(2) that the trial court erroneously gave to the jury instruction No. 2. No other assignments of error have been discussed in the brief filed herein on behalf of defendant, and no other errors were presented to the court at the oral argument had herein, and, for that reason, this court is not called upon to search the record for any other errors than those urged by counsel.

The defendant company produced at the trial of this cause what was stated by its counsel to be the testimony of its conductor, given at a former trial of this case, and offered the same in evidence. The offer by counsel was as follows:

By Mr. Suits:"The defendant now offers in evidence the testimony of R. E. Davis, its conductor, given at the former trial of this case, shown between pages 64 and 73, inclusive, of the original case-made filed in the Supreme Court, containing the transcript of all proceedings of the former trial, and the stipulations executed by the attorney of record for plaintiff and the attorney of record for defendant.

*

By Mr. Suits: "I would like to take the stand and show where Mr. Davis is, and let it precede my offer."

Thereupon, counsel was sworn as a witness, and testified that he lived at Oklahoma City and was one of the attorneys for the defendant company in the state of Oklahoma; that it is their custom, in requesting witnesses to make the request by letter or wire, which was done in this case, and the attendance of the conductor, R. E. Davis, was requested, which request was made to W. F. Evans, general counsel for defendant, at St. Louis, and in answer to such request, for the attendance of Conductor Davis, witness was advised by the general counsel that Mr. Davis, the witness requested, was residing in California.

After the above testimony was given, on motion of plaintiff, it was stricken, and the objections made to the introduction of the offered testimony was sustained, and the defendant excepted to the ruling of the court in refusing the defendant the right to read such testimony to the jury. The objection made to the introduction of this testimony was upon the grounds

No

fered as to the correctness of the same. stipulation of counsel as to its being the testimony of the witness Davis was called to the attention of the trial court, neither was there any certificate of the reporter of the court who took the testimony as to its correctness. In fact, so far as the trial court was concerned, as disclosed by the record, it was not even made to appear that the witness Davis ever did testify at any former trial, or, if he did testify, that his testimony was taken by a reporter and transcribed in longhand. It does not appear from the record that the case-made referred to by counsel as containing the former testimony of the witness was within the control of the counsel. It fact, it was referred to as the original case-made filed in the Supreme Court, but no witness who is charged with the custody of such records was before the court to identity and authenticate it. In the face of an objection, the trial court was called upon to assume that the writing which, perhaps, on its face purported to be a transcript of the testimony of the witness Davis was in fact his testimony, and that it was correct just because it purported to be the testimony of such witness at a former trial. The whole contention of defendant is based upon the decision of this court in Atchison, T. & S. F. Ry. Co. v. Baker, 37 Okla. 48, 130 Pac. 577, in which case this question is discussed, but the discussion is based upon the assumption that the testimony offered was in fact the testimony of the witness at the former trial. The matter of the identity of the testimony and its correctness was not involved. This will be seen from the language of the opinion in that case at page 53 of 37 Okla., page 579 of 130 Pac., which is as follows:

"The objection urged seems to go to the point that there was not shown sufficient diligence in procuring the attendance of the witness to justify the use of his former testimony."

In this case, the first thing the trial court had to determine was the identity of the transcript which was offered, and, having determined the fact that the transcript offered was a transcript of the evidence of the witness Davis, then the rule laid down in the above case becomes important. The brief of defendant in this case discusses this question from the assumed position that there is no question as to the identity of the testimony offered. The serious thing in the instant case is the defendant did not show by any evidence that the transcript offered was in fact a transcript of the testimony of the witness Davis, given at a former trial. This fact is essential in order to make it admissible, and when such fact is proven, the transcript becomes admissible to show what his testimony was at the former trial, if condi

tions are such as would warrant the use of the deposition of such witness. The use of the testimony of a witness given at a former trial, is authorized by section 1942, Compiled Laws 1909, which provides:

"The shorthand reporter shall file his notes taken in any case with the clerk of the court in which the cause was tried, and the same shall be a part of the record in the cause. Any longhand transcript of notes so filed, duly certified by the reporter of the court who took the evidence as correct, shall be admissible as evidence in all cases of like force and effect, as testimony taken in the cause by deposition, and subject to the same objections.

