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It appears from the opinion that the agree upon the arbitrators to hear the matters ment of submission was duly entered into and submitted to them, but to bring them and the acknowledged on August 6, 1902, and that on parties within the jurisdiction of the court. the 14th of said month the arbitrators duly Therefore, from the time the submission is qualified by taking the statutory oath. In filed, if filed within the time fixed by the the agreement of submission it is stipulated agreement for concluding the arbitration, or, that the “arbitration shall take place” (begin) if no time is fixed, before an award is made, on September 30, 1902, and "shall be con we think the court acquires jurisdiction. cluded on or before the 1st day of December, But up to the time it is so filed a party may 1902." In the agreement the arbitrators revoke the submission, and the court can were given all the powers provided for by neither compel the arbitrators to make an the statutes of this state. One of the power's award, nor enforce it if made. If a time conferred is the right to adjourn from time to be specified in the submission, as in the case time pending the hearing. The award was at bar, when the arbitration must be conreduced to writing and signed on October cluded, then it must be concluded within 14, 1902, within the time fixed by the agree this time limit, or the arbitrators will lose ment of submission. On the day fixed by the jurisdiction to act further without the exagreement of submission for the arbitration

press consent of the parties. But the mere to begin, the arbitrators met, and on that fact that the arbitrators comply with the day, as the record shows, the appellant “in agreement of submission in entering upon the troduced his case and made a statement

hearing of the matters submitted to them thereof to said arbitrators." Following this, before the submission is filed in no way afto wit, on October 2, 1902, the agreement of

fects their jurisdiction, nor does it afsubmission was filed, and the clerk duly

fect tbe jurisdiction of the court, provided made the entries as required by law. After

the submission be actually filed and the hearing appellant's statement of his case

proper entries made at any time within which on September 30th, the day fixed for the ar

the agreement itself is in full force and efbitration to begin, the arbitrators adjourned

fect; that is, before the time has expired the hearing to October 13, 1902, at which

within which the arbitrators may, by the time, the record shows, they all met, "and,

terms of the submission, make an award. the witnesses being sworn, testimony was

As we construe section 3223, the effect of given on both sides.” On the following day

a failure to file the submission in court is the award was duly made in writing, signed

that it permits the parties to revoke it, and by all the arbitrators, as required by the statute. It will thus be seen that every require

the court acquires no jurisdiction until it

is filed. If, however, the submission is filed ment of chapter 40, under which the arbitra

and the entries required by the statute are tion was had, was substantially complied with.

made at any time before the award is made

by the arbitrators, or, in case a time is Was it necessary to file the agreement for submission before the hearing was actually

specified within which an award must be entered upon? We think not. Section 3223,

made, before such time expires, then the so far as material here, provides: "It may

court acquires power to act. From the time

the submission is filed, as aforesaid, the disbe stipulated in the submission that it be en

trict court acquires jurisdiction of the artered as an order of the district court. • When so entered the stipulation can

bitration, and the proceeding is then pending not be revoked without the consent of both

in court. After the award is rendered, either parties. The arbitrators may be compelled

party may, at any time, as pointed out in by the court to make an award, and the

the original opinion, file it and have judgaward may be enforced by the court in the

ment entered; or may attack the award upon

the grounds named in the statute, and may same manner as a judgment. If the submission is not made an order of the court, it

appeal from the action of the district court may be revoked at any time before the award

to this court. By this means every right

contemplated by the statute is preserved to is made.” When the submission is made an order of the court, then, as provided by sec

either party, and the very purpose of the subtion 3227, the award must be filed with the

mission agreement is effectuated; while, if clerk. In neither of these sections is the

appellant's contention were granted, any irtime of filing mentioned or made of the es

regularity would defeat the arbitration, and

thus destroy the very purpose of the statute. sence. By section 3223 the object of filing the submission with the clerk is clearly in

