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holders in good faith. That in January, 1902,
he permitted his name to appear as a stock-
holder in the bank and qualified as a director,
upon the faith of his interest in the bank to
the extent of 10 shares, is admitted. That he
continued in this relationship to the bank vol-
untarily until his attempted resignation in
the summer of 1903 is settled by the record,
and that he was liable to the creditors of the
bank as an officer and stockholder until the
21st day of November, 1903, there can, we
think, be no question. It is here, then, that
the real contest in this case begins and turns
upon the settlement of the question as to
whether or not, when he resigned as a direc-
tor of the bank, he relinquished and trans-
ferred the stock then carried on the books
of the bank in his name, for the record does
not show the bank to have been in a failing
condition at that time, and does show his res-
ignation as a director and the acceptance of
the same upon that date. It further shows
a purpose on his part at that time to entire-
ly sever his connection with the institution,
and, in considering the question as to wheth-
er he did so sever his connection, it must be
remembered that he did not have actual pos-
session of the 10 shares of stock which had
been assigned to him and carried on the
books of the bank in his name. They were in
the bank vault only partially filled out, but
at that time upon being informed by the pres-
ident of the bank that he had been relieved
as a director, he made inquiry if there was
anything else necessary for him to sign to
secure his complete release of any connection
with the bank, and was informed by the pres-
ident that there was not. This certainly bar-
red him from any interest in or demand
against the assets of the bank, and conclud-
ed the bank as a bank from demanding any-
thing from him. He did not have possession
of stock to cancel or surrender. He was re-
lieved as a director and the stock which had
been carried in his name, in fact belonged to
the president, and the president informed
him that nothing further was necessary. It
is therefore a naked legal proposition as to
whether or not he is liable upon an assess-
ment against him by the Comptroller of the
Currency. Section 12 of the national bank act
(13 U. S. Stat. 102, c. 106. Rev. St. 1878, §
5151 [U. S. Comp. St. 1901, p. 3465]) provides:
“The shareholders of every national banking
association shall be held individually respon-
sible, equally and rateably and not one for
another, for all contracts, debts, and engage-
ments of such association, to the extent of
the amount of their stock therein."

shares of capital stock, with stubs which, when a share of stock is issued, is filled out giving a history of such issuance, and the proofs of record show that when the bank closed A. G. Brown was the owner of stock certificate 30 of 100 shares, issued January, 1896; No. 31 of 100 shares issued January, 1906; and No. 63 of 200 shares issued May 26, 1902, a new issue of stock not receipted for. C. E. Billingsley was the owner of certificate No. 53 of 25 shares, issued December, 1900; No. 54, 25 shares; No. 56, of 25 shares; No. 57 of 50 shares; No. 58, 50 shares; No. 59, 50 shares; No. 65 of 270 shares issued May, 1902; a new issue not receipted for; No. 69, 75 shares issued March, 1903; reissue from original certificate No. 67 of 15 shares; No. 71 of 10 shares issued April, 1904; a reissue of all of certificate 58; No. 71 of 10 shares, C. R. Brooks, issued January, 1902; a transfer from all of certificate 29; No. 60 of 30 shares, J. G. Edmonson; transfer from all of certificates 46, 47, 48, 49, and 51, issued January, 1902; No. 66 of 10 shares to T. A. Neal, issued March, 1903; a transfer of 10 shares from original certificate No. 55 issued for 25 shares; No. 70 of 30 shares issued to J. C. Robb, issued December, 1903; a reissue of all of original certificate No. 54; No. 62 of 10 shares to E. P. Kelly, issued January 31, 1902; reissue of all of original certificates 32 and 52. As will be seen, these certificates named are for 1,000 shares. The whole stock of the bank and the defendant's 10 shares of stock are included in the list. The record shows, with reference to the introduction of this evidence: "Mr. Kleinschmidt: We offer in evidence that part of the stock book showing the shares held by the various stockholders of the Capitol National Bank. The Court: It may be considered in evidence." Then follows the certificates of which the foregoing is an abstract. No other parts of the stock book are shown in the record.

