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based upon division 3 of section 562 of chapter second part selling and shipping to him in 06 of Wilson's Revised and Annotated Statutes the fall of 1894 to Cross, railroad freight of Oklahoma of 1903, for irregularity in obtaining a judgment or order, and where the motion

charges prepaid, ) fruit trees, binds to vacate the judgment is made at the same bimself, his heirs, and assigns to carefully term at which the judgment was rendered, a plant and care for said trees on his farm reasonable notice being given to the adverse containing eighty acres, situated in K counto hear the matter, although the motion is not ty, Oklahoma, and more particularly describdecided until a subsequent term.

ed as follows, to wit: N. 12 X W. section 15, [Ed. Note.-For cases in point, see Cent. Dig.

township 26 range 2 E., boundaries [here vol. 30, Judgment, 8 608.]

give name of adjoining owners] D. Mooney 2. PUBLIC LANDS-HOMESTEAD EXTRIES-Ex

to the west and Thomas Goozdanover on the EMPTIONS.

Lands acquired under the provision: of the east and and to pay to the order of United States statute for the homesteading of said second parties, their beirs or assigus, public lands are not liable for the satisfaction

as evidence by first party's nine (9) promisof any debt contracted prior to the issuing of the patent therefor. The terms of this section

sory notes to be executed by said first party exempt all lands obtained under the homestead to second parties when the aforesaid, trees law from liability for any of the debts of the are shipped, four hundred & fifty dollars entryman prior to the issuing of the patent,

ANI whether the lands are still held by him or by a

($450.00) due and payable as follows: bona fide purchaser deriving title through him. deferred payments and interest hereafter

[Ed. Note. For cases in noint, see Cent. Dig. particularly specified to date from the first vol. 41, Public Lands, $$ 377–379.]

day of 189, one-tenth when trees Burford, C. J., dissenting.

are shipped, one-tenth in one (1) year, one(Syllabus by the Court.)

tenth in two (2) years, one-tenth in three (3) Error from District Court, Kay County ;

years, one-tenth in four (4) years, one-tenth before Justice Bayard T. Hainer.

in five (5) years, one-tenth in six (6) years, Action by Frank S. Glaser and A. Pfifer

and one-tenth in seven (7) years, one-tenth in against Stark Bros. Judgment for plaintiffs,

eight (8) years and one-tenth in nine (9) and defendants bring error. Affirmed.

years, with interest at the rate of six (6)

per cent. per annum, and if the interest be This is an action commenced in the dis

not paid annually the same is to become as trict court of Kay county, Okl., in February, principal and bear the same rate of interest, 1904, against the defendant Stark Bros.,

to the payment of which suns as the same plaintiffs in error here, to quiet title to the

shall become due the party of the first part N. 12 of the N. W. 14 of section 15, township

binds himself, his heirs, assigns and grantees 26 N., of range 2 E., of the Indian Meridian,

of and to the aforesaid described lands; the in Kay county, Oklahoma Territory. Plain

right being reserved to the said party of the tiffs in their petition state that they are the

first part to pay the full amount remaining owners and in actual possession of said land;

unpaid and not yet due, together with acthat the defendants claim an estate in said lands adverse to these plaintiffs, the nature

crued interest, at any time he may elect of said adverse claim being that defendants

within the period of nine years next after

date last above written. And the said first claim a lien contract made with one Fred Bower, who was the original entryman of

party for the purpose of obtaining the afore

said trees states that the above described said land, and that said lien contract is of

real estate is free and clear of incumbrances, record, and is a cloud upon plaintiffs' title. Plaintiffs ask that said cloud be removed.