We have carefully read all the cases cited tended for the purpose of conferring power

by counsel upon this question, and, as we upon the court to compel an award by the ar

read them, nothing is contained in any of bitrators, and to enforce it when made, and

them that is contrary to the conclusions to compel the attendance of witnesses. The

reached by us. only effect the filing has upon the parties is

It follows, therefore, that the application that, after the submission is filed, neither should be, and accordingly is, denied. party may revoke it. The object, therefore, is not for the purpose of conferring power McCARTY, C. J., and STRAUP, J., concur

(19 Okl. 339)

sale of the Woods' Addition in Lawton, OklaKIMMELL V. POWERS et al.

homa, for a period of ten years hereof, and (Supreme Court of Oklahoma. Sept. 5, 1907.) shall receive for such services twenty-five (2.5) 1. PRINCIPAL AND AGENT - RELATIONSHIP - per cent. of the proceeds of such sales, after EVIDENCE.

deducting current expenses of the same, such A contract, whereby the owner of an addi

division to be made on or about the first day tion to a town gives to another the management and exclusive sale of the same for a period of

of January of each year during the term of 10 years, and agrees to pay to such person 2.5 this contract, and before investing the proper cent. of the proceeds of sales, after deduct ceeds of the sales and other income for the ing the current expense, and also agrees that, if any part of the addition remains unsold at the previous year, provided, however, that the end of that time, it shall be appraised and the party of the second part shall not receive a owner to hiuve three-fourths thereof, and the per cent. of the settlement for the right of other party one-fourth, constitutes the relation

way through said addition which may be of principal and agent, and does not vest the agent with any interest in the real estate itself.

granted to the Oklahoma City & Western 2. SAME-TERMINATION-DEATH OF PARTY

Railway Company, and that the party of Where the relation of principal and agency the second part shall have full control of exists, the death of either party terminates the

each investment for a period of ten years agency, except where the agent has a pecuniary interest of his own in the execution of the

from date of each investment, but in all matagency.

ters of investment, whenever practical, be[Ed. Note.-For cases in point, see Cent. Dig. fore investing said money, is to counsel with vol. 40, Principal and Agent, $$ 67-71, 74, 73.]

the party of the first part regarding such 3. PLEADİNG-DEMURRER.

investment. That he shall seek, according Where a petition neither states a cause of action in equity or at law, a demurrer thereto

to his best judgment, safe and conservative should be sustained.

investments for all moneys received from the (Syllabus by the Court.)

above-described real estate and belonging to

the party of the first part after deducting Error from District Court, Comanche Coun all current expenses for the year. That ty; before Justice Frank E. Gillette.

such investment shall be made in the name of Action by Cyrus Kimmell against Oliver Alta M. Woods, party of the first part. That Powers, executor, and others. Judgment for he is to receive all money derived from the defendants, and plaintiff brings error. At sale of the Woods' Addition and deposit firmed.

the same in the banks of El Reno and Lawton, Black & Trosper, for plaintiff in error.

in the name of the party of the first part. Stevens & Myers and IIudson & Keys, for That the party of the second part shall redefendants in error.

ceive for the management of such invest

ments belonging to the party of the first part BURWELL, J. James R. Woods was the thirty-seven and one-half per cent. of the owner of a valuable claim adjoining the city net profits of all such investments, after of Lawton, which was afterwards platted

deducting all expenses of said business. That and known as Woods' Addition to that city.

on or about the first day of January of each on March 5, 1.302, Mr. Woods died, and the year during the term of this contract the legal title to this land became vested in his books of the business for the previous year wife, who was a daughter of the plaintiff.