It is urged that this stock certificate book is a book of original entries, and therefore the best evidence of who the stockholders were at that time. Touching this question, we have to say that, as against the bank, it is probably the best evidence. The result to be ascertained from the book are such results as the book is made to speak through the methods in which it has been kept. There is no evidence in this record that the results deducible from this book are the facts in the case, or that the book has been correctly and accurately kept. We say, therefore, that as against the bank the result logWas he, at the time of the failure of the ically deducible therefrom is the best evibank, a stockholder? As between him and dence, and as against the bank almost conpresident, Billingsley, whose stock had been clusive, but as against third persons adverseassigned to him, he was not, and, as between ly interested such effective application of him and the bank for any profit of the bank, record testimony of this kind cannot be he was not. But it is urged that the stock made. A man's liability cannot be fixed by book still showed him a stockholder. This the bookkeeping of some other party, and in book we understand from the evidence to such case such testimony has weight or lacks have been originally a book containing blank | weight according as the correctness of the

by the well-settled rule of this court can not be disturbed where a conflict in the testimony appears.

Under the conclusion here reached the principal ground set forth in the motion for a new trial is immaterial, which was that a letter, dated July 10, 1903, was signed by E. P. Kelly, and which signature he denied. This act of Kelly's, if admitted, would not change the conclusion here reached, for his connection with the bank was not concluded until the following November, when his resignation as a director was accepted, and at which time he was informed by the president of the bank that his connection with the bank was wholly severed.

bookkeeping is admitted or shown. In this case we have but a portion of the bank stock book before us, and no satisfactory conclusion can be deduced therefrom. It is confidently urged that just $100,000 of outstanding stock was shown by the certificates hereinbefore described. That is true. But is this all and conclusive of the fact that such list of outstanding stock and stockholders measures accurately and conclusively what stock and stockholders were alone liable as such when the bank failed. The defendant's stock passed to his name January 31, 1902. We have no doubt but that the entire capital stock of the bank was at that time subscribed for and owned, and yet four months afterwards certificate No. 63 for 200 shares was issued to A. G. Brower and marked "a new issue." At the same time (May, 1902), stock certificate 65 to C. E. Billingsley for 270 shares, marked "new issue." This is approximately one-half the capital stock of the bank. It surely was not an original issue of stock, and what other stock is taken up by such new issue of stock is left wholly to BLACKWELL, E. & S. W. RY. CO. et al. v. conjecture. Stock certificate No. 66, for 10 shares, to T. A. Neal, issued March, 1903, was a transfer from original certificate No. 55, which original certificate was for 25 shares, and stock certificate 69, for 5 shares, to C. E. Billingsley, issued November 21, 1902, was a transfer from original certificate No. 67, which original certificate was for 15 shares.

It will be observed that this record evidence touching the last two named certificates shows that, at the time of the failure of the bank, there was outstanding, on certificates No. 55 and 67, 25 shares of the capital stock of the bank, and these are not included in the record offered to make up the 1,000 shares of stock, which plaintiff claims was outstanding and alone liable. It will also be observed that stock certificate 67, with 10 shares thereof not accounted for in the record of the stock book offered in evidence, was issued long subsequent to the date of the plaintiff's certificate. The record is silent as to who it was issued to. If presumptions may be indulged in, it would be fair to presume that certificate 67, for 15 shares, was issued to Billingsley, and that afterwards he caused certificate 69 to issue for 5 of these shares. Such a presumption would show 510 shares in C. E. Billingsley. The facts are that the proofs offered from the stock book are most unsatisfactory and inconclusive. The trial court manifestly accepted the evidence touching the transactions of the bank on February 27, 1904, as more reliable, and which shows the stock of the bank outstanding at that time to be in Brower, Brooks, Billingsley, Nelson, Robb, Neal, and Edmonson, and on which date a 53 per cent. levy was made on the stock of the bank in the name of those persons as stockholders; Billingsley paying such assessment on 510 shares. We think the trial court had a right to adopt this view of the testimony, which

Finding no reversible error in the record, the judgment of the trial court is affirmed. All the Justices concurring, except HAINER, J., who presided in the court below, and IRWIN, J., absent.

