« ForrigeFortsett »
Said petition was acted upon by the board erroneous assessment of property for taxof county commissioners and a certificate of ation for any particular year, in the manerror was issued as prayed for. On the 20th ner provided in the next section, and not day of January, 1906, a petition was pre otherwise: Provided, that this act shall in sented to Charles R. Bostick, county attor no wise be construed as a grant of power ney of Noble county, by more than seven to boards of county commissioners to equalresident taxpayers of Noble county, asking ize valuations of property for taxation, as that he, as (ounty attorney, appeal to the between individuals." Section 1, art. 1, c. district court from the aforesaid decision of 31, p. 311, Sess. Laws 1935, amending secsaid board of county commissioners, and on tion 5973, Wilson's Rev. & An. Si. 1990). the 22d day of January, 1906, said county at provides as follows: "That section 3973 of torney filed his notice of appeal with the Wilson's Revised and Annotated Statutes of county clerk and duly perfected the same. On Oklahoma be, and the same is hereby the 24th day of February, 1906, said cause amended to read as follows: 'Section 61. was heard by the district court upon the mer Whenever, at either of the regular meetings its. Somo evidence was introduced by the re of the said boards in January, April, July spective parties—the plaintiff contending that and October, upon complaint of the person the board of equalization had increased the or persons beneficially interested, their agent valuation as returned by the assessor, and or attorney, it shall be made to appear, by that such assessment was excessive as return the testimony of the claimant and at least ed by the board of equalization, and, further, one reputable witness, borne out by the recthat no evidence had been heard by the ords of the county, that the same property, board of equalization, but that the increase whether real or personal, has been assessed of valuation had been made upon informa more than once for the taxes of the same tion coming from other sources. No evidence year, or the property, whether real or perwas offered on behalf of the Perry Mill Com sonal, has been assessed in the county for pany tending to show that the same proper the taxes of a year to which the same was ty had been assessed more than once, or had not subject; or where the property of the been assessed in the county for the taxes of complainant, whether real or personal, has a year to which the same was not subject, been destroyed by flood, or tornado to the exor that the property had been damaged by tent of at least fifty per cent. of its cash flood or tornado. At the close of the evi value, which said damage or decrease in valdence of the plaintiff the county attorney ue shall be established by the testimony of demurred to the same, which demurrer was at least five reputable witnesses who shall overruled. The county attorney then at be freeholders and residents of the county tempted to show that the same proposition in which complainant resides, the said board had been before the board of county commis is hereby empowered to issue to complainsioners prior to the time of this action, and ant a certificate of error, showing that the the relief prayed for had been refused. This complaint has been investigated by the said evidence was excluded by the court, and the board; that the said board has been satiscourt rendered judgment approving and af fied of the truth of the allegations of the firming the action of the board of county said complaint, and direct the same to the commissioners. The appeal was taken from county treasurer of their said county dithis order. Motion for new trial was filed recting the said county treasurer to accept and overruled.
the said certificate as a payment of cash to It is contended by the plaintiff in error the amount found by the said board to have that under the statutes of Oklahoma a board been unjustly assessed, or entitled to be reof county commissioners has no jurisdiction funded, which said amount shall be named or power to correct an alleged erroneous in the said certificate, and shall by the treasassessment upon any other ground than be urer be credited on his tax roll against the cause the same “has been assessed more than tax so found to be erroneous or to be reonce for the taxes of the same year or has funded; and the treasurer shall retain the been assessed in the county for the taxes said certificate, and shall be credited with of a year to which the same was not subject, the same, as cash, in his settlement as such or where the property of the complainant treasurer.'” These sections are the only has been destroyed by flood or tornado;
or tornado; provisions of the statutes of Oklahoma grantsecond, the jurisdiction of the district court, ing the power to a board of county coinmiswhen proceeding upon an appeal from an in sioners to correct any kind of an individual ferior tribunal, does not extend beyond the tax levy and issue certificate of error there jurisdiction of that tribunal from which the for. The first empowers the board to correct appeal arose.” The statute referred to by an erroneous assessment, and the second prothe plaintiff in error is section 5972, Wil vides the character of erroneous assessment son's Rev. & Ann. St. 1.903, which is as fol that may be corrected, and the manner in lows: "The boards of county commissioners which the same shall be corrected, and for of the various counties of the territory of the issuing of the certificate of error. The Oklahoma are hereby empowered to cor character of assessments that may be correct, either upon the assessment rolls or up rected are: First, a double assessment; secon the tax rolls of the county, any double or ond, when the property has been assessed
more than once for the taxes of the same ers has only such authority as is prescribed year; third, when the property has been as by the statute, and, no matter what relief sessed for the taxes of a year to which the a court of equity could give in a case of the same is not subject to assessment; and, character under consideration, the board of fourth, when the property has been damaged county commissioners is not clothed with by flood or tornado to the amount of 50 per that equitable power, and we cannot conceive cent. of its value.