In the case of Atchison, T. & S. F. R. Co. v. Baker, supra, it was held:

"The testimony of a witness given in a former trial between the same parties involving the same subject-matter with the opportunity for cross-examination and taken down by the official stenographer and preserved by bill of exception on appeal, is admissble, if otherwise unobjectionable, in a second trial of the same cause, where the witness resides in another state and is not present at the second trial."

It was held, in Atchison, T. & S. F. R. Co. v. Osborn, 64 Kan. 187, 67 Pac. 547, 91 Am. St. Rep. 189, as follows:

"The testimony of a witness given at a former trial, which was taken and preserved by an official stenographer of the court, as the law directs, is admissible in evidence, where it appears that the witness is out of the jurisdiction of the court and beyond the reach of its process."

It would therefore seem to be the rule that before the former evidence could be admitted, it must be shown that such witness is beyond the jurisdiction of the court and is not present at the trial. The defendant undertook to move that the witness Davis was beyond the jurisdiction of the court, and for that purpose produced a witness who testified that he was advised by the general attorney for the defendant that such witness resided in California. This testimony was incompetent, and was stricken upon motion. No dilgence was shown, and it did not appear from any competent evidence that the witness Davis was beyond the jurisdiction of the court. It does not even appear that Davis was not present at the trial. For these reasons the court properly excluded the offered testimony.

It is contended that the court erred in giving instruction No. 2, and that the judgment should be reversed for that reason. The instruction complained of is as follows:

"You are instructed that if you find for

the plaintiff, you will, in assessing his damages, take into consideration his age and condition in life, the injury sustained by him, if any, and physical pain suffered and⚫ endured by him on account of said injuries, if any, his loss of time, if any, such damages, if any, as you believe from the evidence he will sustain in the future as the direct effect of such injury, such sums as he has paid out for medical attention on account of said injury, if any, together with all facts and circumstances in evidence in this case, and assess the damages at such sum as from the evidence you deem proper, not exceeding the sum of $1,000."

It is only that portion of such instruction which permits the jury to award recovery for damages which plaintiff will sustain in the future as the direct effect of such injury which is claimed to be erroneous. It is claimed that this element of recovery was not in the case, for the reason that it was not clearly shown by the evidence that any future damages would be suffered on account of such injury. In fact, counsel for defendant seems to have an erroneous conception of the instruction complained of. They say in their brief:

"The injuries sustained by plaintiff are purely subjective, and of such a nature that laymen cannot, with reasonable certainty, know whether or not there will be future pain and suffering. No expert testimony was offered upon the question of future pain and suffering, and the only evidence introduced upon this point was given by plaintiff himself."

They cite the case of Shawnee & Tecumseh Traction Co. v. Griggs, 50 Okla. 566, 151 Pac. 230, as authority for their contention, which fully supports the rule that no recovery for future pain and suffering can be had unless there is some expert testimony that future pain and suffering will be endured, where the injury is subjective as in this case. But it will be noted that the instruction in the instant case does not deal with future pain and suffering, and a recovery on that account is not specifically authorized by the instruction as counsel seems to construe it. All the cases cited by defendant's counsel deal purely with the recovery for future pain and suffering and they correctly state the rule that no such recovery can be had unless there is expert testimony, reasonably tending to show that future pain and suffering will be endured where the injury is subjective. The instruction given in the instant case authorizes a recovery for "such damages, if any, as you believe from the evidence he will sustain in the future as the direct effect of such injury," and it can be readily seen that a recovery for future pain and suffering is not directly contem

plated by this instruction if the evidence does not show with reasonable certainty that such pain and suffering will be endured. It is not specifically mentioned, but it might be inferentially contemplated, provided the evidence showed that pain and suffering will be endured in the future. So might any