BEBOUT.

(19 Okl. 63)

(Supreme Court of Oklahoma. Sept. 4, 1907.) 1. EMINENT DOMAIN-PROCEDURE-ENTRY ON LAW.

The statute of Oklahoma authorizing railroad corporations to exercise the right of eminent domain, and providing the procedure by which the damages to the landowner may be ascertained, and giving to the owner of the property as well as the corporation the right to institute such proceedings, does not provide an exclusive remedy; but the common-law remedy afforded the owner in such cases may be pursued, at the election of the landowner, where his property is entered upon and appropriated for railway purposes.

2. ABATEMENT-EMINENT

DOMAIN-PENDEN

CY OF PROCEEDINGS-BAR TO RECOVERY OF
DAMAGES BY SUIT.

Where condemnation proceedings have been instituted for the purpose of ascertaining the rights of the parties for the appropriation of right of way by a railroad company and of fixing the compensation of the landowner, such landowner cannot maintain an action at law to recover damages for the injury done to his property, and if such suit is brought it should be dismissed at the plaintiff's costs.

[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, § 35.]

3. SAME-RIGHTS OF PARTIES.

After a railroad company has entered upon private lands and appropriated its right of way, either with or without the consent of the owner, either party may institute condemnation proceedings to determine the relative rights of the parties and ascertain the damages sustained by the owner of the property, or the landowner may sue for damages.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 694, 698.]

4. APPEAL-VERDICT-PRESUMPTIONS.

Where the person in whose favor a verdict is rendered is entitled to interest, and there is nothing in the record from which it can be determined whether or not the jury took into consideration the matter of interest in fixing the amount of their award, it will be presumed that they included interest.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3760.]

5. SAME.

The judgment of the court must follow the verdict, and where the verdict is general and for a sum in gross, and the question of interest was not reserved by the court, and there is nothing in the record to indicate that the jury omitted interest, it will be presumed that it is embraced in the amount of their finding, and the court cannot add interest to the amount found by the verdict of the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3760.]

6. APPEAL-REVIEW-DETERMINATION.

Where there is no error in the amount fixed by the verdict of the jury, and the judgment is erroneous as to amount and as to the taxation of costs, this court wil not grant a new trial, but will vacate the erroneous judg ment and enter in this court the judgment which the trial court should have rendered. [Ed. Note. For cases in point. see Cent. Dig. vol. 3, Appeal and Error, § 4507.]

(Syllabus by the Court.)

Error from District Court. Woods County; before Justice J. L. Pancoast.

Condemnation proceedings by the Blackwell, Enid & Southwestern Railway Company and the St. Louis & San Francisco Railroad Company against J. J. Bebout. Judgment for defendant, and plaintiffs bring error. Modified.

Flynn & Ames, Jesse J. Dunn, and Dale & Bierer, for plaintiffs in error. A. C. Towne, for defendant in error.

BURFORD, C. J. The defendant in error was the owner of the southeast quarter of section 28, township 20 north, range 10 west, in Woods county, Okl. The Blackwell, Enid & Southwestern Railway Company, without his consent, and before commencing any proceedings to acquire a right of way, constructed its railroad across said tract and appropriated a portion of it for its right of way, and subsequently leased or transferred its property to the St. Louis & San Francisco Railroad Company. After the strip of land for right of way had been taken and was being used for railway purposes, the Blackwell, Enid & Southwestern Railway Company instituted proceedings for condemnation of said strip for its right of way and for the assessment of damages. Commissioners were appointed and made the assessment and filed a report, fixing the damages at $275. In these proceedings the land was described in the notice, the application for appointment of commissioners, and the report of the commissioners assessing the damages, as the southwest quarter, when it should have been the southeast quarter, the land in controversy. The appraisers were sworn by a United States commissioner, an officer not authorized to administer oaths in such matters. These proceedings were all corrected by amendments by leave of the court, and a new report properly sworn to filed by the commissioners on September 21, 1903.

