site for the upholding of the judgment of the ment and the lists and panels of grand and court below affirmatively appears, and from petit juries as if the statements and allegathat time on all intendments must be taken tions were made and verified by him in a sepin favor of the regularity and validity of the arate and distinct affidavit. The court overjudgment and proceedings in the trial court. ruled the motion, and thereupon the defendIn this case, where a conviction has been ant was arraigned under the indictment, and had and judgment rendered, all the trial pro- i before he had.pleaded thereto he asked the ceedings standing unchallenged, it clearly court to be permitted to produce witnesses was incumbent upon the plaintiff in error to in support of his motion to quash the indictaffirmatively show the error of which he com ment, which was also denied. On page 396 plains, and, in the absence of a record show- of 103 U. S. (26 L. Ed. 367) the Supreme ing what evidence was considered by the trial Court of the United States says: “But, passcourt on the hearing and overruling of the į ing by this ruling of the court below as insufmotion, can it be said that he has done so : ficient in itself to authorize a reversal of the Where the question raised for review de judgment, we are of the opinion that the mopends largely upon the evidence, as in this tions to quash, sustained loy the affidavit of case, such evidence must be incorporated in the accused, which appears to have been fila bill of exceptions or case-made for the ex ed in support of the motions without objecamination of the appellate court, and, in case tion to its competency as evidence, and was of a failure to do so, the error complained uncontradicted by counter affidavits, or even of cannot be reviewed.

by a formal denial of the grounds assigned, Counsel for plaintiff in error contends should have been sustained. If, under the that, inasmuch as the facts set up and sworn

practice which obtains in the courts of the to in their motion for a new trial were not

state, the affidavit of the prisoner could not, contradicted, they should stand as admitted,

if objected to, be used as evidence in the supand cite Sharp v. U. S., 138 Fed. 878, 71 C. port of a motion to quash, the state could C. A, 258, which contains a statement in the waive that objection, either expressly or by opinion to that effect, based, however, upo

not making it at the proper time. No such the case of Neal v. Delaware, 103 U. S. 391.

objection appears to have been made by its 26 L. Ed. 567. An examination of that case,

Attorney General. On tlie contrary, the however, will disclose that it is not an å u

agreement that the prisoner's verified petition thority for the statement found in Sharp v.

should be treated as an affidavit in the conU. S. In the case of Neal v. Delaware the

sideration and decision of the motions imdefendant filed a petition in the trial court

plied, as we think, that the state was willing asking that his case be transferred to the

to risk their determination upon the case as Circuit Court of the United States for the

made by that affidavit, in connection, of District of Delaware upon the grounds that

course, with any facts of which the court in the state court he was being deprived of

might take judicial notice." the equal civil rights of citizens of the Unit

The record in this case fails to show any ed States guaranteed to him under the Con

agreement on the part of the territory and stitution; and in his petition, which was du

defendant whereby the facts set out in the ly verified by him, he set out the facts which

motion for a new trial were to be taken as

Under the statutes of this territory it he claimed amounted to a denial of his rights, and which consisted of the exclusion

was not incumbent upon the territory to file

any adverse pleading negativing the allegalunder the laws of Delaware from the juries

tions set out in defendant's motion. The of that state of all colored persons, contrary

same could be disproved by competent evito the provisions of the Constitution of the United States. His petition to have the case

dence. In the absence of a record showing removed was denied, and he then, before ar

that the affidavit in support of the motion

was not controverted, or that it constituted raignment in the state court, moved to quash

all the evidence offered at the hearing, we the indictment and the panel of the jury up

are unable to see wherein the case of Veal v. on the same ground set out in the petition

Delaware can be construed as an authority for the removal of the cause to the federal

in support of the position, taken in this case, court. It was then agreed between the Attor

“that inasmuch as the facts set up and swort: ney General, on behalf of the state of Dela

to in the motion for a new trial were not conware, and the defendant, through his counsel,

tradicted they should stand as admitted." with the consent of the court, that the state

There being no other assignment of error, ments and allegations of the defendant, in

the judgment of the district court of Comanhis petition for the removal of the indict

che county in overruling the motion for a ment and its prosecution for trial to the Cir

new trial will be affirmed. cuit Court, and their verification by his oath, sbould be taken and treated and given the GILLETTE, J., who presided in the court same force and effect in the consideration and below, not sitting. All the other Justices decision of the motion to quash the indict concurring, except IRWIN, J., absent.