and that he claims the same with a perfect The defendants filed an answer and cross

homestead. petition, alleging that on the 21st day of

"In witness whereof, we have hereunto August, 1894, Fred Bower was the owner

set our hands and seals this the day and of and in possession of the said land; that

year first above written. on said date the defendants sold to said

"Fred Bower. [Seal.] Bower a bill of fruit trees for the sum of

“Stark Bros. [Seal.] $450; that said Bower entered into a written

“Witnessed by W. E. Morlan. contract with defendants, whereby said Bow

"Oklahoma Territory, County of K- ss. er gave to these defendants a lien on said Be it remembered that on the 22nd day of land for the performance of said contract, Aug. 1891, personally appeared before me, and pleaded a copy of said contract, asking Fred Bower, and acknowledged the execution affirmative relief, that the said contract be of the above contract. declared a first lien. The contract is as "In testimony whereof, I have hereunto set follows: "This indenture made and entered my hand and affixed my official seal at my into on this 21 day of Aug., A. D. 1894, by

office in Cross, 0. T., the day and year first and between Fred Bower, of K. county

above written. (residence one miles N), county of K and of "G. Q. Branine, Notary Public. [Seal.] Oklahoma Ter. party of the first part, and "My term expires Dec. 8, 1897." Stark Bros. of Louisiana, county of Pike and Indorsed on back: "Fred Bower to Stark state of Missouri, parties of the second part; Bros. Fruit Tree Contract. Territory of Oklawitnesseth: That the said party of the first homa, K county-ss. Filed for record this part in consideration of said parties of the 21 day of Sept. A. D. 1894 at 12 o'clock M.,

91 P.--66

recorded in Mis. Book 1, page 103. J. C. either party, after which the plaintiff's made Jamison, Register of Deeds. [Seal.]”

application for leave to file an amended reply, To this answer and cross-petition plaintiffs which leave was granted, to which the de

, filed a reply. In said reply, plaintiff alleges as fendants excepted. The cause was then docka defense to said cross-petition that at the time eted for trial at the next regular term of of the execution of said contract Fred Bower, this court. On the 12th of September, 1905, the maker thereof, was and now is a married defendants in error here, plaintitfs below, man and the head of a family, and at the time filed their amended reply and answer to the he was living with his family on said land as a cross-petition. On the 19th of September, homestead, and at no time did the wife of 1903, defendants filed a motion to require the said Bower sign said contract, or contract plaintiffs to separately state and number their for said fruit trees in writing, or otherwise, defenses. On the 20th of March, 1906, this or consent to the same, and, for this reason, motion is by the court overruled. On the the said contract created no lien against 21st of March, 1906, said cause comes on for said homestead. For a further defense, plain- | hearing on the motion of plaintiff for judgtiffs allege that at the time of making said ment on the pleadings, and the motion of decontract the title to said land was in the

fendant for judgment on the pleadings, at United States government; that the said which time the following admission was Fred Bower, who was the maker of said con- made by the defendants, and the following tract, was a homestead entryman on said judgment was rendered by the court: “It is tract of land, and that no final proof had admitted by the defendants, for the purpose been made, and no patent issuedl, and for this of the court passing on the motion of the reason the said land was not liable for the plaintiffs for judgment on the pleadings, that debt created by the purchase of said fruit at the time that Fred Bower mentioned in trees as evidenced by said contract, and for a .defendant's cross-petition executed the confurther reply and defense plaintiff alleges a tract attached to said cross-petition that he failure on the part of the defendant Stark was the homestead entryman of the land deBros. to perform their part of the contract, scribed in said cross-petition, and was a and, in said reply, plaintiff asks that said married man and the head of a family, and contract be declared by the court not to be a that he and his family were residing on said lien on said real estate. On September 7, land, and that the final proof for said land 19904, plaintiffs filed a motion for judgment had not been made and that the patent from on the pleadings. On the 16th of February, the United States for said land was not is1905, said motion for judgment on the plead- sued until about the year 1898 or 1899, about ings was overruled. On the 15th of April, which time patent was issued to said Fred 1905, defendants demurred to plaintiff's re- Bower." ply. On the same day the court sustained Thereupon the court ordered that the mothe demurrer to said reply. On the 17th day tion of the defendants for judgment on the of April, 1905, defendants filed a motion for pleadings be overruled, and the motion of judgment on the pleadings. On the 10th

plaintiffs for juilgment on the pleidings of July, 1905, the court sustains the motion of should be sustained. Thereupon the court defendants for judgment on the pleadings, rendered judgment in favor of the plaintifs, and renders judgment in favor of the de- declaring the contract in evidence to be no fendants, and declares the contract to be a lien upon the land, and taxed the costs to first lien, and directs the issuing of an order the defendants, to which the defendants exof sale. On the 17th of July, 1990.), the clerk cepted, and the case is brought here for reof the district court of Kay county issueel an view. order of sale. On the 14th of July, 1990.), the