In order to acquire the right to bind the landowner in condemnation proceedings, the court must have jurisdiction of the property

to be condemned, and also of the owner. In our judgment the proceedings in this case were so defective that the jurisdiction of the subject-matter was not acquired until the filing of the amended and completed report of the appraisers and the amendment of the notice and application to the court for the appointment of viewers, which was all done on the 21st day of September, 1903. Bebout, the landowner, had made his written demand for a jury trial prior to this date, and also refiled the original demand on said date. He had 30 days from the filing of the report of the appraisers in which to file his demand for a jury trial. In view of the failure to describe the land in either notice, the application or the report of the commissioners, and the failure of the commissioners to take any oath either before or after making the assessment and award of damages, we are satisfied that his time did not begin to run until the amendment and perfecting of the proceedings on September 21, 1903. Hence his demand for a jury trial was in time, and there was no error in allowing a jury trial upon the issue of the amount of compensation to be awarded the landowner.

The condemnation proceedings were initiated by the Blackwell, Enid & Southwestern Railway Company by service of the original defective notice upon Bebout upon the 20th day of December, 1902, and from that date to the time of trial various steps were taken in court looking to the completion and confirmation of the proceedings. On November 8, 1902, Bebout filed in the district court of Woods county his petition against the Blackwell, Enid & Southwestern Railway Company, and also the St. Louis & San Francisco Railroad Company, claiming damages for the right of way of said roads across his land. Four several summonses were issued, and an attempt made to serve the defendants; but the first three were successively set aside by the court upon special appearance and motion of the defendants. The fourth summons, which was finally served upon the defendants, was issued December 8, 1903, and served on the 10th day of December, 1903. The defendants appeared and pleaded to the petition, and, among other defenses, set up the pendency of the condemnation proceedings in the same court, to have the damages ascertained for the same causes. The reply was a general denial. On February 3, 1905, the Blackwell, Enid & Southwestern Railway Company seryed upon Bebout an offer to confess judgment for the sum of $550, and filed the same in court on the same day. On February 7, 1905, the court, by special order with consent of all parties, consolidated these two cases and ordered them tried together. The consolidated case was tried to a jury, and a verdict returned assessing damages in favor of Bebout for the sum of $480. Afterwards, on February 24, 1905, the court rendered judgment on the verdict for the sum of $589.20, which was the amount of the verdict, $180 plus $109.20,

which the court allowed and added as interest from the date of the appropriation of the land by the railway company to the date of trial. The plaintiffs in error objected to the allowance of any interest by the court. and subsequently moved to modify the judgment and for a new trial; all of which were overruled by the court, and exceptions saved. It appears from the record in this case that the Blackwell, Enid & Southwestern Railway Company went upon the land in controversy and constructed its road across a portion of the tract, prior to the time that any proceedings were begun to have determined the compensation of the landowner. Subsequently, and before the landowner had begun any proceedings to recover compensation, the railway company instituted the condemnation proceedings which resulted in an award of $275 and the deposit of that sum in court for the use of Bebout. It was urgently contended by the company that Bebout had waived his right to a jury trial by having failed to file his demand for a jury trial within 30 days after the commissioners had filed their first report; but, as we have already said, the proceedings were so defective that jurisdiction by the court was not acquired of the subject-matter until the amendments were made inserting the correct description of the land, and the filing of the last report of award, which all appears to have been done on the same day. Bebout appeared to these amended proceedings and demanded a jury trial, which was allowed him. During the pendency of these proceedings he instituted his independent suit against both of the railway companies for damages, and issues were formed involving the identical questions in controversy in the condemnation case. was conten led in the court below, and also here, that the landowner was not entitled to maintain this independent suit for damages, but that his remedy was by the statutory proceedings for ascertaining the damages in such cases, and the determination of this question practically controls all other questions in the cause.