(19 Okl. 252)

The plaintiffs alleged in their petition, and ALTON-DAWSON MERCANTILE CO. V. offered evidence tending to prove, that the STATEN et al.

agent of the Alton-Dawson Mercantile Com(Supreme Court of Oklahoma. Sept. 5, 1907.) | pany, one C. B. Tuohy, promised the members

of the firm of Ashcroft-Staten Mercantile i. APPEAL-REVIEW-HARMLESS ERRORS. Although a petition fails to state a cause

Company that, if they would give his firm seof action for affirmative relief in the first in- curity for its claim, it and another firm stance, still, where the defendant files an an (which was also given security under a simswer and cross-petition, and the facts pleaded in the petition constitute a defense to the cross

ilar promise) would protect them against petition, and the parties go to trial on such | bankruptcy and their other creditors and enpleadings, and the court, on the merits, finds able them to continue in business, which they against the cross-petitioner, mere irregularities wholly failed to do, and, as a result of such will be ignored, and only those errors considered which may have affected the substantial rights failure, the firm of Ashcroft-Staten Mercanof the parties.

tile Company, although their assets were con[Ed. Note. For cases in point, see Cent. Dig. siderably in excess of their liabilities, were vol. 3, Appeal and Error, $ 4029.]

compelled to go through the bankruptcy court 2. MORTGAGES — FORECLOSURE – DEFENSES – and their business sacrificed. The case was FRAUD AND MISREPRESENTATION.

tried to the court and jury on special interWhere a mortgage on real estate is executed without consideration, and by reason of rogatories. No general verdict was rendered. fraudulent representations made by the mort- The jury found that C. J. Tuohy, the agent gagee to the mortgagors, such fraud and want of the Alton-Dawson Mercantile Company, inof consideration may be shown at any time by

duced the plaintiffs to execute the mortgage the mortgagors in an action by the mortgagee to foreclose.

in question by falsely and fraudulently rep[Ed. Note.- For cases in point, see Cent. Dig.resenting to the plaintiffs that, if they would vol. 35, Mortgages, 1212.)

execute the notes and mortgage described 3. APPEAL-REVIEW-EVIDENCE.

above, his company would protect the firm of Where a judgment is reasonably supported | Ashcroft-Staten Mercantile Company against by the evidence, it will not be disturbed on appeal to this court on the ground that it is

its other creditors; that Tuohy stated to the against the weight of the evidence,

mortgagors that if it was necessary his firin [Ed. Note.-For cases in point, see Cent. Dig. would purchase the claims of certain other vol. 3, Appeal and Error, $$ 3938–3943.)

creditors who were threatening to bring bank(Syllabus by the Court.)

ruptcy proceedings against the Ashcroft-Stat

en Mercantile Company; that these represenError from District Court, Woods County ;

tations were made by Tuohy for the purpose before Justice J. L. Pancoast. Action by James M. Staten and Cora Staten

of inducing the mortgagors to execute the against the Alton-Dawson Mercantile Com

mortgage, but without any intention of keep

ing such promises ; that these promises never pany. Judgment for plaintiffs, and defendant

were fulfilled in whole or in part by the brings error. Affirmed.

