(229 P.)

Arthur MOORE et al., Plaintiffs in Error, v. Ben W. BLACK et al., Defendants in Error. (No. 13879.) (Supreme Court of Oklahoma. Oct. 14, 1924.) Error from District Court, Oklahoma County; J. B. Dudley, Special Judge. Fred Ptak, of Oklahoma City, for plaintiffs in error.

PER CURIAM. Upon authority of Ellis v. Outler, 25 Okl. 469, 106 P. 957, the cause is reversed and remanded for new trial, for failure of defendants in error to comply with rule 7 of this court.

3

5

Oscar BUNDY, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error. (No. A-4572.) (Criminal Court of Appeals of Oklahoma. Oct. 13, 1924.) Appeal from County Court, Seminole County; B. F. Davis, Judge. Oscar Bundy was convicted of wife abandonment and he appeals. Appeal dismissed. C. L. Hill and W. A. Billingsley, both of Wewoka, for plaintiff in error. The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State. PER CURIAM. The plaintiff in error, Oscar Bundy, was convicted on a charge of wife abandonment, and his punishment was fixed at a fine of $500 and confinement in the county jail for 12 months. On the 19th day of October, 1923, the court rendered judgment in accordance with the verdict. From this judgment the defendant attempted to perfect an appeal by filing in this court on February 19, 1923, a petition in error with case-made. The Attorney General on January 9, 1924, filed a motion to dismiss the appeal herein for the reasons: First, that no notice of appeal was or has been served on the clerk of the district court of Seminole county; second, that the case-made was not properly filed in the county court of Seminole county; third, that the petition in error and case-made were not filed in the Criminal Court of Appeals within the time required by law. No answer or response to the motion to dismiss has been made. An examination of the record discloses that the grounds of the motion to dismiss are supported and sustained by the record. For the reasons therein stated, the motion to dismiss the appeal is sustained, and the cause remanded to the county court of Seminole county, with direction to enforce the judgment and sentence.

Mandate forthwith.

6

Guy HOUGHTON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error. (No. A-4619.) (Criminal Court of Appeals of Oklahoma. Nov. 8, 1924.) Appeal from District Court, Woods County; Arthur G. Sutton. Judge. Guy Houghton was convicted of the crime of grand larceny, and sentenced to serve one year in the penitentiary, and apAffirmed. A. J. Stevens, of Alva, for The Attorney General, for

NEGIM & CO., Plaintiff in Error, v. Effie GARRISON, Defendant in Error. (No. 13173.) (Supreme Court of Oklahoma. Sept. 30, 1924.) Error from County Court, Ottawa County; Q. P. McGhee, Judge. Frank Nesbitt, of Miami, for plaintiff in error. Burns & Turner, of Mi-peals. ami, for defendant in error.

PER CURIAM. Upon authority of Ellis v. Outler, 25 Okl. 469, 106 P. 957, the cause is reversed and remanded for new trial, for failure of defendant in error to comply with rule 7 of this court.

plaintiff in error.
the State.

PER CURIAM. This is an appeal from a judgment of conviction rendered in the district court of Woods county on the 21st day of October, 1922, on a verdict of a jury finding the plaintiff in error guilty of the crime of grand larceny, and assessing his punishment as above stated. The information charged the larceny sion of one A. F. Gilchrist on or about the of $95 in money from the person and posses8th day of February, 1922. The petition in

T. F. VILLINES, Plaintiff in Error, v. Dan REYNOLDS, Defendant in Error. (No. 15018.) (Supreme Court of Oklahoma. Sept. 23, 1924. error and case-made were filed in this court Rehearing Denied Oct. 7, 1924.) Error from on the 29th day of March, 1923. No brief has County Court, Seminole County; J. E. Simp-been filed in behalf of plaintiff in error, and no son, Judge. W. M. Haulsee, of Wewoka, for plaintiff in error. A. M. Fowler, of Wewoka, for defendant in error.

PER CURIAM. Upon authority of Ellis v. Outler, 25 Okl. 469, 106 P. 957, this cause is reversed and remanded for new trial, for failure of defendant in error to file brief as provided in rule 7 of this court.

appearance was made to orally argue the case at the time the same was finally submitted. The evidence of the guilt of plaintiff in error is wholly circumstantial, but the evidence on the part of the state is such as, if believed, is sufficient to sustain the verdict and judgment. Rule 9 of this court provides: "When no counsel appears, and no briefs are filed, the court

INDEX-DIGEST

KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and Prior Re-
porter Volume Index-Digests

47 (Okl.) Fact that tort may be incidental-
ly involved in breach of appeal bond does not
V. DEATH OF PARTY AND REVIVAL OF change action to one of tort.-Rourke v. Bo-
ACTION.

