case, said conversation taking place prior to the signing of the journal entry, are not evidence in this court as to the time allowed by court to make and serve case-made, but the journal entry itself showing the order of the court, is the only evidence this court may consider as to what time was allowed by the trial court in which to make and serve such case-made. (Syllabus by Stewart, C.) Error from District Court, Harper County; W. C. Crow, Judge. Action by C. J. Pettigrew against J. W. Harmon and others. There was judgment for defendants, and motion for new trial being denied, plaintiff brings error. Dismissed. R. H. Nichols, for plaintiff in error. Opinion by STEWART, C. On the 14th day of September, 1914, judgment was rendered for the defendants in the district court of Harper county, Okla., and on the same date a motion for a new trial was filed and overruled, to which action of the court the plaintiff excepted, and has appealed to this court. The defendant in error has filed a motion to dismiss the appeal for the reason that the case-made was not served within the extension of time granted by the court below within which to make and serve case-made. The journal entry of the lower court with reference to extension of time to make and serve the case-made, reads as follows: "The plaintiff is given time in which to make and serve case-made, and on good cause shown, the time for making and serving case-made is extended 45 days beyond the 15 days allowed by law. The defendant is given ten days in which to suggest amendments, the case to be settled on five days' notice by either party." It appears from the case-made filed with the petition in error that the attorney for defendants was served with the case-made on the 14th day of November, 1914. Such being true, more than 60 days had expired after the overruling of the motion for a new trial before the case-made was served. The attorney for the plaintiff in error, in response to the motion to dismiss, states that. for some time before the case-made was served, he was trying to find the attorney for the defendants and visited the office of such attorney with the view of serving the case-made, but was unable to make the service. He further calls attention to the purported copy of the stenographer's notes con "Mr. Nichols: Is that 60 days after 15 days allowed by statute? "The Court: Yes; 60 days in addition to the time allowed by statute." It appears that these notes were made before the signing of the journal entry by the court. It is urged that the stenographer's notes should be accepted as evidence of the court's order extending the time. Section 5143, Revised Laws of 1910, reads as follows: "All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action." The journal entry is clear and distinct as to the extension of time allowed by the court, and is the only evidence that we can consider as to the action of the court extending the time. It appears that the attorney for plaintiff in error was acquainted with the contents of the journal entry, for the reason that in his response to the motion, he claims that he tried to get service on the attorney for the defendants before the time named in the journal entry expired. If he could not find the defendants or their attorney, on proper application, the trial judge would, no doubt, before the time expired. have granted an order, again extending time. It does not appear that such application was made. If the case-made was presented at the of fice of the attorney for the defendants before the expiration of time, it may have been the ethical duty of the attorney for the defendants to accept service of the same as of the date presented at the office. However. this is not a matter before this court. There is nothing before us to show that the casemade was served at any other time than the date on which the attorney for defendants in error accepted service, to wit, the 14th day of November, 1914. According to the record presented to us, this court is without jurisdiction to entertain the appeal. We can only apply the law to the record facts. The appeal should be dismissed. NEW YORK LIFE INS. CO. v. TOWN OF No. 7979-Opinion Filed Oct. 24, 1916. 1. Insurance-License Taxes-Right to Im pose. Where a foreign life insurance company pays the taxes contemplated by section 3426, Revised Laws of 1910, no additional tax or burden can be imposed by any municipality within this state upon an agent of said company for the privilege of soliciting insurance for it within said municipality. 