Alton-Dawson Mercantile Company; and that Shartel, Keaton & Wells and H. A. Noah, the representations by Tuohy were the infor plaintiff in error. Snoddy & Son, for de ducement which caused the plaintiffs to exfendants in error.

ecute tbe notes and mortgage. A number of

questions are argued by counsel on the reBURWELL, J. John W. Ashcroft and


spective sides; but, while we bave considered James M. Staten were partners in the mercan them al we have discussed only such of them tile business at Aline, Woods county, Okl. as we deem necessary to a fair determinaThe firm's creditors were pressing them for tion of this case. payment, but the partners were unable to First, it is insisted that the petition of the raise the money to meet their obligations. plaintiffs below failed to state a cause of They were indebted at the time to the Al

action, and that the court erred in overruling ton-Dawson Mercantile Company in the sum the demurrer thereto. In our opinion this of $1,500. James M. Staten and Cora Staten, point is immaterial. Even if equity will not his wife, on January 9, 1902, executed to the cancel a mortgage simply because it was obappellant two notes for this debt, as follows: tained through fraud and constitutes a cloud One note for $800, and one note for $700; upon the title to real estate (which point we and also executed to the appellant a mort do not here decide), there is a remedy pointed gage to secure the payment of these notes on out in the statute where the mortgagor is in the N. E. 14 of section 4, in township 23 N. possession, as in this case. By section 4787, of range 11 W., in Woods county, Okl., which Wilson's Rev. & Ann. St. Okl. 1903, it is pretract of land was the homestead of the mort vided : “An action may be brought by any gagors. On June 16, 1953, the plaintiffs here person in possession, by himself or tenant, in commenced this action in the district court of real property, against any person who of Woods county praying for a cancellation of claims an estate, or interest therein adverse the mortgage. The defendant filed an answer to him, for the purpose of determining such and cross-petition, praying for a foreclosure adverse estate or interest." Although the of the mortgage in question. Judgment was petition failed to state a cause of action for rendered for the plaintiffs, and the defendant cancellation, as contended by appellee, it 'ppeals to this court.

does not necessarily follow that the judgmen

of the court is erroneous. The defendant's was concerned, was the fulfillment of the cross-petition prayed for a foreclosure of the promises made by Tuohy to the mortgamortgage, and the evidence offered in behalf gors and the firm, to the effect that the of the petitioners might have been introduced mortgagee would, if necessary, purchase the as a defense to the foreclosure, and the facts claims of certain creditor's and all them in pleaded in the petition might have been plead- continue in business. The trial court also ed in an answer as a defense. Therefore the found that these promises influenced Mr. error, if any were committed, related to mere Staten to execute the mortgage. The defendmatters of procedure which have not in the ant (appellant) having wholly failed to keep least affected the substantial rights of the i those promises, or any of them, there was no parties. Such irregularities will be ignored consideration for the mortgage as far as Mrs. by this court. Willoughby, Rec., v. Ball (Okl.) Staten was concerned, and failure of consid90 Pac. 1017. And, again, if the defendant | eration can be urged at any time against the had commenced the action to foreclose its original mortgagee. There is sufficient evimortgage, the court could have entered a dence to support the findings of the trial judgment canceling the mortgage, if it de court, and, those findings having determined nied foreclosure. First National Bank of the issues of fact against the appellant, we Wellington y. Stewart, 8 Kan. App. 22, 54 are bound thereby. The appellant received Pac. 16.

the same dividend in the bankrupt proceedAnother question urged by the appellant is ings as was paid to the other creditors of the that the appellees delayed an unreasonable Ashcroft-Staten Mercantile Company; but, as time before commencing the action to cancel to whether or not the receiving of such divithe mortgage; that, to rescind a contract on dends estopped it from foreclosing this mortthe ground of fraud, one must act promptly. gage, it is unnecessary to decide. We have just held that the petition did not No valid reason having been urged why state a cause of action for cancellation, and the judgment should be reversed, the same it is only because the appellant asked for a will be affirmed, at the cost of appellant. All foreclosure of the mortgage that we consider of the Justices concurring, except PANthe merits of the case at all. The statute of COAST, J., who presided at the trial below, limitation has not run as against the mort- | not sitting, and IRWIN, J., absent. gage, nor were the mortgagors precluded from urging any defense they might have against the same. Both parties litigated their

(19 Okl. 260) rights as fully as they could have done if the

HOWELL V. BLESH et al. answer and cross-petition had been the peti (Supreme Court of Oklahoma. Sept. 5, 1907.) tion, and the petition of the mortgagors the