shall be closed, and dividends declared and After the death of James R. Woods, the divided between the parties according to this plaintiff, or. October 17, 1902, entered into a contract. That, if the profits upon said inwritten contract with his daughter, Alta M. vestment belonging to the party of the first Woods, whereby it was agreed that the plain part are reinvested, such money reinveste tiff should have charge of the selling and is to be managed on the same terms as the management of this addition, as well as the original investment. And it is agreed further management of investments to be made with that if at the expiration of ten years from Mrs. Woods' money. The contract is as fol this date either party may wish to sever their lows: "This contract made and entered into business relations, and terminate this conthis 17th day of October, 1902, by and be tract, that all the property of the Woods' tween Alta M. Woods, of Lawton, Oklahoma, Addition remaining unsold shall be appraised or Norton, Kansas, party of the first part, and by three competent, disinterested parties, and Oyrus Kimmell, of El Reno, party of the that such value shall be a fair cash valuation, second part, witnesseth: That said party and it shall be divided between the parties of the second part does hereby covenant with hereto, the first party receiving seventy-five the party of the first part, her heirs, ex per cent., and the second party twenty-five frutors, and assigns, to take charge of all per cent., of all such unsold property either the business interests of the party of the in lots, stock, notes, mortgages, or cash, as first part in Lawton, Oklahoma, and else they may agree, provided, however, that where, consisting of the sale of lots, blocks, should the parties hereto arrive at a valuaadjusting legal difficulties, railway right of tion of such unsold property without the inway case, and all matters pertaining to the tervention of outside parties, a settlement Woods' Addition whatsoever. That the party may be made and the appraisement waived. of the second part shall have control of the It is provided that, iu the event of the death

of the party of the first part, this contract is to remain and be in full force and effect, with and against the heirs, executors, and legal assigns of the first party. That, in the event of the death of the party of the second part, there shall be due his estate that portion of twenty-five per cent. of the unsold property which shall correspond to the per cent. of years of this contract which shall have then elapsed." Subsequently, Mrs. Woods married one Oliver Powers, and on September 26, 1903, Mrs. Powers (formerly Mrs. Woods, but to whom we shall hereafter refer as Mrs. Powers) died. The plaintiff commenced this action to compel specific performance of the contract by the executor and the beirs of Mrs. Powers. A demurrer was filed to the first count of the petition and sustained thereto, and this ruling is the only matter involved in this appeal.

The petition is quite long, and it would subserve no useful purpose to copy it in full. We shall only refer to those parts that are vital to a determination of the question involved. In the first place, what is the effect of the contract between the plaintiff and Mrs. Woods? Counsel for the appellants insists that the contract operated as a conveyance of an interest in the land to the plaintiff. With this contention we cannot agree. It is simply a contract appointing the plaintiff as the agent of Mrs. Powers, which agency was to continue, so far as the land is concerned, for a period of 10 years. It is true that the contract also constitutes the plaintiff the agent of Mrs. Powers for the investment of her moneys; but, although the petition contains a count based upon the profits derived from such investments, counsel have waived those matters, and are seeking to enforce only that part that relates to the land. The contract itself plainly shows the intention of the parties. It says that the party of the second part (Kimmell) shall have control of the sale of Woods' Addition in Lawton, Okl.. for a period of 10 years from the date thereof, and that he shall receive for such services 25 per cent. of the proceeds of such sales, after deducting current expenses of the same, and that such division shall be made on or about the 1st day of January of each year during the term of the contract. Kimmell was to sell the land, and he was to receive 25 per cent. therefor. This, it seems to us, was a very liberal commission for such services, and, taking into account the allegation of the petition that the plaintiff is a man of age and business experience, and was familiar with his daughter's business affairs, the contract savors of the elements of unconscionableness.