2. Injunction-Remedy-Scope of. Equity will restrain by injunction a proceeding under an invalid ordinance, which, if allowed to proceed, would destroy property rights and inflict irreparable injury. (Syllabus by Hooker, C.) Error from District Court, Stephens County; Cham Jones, Judge. Action by the New York Life Insurance Company, a corporation, against the Town of Comanche, Okla., a municipal corporation, and others. There was a judgment for defendant, and plaintiff brings error. Reversed, with directions. Burwell, Crockett & Johnson, for plaintiff in error. A. W. Reynolds, Riley & Sandlin, and Chas. L. Moore, for defendants in error. Opinion by HOOKER, C. This action was instituted to restrain the enforcement of an ordinance of the town of Comanche, which attempted to impose a license fee upon all insurance agents doing business therein in the sum of $2.50 per year. The New York Life Insurance Company alleged that it was a foreign insurance company engaged in the business of soliciting and writing life insurance policies in the state of Oklahoma, and that it had been duly licensed to conduct said business therein during the year 1915, and had paid all the fees required by the laws of the state including an annual tax of 2 per cent. on all premiums collected in the state after all cancellations and dividends to policy holders were deducted, and also an annual tax of $3 on each local agent. It is further alleged here that one Kessler, who resided at Anadarko, Okla., was a duly appointed agent of the company with authority to solicit life insurance risks in the state of Oklahoma, and that the said Kessler as the agent of the company during the month of September, 1915, and for some time prior thereto, was engaged in soliciting life in surance in the town of Comanche, and that the officers of said town in order to enforce the ordinance aforesaid had caused the arrest of said Kessler for a violation thereof, and had imposed a fine upon him in the court of the justice of the peace, which required him to appeal from the justice court to the county court, and that the officers of said town threatened to and intended to arrest the said Kessler whenever he attempted to write insurance in the town of Comanche, without paying the license tax aforesaid. It is alleged that under the law of this state, that the town of Comanche could not require the said Kessler, as the agent of the New York Life Insurance Company, to pay the license tax provided by the ordinance, but that inasmuch as the New York Life Insurance Company had paid the taxes afore said, that its agent was authorized to write insurance in any part of the state, and that any attempt by the town of Comanche to compel the said Kessler to pay said license tax was interference with the business of Kessler as the agent of the company, and that in view of the fact that the officers of said town intended to constantly and repeatedly arrest him, causing him great detriment and loss, and the company loss to its business, that the company was entitled to an injunction here to restrain the enforcement of said ordinance. So the question presented to this court is: Is it lawful for the governing body of a municipality in this state to impose a license fee or tax upon a life insurance agent for a foreign life insurance company, which company has paid the annual taxes provided by section 3426, Re vised Laws of 1910? The company contends that because it paid the annual tax of 2 per cent. on all premiums after cancellations and dividends to policy holders had been deducted, and an annual tax of $3 on each local agent, and such other fees as were required by law, that the same was in lieu of all other taxes or fees, and in lieu of all taxes and fees of any sub. division or municipality of the state, and that any attempt by the town of Comanche to compel any agent of the company to pay an additional license tax or fee in order to write life insurance within the municipality was unlawful, without authority of law, and imposing an additional tax or burden upon the company in violation of the statute, while the town of Comanche asserts that by virtue of section 681, Revised Laws of 1910, it had the authority to levy a license tax on life, or fire insurance companies or agencies in this state. 