It

Our statute relating to the rights, powers, and duties of railway corporations, among other provisions, contains the following (section 109, art. 9, c. 18; Wilson's Rev. & Ann. St. 1903, § 1038): "Every railroad corporation incorporated under this act and any railroad corporation authorized to construct, operate or maintain a railroad within this territory, has power and is authorized to enter upon any land for the purpose of examining and surveying its railroad, and to take, hold and appropriate so much real estate as may be necessary for the location, construction and convenient use of its road, including all necessary grounds for buildings, station, workshops, depots, machine shops, switches, side-tracks turn-tables, snow defenses and water stations: all material for the construetion of such road and its appurtenances, and the right of way over adjacent land sufficient

to enable such corporation to construct and repair its road and the right to conduct water to its water stations, and to construct and maintain proper drains, and may obtain the right to such real estate by purchase or condemnation in the manner provided by the law." And also the following (section 112; Wilson's Rev. & Ann. St. 1903, § 1041): "If the owner of any real property over which said railroad corporation may desire to locate its road, shall refuse to grant the right of way through and over his premises, the district judge of the county or subdivision in which said real property may be situated as provided in this article, shall, upon the application or petition of either party, and after ten days' notice to the opposite party either by personal service or by leaving a copy thereof at his usual place of residence, or in case of his non-residence in the territory by such publication in a newspaper as the judge may order, direct the sheriff of said county to summon three disinterested freeholders of said county or subdivision (or if there be none such then of the territory) as commissioners, who shall be selected by said judge, and who must not be interested in a like question. The commissioners shall be duly sworn to perform their duties impartially and justly; and they shall inspect said real property and consider the injury which such owner may sustain by reason of such railroad; and they shall assess the damages which said owner will sustain by such appropriation of his land; and they shall forthwith make report thereof in writing to the clerk of the said court, setting forth the quantity, boundaries and value of the property taken, or amount of injury done to the property which they assess to the owner; which report must be filed and recorded by the clerk, and a certified copy thereof may be transmitted to the register of deeds of the county or subdivision where the land lies, to be by him filed and recorded (without further acknowledgment or proof) in the same manner and with like force and effect as is provided for the record of deeds. And if said corporation shall, at any time before it enters upon said real property for the purpose of constructing said road, pay to said clerk for the use of said owner the sum so assessed and reported to him as aforesaid, it shall thereby be authorized to construct and maintain its road over and across said premises: Provided, that if the corporation shall need or require for the purpose of constructing said railroad, to take and occupy any real property in any unorganized county, or in other unorganized country where there is no district court established, then the judge of the district court of the nearest organized county or subdivision (wherein such court is established) upon the line of said road, shall appoint commissioners to assess said damages; and he and they shall perform all other duties required of district judges and com missioners by the terms of this article, and either party shall have the right to appeal as

in other cases herein provided: And provided further, that the report of the commissioners may be reviewed by the district court, on written exceptions filed by either party, in the clerk's office within sixty days after the filing of such report; and the court shall make such order therein as right and justice may require, either by confirming, modifying, or rejecting the same, or by ordering a new appraisement on good cause shown; either party may within thirty days after the filing of such report file with the clerk a written demand for a trial by jury; in which case the amount of damages shall be assessed by a jury, and the trial shall be conducted and judgment entered on the verdict in the same manner as civil actions in the district court. If the party demanding such trial does not recover a verdict more favorable to him than the assessment of the commissioners, he shall not recover costs in the district court; and all costs in the district court may be taxed against him: And provided further, that either party may appeal from the decision of the district court to the Supreme Court and the money so deposited shall remain in the hands of the clerk, as aforesaid, until a final decision be had and subject thereto. But such review or appeal shall not delay the prosecution of the work on said railroad over the premises in question, if such corporation shall first have paid or deposited with said clerk the amount so assessed by said commissioners; and in no case shall said corporation be liable for the costs on such review or appeal, unless the owner of such real property shall be adjudged entitled, upon either review or appeal, to a greater amount of damages than was awarded by said commissioners. The corporation shall in all cases pay the costs and expenses of the first assessment. And in case of review or appeal, the final decision may be transmitted by the clerk of the proper court, duly certified, to the proper register of deeds to be by him filed and recorded as hereinbefore provided for the recording of the report, and with like effect."

