1. Premature Commencement of Action.
The nonexistence of a cause of action when
suit is brought is a fatal defect which cannot
be cured by the accrual of a cause while the
suit is pending.-Bank of Chelsea v. School
District No. 1, Rogers County, 185.

2. Joinder of Actions-Insurance.

Where the proof conclusively shows a mu-
tual mistake of fact regarding the description
of the block upon which the insured property
stood, the cause of action for reformation of
said policy was properly joined with an ac-
tion to recover the amount due under the
terms of said policy; the property mentioned
having been totally destroyed by fire.-State
Mut. Ins. Co. v. Green, 214.

3. "Permanent” Injuries—Overflows.

In suit for overflow caused by railroad
bridge and embankment, negligent condition
will not be held permanent if abatable by
either labor or money, consistent with right-
ful use and maintenance of the structure.--
Pahlka v. Chicago, R. I. & P. Ry. Co., 223.
4. Same-Successive Causes of Action.

A cause of action for construction and
maintenance of railroad bridge and embank-
ment, where the negligent condition is not
permanent, arises at actual injury, and suc-
cessive actions may be maintained for suc-
cessive injuries.-Idem, 223.

ACT OF GOD-See "Waters and Water
Courses."

ALTERATION OF INSTRUMENTS-Con
tinued.

of a secret agreement between the two mak-
ers and the payee, such alteration will avoid
the notes as to the makers not participating
in the alteration.-Voris v. Birdsall, 286.

2.

Same.

The test as to whether the alteration of a
note is material depends, not upon whether
it increases or reduces the makers' liability.
but upon whether the note will have the
same operation and effect after the altera-
tion as it had before.-Idem, 286.

3. Negotiable Instruments Law-"Material
Alteration"-Detachment from Contract.
Merely detaching a negotiable promissory
note from a contract to which it is attached
by perforation for the purpose of being de-
tached when such detachment does not make
any change or addition which alters the
effect of the instrument in any respect, is not
a "material alteration" under the negotiable
instruments act of this state.-Conqueror
Trust Co. v. Simmon, 252.

AMENDMENTS-See "Appeal and Error,"
28, 35; "Courts"; "Pleading."
ANIMALS-See "Carriers"; "Chattel Mort-
gages"; "Licenses"; "Malicious Prosecu-
tion"; "Municipal Corporations." 19.

1. Infectious Disease-Regulations to Pre-
vent-Validity of Statutes.

are

The various acts of the Legislature provid-
ing for the construction of dipping vats, and
providing the manner and means of dipping
cattle for the eradication of fever ticks and
infectious disease, are not unconstitutional
and do not in any wise conflict with any pro-
vision of the Constitution of the State of
Oklahoma or the United States, but
wholesome and beneficent laws, based upon
scientific research and actual experiment,
clearly demonstrating, to all reasonable and
intelligent men, the importance and justice
of such legislation, and comes clearly within
the governmental powers of the state to reg-
ulate to a certain extent the individual af-
fairs of its citizens, and to promote and pro-
tect the best interests of the public gener-
ally. Correll v. Kroth, 137.

2. Dogs Running at Large-Regulation.

Statutes and ordinances may be passed
regulating or even prohibiting the running
at large of dogs in incorporated municipal-
ities.--Robberson v. Gibson, 306.

ANSWER- See "Pleading."

APPEAL AND ERROR -See "Counties";
"Injunction": "Justices of the Peace";

[321]

APPEAL AND ERROR-- Continued.

APPEAL AND ERROR --Continued.
"Schools and School Districts"; "Taxa-
tion."

DECISIONS REVIEWABLE:

1. Appealable Orders.

An appeal lies to the Supreme Court from
an order of the trial court that plaintiff take
nothing by reason of a former judgment and
that the payment of the same be perman-
ently enjoined.-Chivers v. Board of Com'rs
of Johnston County, 2.

