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NELSON CARNEY vs. STATE.

Error from District Court of Latimer County. Hon. W. H. Brown trial Judge.

Affirmed.

No. 1947

1. Where a jury finds a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict it will not be set aside in the absence of prejudicial error.

2 In a prosecution for the larceny of a domestic ani. mal, the evidence examined and held sufficient to sustain the verdict, and that no reversible error was committed upon the trial.

(Syllabus by the court.)

Opinion of the Court by ARMSTRONG, J.

GEORGE FLOWERS,

VS.

STATE OF OKLAHOMA,

No. A-1819

Error from District Court of Garvin County.

1. An information may be amended in matter of substance or form at any time before defendant pleads, without leave and may be amended after plea by leave of court, where the same can be done without material prejudice to the right of the defendant.

2. By leave of court, an information may be amended, as to matters of form after the jury has been impaneled, when the same can be done without prejudice to the substantial rights of the defendant.

(Syllabus by the Court.)

OPINION OF THE COURT BY DOYLE J:

CURRENT DECISIONS OF THE

SUPREME COURT OF OKLAHOMA,

DAVID F. MALLOY, Plaintiff in Error,

V8.

No. 5990

DOCK JOHNSON, et al., Defendants in Error.

(Rendered March 3, 1914.)

Error from District Court of Okfuskee County. Hon. John Caruthers trial Judge,

Dismissed

1. Where more than six months has intervened be. tween the rendition of the final order sought to be review. ed and the filing of the petition in error in the Supreme Court, this Court has no jurisdiction to review such final order.

2. Sec. 5255 Rev. Laws 1910 does not repeal Chap. 18, Sess. Laws 1910-11.

Syllabus by the court.)

J. A. Baker for plaintiff-in error.

C. T. Huddleston for defendanta in error.

Opinion of the Court, by Loofbourrow, J.

In this case Motion for new trial was overruled by the court below on May 31st, 1913; the petition in error and case made were filed in this court on January 13th, 1914, so that more than six months had expired between the date of the final order sought to be reviewed and the filing of the petition in error. It has been repeatedly held that after the expiration of the time allowed by law for perfecting the appeal this court is without jurisdiction to entertain the same. See Tishimingo Elec. Co. v. Harris, 28 Okla. 10; Fairbanks Morse & Co. v. Thurmond et al., 31 Okla. 612; Healy v. Davis, 32 Okla. 296; State Savings Bank of Manchester, Iowa, v. Bedden et al., 134 Pac. 20.

The plaintiff in error contends that Sec. 5255 Revised Laws 1910, which provides that appeals must be brought within one year, controls in this case. It is true that the Revised Laws took effect on the 16th day of May, 1913 as contended by plaintiff in error, but Section 2 of the adopting act expressly provides that the adoption of the Revised Laws of 1910 shall not be construed to repeal any act of the Legislature enacted subsequent to the adjourment of the Extraordinary Session of the Legisla. ture which convened in January, 1910. Sess. Laws 191011, Chapter 18, places the six months limitation by which we must be governed.

The appeal is therefore dismissed.
All the Justices Concur,

EVANS SCOTT and A. E. BUTTS,

VS.

LEANA McGIRTH, by her guardian
Felix P. Canard, Defendant in Error,

(Rendered February 26, 1914)

No. 8102

Error from District Court of Hughes County.

1. A proceeding to probate a will pending in the United States court at Wewoka, at the time of the admission of the state into the Union, which was transfer. red to the district court of Seminole County and by such court transferred to the county court of Seminole County and by that court transferred to the county court of Hughes County and was pending in said last named court when a petition to set aside the probate of the will was file 1, HELD, that the county court of Hughes County is the successor in probate matters of the United Sta. tes court for the Western District of the Indian Territory and the proper court in which to file a petition to wet aside the probate of a will, probated in the United States court for the Western District of the Indian Territory at Wewoka.

2. A county court co-extensive with the county, is a court of original jurisdiction in all probate matters.

3. That the courts of original jurisdiction of this state are deemed to be the successors of all courts of original jurisdiction of the Territories and as such, take and retain custody of all records, documents, journals and files of such Territorial courts.

4. In construing Section 2166, Comp. Laws, 1909, as applied to infants and persons of unsound mind, said Section must be read and construed in connection with Section 5172 Comp. Laws, 1909, and when so read and construed it seems clear that the latter Section relives an infant of the diligence required of adults under Section 5166, to contest the probate of a will within one year, or to show that the the evidence relied upon was discovered since the probate of the will. Section 5172, gives an infant a right to contest the probate of a will upon either or all of the four grounds specified in said Section 5166, free from conditions precedent in respect to diligences specified in said last Section.

5. Where a petition to set aside the probate of a will, under Section 5166, Snyder's laws, 1909, is neither signed nor verified, the remedy is by motion to strike the petition from the files and not by general demurrer.

6. An objection for want of signature or verification to a petition to set aside the probate of a will cannot be raised for the first time on appeal.

(Syllabus by the Court.)

Opinion of the Court by Rittenhouse, J.

LOUIS ZENN, Plaintiff in Error.

VS.

No. 3497

CHARLES BALZZELL, et al., Defendants in Error. Error from County Court of Craig County.

Reversed and remanded.

1. Where the facts which warrant a judgment for the plaintiff have been clearly alleged, and the defendants

have admitted the execution of the note sued on, and the court sustained an objection to the introduction of such note in evidence on the ground that there was a fatal variance because the original note was dated March 25, 19—, and the capy attached to the petition was dat ed March 25, 1910, HELD, that the court erred in sus. taining the objection to the introduction of such instru ment in evidence.

2. No variance between the allegation of the pleading, and the proof, is to be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. Seymour Riddle, Attorney for Plaintiff in Error. Wm. P. Thompson Attorney for Defendants in Error. (Syllabus by the court.) O

N. S. EDMONSON, et al., Plaintiffs in Error,

VS.

G. B. FRANCISCO, Road Supervisor.

(Rendered March 3, 1914.)

Error from District Court of Delaware County.

Hon T. L. Brown trial Judge,

Reversed and Remanded.

3199

1. Under Seo. 27 of the Cherokee Allotment Aot of July 1st, 1902 (32 Stat. at L. 716) public highways two rods in width, being one rod on each side of the section line, may be established along all section lines without any compensation being paid therefor, and all allottees, purchasers and others shall take the title to such lands subject to said provision. But if the buildings or other improvements are damaged in consequence of the establishment of such public highways, such damages shall be determined and paid for as in said section provided and authorized.

2. A road overseer is without authority to open up section lines in the Cherokee Nation, on which are located orchards, houses and other valuable improve.

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