re

legitimate element of recovery for future detriment be inferentially contemplated by the instruction, if the evidence reasonably tended to prove such detriment, but, to argue that the instruction authorized a covery for future pain and suffering when the evidence did not reasonably tend to prove any is to argue that the trial court, by inference, submitted to the jury an improper element of damage. In all the cases cited by counsel, the instruction positively submitted this element of damage, and in the instant case it was not done. But, if this instruction was too general in its terms and too sweeping in its scope, it would only constitute technical error, and the record does not disclose that the substantial rights of the defendant have been prejudically affected. The defendant does not contend that the amount of recovery was excessive. No such complaint was made against the recovery in the motion for a new trial, and it is not even argued that the damages awarded were excessive. We have examined the evidence in the case, and are of the opinion that the amount of damages awarded by the verdict of the jury were not excessive. In the case of Planters' Cotton & Ginning Co. v. Penny, 53 Okla. 136, 155 Pac. 516, this court held:

"In a suit for damages for personal injuries, where the amount recovered was not excessive, error in instructions on the measure of damages is harmless."

Again in the case of Midland Valley R. Co. v. Kersey, 59 Okla. 9, 157 Pac. 139, this court held:

"In an action for personal injuries, where there is no assignment of error that the verdict was excessive, error in an instruction relating to the measure of damages is harmless, following Planters' Cotton & Ginning Co. v. Penny, 53 Okla. 136, 155 Pac. 516."

Under these authorities, if there was any error in the instruction complained of, it was harmless error within the purview of section 6005. Revised Laws 1910, and the judgment of the trial court should not be reversed for such error.

The judgment of the trial court is affirmed. By the Court: It is so ordered.

ROBERT et al. v. MULLEN.

No. 6992-Opinion Filed Sept. 26, 1916.
(160 Pac. 83.)

1. Appeal and Error-Record-Scope and Contents-Order of Court.

The trial court rendered judgment on the pleadings. The answer referred to a certain order of court, approving a full-blood conveyance, as being attached and made a part of said answer. The order so referred to was in fact not attached and was not filed in the trial court. An appeal was taken to this court from said judgment upon a transcript of the record. After the expiration of over a year, a certified copy of the said order was filed with the clerk of this court and attached to the transcript of the record herein. Held, that such instrument is not a part of the transcript and cannot be considered by this court.

2. Pleading-Motions-Judgment on Pleadings-Want of Reply.

The petition contains two causes of action, namely, one in ejectment and one to cancel a conveyance. Both causes are stated in the usual form, and cancellation is sought upon the grounds: (1) That such conveyance was never executed by the plaintiffs; and (2) that the conveyance was never approved by the county court as required by law, the said conveyance being a full-blood conveyance of inherited lands. The petition was not verified. The answer of defendant. which was verified, contained: (1) A general denial; and (2) affirmative allegations of the execution and delivery of the said conveyance and the payment of an adequate consideration thereunder, by way of a crosspetition, and sought to have title quieted as against the plaintiffs. Held, that the affirmative relief which defendant sought was dependant upon the result of the trial of the issues raised by the general denial to the petition, and if plaintiffs prevailed in such trial, no relief as sought could be granted defendant, and if defendant prevailed in such trial, his title became effectually adjudicated without such affirmative relief of quieting his title. Held, further, that no reply was necessary to join issues of fact, triable to the court or jury, and the relief sought under the cross-petition of the defendant, being dependant upon such trial, and being such relief as would accrue to him, if he were successful in such trial, without a judgment quieting his title, could not be granted him upon the pleadings in default of a reply to the answer and cross-petition of the defendant.

(Syllabus by Campbell, C.)

Error from District Court, Carter County; A. Eddleman, Judge.

Action by Daniel Robert and another against J. S. Mullen. Judgment on the pleadings for defendant, and plaintiffs bring error. Reversed and remanded.