Cline & Duval, for plaintiff's in error. A. plaintiffs filed a motion in the district court

II. Myer and Doyle & Cress, for defendants to set aside the judgment on pleadings in

in error. favor of defendants, rendered on July 10, 1:45, and on August 31, 1990.7, the court is- IRWIN, J. (after stating the facts as sued an order staying proceedings upon the above). Three grounds of error are assignjudgment of July 10, 1905, and order of sale, ed by plaintiffs in error for a reversal of this upon the plaintiff's filing bond in the sum case; but we think it will only be necessary of $200. On August 31, 1:05, plaintiffs filed to discuss two of them. bond. On the 12th of September, 1990.), the The first one is it is insisted that "the curt rendered judgment sustaining the mo- court has no power to set aside a judgment tion to set aside the said judgment in favor rendered during another term of court, exof the defendants rendered on July 10, 19).), cept it be set aside for the reasons and in and reinstated the cause upon the docket of the manner provided by law. The proceellthe court for trial, and to which ruling the ings in this case, if there were any grounds defendants excepted, and askel for time to to set aside said judgment, should have prepare and serve a case-made on appeal to been by petition verified by athidavit, on the Supreme Court, and are granted 30 days which summons should have issued and in which to make and serve a se-madle. 10 been served the same as in the commencepts days to suggest amendments to be signed ment of an action, neither of which was and settled on 3 days' notice in writing by done in this case; and the court was therefore without jurisdiction.” In support of staying the proceedings on the judgment and this contention, plaintiff in error purports order of sale as contained in the case-made to quote from the record. He says the "rec- at page 24 this language is used: "Wow, on ord in this case shows that on a day set by this 30th day of August, 190.), comes the plainthe Supreme Court of the Territory of Okla- tiff above named by Thomas H. Doyle, one homa as a day for the district court of of their attorneys, and the defendants apKay county, Okl. T., to wit, July 10, A. D. pearing by W. S. Cline & Duval, and this 1905, judginent was rendered by the trial cause coming on to be heard before the undercourt in this cause in favor of the plaintiffs signed judge of the Fourth judicial district in error, for the sum of $831.32, which said at chambers in the city of Perry, at the amount was decreed a first and prior lien on hour named in the notice given by plaintiffs said land, and said land was ordered sold to defendants upon a judgment rendered in as provided by law to satisfy the same. the above-entitled cause on the 10th day of [See pages 21 and 22 case-made.) And that July, 1905, and it appearing that defendants thereafter, to wit, July 17, 1905, the clerk have had reasonable notice of this applicaof the district court of Kay county, Okl. T., tion, and it further appearing that said issued an order of sale as provided in said plaintiffs have filed a inotion duly verified decree, which order of sale was later re- to set aside the judgment so rendered and called by the judge of the district court, and order of sale decreed in the above-entitled that long after the adjournment of said court, cause by reason of irregularities in obtainand on the first day of the succeeding term ing said judgment and order of sale, and by of said court, to wit, September 11, 1905. reasons alleged that said judgment was renthe defendants in error filed their motion to dered and said order of sale was made bevacate said judgment [see page 27 (ase- fore said action regularly stood for trial.” made), which said motion was sustained on This language of the court in his journal enSeptember 12, A. D. 1903, and the aforesaid try staying the judgment and order of sale judgment theretofore rendered on July 10, is material for two purposes in this case, as 1903. was vacated and set aside." While it it shows that the adverse party or his atis true the case-made at page 27 does show torney has bad notice of the filing of the that a motion to vacate this judgment was application to set aside the judgment, and on that day filed by the plaintiff, the case- it shows the further fact that suid motion made also shows on page 23 a motion to va- to vacate and set aside the judgment must cate the judgment of the court rendered on have been filed at an earlier date than the July 10, 1905, in favor of the defendants, on date mentioned in the case-made at page 27, the pleadings, was filed on July 14, 1903. The to wit, September 11, 1905, because this oronly way we can account for this apparent der staying the judgment was made on the discrepancy in the record is that the motion 30th day of August, and it recites the apto vacate the judgment was filed on July | plication is on file, and tends to corroborate 14, 1903, as set forth in the record, and, by the position of defendants in error that their inadvertence of the clerk, the same motion motion to vacate the judgment was filed July was refiled on September 11th, as shown by 11, 1905, as shown by the case-made at page the case-made at page 27. If this case-made 23. Running section 4760 (section 562, c. is correct, and speaks the truth, this can be 66, Wilson's Rev. & Ann. St. Okl. 1903) prothe only theory upon which this apparent vides that the district court shall have powconflict can be reconciled, because the rec- er to vacate or modify its own judgments or ord clearly states that this motion was filed orders at or after the term at which said on July 14, 1905, and the record gives the judgment was made. * * * Third, for motion, together with the signature of the mistake, neglect or omission of the clerk, of attorneys. This motion must have been filed