1. APPEAL-REVIEW-EVIDENCE. answer thereto. The real issues were pre

Where the evidence reasonably supports the sented by the pleadings, although informally, verdict, the finding of fact will not be disturbed and the merits of the controversy decided by

by this court. the court; and the time has come when

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $$ 3928–3931.] courts should adopt rules that will attain the ends of justice, rather than build up technical


Errors committed by a trial court which do theories which defeat or unreasonably delay not affect the substantial rights of the party litigants of their rights. We do not wish to against whom it was committed will be ignored be understood as in any way indorsing the

on appeal. theory that litigants should be bound by the

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $$ 4033, 4003.) theory on which a case is tried, rather than

3. HUSBAND AND WIFE-AGENCY. the pleadings. The pleadings are the founda

Where a wife requests medical treatment tion of a lawsuit. From them courts must for an infant, it will be presumed, in the absence determine the issues involved; but in the of proof, that she is acting as the agent of her case before us the irregularity, if any, did not

husband; but such presumption may be over

come by evidence. even amount to a reversal of the order of

[Ed. Yote.-For cases in point. see Cent. Dig. proof, for, the execution of the mortgage being

vol. 26, Husband and Wife, $ 146.] admitted, the burden was on the mortgagors

4. PARENT AND CHILD MEDICAL EXPENSES to show some state of facts that would defeat LIABILITY OF L'AREXT. foreclosure. The trial court found against A father is liable for medical or surgical the mortgagee. But we are not inclined to

services rendered his child at the request of his

duly authorized agent; also, for hospital serv. decide this case on the ground alone that

ice received under similar circumstances. the notes and mortgage were obtained by (Syllabus by the Court.) fraud. It is true that the trial court found in effect that they were obtained by fraud

Error from District Court, Payne County; and false representations, but there is one

before Justice Bayard T. Hainer. other feature to be considered, and that is,

Action by A. L. Blesh and Florace Reed the land embraced in the mortgage was the

against Mode lIowell. Judgment for plainhomestead of the mortgagors. It was not lia

tiffs, and defendant brings error. Allirmed. ble for the debts of the firin. It was exempt Lowry & Lowry, for plaintiff in error. property. The consideration for executing Chas. E. Bush and F. C. Hunt, for defendthe mortgage, at least as far as Vrs. Staten | ants in error.

BURWELL, J. The son of the appellant, Therefore the judgment is hereby affirmeil, Mode Howell, received an injury to his leg, at his costs. All of the Justices concurring, caused by being thrown from a horse. One except HAIXER, J., who presided at the Dr. R. W. Holbrook, a plıysician, was called trial below, not sitting, and IRWIN, J., 211by Mr. Howell to attend his son. The injury sent. continued to get worse, and other physicians were called in. Finally, there being no im

(19 Okl. 2:8) provement in the boy's condition, Holbrook (so he testified) advised Howell that the boy

RYAN V. BROWN. should be taken to a hospital, and that How

(Supreme Court of Oklahoma. Sept. 5. 1907.) ell told him in that connection that he want APPEAL-FAILURE TO BRIEF CASE. ed Holbrook to do all for the boy that he

The presumption is always in favor of the could, and that he wanted the leg saved, if

correctness of a judgment of a trial court, and,

in case of an appeal therefrom, the burden is possible. Finally during the absence of Mr. upon the appellant to affirmatively point out Howell, the boy was taken to the hospital error, and wher: he fails to brief his case, as of the appellecs at Guthrie, and an incision

provided by the rules of this court, it may

continue or dismiss the cause, or reverse or afmade in the leg, and the blood clots and pus firin the judgment. removed therefrom. He remained in the

[Ed. Note.For cases in point, see Cent. Dig. hospital some 13 days, receiving the care of vol. 3, Appeal and Error, $$ 3104-3107.) the plaintiffs as physicians, as well as the (Syllabus by the Court.) usual hospital service. The appellant insists that he instructed Dr. Holbrook that he

Error from District Court, Garfield Coundid not want his son taken to the hospital ty; before Justice J. L. Pancoast. at Guthrie. On this point, however, the evi

Action by Caroline C. Ryan against W. E. dence is conflicting; but the appellant ar