J. R. Connell, E. C. Andrews, J. M. Willis, and G. Earl Shaffer, for plaintiffs in error.

H. A. Ledbetter and F. M. Adams, for defendant in error.

The

Opinion by CAMPBELL, C. This action was commenced in the district court of Carter county by plaintiffs against the defendant for the recovery of a tract of land and for the cancellation of a purported warranty deed covering the same. The petition contained two causes of action, separately stated. first one was an action in ejectmment, and the other one was for the cancellation of a conveyance covering the same land, purporting to have been executed to the defendant by the plaintiffs, upon the following grounds: (1) That the deed in question was never executed by the plaintiffs; and (2) that the deed had never been approved by the county court as required by law, the said conveyance being a full-blood conveyance of inherited lands. Both causes were set forth in the usual form, and the petition was unverified. The defendant filed an answer properly verified, which contained: (1) A general denial; and (2) affirmative allegations of the execution and delivery of the deed in question by the plaintiffs to the defendant and the payment thereunder of an adequate consideration therefor, and further alleged the approval of said conveyance by the county court of McCurtain county, being the court having jurisdiction to approve said conveyance, and in said answer made reference to said order of approval and alleged that a copy of same was attached to the answer and made a part of the same, and prayed for a judgment quieting his title to said lands and barring all claims of plaintiffs to the

same.

The order referred to was not in fact attached to the answer and never was filed in the trial court. No reply was filed to the answer and cross-petition of defendant, and on motion of defendant the court rendered judgment against the plaintiffs on the pleadings denying any relief to plaintiffs and quieting the title of defendant to the lands involved, barring all claims of the plaintiffs and enjoining them from asserting any claims to said lands and assessing the costs of the action against the plaintiffs. From this judgment an appeal is brought to this court by plaintiffs upon a transcript of the record, and they assign as error the action of the court in rendering such judgment upon the pleadings.

Before entering upon the discussion of the merits of this appeal, it becomes necessary to notice a contention made by the defendant in error with reference to an in

instrument which has been filed for the first time in this court. As was stated, the order approving the conveyance which was referred to in the answer of the defendant was not in fact attached to the answer and was never in fact filed in the trial court, and it does not appear in the transcript of the record attached to the petition in error, but was filed for the first time in this court more than a year after this proceeding in error was commenced. It is true that there appears in the transcript a recital as follows:

660 ** And the answer and cross-petition of defendant having been presented and the exhibits referred to having been read to the court, and argued and treated by counsel for both plaintiffs and defendant in their argument as if the same had been attached or filed, were so treated by the court."

Such recital does not purport to be a copy of any order of the court in the cause, unless it is intended to be a recital of the language of the court in passing upon a motion to permit the filing of a reply, which the trial court, it would seem from such a recital, refused to grant. It is fundamental that a motion and the ruling of the court thereon has no place in a transcript of the record, and if such motion or the ruling thereon is included in a transcript by the clerk, it is a mere nullity and cannot be considered by this court. Devault et al v. Merchants' Exchange Co., 22 Okla. 624, 98 Pac. 342.

On

The petition in error with the transcript attached was filed in this court on November 23, 1914, and the order referred to in the answer is not in such transcript. March 9, 1916, there seems to have been filed in this court what purports to be a copy of such order approving the conveyance in question, as recorded in the office of the register of deeds for Carter county, and it is urged by defendant in error that this court should consider such instrument as a part of the record in this court, even though it was never filed in the trial court, and was filed for the first time in this court more than one year after the proceedings in error were commenced. Such an instrument, or exhibit, not having been filed in the trial court, cannot be made a part of the record by filing the same in this court and attaching it to the transcript, and this court cannot consider the

same.

The only question presented by the record in this appeal is as to whether the trial court erred in rendering judgment upon the pleadings as they existed in the court below. The two causes of action were in usual form, and no contention is made that either cause is defectively stated, or that either is subject to demurrer. The theory upon which the defendant presented his mo

tion for judgment on the pleadings, and the one which the trial court seems to have recognized, was that the answer and cross-petition required a reply in order to form any issue of fact properly triable to the court or a jury. The petition alleged that the deed sought to be cancelled was never executed by the plaintiffs, and, further, that such deed was never approved by the county court having jurisdiction to approve the same, it being a full-blood conveyance of inherited lands.