irregularity in obtaining a judgment or order. or its record would not appear in the case

*" Running section 4761 (section 563, made, and it might be, and probably was, c. 66) provides: "The proceedings to correct the fact that this filing was overlooked by mistakes or omissions of the clerk, or irregthe clerk, and it was refiled, as shown on page ularity in obtaining a judgment or order shall 27, on September 11th. This being true, that be by motion, upon reasonable notice to the the motion to vacate the judgment was filed adverse party or his attorney in the action. during the same term at which the judgment * *" Running section 1762 (section 564 was rendered, and within four days from of the same chaptery provides the proceedthe time the same was rendered, we think ings to vacate or modify the judgment or confers jurisdiction upon the court, pro- order on the grounds mentioned ir subdivided notice was given to the opposite par- visions 4, 5, 6, 7, 8, and 9 of section 502 shall ty or his attorney, and the fact that the be by petition, “verified by affidavit, court may have continued the hearing on the and also providing for a summons." But we motion until a subsequent term would not think a reading of the motion in this case deprive the court of jurisdiction. It is ap- and the journal entry of the court sustainparent from the record that the attorneys ing said motion will show that this motion for the defendant did have notice of the was based on the third subdivision of section filing of his motion to vacate the judgment, 562, to wit, irregularity in obtaining the as it is found by the court in the order judgment or order, and being such, and the motion being filed four days after the ren- proposition; and that is that lands acquired dering of the judgment, to wit, July 14, 1905, under the homestead laws of the United and being at the same term at which the States is not liable for any debts contracted judgment was rendered, and the court having by the entryman prior to the issuing of his found by his journal entry that the opposite patent. Now it is conceded, in this case (recparty or his counsel had due notice of the ord, p. Co), by the admission of the parties, tiling, we think it brings it clearly within that at the time of the contracting of the the provisions of section 563, and was suffi- debt evidenced by this contract Bower was a cient to give the court jurisdiction of the homestead entryman; that he was living upsame. Now, we think the mere fact that the on the government land wtih his family as court, from pressure of business, or from any a homesteader; that final proof had not been other reason, allowed the matter to go over made; and that the patent was not issued until the next term, would not deprive the and did not issue for at least four years party of his right to be heard. He had filed

after this instrument was made. This admishis motion in apt time, had given the legal sion brings it clearly in our judgment within notice required by the statute, and had plac

the provisions of the United States homeed his motion on the docket of the court, stead law, and exempts it from any debt or and did all he could do, and all he was re- liability created prior to the issuing of the quired to do, to bring the case within the

patent. But it is contended that as the plainjurisdiction of the court, and we think the tiffs in this case were the grantees of Bower, fact that the motion itself was not heard un

who was the homestead entryman, that the til a subsequent term would not deprive the right of Bower of having this land held to court of jurisdiction. Hence we think on

be free from the lien of any debt created this point the entire argument of counsel for prior to the issuing of the patent would not plaintiff in error is based on an erroneous extend to them, but would be personal to interpretation of the record.