10(1) (Okl.) Payment and acceptance of See Boundaries.
sum less than claim in satisfaction of claim un-
liquidated or in dispute operates as full settle-
ment.-Davis v. Davis, 229 P. 479.

62 (2) (Okl.) Degree of proof required to See Principal and Agent.
impeach certificate of acknowledgment stated.-
Fast v. Gilbert, 229 P. 275.

6 (Utah) Courts have no power to deter-12 (Okl.) Failure of obligee in instrument
mine moot questions.-University of Utah v. showing alteration on face to exercise due care
Industrial Commission of Utah, 229 P. 1103.

(1121)

APPEAL AND ERROR.

263(1) (Okl.) Rule stated that instructions
411- trial judge.-Whitehead v. Cook, 229 P. 254.
not reviewed unless excepted to and signed by

267(1) (Wash.) Judgment held properly
rendered against plaintiff executor individually

See Courts, 207; Criminal Law, 1033- for wrongful withholding of property, in ab-

1189.

sence of exceptions or statement of facts.-
Nelson v. Lewiston-Clarkston Imp. Co., 229 P.
1027.

VI. PARTIES.

327(2) (Ariz.) Party not affected by re-
versal or affirmance is not "necessary party"
to appeal.-Neil v. Chrisman, 229 P. 92.
327 (3) (Ariz.) On appeal by lessee from
judgment giving lien for rent, colessee held not
"adverse party" required to be joined.-Neil
v. Chrisman, 229 P. 92.

makes all parties of record in lower court ad-
335 (Okl.) Notice of appeal automatically
verse parties on appeal.-Oklahoma, N. M. &
P. Ry. Co. v. H. M. S. Drilling Co., 229 P.
420.

34 (Wash.) Whether property of one
hunting without license subject to forfeiture
not considered, value of property being only 335 (Okl.) Whether appeal taken in indi-
$125.-Dilatush v. Roberts, 229 P. 741.

vidual or official capacity largely question of
intent gathered from entire record.-Koch v.
Suter, 229 P. 524.

In determining capacity in which party
takes appeal, entire record should be consid-
ered.-Id.

That notice and bond signed by appellant as
administrator held not conclusive as to capacity
in which appeal taken.-Id.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.

(A) Time of Taking Proceedings.
339 (4) (Okl.) Appeal from order dissolv-
ing temporary injunction, filed more than 30
days from its date, dismissed.-Parshal v. Har-

167 (Or.) Improvident stipulation not to ris, 229 P. 195.
appeal should be disposed of before appeal
en. In re Faling's Estate, 229 P. 694.

tak-356 (Mont.) Appeal from judgment more
than six months after entry not considered.—
Hodson v. O'Keeffe, 229 P. 722.

V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW.

(A) Issues and Questions in Lower Court.
169 (Okl.) Questions not raised below can-
not be argued by pleadings for first time on ap-
peal. Fast v. Gilbert, 229 P. 275.

(B) Petition or Prayer, Allowance, and
Certificate or Affidavit.

362(1) (Okl.) Errors not complained of
by petition in error not considered.-Cook v.
Speak, 229 P. 1083.

or Other Securities.

171(1) (Okl.) Theory of cotenancy not (C) Payment of Fees or Costs, and Bonds
considered on appeal, where cause tried on
theory of landlord and tenant.-Smith v. Good-387 (2) (Idaho) Timely filing of undertak-
ing, 229 P. 269.
ing is jurisdictional.-Myers v. Harvey, 229 P.

173(10) (Kan.) Defense of statute of limi-1112.
tations not pleaded below not available on ap- 395 (Idaho) Failure to timely file under-
peal.-McNinch v. Rogers, 229 P. 78.
taking, unless waived, ground for dismissing
appeal.-Myers v. Harvey, 229 P. 1112.

174 (Mont.) Challenge on appeal for first
time of authority of attorney too late.-In re
Miller's Estate, 229 P. 851.

(B) Objections and Motions, and Rulings
Thereon.

205 (Wash.) Exclusion of evidence, in
alienation suit, as to plaintiff's associations
with another woman after entry of wife's di-
vorce decree held not reversible error.-Regen-
vetter v. Ball, 229 P. 321.