2. Same.

Where a foreclosure sale is made and con-
firmed, and subsequently such order of con-
firmation is set aside, the purchaser at such
sale may appeal from the making of such
order to the Supreme Court, as such order
affects the substantial rights of the pur-
chaser, upon a summary application in the
action after judgment, and is a final order;
and a motion to dismiss said appeal will not
lie upon the ground that such order is not
an appealable order.-Hall v. Holloway, 192.

PARTIES:

3. "Necessary Parties."

One whose rights may be affected by a re-
versal or modification of a judgment appealed
from is a "necessary party" in the appellate
court. Komalty v. Cassidy-Southwest Com.
Co., 81.

4. Same-Dismissal.

If a party in the trial court can, by a re
versal or modification of the judgment ap-
pealed from, be, in any way, affected, he is a
necessary party to the appeal; and, in case
such person is not made a party in the appel-
late court, the appeal should be dismissed.-
Idem, 81.

RESERVING IN LOWER COURT THE
GROUNDS OF REVIEW:

5. Necessity of Exceptions.

When neither the record nor case-made

shows exceptions to alleged errors of the trial
court, the same cannot be considered in the
Supreme Court.-Van Arsdale & Osborne
Brokerage Co. v. Hart, 119.

6. Challenging Sufficiency of Evidence.

In the absence of demurrer or motion for
directed verdict, the sufficiency of the evi-
dence to sustain the verdict of the jury in
an action at law cannot be presented to the
Supreme Court on appeal, and the court is
concluded by the verdict of the jury, unless
other prejudicial error, to which exceptions
were duly saved, appears in the case-made
or record, or unless it appears that the jury
awarded "excessive damages appearing to
have been given under the influence of pas-
sion and prejudice."-Idem, 119.

7. Same.

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 the Supreme
Court-Devonian Oil Co. v. Tolliver, 201:
Schmucker v. Clifton, 249.

8. Same.

The sufficiency of the evidence to sustain
the verdict of the jury cannot be considered
in the Supreme Court unless its sufficiency
was challenged in some manner in the
court below before finally submitting the is-
sues to the jury, there being nothing to show
that the verdict was excessive or influenced
by passion or prejudice.-Dodson & Wil-
liams v. Parsons, 298.

9. Exceptions-Verdict.

A person desiring to raise the question of
the sufficiency in form of a verdict, or of the
omission of material elements therefrom,
should, before the jury is discharged, object
to the same in such manner that the grounds
of his objection are made known to the court.
and, if such objections are overruled, then
properly save his exceptions to the ruling of
the court; it not ordinarily being sufficient to
merely except to the verdict.-Eoff v. Alex-
ander, 12.

A summons in error which described the
judgment appealed from as rendered in the
described such judgment as rendered in the
county court, when it should properly have
district court, will not be held so defective as
to work a dismissal of the cause, unless it ap-
pears that the defendant in error so sum-
money was deceived thereby to his prejudice.
-In re Combs' Estate, 33.

12. Appellate Jurisdiction—Appearance-Ef-
fect.

Jurisdiction is not conferred upon the Su-
preme Court by a general appearance of the
sole defendant in error, made after the time
for filing an appeal has expired.--Idem, 33.
NOT OF

RECORD AND
RECORD:

MATTERS

13. What Constitutes Record-Evidence.
Evidence taken in the county court upon a
petition to admit a will to probate, which is
not introduced in evidence in the district
court, by stipulation or otherwise, upon a

APPEAL AND ERROR-Continued.
the time allowed, and no reason is given for
failure to file same, the court is not required
to search the record to find some theory upon
which to sustain the judgment of the trial
court, but, if the plaintiff's brief appears rea-
sonably to sustain the assignments of error,
may reverse the judgment.--Duncan Electric
& Ice Co. v. Ferguson, 10.

30. Specifications of Error-Dismissal.

Where plaintiff in error fails to comply
with rule 25 of the court (38 Okla. x, 95 Pac.
viii), in that his brief contains no specifica-
tons of error relied on for reversal of the
rause, the cause may be dismissed.-Ball v.
Hall, 62.