But it is alleged that there were considerations other than those named in the contract, which influenced its execution. What were they? Let us briefly notice. The retition alleges that the appellant (Kimmell) loaned his daughter and James R. Woods, her

former husband, money with which tú prove up on his claim and with which to live on. These allegations only show acts of kindness from a father to his child, as it is not pretended that these loans were not paid back to Kimmell. There is, however, one allegation in the petition, as follows: “The facts of plaintiff's relationship, his superior age, business experience, intimate knowledge of her affairs, and previous protective acts and services, furnished in part the motive and consideration on the part of said Alta M. Woods for said written contract." It is quite likely that these acts of kindness on the part of Kimmell to his daughter and his superior business experience, etc., influenced in part the making of the contract, and these same considerations would have had an important bearing in giving a similar contract to one who was not a near relative. But these considerations cannot operate to confer upon Kimmell rights which the language of the contract itself does not import. The relation being that of principal and agent, the death of Mrs. Powers terminated the agency. In Bishop on Contracts, $ 340, it is said: “The death of either party terminates the agency —that of the agent, because a dead man can perform no act; that of the principal, because his earthly existence has ceased, and in the nature of things there can be no agent without a principal. Even though the death of the principal is unknown to the agent, so that the latter executes in good faith what be believes to be a continuing agency, such execution is void." And see Am. & Eng. Enc. of Law (20 Ed.) p. 1022: “It is a well-established rule of the common law that the death of the principal puts an end to the agency, when the authority is not coupled with an interest, and no act of agency subsequent thereto is binding upon the estate of the principal, for no one can do an act in the name of one who is dead"- citing authorities.

What interest could Kimmell possibly have in the land itself? The petition alleges “that on October 17th, 1902, Alta M. Woods (Powers) was the owner in fee simple, and in possession of the unsold portion of the N. 142 of the S. 12 of section 31, in township 2 N., of range 11 W., I, M., in Comache county, Okl., which land was platted and generally known and described as the Woods' Addition to Lawton, Okl., which property was then of the value of about $73,395, and she continued to be such owner and in possession of the same up to the time of her death hereinafter mentioned.” The plaintiff here states that, on the date the contract in question was entered into, the land was platted, and also that Mrs. Powers continued to be the owner of all of the land referred to in the contract until the time of her death. Hence the plaintiff in this case did not sell a single lot or foot of ground under the contract, and, as he did not claim that he paid any money or other valuable consideration for

the contract, we cannot perceive how he cause which by inadvertence or mistake the clerk has an interest in the land which should be

has omitted to record. recognized. He does not even allege that he

[Ed. Note. For cases in point, see Cent. Dig.

vol. 13, Courts, $ 368.] expended money in preparing the addition

2. JURY-RIGHT TO JURY TRIAL-WAIVERfor sale or in attempting to make sales. His

HABEAS CORPUS. allegation as to what he did under the con

One who is charged with a crime triable by tract is "that he has duly performed all the a jury at common law is required by our statconditions on his part required by said con

ute to be tried by a jury, and cannot waive such

right. A judgment of conviction, pronounced tract; that immediately upon the execution

by a court upon a plea of not guilty, without and delivery of said contract he entered upon the intervention of a jury, is void ; and a perthe performance of his duties and obligations

son imprisoned upon such judgment is entitled

to his discharge upon habeas corpus. thereunder; that he gave his entire time

[Ed. Note. For cases in point, see Cent. Dig. and attention to the management and control

vol. 31, Jury, $ 198.) of said business," etc. The plaintiff may

(Syllabus by the Court.) have given his time and attention, but he sold no lots. Under the contention of an

Application by C. W. McQuown for a writ pellant, he could have done nothing for 10 of habeas corpus. Petitioner discharged. years, and then exacted a one-fourth interest in the entire addition. The contract

Geo. T. Webster, for plaintiff. M. L. Holwill not be so interpreted. There was a re

combe, Co. Atty.. for respondent. mote contingency that there might be some lots unsold at the end of 10 years, and, if BURFORD, C. J. The petitioner was conso, the appellant would be entitled to a one victed in the probate court of Custer county fourth interest in them, or the proceeds there

for a violation of the law for the protection from; but that feature of the contract con of game, and was sentenced to pay a fine of templated an honest effort to sell the addi- | $100 and costs, and to stand committed to tion. The appellant could not sit quietly by the county jail in default of payment. He for months, and then, upon the death of the appealed to the district court, but there disprincipal, claim this clause as giving an

missed his appeal before trial, and the cause interest in the lots unsold. Equity will only

was remanded to the probate court to be give him that which, in justice, be is entitled executed. The defendant upon arraignment to. The appellant may have expended his pleaded not guilty, waived a jury, and tried time in making investments for Mrs. Powers the case to the court. and in looking after the same, but, as to such