62 OKLAHOMA REPORTS It cannot be gainsaid that it was within the power of the Legislature to enact section 3426, Revised Laws of 1910, which imposed a tax upon foreign life insurance companies, and provided that this tax should be in lieu of all other taxes to the state or any subdivision, or municipality thereof. The authorities are uniform, that the lawmaking body may properly classify property for the purposes of taxation, and if all property of the same character is brought within this class, that no principle of law is violated which rendered the classification improper or unlawful. So in this case we will treat it as an established fact that the Legislature had the authority, as stated, to enact section 3426, Revised Laws of 1910. The purpose of this act is plainly stated in the statute, and in our judgment it is the law in this state prescribing the manner and method by which taxes upon foreign life insurance companies may be collected in this state, and when the company complies with this provision of the statute, and pays all the taxes prescribed by this act, the state, the county, and every municipality in the state are prohibited from imposing any other burden in the way of taxation upon said company. Whatever may have been the right of the municipality or county or state prior to the enactment of this statute to impose taxes upon the prop erty of the company, was withdrawn by the act aforesaid, and as a substitution therefor the method of taxation provided by section 3426, Revised Laws of 1910, was enacted in its stead. We cannot agree with the contention of the defendant in error that section 681 of Revised Laws of 1910 repealed section 3426, Revised Laws of 1910, or gave to the town of Comanche the right to impose a license tax upon this company which was denied to it by section 3426. Section 681 of Revised Laws of 1910 was enacted by the act of the Legislature of 1907, and section 3426, Revised Laws of 1910, was enacted by the act of the Legislature of 1909, and that part of the law of 1907 which is in conflict with the act of 1909 is repealed, and it is perfectly apparent and requires no difficulty to determine that the intention of the Legislature in the enactment of the law of 1909, was to withdraw from the municipalities the right it had previously granted to them of imposing an occupation tax on insurance companies or agencies. In the case of San Francisco v. Pacific Telephone & Telegraph Co, 166 Cal. 244, 135 Pac. 971, the Supreme Court of California said: In "(1) The appellant, relying upon the wellsettled rule that exemptions from taxation are to be strictly construed (2 Lewis' Suth. Stat. Const. sec. 539), argues that every doubt concerning the meaning of the provision in question must be resolved against the defendant. But we think the amendment does not grant any exemption within the meaning of this rule. As we have pointed out, it provides a specific mode of taxation. in substitution of certain other modes. Merrill Ry. & Lighting Company v. City of Merrill, 119 Wis. 249, 96 N. W. 686, the court, after recognizing the doctrine of strict construction of exemptions, goes on to say: 'On the other hand, it is equally well settled that, where the statute in terms exempting property from general taxation is only a part of a general statutory scheme substituting a license or other impost in lieu of general taxation, the rule of strict construction has no application; but, on the contrary, such a statute is to be construed liberally in favor of the person required to pay taxes in the substituted license form.' To the same effect are the cases of M. & St. P. R. v. Supervisors, 29 Wis. 116; Same v. Milwaukee [34 Wis. 271; Milwaukee, E. R. & L. Co. v. Milwaukee] 95 Wis. 42. 69 N. W. 794, 3 L. R. A. 45, 60 Am. St. Rep. 81: and Duluth, etc. R. Co. v. Douglas County. 103 Wis. 75, 88, 79 N. W. 34. born v. N. Y. & N. H. R. Co., 40 Conn. 491: Neary v. Phil., etc., R. Co., 7 Houst. (Del.) 419, 9 Atl. 405, 414, 415; Jersey City G. Co. v. Jersey City, 46 N. J. Law, 195, 196; Black on Interp. Laws, sec. 143." See, also, Os There can be no doubt, if Kessler were angaged in any other business that is not exempt from the payment of this license tax or were attempting to engage in any other business not within the exempted class, that the plaintiff in error would not be entitled to any relief against the enforcement of the ordinance here, but that is a question we cannot decide here. Under the allegations of the petition the company is interested in the business done and policies written and deliv ered by the agent, and any interference or restraint which curtails the privilege of the agent in writing and delivering policies necessarily interferes with the financial interest of the company. This court, in the case of Yale Theater v. City of Lawton, reported in 35 Okla. 446. 130 Pac. 136, said: "It also seems to be settled that equity will restrain. by injunction, criminal proceedings under an invalid ordinance, which. if allowed to proceed, would destroy property rights and inflict irreparable injury. Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169; Southern Express Co. v. Ensley (C. C.) 116 Fed. 756: Mont gomery v. Louisville, etc., R. Co., 84 Ala. 127. 4 South. 