Brown. Judgment for defendant, and plainrived at the hospital the next morning, and,

tiff brings error. Affirmed. without complaint at what had been done, Manatt & Sturgis, for plaintiff in error. he let the boy remain in the hospital 12 more days without objection, and without advis BURWELL, J. This is an action for ining the appellees that Holbrook had no au junction commenced by the appellant in the thority to put his boy in the hospital. There district court of Garfield county against the is also evidence to the effect that Mrs. appellee. Judgment was rendered denying Howell, the wife of the appellant and moth the injunction and taxing the costs to the er of the boy, accompanied the boy and Dr. plaintiff below. He brings the case here on Holbrook to Guthrie, and that she told the appeal, but, although the case was filed in appellees before the operation to do what this court on November 6, 1906, appellant they could for the boy, and, if found neces has not filed any briefs with the clerk of the sary, to amputate his leg. The real conten district court. Rule No. 6 of the rules of tion of the appellant is that his boy was put this court (82 Pac. xiii) requires an appellant in the hospital without his authority and in to serve his brief upon the appellee within violation of his express directions.

40 days after his appeal is filed in this court, We have read the record, and believe that and at the same time to file with the Suthe judgment should be sustained.

It is

preme Court clerk 15 copies of such brief; probably true that one of the instructions and the rule further provides that, for a assumes a fact which was in controversy, failure to comply with the rule, the court viz., that the wife acted as the agent of her may continue or dismiss the cause, or rehusband, if she authorized the operation. verse or affirm the judgment. That she was acting as the agent of her hus No excuse is offered for failure on the band was only a presumption, which might part of the appellant to brief his case. No be overcome by evidence. We are satisfied, error has been pointed out to this court, and however, that the jury were not misled by the presumption is that the judgment is corthis error. The appellant's own conduct aft rect. er he went to the hospital and learned of Therefore it will be affirmed, at the cost of the operation was sufficient to authorize the appellant. All of the Justices concurring, exjury in finding that Dr. Holbrook and Mrs. cept IRWIN, J., absent, and PAYCOAST, J., Howell had authority to direct that the who tried the cause below, not sitting. operation be performed. The issues involved were issues of fact, and there is ample evidence to sustain the verdict. Under the

(19 Okl. 206) evidence, the boy would probably have died

ANDERST V. ATCHISON, T. & S. F. RY. CO. without the operation, and, while a phy

(Supreme Court of Oklahoma. Sept. 5, 1907.) sician cannot recover for professional serv

APPEAL-REVIEW-INSUFFICIENT RECORD. ices rendered in the face of objections of one

When on the trial of a case in the district

court the defendant interposes a demurrer to who would be liable therefor, in this case plaintiff's evidence, which is sustained by the the evidence, taking it altogether, is suffi court and the cause dismissed, such ruling will cient to uphold the finding that the services

not be reviewed by this court on appeal, unless

the case-made contains all of the evidence introwere rendered at the request of the appel duced upon such trial; and where the case-maile lant.

contains a statement that all of the evidence in

troduced upon the trial is contained therein, but | son, 130 Ind. 426, 30 N. E. 211; Stout r. the record upon its face shows that it does not.

Turner, 102 Ind. 118, 26 Y. E. SJ. and that a material plat or chart was omitted therefrom, the record is the best evidence, and

The ruling on the demurrer to the evidence will prevail over such statement.

cannot be reviewed because the case-imade [Ed. Yote.-For cases in point, see Cent. Dig.

does not contain all of the evidence introvol. 3, Appeal and Error, $ 2911.]

duced upon the trial, and on which the ruling (Syllabus by the Court.)

was based.

The judgment of the lower court is affirmError from District Court, Woods County ;

ed, at the cost of appellant. All of the Jusbefore Justice J. L. Pancoast.

tices concurring, except PAXCOAST, J., who Action by Peter Anderst against the At

presided at the trial below, not sitting, and chison, Topeka & Santa Fé Railway Com

IRWIX, J., absent. pany. Judgment for plaintiff, and defendant brings error. Affirmed. W. S. Roark, A. C. Towne, and T. J. Wom

(19 Okl. 246)

CRUTCHER et ux. v. BLOCK. ack, for plaintiff in error. Henry E. Asp. Charles II. Woods, George M. Green, and

(Supreme Court of Oklahoma. Sept. 5, 1907.) Jesse J. Dunii, for defendant in error.