The original record of the judgment omitservices, the contract provides a different ted to state that the defendant was ordered compensation, and the presumption is that committed to jail in default of payment of he has received it.

the fine adjudged against him, or that he Nor can the clause in the contract to the

waived a jury trial. Subsequently the court, effect that, in the event of the death of Mrs.

on motion of the county attorney, found that Powers, the contract is to remain and be in

the defendant did, on arraignment, waire a full force and effect, be interpreted as con

jury, and that in rendering the judgment and tinuing the contract of agency after the death

pronouncing judgment the court did in fact of Mrs. Powers. When she died, the interests adjudge that upon failure to pay the fine and of the plaintiff, on the one hand, and the

costs that the defendant be committed to the heirs of Mrs. Powers, on the other, became

county jail of Custer county until the fine fixed. Kimmell could recover that which was

and costs should be paid, or until he had due him, if anything, under it, but he could

served one day for each $2 of said fine not authoritatively act longer as agent for

and costs, and the court ordered nunc pro his principal who was dead.

tunc that the record be made to speak the

The pe The petition presents no ground for equi- truth, which was accordingly done. table relief, nor does it state an action at titioner contends that that judgment so enlaw for damages.

tered and recorded is void and of no effect, The judgment of the lower court is here

for the reason that the record was amended by affirmed, at the cost of the appellant.

after the expiration of the term of court All the Justices concurring. except GIL

at which the judgment was rendered, and a LETTE, J., who presided at the trial below,

number of authorities are cited sustaining not sitting, and IRWIN, J., absent.

the proposition that the clerk ("annot amend his records after the term at which the pro

ceedings were had. We find no fault with (19 Okl. 347)

the rule as here contended for, but it has In re McQUOWN.

no application to the facts in this case. The

orders, judgments, and proceedings of a court (Supreme Court of Oklahoma. Sept. 5, 1907.)

of general jurisdiction are required to be 1. COURTS RECORDS – AMENDMENT – EN- recorded by the clerk of the court. The failTRIES NUNO PRO TUNC.

ure of the clerk or recording officer to make On proper application and notice a court

such record does not vitiate the proceedings. may by nunc pro tunc order cause its records to speak the truth and be amended, so as to

The clerk may, at any time during the term record any part of the proceedings had in a at which the proceedings are had, correct,

91 P.-44

amend, or supply omissions to make the conviction or acquittal of the same offense." record speak the truth; and the court may Section 5135: "Issues of fact must be tried at any time, upon proper application, from by a jury." Section 5136: "If the indictment the memory of the presiding judge or upon is for a felony, the defendant must be personproper showing, by appropriate order nunc ally present at the trial, but if for a misdepro tunc cause its records to recite the truth, meanor not punishable by imprisonment, the and may supply any omission from its rec trial may be had in the absence of the leords; and this may be done in a criminal as fendant. If, however, his presence is neceswell as in a civil cause. Such record, when sary for the purpose of identification. the SO supplied, relates to the time when the court may, upon the application of the disproceedings were in fact had, and may make trict attorney, by an order or warrant, revalid that which was apparently defective. quire the personal attendance of the defendWight v. Nicholson, 13+ C. S. 136, 10 Sup. Ct. ant at the trial." 487, 33 L. Ed. 863; Gonzales v. Cunningham, This brings us to the question: Can a 104 U. S. 612, 17 Sup. Ct. 182, 11 L. Ed. 372; defendant, charged with a crime and enII yde v. Curling, 10 Mo. 339; State v. Clark, titled to a jury, waive the jury and try the 18 Mo. 432; Nelson v. Barker, 3 McLean (U. case to the court? Upon this question a S.) 379, Fed. Cas. No. 10,101; State v. Bilansky casual examination of the decisions would 3 Minn, 216 (Gil, 169); Bishop's New Crim. lead to the impression that there is conProc. $ 1315. The proceedings had before siderable conflict. But a careful and disthe probate court for the purpose of deter criminating review discloses the fact that mining what judgment was in fact rendered, the decisions holding that the accused may and its finding and order for a nunc pro tunc