Bower. But various courts who have had Another reason why we think the court

this question before them for adjudication had full and complete jurisdiction to vacate have held to a contrary doctrine, and have the judgment rendered in favor of the plain

laid down the rule to be that: “The terms tiff in error on July 10, 1990.), is that the stat

of this section [referring to the homestead utes of this territory (Wilson's Rev. & Ann. law] clearly exempt all lands obtained under St. § 563, c. 66) provides: “* * * A mo

the acts of which it is a part from liability tion to vacate a judgment because of its ren- for any of the debts of the entryman incurred dition before the cause regularly stood for prior to the issuance of the patent, whether trial can be made only in the first three days the lands are still held by him or by a bona of the next succeeding term." The record in

fide purchaser deriving title from him." Rusthis case (page 51), shows that this hearing sell V. Lowth, 21 Minn. 167, 18 Am. Rep. and decision of the court to vacate the judg- | 389; Dickerson v. Cuthburtb, 56 Mo. App. ment was had on September 12th, which was 647; Smith v. Steele, 13 Neb. 1, 12 N. W. the second day of the succeeding term of the 830; Baldwin v. Boyd, 18 Neb. 444, 25 N. court after the rendition of the judgment W. 580; Clark v. Bayley, 5 Or. 343. These sought to be vacated, and was clearly within authorities, in our judgment, settle this conthe time prescribed by statute. The same tention in favor of the defendant in error. section fixing the time as the first three days The assignments of error alleged by counof the next succeeding term provides it shall sel for plaintiff in error for a reversal of this be by motion.

case should not be considered by this court, There remains but one other assignment or for the reason that nowhere in the record error unanswered to be considered. In the does it appear that any motion for a new second assignment of error counsel for plain- trial was presented to the court, or the attiff in error say: “The defendants in error tention of the court called, by motion for new purchased the land involved with full knowl- trial, to the errors complained of, and no moedge of the existence of the lien of the plain- tion for new trial was made and ruled upon tiffs in error, and are estopped from deny- by the court and excepted to and assigned as ing the validity of the said lien, or the pow- error. This court in the case of Boyd et al. er and authority to make and execute the v. Bryan, 11 Okl. 56, 65 Pac. 910, says: "Er

ror of law occurring at the trial and excepted for the reason that the same was not execut- to by the party making the application will, ed by the wife of Fred Bower, the same could when embraced in the motion for new trial, only be avoided by her. The fact that at the present to trial court any objection or extime of the execution of said contract the ception properly made and saved during the land was Government land, the title to which progress of the trial.” In the case of Oswas in the United States, made it unneces- borne & Co. v. Case et al., 11 Okl. 479, 69 sary for the wife to join in any conveyance Pac. 263, this court says: “Tbis court has relating thereto, as the laws of Oklahoma repeatedly held, in fact it is the settled rule relating to the conveyances of the homestead of this court, that alleged errors occurring do not apply." In this statement of his during the trial not raised in the trial court assignment of error, counsel for plaintiff in or set forth in a motion for a new trial will error overlooked one very material legal not be considered for the first time on ap

same. If the contract in question is defective

peal.” In Hardwick et al. v. Atkinson, 8 Okl. a lien created by contract of the owner, and 609, 58 Pac. 748, this court says: "Alleged comes within rule stated in Meinhold v. Walerrors occurring in the trial not raised in the ters, 102 Wis. 393, 78 N. W. 574, 72 Am. St. trial court or set forth in the motion for a Rep. 888; Fuller- v. Hunt, 48 Iowa, 163; new trial will not be considered for the first Dickerson v. Bridges, 147 Mo. 235, 48 S. W. time in this court." In Glaser v. Glaser, 13 825; Orr v. H. Ulyatt, 23 Nev. 131, 13 Pac. Okl. 389, 74 Pac. 944, it is said: "All mat- 916; Lang v. Morey, 40 Minn. 396. 42 N. W. ters occurring on the trial which are proper 88, 12 Am. St. Rep. 748; Forgy v. Merryman causes for a motion for new trial will be et al., 14 Neb. 513, 16 N. W. 836; Weber v. deemed to be waived unless presented by Laidler, 26 Wash. 144, 66 Pac. 400, 90 Am. St. motion for new trial, and this court will not Rep. 726; Vewkirk v. Marshall et al., 35 Kan. consider them after having been once waiv- 77, 10 Pac. 571; St. Louis Mining & Milling ed." In High v. United States et al., 14 Okl. Co. v. Montana Co., 171 U. S. 656, 19 Sup. 399. 78 Pac. 100, it is said: "A case-made Ct. 61, 43 L. Ed. 320. which does not contain a copy or statement of any motion for a new trial