upon whać principle or upon what authority It is contended by the defendant in error a board of county commissioners would asthat the substance of the petition was to sume to issue a certificate of error in a case suggest to the board of commissioners that of this character, which is in effect discharga legal assessment on the property of the ing the complainant's property from taxaPerry Mill Company had been made and re tion to the amount named in the certificate. turned, and that the subsequent act of the Boards of county commissioners in this terboard of equalization was entirely without ritory are given no such jurisdiction, and we authority of law and not done under any think that the withholding of such authority pretense of comparing valuation or adjust from boards of county commissioners is a ing assessments between taxpayers; that, wise one. It is well settled that, upon aptherefore, the board of county commission peal from an inferior tribunal, the appellate ers had a right to adjust the matter. It court takes only such jurisdiction as the inwill be noticed by an examination of the rec ferior tribunal had, and can only investigate ord that in the original assessment the valu in a given case those propositions which were ation of the real estate was $6,323; that the before the inferior court, and which the invaluation of the personal property was $3, ferior court might have investigated and de000—making a total of $9,323. By the ac termined. 2 Cyc. 537; Cooper v. Armstrong, tion of the board of equalization lot 10 was 3 Kan. 78. Therefore, the board of county raised from $2,000 to $5,000, lot 11 from commissioners having no power to take the $2,000 to $5,000, lot 12 from $1,500 to $3,000, action which they assumed, and the jurisand lot 13 from $1,000 to $2.000, and the per diction of the appellate court being the same sonal assessinent was raised from $3,000 to as that of the inferior tribunal, the judg$10,000, making a total raise of $15,500. By ment of the board of county commissioners the petition it was conceded that, notwith should have been reversed. standing the original assessment was $9,825, This action, upon appeal to the district yet a fair valuation would be $10,000, and court, should not have been go construed as that the commissioners' action was upon a to give the district court the same power and basis of $10,000, so that it cannot be con authority which the court would have had tended that this action before the board of in a direct proceeding brought for the purcounty commissioners was intended to cor
pose of questioning the right or authority rect the action of the board of equalization of the board of equalization to raise the by placing the assessment where it originally valuation of the property or to prohibit the stood; that is, by entirely eliminating the correction of the tax which is claimed to action of the board of equalization, so as to have been void by reason of the erroneous leave the assessment where it originally action of the board of equalization. There stood. This in effect conceded the authority has from time to time been a vast amount of the board of equalization to take action in
of just criticism growing out of the unequal the direction in which it had proceeded, but
valuation of property, and it would seem was in effect to claim that the act of equali that there must have been some reason for the zation had been erroneous and excessive, and
board of equalization to take action in this this was in effect asking the board to equal matter. Whether or not they acted legally ize the valuation of the property for taxa and in pursuance of law it is not necessary tion as between individuals, which is specifi for us here to determine. If they did, their cally prohibited by the first section quoted. acts were invalid. If they did not, there was There was nothing whatever before the board a remedy by action in a court of equity, and of county commissioners that would author
the parties aggrieved should seek a remedy ize that body to issue a certificate of error in the proper forum, as there, and there upon any ground named in the statute, and only, could the matter properly be investithere was no pretense of doing so. These gated. There, and there only, could the full sections of the statute above quoted are the facts be shown. But, be that as it may, the only sections pertaining to the power of the question here presented is only as to the board to issue a certificate of error or cor power of the board of county commissioners rect assessments of any character for which to make a correction and issue a certificate certificates of error can be issued.
of error upon the case made to them, and It is claimed, however, that the action of the power of the court upon appeal to asthe board of equalization was void, and, be- sume at this time jurisdiction which the ing void, that the board of county commis board of county commissioners could not sioners, and also the district court on appeal, assume. could correct the same and do equity between We are of the opinion, therefore, that the the parties. We cannot agree with this con trial court erred in rendering judgment sustention. The board of county commission- | taining the board of county commissioners
in their action, and for that reason the case both plaintiff and defendant. On the 18th is reversed, with directions that the district day of March, 1905, the agent of the plaincourt vacate its judgment and enter an order tiff at Lamont served a notice upon the de reversing the judgment of the board of coun fendant terminal.ing said lease within 60 ty commissioners. All the Justices concur days from the rate of such service, describring, except HAINER, J., who tried the case ing the premises, and requesting defendant below, not sitting, and IRWIN, J., absent. to remove therefrom and give possession of
the same, which notice was signed: “St.