waive a jury are based upon statutory or order perfecting the record, are strictly in constitutional provisious. A great inany of accord with recognized practice and conform the states of the Union have constitutional to what is required by due process of law. or statutory provisions to the effect that a We are not permitted in this kind of a pro

defendant in a criminal cause shall be tried ceeding on habeas corpus to review or correct by a jury, unless he waive the jury and conerrors, and we need not decide whether the sent to trial by the court. We believe the proceedings were in every respect free from authorities are practically unanimous error. The court had power to make its rec holding that a jury cannot be waived, unless orils speak the truth, it had jurisdiction of

such waiver is authorized by statute. In the parties and of the subject-matter, and Hughes on Criminal Procedure, $ 2979), the it proceeded in the manner recognized by law. author says: "A jury cannot be waived in a The proceedings are not void and may be en felony case, even by agreement or consent of forced.

the defendant. It is jurisdictional, and conThe next contention is that the judgment sent can never confer jurisdiction. The deis void for the reason that the petitioner was fendant may waive his right to a jury trial entitled to a jury trial, and that he would in a prosecution for a misdemeanor, and be not lawfully Waive such right, and that a tried by the court instead of a jury, where judgment rendered by the court upon a plea

such waiver has been authorized by statute, of not guilty, without the intervention of a and the courts have upheld the constitutionjury, is void. The statutory provisions in- ! ality of statutes providing for such waiver volved are as follows: Section 5112, Wilson's in misdemeanor cases." In Bishop's New Rev. & Ann. St. 1.903: "No person can be Criminal Procedure, § 8.3, it is said: "One punished for a public offense excepit upon le form of waiver is where, authorized by gal conviction in a court having jurisiliction statute and the Constitution not withholding thereof." Section 51.51: “The proceilure. any needful jurisdiction from the tribunal, practice and pleadings in the district courts the defendant consents to be tried by the of this territory in criminal actions or in court without a jury. He cannot afterward matters of a criminal nature, not specifically complain." provided for in this chapter, shall be in ac Rapalje, in his Criminal Procedure (seccordance with the procedure, practice and tion 1.50), goes more fully into the question, pleachings of the common law, and assimi saying: “There are few questions of law later as near as may be with the procedure, upon which the courts are more evenly dipraltice and pleadings of the l'nited States vided in opinion than the problem whether or federal side of said court." Section 5138: it is legally competent for a defendant in it "Xo person can be convicted of a public of prosecution for felony to waive a trial by fense unless by the verdict of a jury accepted jury and consent to be tried by the court, and recorded by the court, or upon il plea of unless, as in the case in some of the states, guilty, or upon final judgment for or against the Constitution allows a jury to be waiveri him upon il demurrer to the indictment, or in such cases as the Legislature may direct. upon a judgment of a police or justice's court Iuere the Constitution so provides, the Legin cases in which such judgment may be islature alone has the power to determine lawfully given without the intervention of a in what classes of cases a jury trial may be jury or grand jury.” Section 5131: "an is waived. The words 'prescribed by law,' in sue of fact arises, first, upon a plea of not the Constitution, are held to look to actual guilty; or, second, upon a plea of a former legislation upon the subject, and, in the ab

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