. He cannot afterward complain."

Rapalje, in his Criminal Procedure (section 150). goes more fully into the question, saying: "There are few questions of law upon which the courts are more evenly divided in opinion than the problem whether it is legally competent for a defendant in a prosecution for felony to waive a trial by jury and consent to be tried by the court, unless, as in the case in some of the states, the Constitution allows a jury to be waived in such cases as the Legislature may direct. Where the Constitution so provides, the Leg islature alone has the power to determine in what classes of cases a jury trial may be waived. The words 'prescribed by law,' in the Constitution, are held to look to actual legislation upon the subject, and, in the ab

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