Under the facts alleged, and the admissions in the answer, it is apparent that such conveyance was one which is required to be approved before it is a valid conveyance. If such conveyance was never executed, as alleged in the petition, by the plaintiffs to the defendant, or if it were executed but not approved as required by law, then it was subject to cancellation at the instance of the plaintiffs. The defendant in his answer made a general denial, and then alleged affirmatively that such conveyance was executed and delivered to him by plaintiffs, and further alleged that such conveyance was approved by the proper court having jurisdiction to approve same. This is in effect nothing more than a general denial and added nothing to the general denial theretofore appearing in the answer. Two material issues of fact were tendered by the petition and were joined by the general denial in the answer, and no further allegation as to the execution of the conveyances and its approval by a court having jurisdiction that might be placed in the answer could eliminate the necssity for a trial of the issues of fact joined by the general denial. It would seem that the cross-petition of the defendant was merely one in form, as the relief sought thereby was only that relief which would accrue to the defendant if he prevailed in the trial of the issues raised by the pleadings. Judgment in his favor in a trial of the issues joined by the general denial would be just as effectual to quiet his title and bar all claims of the plaintiffs as an affirmative judgment to that effect, and, for this reason, his cross-petition was entirely dependent upon the result of the trial of the issues presented by the petition and general denial, and a failure of plaintiffs to file a reply to the answer and crosspetition of the defendant did not warrant the court in rendering a judgment upon the pleadings denying any relief to plaintiffs without having had a trial of the issues properly joined by the pleadings. It will also be seen that no relief could, in the nature of things, be granted to the defendant upon his so-called cross-petition until it was first determined that the deed had actually been executed and delivered and until it was further determined that such deed, if executed and delivered,

had actually been approved by the court having jurisdiction to approve such full-blood conveyance. The plaintiffs allege that such deed was never executed by them to the defendant, and that it was never approved as required by law, and upon these two grounds they sought to have the deed canceled. The defendant made a general denial in his answer, and then affirmatively alleged that such deed was executed and delivered to him by the plaintiffs, and that it had been duly approved by the county court having jurisdition to approve the same. The affirmative allegation added nothing to the general denial and did not require any reply, and the cross-petition of the defandant being only one in form, depending absolutely upon the result of the trial of the issues of fact joined by the general denial, did not require any answer, for it sought no relief different from that which would accrue to the defendant in the event that he prevailed in the trial upon the other issues of fact joined by the pleadings. A case very similar to this one has been before this court, and the pleadings very similar to the ones in this case have been construed by this court. In the recent case of Cox v. Gettys, 53 Okla. 58, 156 Pac. 892, it was held:

"The petition, in a suit to cancel deed upon the ground, among others, that it was a forgery, was in the usual form, but unverified. The answer which was verified contained: (1) A general denial; and (2) an allegation to the effect that on November 30, 1912, B. made, executed and delivered to the defendant his certain deed in writing whereby he conveyed to the defendant the certain premises described in the petition of the plaintiff ; that said deed was filed for record in the office of the register of deeds in Oklahoma county on December 6, 1912; that a copy of said deed is attached to the petition. marked 'Exhibit A,' and made a part thereof; that said B. departed this life on December 5, 1912. Held, that the answer was in effect a general denial of the allegation of forgery, to which no reply was necessary, and that evidence tending to establish forgery was admissible."

In the opinion of the above case, Mr. Chief Justice Kane says:

"The general denial contained in the answer sufficiently joined the issue upon the question of forgery, and the further affirmative statements to the effect that the deceased made, executed and delivered the deed di no more."

The answer of the defendant in the instant case being in effect only a general denial as to the main facts, and the cross-petition of the defendant being one in form only, seeking only such relief as would accrue to him in the trial of the case under the petition of plaintiffs, and being entirely dependent upon the