626; Platte, etc., Canal, etc., Co. v. Lee, 2 Colo. App. 184, 29 Pac. 1036; Poyer v. Des Plaines, 123 Ill. 112, 13 N. E. 819, 5 Am. St. Rep. 494; Davis v. Fasig, 128 Ind. 271, 27 N. E. 726; Newport v. Newport, etc.. Bridge Co., 90 Ky. 193, 13 S. W. 720, 8 L. R. A. 484; Boyd v. Frankfort, 117 Ky. 199, 77 S. W. 669, 111 Am. St. Rep. 240. See, also, Davis, etc., Mfg. Co. v. Los Angeles, 189 U. S. 207, 23 Sup. Ct. 498, 47 L. Ed. 778; Ignaz v. Knoxville, 1 Tenn. Ch. App. 1. "The bill seeking the injunction must set out facts which will enable the court to say whether the injury will be irreparable; and that such will be the character of the injury must clearly appear." When we construe the petition here, we are of the opinion that the allegations thereof are sufficient to show irreparable injury to the plaintiff in error unless the defendants in error are restrained. We therefore conclude that section 3426, Revised Laws of 1910, is in force in this state, and that any foreign life insurance company which pays the taxes contemplated by this act cannot be subjected to a license tax by any municipality in this state, and any attempt by the municipality to impose a license tax is unlawful, and where the enforcement of an ordinance attempting to impose this tax interferes with the business or profits of the company, that it is entitled to an injunction to restrain the same. The judgment of the lower court is therefore reversed, with directions to grant to the plaintiff in error an injunction as prayed for. By the Court: It is so ordered. SCHMUCKER v. CLIFTON. 1. Appeal and Error-Question of FactReview. Where a demurrer is not interposed to the evidence or a directed verdict requested, the insufficiency of the evidence to sustain the verdict cannot be reviewed by this court. 2. Appeal and Error-Prejudicial Error— Copying Pleadings in Instruction. While we do not approve, as the best mode of defining the issues to the jury, the copying of the pleadings in the instructions of the court, yet where the pleadings are not prolix, do no contain important and intricate averments, and where another part of the instructions of the trial court fairly instructs the jury as to the issues involved in the case, the copying of said pleadings in the instructions is not prejudicial error. 3. Landlord and Tenant-Rental ContractImprovement of Building. Where the rental contract provides the time at which the same is to begin, and it is provided in said rental contract that said building is to be put in proper condition for occupancy, it is the duty of the lessor to have put the building in proper condition for occupancy by the time that the said renta1 contract began to run. 4. New Trial-Grounds-Newly Discovered Evidence. A new trial predicated upon newly discovered evidence that the lessee had sought to dispose of his interest in the rental contract, which is the subject-matter of the action, is not ground upon which to predicate a new trial. (Syllabus by Collier, C.) Error from District Court, Ottawa County; Preston S. Davis, Judge. Action by A. D. Clifton against W. B. Schmucker. Judgment for plaintiff, and de fendant brings error. Affirmed. A. C. Wallace, for plaintiff in error. Opinion by COLLIER, C. This is an action brought by the plaintiff in error, to recover damages for breach of a rental contract entered into by and between the parties to this action. Hereinafter the parties will be designated as they were in the trial court. The agreement which is the basis of this action reads as follows: "Articles of Agreement. "This agreement, made and entered into in duplicate on this the 6th day of October, A. D. 1914, by and between W. B. Schmucker, of Miami, Oklahoma, party of the first part, and A. D. Clifton, of Cleveland, Oklahoma, party of the second part: Witnesseth that the said first party, for and in consideration of the payment to him of $350.00 by the second party by these presents rents, lets, and demises unto the said second party, all of that portion of what is known as the Opera House Block, in the city of Miami, Oklahoma, used for opera purposes, with the right to put in and operate moving pictures, with the express condition that such equipment will be standard equipment as required by the Insurance Underwriters Association, for and during a period of one year from the first day of November, 1914, the second party at his option may keep said building as aforesaid, for a period of three years at the same annual rental. "It is further agreed that the said second party shall pay the said first party the sum of $350.00 per annum as rental in advance. "It is further understood and agreed by and between the parties hereto, that in the event that the said second party elects to retain or surrender said property at the expiration of the first year, that he will give sixty days' notice of his