Louis & San Francisco R. R. Company, by (19 Okl. 51)
Flynn & Ames." The defendant failed to vaNOLAN V. ST. LOUIS & S. F. R. CO.
cate the premises at the expiration of 60
days, and on the 27th day of May, 1905, the (Supreme Court of Oklahoma. Sept. 4, 1907.)
agent of the company at Lamont served an1. ATTORNFY AND CLIEXT-ADMISSION OF AT other notice upon the defendant such as reTORNEYS-AUTHORITY-JUDICIAL NOTICE.
quired by the statute to be given prior to the In this territory, attorneys at law receive their license, and are authorized by the Supreme
commencement of the action of forcible entry Court to engage in the practice of the law, and and detainer, and which notice demanded the to transact business as attorneys at law, and immediate vacation of the premises, or suit the courts of the territory will take judicial notice of the fact that one appearing and act
for such possession would be commenced ing as an attorney is or is not duly authorized. within three days, which notice was also [Ed. Note.-For cases in point, see Cent. Dig.
signed by the St. Louis & San Francisco Railvol. 5, Attorney and Client, § 1.)
road Company, by Flynn & Ames, its attor2. SAME-SCOPE OF AUTHORITY.
neys. The defendant continuing the occu-Any duly authorized attorney may, after pancy of the premises notwithstanding the the subject-matter has been placed in his hands, foregoing notices, suit was brought therefor give any notice affecting the substantial rights
in the probate court of Grant county and of his client which the client himself might have given, and those affected by such notice must
tried on the 24th day of June, 1905, resulting take notice of it.
in a judgment for plaintiff and for the resti[Ed. Note.-For cases in point, see Cent. Dig.
tution of the premises above described. Therevol. 5, Attorney and Client, § 117.]
upon the defendant appealed said cause to 3. SAME-DISPUTE OF AUTHORITY-BURDEN OF
the district court, where the same was rePROOF.
tried February 27, 1906, by a jury, resulting Where notice material to the maintenance
in a verdict and judgment in favor of the of a suit has been given by an attorney, those
plaintiff, and defendant brings the case to disputing the authority of the attorney, and who rest their defense, in an action based there
this court predicating error upon the rule of on, upon the fact that they dispute the at the trial court, because of the overruling by torney's authority to give important notices,
said court of a motion for a new trial, which must" maintain such defense in court, for a court of record in Oklahoma will presume that
motion was upon the ground: First, that an attorney admitted to the practice is acting, the verdict and judgment is not sustained by in all matters affecting his client's rights, with sufficient evidence and is contrary to law; authority from the client he represents.
second, error of law occurring at the trial [Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attorney and Client, 8 104.]
and excepted to by the defendant.
Only one ground of error is now complain(Syllabus by the Court.)
ed of in the trial of this case. The plaintiff Error from District Court, Grant County ; upon the trial offered in evidence the written before Justice James K. Beauchamp.
notice to terminate the lease, to the introducAction by the St. Louis & San Francisco tion of which defendant objected, and at the Railroad Company, a corporation, against time excepted to the ruling of the court adThomas Nolan. From a judgment for plain- | mitting the same; the point being that the tiff, defendant brings error. Affirmed.
notice terminating the lease was signed :
"The St. Louis & San Francisco Railroad Mackey & Mackey, for plaintiff in error. Flynn & Ames, for defendant in error.
Company, by Flynn & Ames, Its Attorneys.”
upon the trial of the cause, there was no GILLETTE, J. This action was commenc proof offered that Flynn & Ames were ated in the probate court of Grant county, to torneys of the plaintiff and authorized to recorer possession of a portion of the depot give the notice.
give the notice. No evidence was offered upgrounds and right of way in the town of La on the trial by the defendant, and the record mont, in said county, which at the time of shows that, when notice to terminate the bringing said action, to wit, June 2, 1905, lease was served, he at that time made no and from the 28th day of April, 1903, had objection to the form or sufficiency of the been occupied by defendant under and by same. No authority bearing upon the point force of a license from the plaintiff, which involved is presented by the briefs upon eilicense provided that it should terminate on ther side, and the writer of this opinion has 60 days' notice by the plaintiff railroad com been unable to find any. The license to the pany, and provided that the defendant on re defendant, and by force of which he occupied ceiving such notice should at once vacate the premises, provided that it could be tersuch premises. The license was signed by | minated by the railroad company on 60 days'
(19 Okl. 80) SHAPEK et al. v. OAK CREEK VALLEY
BANK. (Supreme Court of Oklahoma. Sept. 4, 1907.) 1. PARTNERSHIP-RIGHTS AND LIABILITIES AS
TO THIRD PERSONS-NATURE OF PARTNER'S AUTHORITY.