IX. SUPERSEDEAS OR STAY OF PRO-
CEEDINGS.

460(1) (Okl.) Mere filing of appeal does
not operate as stay of judgment in either law
or equitable actions.-Reuck v. Green, 229 P.
1070.

X. RECORD AND PROCEEDINGS NOT IN

RECORD.

237 (3) (Okl.) In absence of demurrer to (A) Matters to be Shown by Record.
evidence or motion to direct verdict, insufficien-501 (3) (Or.) Denial of motions not re-
cy of evidence not presented.-Kallmeyer v. viewable on appeal in absence of record dis-
Garland, 229 P. 166.
closing exceptions.-Rennewanz v. Dean, 229
P. 372.

237 (3) (Okl.) Judgment sustained by unob-
jected to and uncontroverted evidence against
which no demurrer interposed not disturbed.
Central Trust Co. of Illinois v. Minnetonka
Lumber Co., 229 P 823.

237 (5) (Okl.) In absence of demurrer to
evidence or motion to direct verdict, insuffi-
ciency of evidence not presented.-Kallmeyer
v. Garland, 229 P. 166.

(C) Exceptions.

248 (Okl.) Error not considered on appeal,
unless excepted to below.-Price v. Preston,
229 P. 437.

(C) Necessity of Bill of Exceptions, Case,

or Statement of Facts.

544(1) (Wash.) Certificate of all evidence
necessary for review of question of fact.-
Seattle Factory Sites Co. v. Saulsberry, 229
P. 10.

544(1) (Wash.) Judgment held properly
rendered against plaintiff executor individually
for wrongful withholding of property, in ab-
sence of exceptions or statement of facts.-
Nelson v. Lewiston-Clarkston Imp. Co., 229 P.
1027.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

553 (2) (Cal.) Reporter's transcript not general.-Arizona Realtors v. Lester, 229 P.
rejected because he was not requested_to_act 90.
as official reporter by either party.-Bell v. 748(1) (Ariz.) Insufficient assignments,
Brigance, 229 P. 27.
not objected to in writing, must be considered.
-Arizona Realtors v. Lester, 229 P. 90.

554 (3) (Ariz.) Judgment affirmed, where
neither statement of facts, bill of exceptions,
nor transcript of reporter's notes is filed.-
Arizona Realtors v. Lester, 229 P. 90.

XII. BRIEFS.

773(1) (Okl.) Rule stated as to disposition
(D) Contents, Making, and Settlement of of cause, where appellee files no brief.-Ber-
wyn Mercantile Co. v. Ardmore Flour & Feed
Co., 229 P. 244.

Case or Statement of Facts.

557 (Okl.) Failure to attach case-made to
cross-petition in error held cured by reference
to case-made attached to petition in error.-
Cloud v. Young, 229 P. 604.

564 (3) (Okl.) Trial court cannot extend
time to file case-made after expiration of statu-
tory period; appellate court cannot review
cause where trial court unlawfully extends
time to file case-made.-Bishop v. Allen, 229 P.

215.

568 (Okl.) Attempted service of notice of
time and place of settling and signing case-
made, by leaving copy in office of appellee while
out of state, held insufficient.-Diller v. Hen-
derson, 229 P. 536.

(F) Making, Form, and Requisites of
Transcript or Return.

773 (5) (Okl.) Rule stated as to disposition
of case where appellee files no brief.-Cum-
mings v. Donaldson, 229 P. 158; Shefts v.
Rippe, 229 P. 160; Trower v. Dewing, 229 P.
171; Stephens v. Byrd, 229 P. 176; Sturgill
v. Shaffer, 229 P. 177; Carrithers v. State, 229
P. 215; Jones v. Sabine Oil & Marketing Co.,
229 P. 220; Walker v. Jacobs, 229 P. 226;
Stone v. Albertson, 229 P. 227; Prairie Oil &
Gas Co. v. Pickett, 229 P. 258; Prairie Pipe
Line Co. v. Pickett, 229 P. 258.

XIII. DISMISSAL, WITHDRAWAL, OR

ABANDONMENT.

781(1) (Okl.) Motion to dismiss appeal
overruled as presenting merely abstract ques-
tions of law.-Oklahoma, N. M. & P. Ry. Co.
v. H. M. S. Drilling Co., 229 P. 420.