31. Contents of Brief-Requested Instruc-
tions.

Where plaintiff in error complains of the
refusal of the court to give requested instruc-
tions, and fails to set out in his brief in toti-
dem verbis separately said requested instruc-
tions, he fails to comply with rule 25 of the
Supreme Court (38 Okla. x, 137 Pac. xi), and
the same will not be considered.-First Nat.
Bank of Temple v. Brown, 112.

32. Citation of Authorities.

Where counsel for plaintiff in error pre-
sents a large assignment of errors, and wholly
fails to cite any authorities, and it is not
apparent to the court that any of them are
well taken, the court will only notice the
assignments upon which authority is cited
pro and con.-Pauls Valley Compress & Stor-
age Co. v. Harris, 103.

HEARING AND REHEARING:
33. Judgment of Affirmance-Finality.

A judgment of the Supreme Court affirm-
ing the judgment of the trial court when no
petition for rehearing is granted becomes a
finality on the day of its rendition.--St. Louis
& S. F. R. Co. v. Bly, 93.

REVIEW:

34. Presenting Question-Jurisdiction Over
Person.

Where defendant's objection to jurisdiction
over his person has been overruled and excep-
tions saved, he may save the point and have
it reviewed on appeal from the final judg
ment-Commonwealth Cotton Oil Co. V.
Hudson, 23.

35. Amendment of Pleading Considered as
Made-Quieting Title.

Where title is decreed in defendants, court
can permit an amendment by plaintiff asking
for personal judgment against defendant for
unpaid price, and where pleadings authorize
such amendment appellate court will consider
it as made.-Runyan v. Herrod, 87.
36. Questions of Fact-Verdict.

There being evidence reasonably tending to
support the verdict in a case at law, the Su-
preme Court will not set it aside upon the
weight of the evidence.-Eoff v. Alexander,
12.

The evidence in support of a verdict of
the jury on appeal is regarded as true, and
the evidence against it is deemed, for suff-
cient reasons, to have been rejected, and,
where all the evidence supporting the verdict.
taken together, together with all presump-
tions and deductions to which it is reasonably
susceptible, is sufficient. then the Supreme
Court will not hold it should be set aside on
the ground that other evidence, had it been
accepted, would have justified a different ver-
dict. First Nat. Bank of Temple v. Brown,
112.

41. Same.

A verdict, unsupported by evidence, and
based upon conjecture, cannot be upheld.-
Kansas City Southern R. Co. v. Langley, 49.
42. Same.

Where verdict cannot be sustained upon
any hypothesis presented by the evidence, it
will not be allowed to stand.-Pahlka v. Chi-
cago, R. I. & P. R. Co., 223.

43. Same-Damages.

Under Rev. Laws 1910, section 5033, where
verdict favorable to plaintiff on general lia-
bility is sustained by the evidence, but there
is no evidence to sustain assessment of dam-
ages at $1 and costs, the verdict and judg-
ment must be set aside. Idem, 223.
44. Same.

The verdict of a jury assessing damages
for conversion of mortgaged property against
a third person who claims to be an innocent
purchaser for value will not be disturbed
when there is any evidence reasonaby tend-
ing to prove the damage awarded and either
actual or conservative notice of the rights
of the mortgagee in the property alleged to
have been converted.-Hourigan v. Home
State Bank, 199.

45. Same-Bills and Notes-Holders in Due
Course-Burden of Proof.

When it is shown that the title of a per-
son negotiating a negotiable promissory note

APPEAL AND ERROR-Continued.

is defective, the burden is on the holder to
prove that he or some one under whom he
claims acquired title as a holder in due
course; but, when there is evidence reason-
ably showing such a state of facts, the Su-
preme Court is bound by the verdict of the
jury, and such verdict will not be disturbed.-
Critser v. Steeley, 203.