Under the provision of section 3979, Wilson's Rev. & Ann. St. 1903, a partnership obligation executed by one partner without the knowledge or consent of the other, binds the firm and each general partner, if the obligation so executed is within the reasonable conduct of the partnership business.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, $ 206.] 2. SAME-RENEWAL NOTE.
The execution and delivery of a promissory note as a renewal of a firm obligation already outstanding and due upon which liability is admitted is a transaction within the scope of the business of the partnership.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, § 242.] (Syllabus by the Court.)
Error from Probate Court, Garfield County; M. C. Garber, Judge.
Action by the Oak Creek Valley Bank against A. B. Shapek and another, partners. Judgment for plaintiff, and defendants bring error. Affirmed.
Denton & Denton, for plaintiffs in error. McKeever & Walker, for defendant in error.
notice. Without notice, therefore, by the railroad company 60 days prior to the bringing of this action, the company had no cause of action against defendant, Yolan. Such notice was, however, served upon the defendant by the company's station agent at Lamont. It was signed: "St. Louis & San Francisco Railroad Company, by Flynn & & Ames, Its Attorneys." Was this sufficient, in the absence of specific proof, of their au. thority to act in this respect? The word "attorney." as used in this case, means an attorney at law, and an "attorney at law” in this territory is an officer of the court, authorized to appear therein, and as such present to the court for its consideration the interests of his client, as well as to appear generally for his client with reference to the transaction of business usually confided to members of the legal profession, and are, before being authorized to appear in court or to do business as an attorney at law, required to prove their qualification and to take an oath that in the transaction of business as attorneys they will do no falsehood or consent that any be done in court, and will not knowingly promote, sue, or procure to be sued any false or unlawful suit. These requirements of the law have given to attorneys, admitted to the practice of the law, a status before the courts, and with reference to business they assume control of, different from that of other agents. A presumption follows their act, when acting for another, that they are authorized by such other to act for him touching the particular subjectmatter. Attorneys admitted to the practice in Oklahoma obtain such right through and by reason of the authority of the Supreme Court, and the courts of the territory may therefore properly take notice of the right of an individual to act as an attorney at law, and to presume that in so acting they are not prosecuting any false or unlawful suit. If Flynn & Ames, as attorneys at law, bad without authority of the railroad company undertaken to cancel the license by which the defendant held possession of the premises, their act would have been a violation of their oaths as attorneys. The court upon the trial of the cause could not, and would not, assume that they had so acted. On the contrary, it would hold that their authority is presumed until some step was taken which would challenge that presumption. No such step was taken in this case, and we think the court did not err in the admission in evidence, over the objection of counsel for defendant, the notice of the termination of the lease in 60 days, signed. "St. Louis & San Francisco Railroad Company, by Flynn & Ames, Its Attorneys," for the presumption would be in such case that they were the company's attorneys and authorized to act in that respect.
The judgment of the lower court is affirmed. All the Justices concurring, except IRWIN, J., absent
GILLETTE, J. This action was brought and tried in the probate court of Garfield county, to recover from A. B. Shapek and Frank Ilakel, partners as Shapek & Hakel, upon a promissory note indorsed by said partnership and delivered to the plaintiff as a renewal of a former note of the same parties, which had been indorsed and transferred to the plaintiff. From the record it appears that Shapek & Hakel were partners engaged in the mercantile business in the state of Nebraska, and that in December, 1902, such firm was the owner and payee named in a note of $125 executed by F. T. Stoner and W. B. Van Sandt & Co., which note was not paid at maturity. Upon the execution and delivery of said note, it was sold to the plaintiff bank, and, not being paid at maturity, was renewed by the makers by their executing a new note to Shapek & Hitkel, who, in turn, indorsed the same to the bank and thereby took up the original note. Afterwards Mr. Shapek removed to Oklahoma, and, while he was in Oklahoma, said note again became due, and was again renewed. Mr. Ilakel of the firm then in charge of their Nebraska business, without consulting his partner, Shapek, indorsed and negotiated this renewal in the same manner as had theretofore been done.