Where one causes to be erected a building

on real estate in his possession, and material BURWELL, J. This action was brought furnished for such purposes is not paid for, a by the appellant for the death of his infant materialman's lien may be had under the laws child, alleged to have been caused by the

of Oklahoma, even though the person for whom negligence of the defendant company. When

such building was erected is not the owner of a

perfect legal title. A leasehold estate, if the the plaintiff rested his case, the defendant building is erected within the authority conveyed company interposed a demurrer to the evi by such instrument, is a sufficient title of owndence, which was sustained, and the cause

ership to authorize such a lien ; and, in default dismissed at the cost of the plaintiff.

of payment, such lien may be foreclosed and the

rights of the lessee in the land or to the oceuOn the trial of the case, a certain plat or pancy thereof under his lease, as well as the chart showing the location of the plaintiff's

building, may be sold to satisfy the judgment. house from which the infant strayed, the

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 31, Mechanics' Liens, $ 21.] fences, railway track, railway crossing, and

2. COURTS-JURISDICTION. the location of different important objects,

Where a court has jurisdiction over the perand the conditions generally in the imme sons to an action, by legal service or voluntary diate place and vicinity of the accident, was appearance and the cause is the kind of a cause admitted in evidence. This chart was used

triable in such court it has jurisdiction of the

subject of the action and power to render any in examining the different witnesses, and,

rightful judgment therein. instead of detailing conditions, references

[Ed. Note.-For cases in point, see Cent, Dig. were made to the objects on the chart, which vol. 13, Courts, $ 83.] were designated by letters, etc. This chart (Syllabus by the Court.) is omitted from the case-made, and, although

Error from District Court, Comanche the Supreme Court gave leave to amend the case-made, this omission of evidence was not

County; before Justice Frank E. Gillette. supplied. The parties and the trial court

Action by G. H. Block against S. 0. were of the opinion that it was necessary to

Crutcher and wife. Judgment for plaintiff, exhibit this chart or plat to the jury and have

and defendants bring error. Affirmed. the witnesses testify in relation thereto, and Hudson & Keys, for plaintiffs in error. this court should have the benefit of the Stevens & Myers, for defendant in error. same in reviewing the evidence. This omission is fatal to a consideration of the evi BURWELL, J. The board for leasing dence. This identical question was decided school, public building, and college lands of in the case of Pappe v. American Insurance Oklahoma Territory leased to one 0. P. M. Co., & Okl. 97, 56 Pac. 860. The court said : Butler, for townsite purposes, the E. 1 of "When the case-made contains a statement the X. E. 14 of section 36, township 2 X., of that all of the evidence introduced upon the range 12 W. of the Indian Meridian, in Contrial is contained therein, but the record it anche county. Butler platted the land into self shows upon its face that it does not, and lots and blocks and streets and alleys, and that material written instruments were omit it is known as Butler's addition to the city ted therefrom, the record is the best evi of Lawton. He suvleased, as he had a riylıt dience and will prerail over such statement.” to under the law and the written condition The same rule applies to photographs, plats, of his lease, to S. O. Crutcher a certain lut maps, or instruments of any kind, and where in this addition. One L. II. Robinson, unsual exhibits are omitted from the evidence, cler contract with S. 0. Crutcher, erected a it will not be considered. Board v. Wagner, house on this lor in question, and the plain138 Ind. 009, 39 X. E. 171: Marvin v. Seger, tiff below, having furnislied lumber for the 14. Ind. 201, 41 X. E. 310; Saxon v. State, erection of this building, ind the same har110 Ind. 6. 13 X. E. 208; Cowger v. Land, ing been used in the building and not paid 112 Ind. 203, 12 N. E. 96; Ilarris v. Tomlin for, tiled a materialman's lien for the lumber

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