From these provisions it is clear that the railway company had the right to take such portion of the tract of land belonging to Bebout as was required for the construction and operation of its railroad, and that either the railway company or the landowner, if they failed to agree upon the amount of damages, had the right to give notice to the other party and apply to the judge of the district court for the appointment of commissioners to assess the damages. This right and power to initiate the proceedings by which the damages were to be ascertained is as completely conferred upon the landowner as upon the railway corporation. The corporation has the right to appropriate private property for its uses without the consent of the owner upon the condition only that it shall make just compensation therefor. If the Blackwell, Enid & Southwestern Railway Company

went upon the land of Bebout and attempted to appropriate any portion of it for railway purposes, he had the right to require them to stop work until the damages could be ascertained and deposited with the clerk of the court. If he failed to require this to be done, and stood by until the work was completed, he gained no greater rights than he had before, and the railway company got no better rights by his silence. The failure to have the damages determined in advance did not change the rights or relations of the parties. The provisions of the statute were still adequate for the determination of the rights of both parties and for the enforcement of such rights when determined.

A corporation having the right of eminent domain may exercise that right wherever their necessities require it, and in exercising such power the only requirement is that such corporation shall make just compensation for such private property as it takes or damages. Ordinarily, the power of eminent domain is exercised under statutory regulations, and where either party is given the right to initiate proceedings for the ascertainment of the damages and to invoke the process of the law specially provided for such cases, such statutory provisions have been held to be exclusive. It is said in 15 Cyc. 980, that: "Where a statutory remedy is given the own. er of the property, such statutory remedy is usually held to be exclusive and to supersede the common-law remedies afforded the owner, particularly where condemnation proceedings are pending." And the text is abundantly supported by the authorities. Kaukauna Water Co. v. Green Bay, etc., Canal Co., 142 U. S. 254, 12 Sup. Ct. 173, 35 L. Ed. 1004; Kuhl v. C. & N. W. Ry. Co., 101 Wis. 42, 77 N. W. 155; Land v. W. & W. Ry. Co., 107 N. C. 72, 12 S. E. 125; Shortle v. Railway Co., 130 Ind. 505, 30 N. E. 639; Ft. Wayne v. Hamilton, 132 Ind. 487, 32 N. E. 324, 32 Am.. St. Rep. 263; Rehman v. New Albany, etc., Ry. Co., 8 Ind. App. 200, 35 N. E. 292; Cairo, etc., Ry. Co. v. Turner, 31 Ark. 494, 25 Am. Rep. 564; Hamor v. Bar Harbor Water Co., 78 Me. 127, 3 Atl. 40; Dunlap v. Pully, 28 Iowa, 469; Brickett v. Haverhill Co., 142 Mass. 394, 8 N. E. 119; Brown v. Beatty, 34 Miss. 227, 69 Am. Dec. 389; Fremont, etc., Ry. Co. v. Mattheis, 35 Neb. 48, 52 N. W. 698; Little Miami R. R. Co. v. Witacre, 8 Ohio St. 590; Cherry v. Lane Co., 25 Or. 487, 36 Pac. 531; Phillips v. St. Clair Incline Co., 153 Pa. 230, 25 Atl. 735; Milwaukee, etc., v. Strange, 63 Wis. 178, 23 N. W. 432; Aldrich v. Cheshire Ry. Co., 21 N. H. 359, 53 Am. Dec. 212; R. V. Ry. Co. v. Fink, 18 Neb. 82, 24 N. W. 439. And it seems to be the settled rule that the entry upon the property and the appropriation of the right of way and construction of a railroad, prior to the initiation of condemnation proceedings, will not defeat the right of either party to institute proceedings to condemn, whether the entry was with or without the consent of the landowner. 15

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