No question is raised with reference to the liability of Shapek & Hakel upon the note renewed and extended by the execution of the note in question, or that, by reason of the execution and delivery of the present note, the former note upon which they were
admittedly liable was canceled and delivered bind third persons in dealing with the partup. The sole question presented by this rec nership business, where neither fraud nor colord being a question of the liability of Sha lusion is alleged or attempted to be shown, pek & Hakel as indorsers and guarantors of and, as neither fraud nor collusion was the renewal note sued on, such indorsement shown or proposed to be shown, any prihaving been made by Hakel without the vate understanding between the partners knowledge and consent of his partner Sha was wholly immaterial. Exceptions were pek. The amount of the judgment is not taken upon the trial of the case by the questioned, nor the fact of the execution and plaintiff in error to the instructions of the delivery of the instrument; the only ques court. We have already seen that the plaintion being the right of Hakel as a partner to tiff in error was liable upon the instrument so execute and deliver the same as a firm sued on, and, in the absence of complaint as obligation. The statute of Oklahoma (sec to the amount of the judgment, an erroneous tion 3379, Wilson's Rev. & Ann. St. 1903) instruction would not be sufficient to justiprovides: “Every general partner is agent fy a reversal. for the partnership in the transaction of its We have examined the instructions, howbusiness, and has authority to do whatever ever, as well as those asked for by the is necessary to carry on such business in the plaintiff in error and refused, and are of ordinary manner, and for this purpose may the opinion that the rule of the court under bind his co-partners by an agreement in the facts in the case was correct. writing." As the partnership is admitted, The judgment of the court below will be with Shapek & Jakel as general partners, affirmed. All the Justices concurring, exthe liability of the firm and each member cept GARBER, J., who tried the case while thereof is governed by the above-quoted stat- ! probate judge of Garfield county, and IRute, which provides that each partner has WIX, J., absent. authority to do whatever is necessary to carry on the business, and for such purpose may bind his copartners by an agreement in
(19 Okl. 433)
GARRISON V. KRESS et al. writing. The commercial world deals with a partnership in the light of its rights and (Supreme Court of Oklahoma. Sept. 20, 1907. liabilities as fixed and governed by the law,
Rehearing Denied Oct. 12, 1907.) and under the law, as above stated, each 1. EVIDEXCE-PAROL EVIDENCE CONTRADICTpartner has full power to act with refer IXG WRITTEN CONTRACT-FRAUD OR Mis
TAKE. ence to partnership affairs.
A contract in writing, if its terms are free agreement between the partners can affect from doubt and ambiguity, must be permitted third persons acting without knowledge of to speak for itself, and cannot, by the courts it, and, when Hakel indorsed the firm name
at the instance of one of the parties, be altered
or contradicted by parol evidence, unless in case to the instrument sued on in this case, the
of fraud or mutual mistake of facts. firm was thereafter liable by force of such
[Ed. Note.-For cases in point, see Cent. Dig. indorsement if it was so done in the rea vol. 20, Evidence, § 1756.] sonable conduct of the firm's business.
2. SAME--MERGER OF ORAL NEGOTIATIONS. Now, what were the facts? The record The execution of a contract in writing makes it clear that at the time Iakel indorsed supersedes all the oral negotiations or stipu
lations concerning its matter which preceded the note in question with the firm name the
or accompanied the execution of the instrument. firm was already indebted as indorsers upon
(Ed. Note.-For cases in point, see Cent. Dig. another note which was then due and un vol. 20, Evidence, $ 1756.) paid for the same indebtedness. By the in
(Syllabus by the Court.) dorsement and delivery of this note, the former note was canceled without other pay
Error from Probate Court, Oklahoma Counment. The act was therefore the transac
ty; Wm. P. Harper, Judge. tion of partnership business clearly within
Action by Samuel H. Kress and another the provisions of the above statute, which
against G. W. Garrison for rent. Judgment
for plaintiffs, and defendant brings error. governs in this case, in the absence of proof for plaintiffs, of a different law governing in the state of
Affirmed. Nebraska. It would be clearly inequitable On or about the 23d day of July, 1901, Samand unjust to hold that the partnership or uel H. Kress and Claude W. Kress leased to that either of the partners might escape G. W. Garrison two upper stories of a certain this liability after having, by the execution brick building on lot 9, in block 35, in the and delivery of it, canceled an obligation city of Oklahoma City, Okl., to be used in upon which they were admittedly liable, connection with the Illinois Hotel, which the and we think that no rule of law or any stat- said G. W. Garrison at that time occupied. ute can be invoked to excuse them from Prior to the completion of the said building, such liability. The plaintiff in error com which was to be used in connection with the plains of the rule of the court in excluding said hotel, the said G. W. Garrison sold out the testimony of Shapek touching an agree his interests in the Illinois Hotel and assignment between him and Hakel to the effect ed his lease on the proposed annex to said that Hakel had no authority to sign the firm hotel to the purchaser, one Mrs. M. J. Wade. name. Such an agreement could in no wise | The lease provided that the lessee could as