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.
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.
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";
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.
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.
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.
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.
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.
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
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.
trial of the issues de novo upon appeal to that court, is not part of the record in the district court, and will be stricken, upon mo- tion, from a transcript of the record of such distict court presented in the Supreme Court upon appeal.-In re Combs' Estate, 33.
14. Same-Motion for New Trial.
A motion for new trial, not made a part of the record by bill of exceptions, is not a proper part of a transcript.-Idem, 33. 15. Matters to Be Shown by Record.
The Supreme Court will not search the record to find alleged irregularities of the court, jury, or prevailing party; and, unless the party complaining calls the court's special attention to such irregularities, the same cannot be considered.-Van Arsdale & Os- borne Brokerage Co. v. Hart, 119.
16. Same-Jury-Challenge for Cause.
When a juror on his voir dire examination is challenged for cause, and the record does not contain the examination of such juror, the assignment of error cannot be reviewed in this court.-Pauls Valley Compress & Storage Co. v. Harris, 103.
17. Same-Judgment-Journal Entry.
The journal entry as to an order or judg- ment of the trial court is the only evidence that may be considered in the Supreme Court as to the contents of such order or judgment of the trial court.-Pettigrew v. Harmon, 245.
Same-Orders as to Case-Made.
The stenographer's notes incorporated into the case-made as to conversation between the trial court and one of the attorneys in the case, the conversation taking place prior to the signing of the journal entry, are not evi- dence in the Supreme 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 the Supreme Court may consider as to what time was allowed by the trial court in which to make and serve such case-made.-Idem, 245.
The recital in a case-made, duly certified to by the judge, that an order was made ex- tending the time in which to prepare and serve a case, where the substance of the order is contained in the case-made, is suf- ficient, and motion to dismiss because it does not affirmatively appear in the case-made that such order of extension has been re- corded upon the journal will be overruled.— Bennett v. Moore, 159.
The Supreme Court is unable to determine whether or not a judgment is supported by the evidence when the evidence is not incor- porated in the record.-Walker v. Love, 28.
Where case-made shows omission of exhib- its, Supreme Court will permit correction, and upon omissions being supplied, case- made will be held to sufficiently show that it contains all the evidence.-Idem, 223.,
24. Same-Sufficiency of Recital.
Where case made contains orderly recital of proceedings and specific recital that it con- tains all the evidence, followed by proper certificate of trial judge attested by clerk, and appellee after proper notice makes no suggestion of amendments, case-made will be taken as true.-Idem, 223.
Where case-made has recital that it con- tains all the evidence, position of such re- cital is immaterial.-Idem, 223.
26. Case-Made-Service.
A case-made not served within the time allowed by law, or within the extension of time properly allowed by the trial court, is a nullity, and cannot be considered on ap- peal to the Supreme Court; and an appeal, based on such case-made, must be dismissed. -Pettigrew v. Harmon, 245.
27. Case-Made-Filing.
A case made, filed in the Supreme Court in connection with the petition in error, which has never been filed in the office of the clerk of the trial court from which the appeal comes, is a nullity, and cannot be considered for the purpose of showing the proceedings in the court below.-School Dist. No. 26 of Ok- mulgee Co. v. Hinchie, 97.
28. Authentication of Record-Amendment.
A certificate of the clerk of the district court to a transcript, which is attached to a petition in error and filed in the Supreme Court within the time limited for appeal," may be amended upon order of this court made prior to final decision, but after the time for filing such appeal has expired.-In re Combs' Estate, 33.
29. Failure to File Brief-Reversal.
Where plaintiff in error files his brief in accordance with the rules of the Supreme Court, and defendant files no brief within
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.
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.
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.
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.
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.
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.
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