intention to the said first party. "It is further agreed that the said second party will keep said property in as good repair as it now is, barring unavoidable accidents, and will deliver the same at the expiration of said term. "It is further agreed that said second party will furnish to the family of the said first party, complimentary tickets to all entertainments during said term. "It is further agreed that said second party may use all fixtures now in said opera house, but the said first party is not required to furnish any additional fixtures, except to put the electric wiring of said building in proper condition for occupancy. Said building is to be put in proper condition for occupancy. "In witness whereof, we have signed our names this the day and year first written. "[Signed] W. B. Schmucker, "First Party. "A. D. Clifton, "Second Party. "Signed, sealed and delivered in the presence of "[Signed] H J. Butler. "[Signed] O. F. Mason." For reasons hereinafter stated it is unnecessary to set out the evidence in the case further than that notice was served upon the defendant by the officials of the city of Miami, Okla., requiring him to equip said opera house by installing fire escapes, three liquid fire extinguishers of not less than three gallons each, and an asbestos drop curtain, and that shortly after receipt of said notice the defendant contracted to have said fire escapes installed, but that said fire escapes, having to be manufactured, could not be installed until some considerable time after the rental period named in said agreement began, and that the house was not fitted for occupancy as contracted, and that the house was not occupied by the plaintiff. While it is assigned as error that the court overruled demurrer of defendant to evidence of plaintiff, yet after a most careful examination of the record in this case, we are unable to find that a demurrer was interposed to the evidence of the plaintiff, or a directed verdict in favor of the defendant asked. The refused instructions required by the defendant and duly excepted to are as follows: "(1) You are instructed, gentlemen of the jury, that a stipulation in a rental contract for a building that the owner is not required to furnish any additional fixtures is valid and binding between the parties, and the owner is relieved from installing the same as against his tenant, even though such additional fixtures are ordered by the municipal authorities pursuant to building ordinances or regulations. "(2) You are further instructed, gentlement of the jury, that it was not necessary for the defendant in this case to install said fire escape within the time between the serving of said notice on the 26th day of October, 1914, and the 1st day of November, 1914, in order to comply with the conditions of his rental contract with the plaintiff herein, but that the defendant had a reasonable time to install said fire escape, even though the plaintiff herein was prevented from using the building during such time, and his failure to install said fire escape by the 1st day of November would not render this defendant liable in damages to the plaintiff herein for such failure, provided that the same was installed within a reasonable time. “(3) Anything fixed or attached to a building and used in connection with the building, movable or immovable, is a fixture." The jury returned a verdict in favor of plaintiff in the sum of $589. Timely motion was made for a new trial, which was overruled, excepted to, and error brought to reverse the judgment rendered. From the fact that a demurrer was not interposed to the evidence of the plaintiff. or a directed verdict requested in favor of defendant. the sufficiency of the evidence to sustain the verdict rendered cannot be reviewed by this court, and hence it is unnecessary to state the evidence in the case other than as hereinbefore set forth. "In the absence of a demurrer to the evi dence or motion for a directed verdict, the insufficiency of the evidence to sustain the verdict is not presented to this court on appeal." Simpson v. Mauldin, 61 Oklahoma. 160 Pac 481; Muskogee Electric Traction Co. v. Reed, 35 Okla. 334, 130 Pac. 157; Reed v. Scott, 50 Okla. 757, 151 Pac. 484. Hence, our review of the cause is confined to the instructions given and refused by the court. While we think it would have been better practice to have more distinctly stated the issues involved in the trial than was done by copying into the instruction given the pleadings in the case, we think that, by reason of the opportunity given by the trial judge, who gave ample time and invited the attorneys for the parties to prepare instructions to be submitted to him, and to review the instructions prepared in |