607(1) (Cal.) Notice to clerk to prepare
transcript within 10 days after notice of deci-781(6) (Okl.) Where controversy settled

sion on motion for new trial sufficient.-Bell v.
Brigance, 229 P. 27.

608(1) (Nev.) Record must be in proper
shape and intelligible.-Holtzman v. Bennett,
229 P. 1095.

pending appeal, it will be dismissed on motion.-
Coalton Coal Co. v. Herron, 229 P. 245.

784 (Nev.) Appeal not dismissed for fail-
ord or judgment roll until appellant has oppor-
ure to serve bill of exceptions, copy of rec-
tunity to cure defect.-Johns-Manville, Inc.,
California, v. Lander County, 229 P. 387.

XVI. REVIEW.

(G) Authentication and Certification.
612(2) (Cal.) Transcript need not be cer-
tified by reporter.-Bell v. Brigance, 229 P. 27.
(A) Scope and Extent in General.
(J) Conclusiveness and Effect, Impeach-842 (7) (Cal.App.) Law question presented
ing and Contradicting.
for appellate court only where evdience estab-
663 (2) (Cal.) Claim that transcript, not lishes uncontradicted state of facts.-Bell v.
complete, held untenable as against judge's cer- McColgan, 229 P. 858.
tificate attached to transcript.-Bell v. Brig-843(1) (Wash.) Merits not for determina-
ance, 229 P. 27.
tion, where judgment was irregularly entered.-
State v. Olympia Veneer Co., 229 P. 529.

(K) Questions Presented for Review.
67113) (Okl.) Assignments, requiring ex-
amination of all evidence, not reviewable on
case-made not containing all evidence.-Othenin
v. Theimer, 229 P. 542.

(L) Matters Not Apparent of Record.

717 (Wash.) Certification of trial judge's
opinion on former trial sufficient to bring up
facts appearing therefrom.-Regenvetter
Ball, 229 P. 321.

V.

XI. ASSIGNMENT OF ERRORS.
726 (Okl.) Assignment of error as present-
ed in brief held too indefinite to present any
question for review.-Clanton v. City of Altus,
229 P. 273.

728(1) (Okl.) Assignment of error not
considered, where appellant fails to follow Su-
preme Court rules in numbering specifications
and citing authorities.-Bowling v. Beaver, 229
P. 501.

731(1) (Okl.) Rule states as to when as-
signment of error that verdict contrary to law
considered.-White v. Johnson, 229 P. 539.

731(5) (Idaho) Assignment that evidence
insufficient to sustain verdict not considered, in
absence of specification of particulars.-Inter-
mountain Farmers' Equity v. Norris, 229 P.

745.

845 (2) (Okl) Only question, on review of
judgment on agreed facts is propriety thereof
on such facts.-First Nat. Bank v. Worley, 229
P. 234.

854(1) (Cal.) Order discharging attach-
ment without specifying ground on which based
affirmed, if any of grounds of motion is valid.
Republic Truck Sales Corporation v. Peak,

229 P. 331.

865 (Okl.) Supreme Court will examine rec-

ord to determine abuse of discretion.-Shuler v.
Viger, 229 P. 280.

(C) Parties Entitled to Allege Error.

878 (4) (Okl.) Appellee may sustain judg-
ment by showing error.-Naill v. Order of
United Commercial Travelers of America, 229
P. 833.

880(3) (Okl.) Amount of judgment held
not reviewable on appeal of defendant against
whom no judgment was rendered.-Central
Trust Co. of Illinois v. Minnetonka Lumber
Co., 229 P. 823.

882(12) (Okl.) Error cannot be predicated
on given requested instruction.-Parsons v.
Sims, 229 P. 1090.

882 (16) (Wash.) Defendant held precluded
from complaining of counsel's improper re-
marks to jury by giving of instruction request-
ed by him.-Regenvetter v. Ball, 229 P. 321.

Trial of Cause Anew.

733 (Ariz.) Assignment of errors as to
judgment held insufficient because too general. (D) Amendments, Additional Proofs, and
-Arizona Realtors v. Lester, 229 P. 90.
733 (Okl.) Rule states as to when assign-889 (3) (Kan.) Objection to certain evi-
ment of error that judgment contrary to law dence as not admissible under pleadings not
considered.-White v. Johnson, 229 P. 539.
considered on theory that trial court could
have allowed amendment.-Bunting Hardware
Co. v. Baker, 229 P. 72.

734 (Ariz.) Assignment of errors as to de-
nial of new trial, held insufficient because tool