(19 Okl. 138) * presents no question to this court

GUSS V. FEDERAL TRUST CO. for review." In the case of Martin v. Gas

(Supreme Court of Oklahoma. Sept. 4, 1907. sert, the Oklahoma Supreme Court, reported

Rehearing Denied Oct. 12, 1907.) in the 17 Okl. 177, 87 Pac. 586, says: "Where

1. CONTRACTS-LEGALITY – PUBLIC POLICY – the plaintiff fails to assign as error the over

RAILROADS-SUBSCRIPTION IN AID. ruling of the motion for new trial in the pe A railroad company, for the purpose of aidtition in error, no question is properly pre

ing in the construction of its line of road, may

accept and enforce an obligation payable to it, sented to this court to review error alleged

conditioned that the note shall become due and to have occurred during the progress of the payable when the line of road is built and put trial in the court below." A reading of the in operation to a point named therein; and such contract relied on by plaintiff in error for a

a note is not void or against public policy.

2. SAME-ON WHOM BINDING. lien against the land in question will show,

One who is not a privy to a contract canwe think, that it is very doubtful whether not be bound thereby against his consent, to his the language employed in that contract would detriment; nor can he claim the benefit of any be sufficient to create a lien in any event. It

of its favorable provisions.

3. TRIAL-DIRECTING VERDICT. certainly would not be held sufficient in a

It is the duty of a trial court to directa mortgage, and this contract would be some

verdict for a party, when the evidence is such what in the nature of a mortgage. Nowhere that, if a verdict were returned by the jury in the contract is it made expressly a lien

for the other party, the court under the law

would be required to set the same aside. upon the land. The most liberal construction

[Ed. Note.-For cases in point, see Cent. Dig. for the plaintiff in error that could be made

vol. 46. Trial, $$ 376–380.] of the contract would be that the party mak

(Syllabus by the Court.) ing the contract bound himself and attempted to bind whoever might be the grantee of the

Error from District Court, Logan County ; land, but he did not, in express terms, make

before Justice John H. Burford. the contract a lien upon the land, and we are

Action by the Federal Trust Company inclined to the opinion that the language used

against U. C. Guss. Judgment for plaintiff, is too vague and uncertain to be considered and defendant brings error. Affirmed. by this court as a lien against and running Cotteral & IIornor, for plaintiff in error. with the land. But however that may be, Dale & Bierer and Hoyt, Dustin & Kelley, for for the reasons herein expressed, we are defendant in error. of the opinion that the decision of the district court in rendering judgment in favor of the

BURWELL, J. The Ft. Smith & Western plaintiff on the pleadings was correct, and is

Railroad Company contemplated building its sustained by the authorities.

line of road from a point about 40 miles west The decision of the district court is af

of the city of Ft. Smith, in the state of Arfirmed, at the costs of the plaintiffs in error.

kansas, to the city of Guthrie, Okl.; and the All the Justices concurring, excepting HAIN

company, through its representatives, proposER, J., who having tried the cause below,

ed that if the people of Guthrie would execute took no part in this decision, and BURFORD,

and deliver to it their respective notes, of the C. J.. who dissents.

aggregate value of $30,000, the line would

be built to Guthrie. Yotes were executed BURFORD, C. J. (dissenting). The law amounting in all to about $51,000 face value. as stated in this opinion is in direct conflict The defendant executed and delivered his with the well-considered opinion in Stark et note, which was as follows: "$500.00. Guthal. v. Duvall et al., decided by this court in rie, 0. T., Feb'y 1st, 1902. The undersigned 1898, and reported in 7 Okl. 213, 54 Pac. 453, promise to pay to the order of Ft. Smith & and no reference is made to said cause. See, Western Railroad Company, five hundred & also, Farriss et al. v. Deming Investment Co., no/100 dollars at the office of said company 5 Okl. 496, 49 Pac. 926, and Flanagan v. in Guthrie, Oklahoma. Provided, always, Forsythe, 6 Okl. 225, 50 Pac. 152. In my that this note becomes due and payable when opinion the contract in question constitutes said railroad company shall have in opera

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