46. Questions of Fact-Finding by Court.

A jury case having been tried to the court
without a jury, a general finding by the court
in favor of one of the parties will, upon re
view, be given the same weight as the ver-
diet of a jury.-Gilkeson v. Callahan, 45.
47. Same.

Where case is tried by court and there is
competent evidence tending to support the
findings, they will not be disturbed.-Idem,
45.

When a cause is appealed from the justice
of the peace court to the county court, and
a trial had de novo on both questions of law
and fact, and judgment rendered, and after
an execution has been issued and returned
nulla bona, and an action has been com-
menced against the sureties on the appeal
bond to recover thereon, the sureties present
a motion in county court "to modify" that
judgment because the judgment in the justice
of the peace court was "on confession" and
was therefore not appealable and the county
court did not acquire jurisdiction of the
action, and the county court hears evidence
as to what occurred at the trial in the justice
court, and found that judgment was not "on
confession," held, that that finding, being
supported by the record, is conclusive on ap-
peal to the Supreme Court.-Brown v. W. H.
Savage & Sons, 157.

51. Same-Carrier's Liability.

When the question of whether or not a
contract limiting the liability of the common
carrier in case of loss or damage was fairly
entered into, is supported by a cnsideration,
and is reasonable, is submitted to the trial
court by agreement, a jury being waived,
the judgment of the trial court will not be
disturbed in the evidence and law support
the judgment.-Haskell v. St. Louis & S. F.
R. Co., 116.

APPEAL AND ERROR-Continued.

52. Review of Equity Cases.

In an equity case, where the judgment of
the trial court is not against the weight of
the evidence, it will be sustained.-Echols v.
Reeburgh, 67.

53. Same.

In an action of purely equitable cogniz-
ance, where it appears that the court failed
to consider uncontradicted, competent evi-
dence, or that the finding and decree are
clearly against the weight of the evidence,
the Supreme Court will consider the entire
record, weigh the evidence, and cause to be
rendered such judgment as the trial court
should have rendered.-Cash v. Thomas, 21.
54. Discretionary Ruling - Temporary In-
junction.

The matter of granting or dissolving a tem-
porary injunction is largely within the discre-
tion of the court, and its action in such cases
will not be disturbed, unless there has been
a palpable abuse of discretion.-Correll v.
Kroth, 137.

55. Discretion-Time for Filing Pleadings.

The granting or refusing of an application
to file pleadings out of time is largely in the
sound, judicial discretion of the trial court,
and his decision thereon will only be reversed
where such discretion is shown to have been
abused. City of Lawton v. Kelley, 291.
56. Same.

Where defendant stood upon a demurrer to
plaintiff's petition, which was overruled in
January, 1913, and appealed to the Supreme
Court, and the appeal was dismissed for lack
of prosecution, and on August 30, 1915, de
fendant asked leave to file an answer, which
leave was denied, the trial court finding that
the proceedings upon the part of the defend-
ant were not taken in good faith, but for
delay, no such abuse of discretion is shown
as to justify a reversal.-Idem, 291.
57.

Harmless Error.

Where evidence clearly established defend-
ant's liability, errors are, under Rev. Laws
1910, sec. 6005, to be treated as harmless.-
Missouri, K. & T. R. Co. v. Chowning, 302.
58. Same-Evidence.

A verdict of the jury will not be disturbed
because of incompetent testimony permitted
to go before the jury, unless upon an exam-
ination of the whole record and the testi-
mony the Supreme Court is of the opinion
that such testimony might have influenced
the verdict of the jury, and that the jury
would not have reached the same verdict ir-
respective of such incompetent testimony.---
Chicago, R. I. & P. R. Co. v. Cotton, 168.
59. Harmless Error-Instructions.

It is not misleading, nor prejudicial to the
rights of the defendant, for the trial court, in
the introductory part or paragraph of its in-
structions, to state to the jury that the plain-
tiff "claims" certain facts stated to be true.-
Laurel Oil & Gas Co. v. Anthony, 94.