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county might institute a proceeding of this this determination by this court is questionkind and carry it through the courts at ed by counsel for plaintiff in error, who Grand, and, after the statute of limitations base their conclusions upon the proposition had run against the judgments funded, de- that the district court, when hearing a quesfeat liability upon the bonds because the pro- tion touching the issuance of funding bonds, ceeding in court, which the county, through does not reach a conclusion which in effect its board of commissioners, was a party to, amounts to a judgment. If this is a correct was not held at Ioland. Such consideration conclusion, we can see no purpose in having seems to illustrate the soundness and justice the question of the issue of bonds brought in the rule of the courts that the judgment before the court at all. Under the statute of a court of record cannot be collaterally at. the court must hear and determine the questacked, and can only be questioned by a pro- tion as to whether or not the issuance of ceeding in error or by some authorized direct such bonds is authorized under the law, proceeding for that purpose. From these con- and it would seem that, when a court of siderations we are of the opinion that the competent jurisdiction has before it a legal district court did not err in refusing to con- question to determine, and has heard and sider the defendant's third ground of defense determined that question, such determinaand in rendering judgment for the plaintiff tion, unappealed from, is thereafter res adnotwithstanding the grounds of defense there judicata. · in stated.

It is urged that the judgment of the court One other ground of defense, the fourth, of July 10, 1900, authorizing the issuing of as set forth in defendant's answer, remains the funding bonds in question, was not a for consideration, which, in substance, is judgment in the sense in which that expresthat the bonds issued were in excess of 4 per sion is used, and that there was no judgcent. of the last-assessed valuation of the ment until it was entered upon the order taxable property in the county. The answer made nunc pro tunc. The finding of the alleges that such valuation was $169,289.77, court July 10, 1900, was embodied in a and that, considering the outstanding in- journal entry of that date and was signed debtedness of the county not funded, togeth- by the judge hearing the case and recited ed with taxes levied and uncollected, and the things that were found and determined. all other property, money, and resources be- It was a judgment as to all the intents and longing to said county July 10, 1900, not more purposes and upon all the questions subthan $11,200 of the bonds of said county | mitted to and necessary of determination by could, at that time, have been lawfully is- the court in order to authorize the further sued, and that therefore $5,600 of such bond action had, to wit, the issuance of the bonds. issue was illegal and void. By this defense It is true it was not that character of judg. the defendant seeks to try over again a ques- ment which authorized or required an exetion that was of paramount importance and cution to issue for its enforcement, but it before the court for consideration when it was nevertheless a judicial determination of authorized the issuance of the bonds July the existence of facts necessary to the exe10, 1900. The record shows that at the time cution of the bonds, and which facts when the court authorized the issuance of said determined were conclusively and finally debonds it found that the amount including termined, unless appealed from. Such deoutstanding indebtedness did not exceed 4 termination cannot thereafter be attacked per cent. of the assessed valuation of the except for fraud or want of jurisdiction. taxable property of Day county, according Such judgment or conclusion was executed to the last assessment valuation of the as- when the bonds were signed. The entry of sessor of said county, and the question here the judgment upon the journal of the court presented is whether or not that question at a subsequent date probably served no may be retried in this action for the purpose purpose other than to make the record of of defeating a part of the bond issue of the court complete in that respect. July 10, 1900. Touching this question, this With these questions settled, was there court, in the case of Territory v. Hopkins, such evidence before the court as to justify 9 Okl. 149, 59 Pac. ISO, said: “The court hav- the rendition of a judgment upon the pleading determined the validity of the bonds in- ings? That the plaintiff was an innocent volved in this proceeding, and having de- purchaser of the bonds is not questioned. creed that they are valid obligations and Such bonds and coupons were negotiable inissued in strict conformity with the laws struments and passed by delivery. They of this territory and no objections or excep- were past due when the action was brought, tions having been made to the issuance there and liability thereon was denied, and payof, and no appeal having been taken there- ment refused. The petition of the plaintiff from, the decree and judgment of the court set forth the particular bonds the coupong is therefore final and conclusive upon all sued on belonged to. The recitals in the matters put directly in issue, tried, and de- bonds from which the coupons were taken termined in that proceeding. This doctrine were that they were issued pursuant to the has been clearly enunciated and uniformly laws of Oklahoma. They bore the unquesupheld by the decisions of the Supreme Court tioned signature of the officials of Day counof the United States." Tue soundness of ty, together with that of the judge of the district court of that county, attested by the W. S. Denton and Roberts & Curran, for clerk and seal of the court; also, the indorse- plaintiffs in error. P. C. Simons, Atty. Gen., ment on the back, by the territorial auditor for the Territory. who certified such bonds to be legally and regularly issued in accordance with an act of the

GILLETTE, J. In order to a consideration Legislature of March 12, 1897. It has been

of this case, which is an appeal from an the universal holding of the courts that,

order overruling a motion for a new trial, where negotiable bonds or securities on their

made after the term when judgment was face import by recital a compliance with the

entered and sentence pronounced, upon the law under which they were issued, the pur- ground of newly discovered evidence, and chaser is not bound to look further for evi

in considering such motion and the ground dence of compliance with the law authoriz

laid therefor, it is necessary first to notice ing their execution. In this case they were the defendants' ground of defense on the trial not only issued as the act of the officials of

of the cause. They were charged with larDay county, but, in addition, the bonds re

ceny by stealth and fraud, in the felonious cite that they are issued as the act of the taking of merchandise, the property of C. district court and therefore go upon the H. and Luella Richards, at Rusk, in Woods market as instruments, the authority to issue

county, Okl.; the indictment setting out the which has been judicially determined. As time and place and the property alleged to to the effect of such recitals, and the fact have been stolen. When the case came on for that the plaintiff in error is bound thereby, trial the defense interposed and relied upon see 62 U. S. 539, 16 L. Ed. 208, Knox r. Aspin- | by the defendants was set out in a statement well; 99 U. S. 86, 23 L. EU. 303, Ilackett v. to the jury by one of defendants' counsel, as Ottawa; 10) U. S. 342, 26 L. Ed. 1127, shown by the record in the case, and was in Ottawa v. National Bk.; 103 U. S. 683, 26 L. substance that, while defendants were abEd. 526, Walnut v. Wade; Waite v. Santa sent from their home in the state of Kansas Cruz (C. C.) 8! Fed. 619; 6J U. S. 287, 16 as witnesses in a cause pending against the L. Ed. 664, Bissell v. Jeffersonville.

complaining witnesses at Wichita, Kan., a From the record before us it is apparent scheme was devised, planned, and executed that the bonds to which the coupons in ques- for the purpose of having a continuance of tion belong were regularly issued for the the case then and there pending against Richpurpose of funding the judgment indebted- ards, and that during that time and for that ness of Day county, that when issued they purpose Richards slipped down to Flohr's were authorized by the determination of place, in Woods county, Okl., near Rusk, and the district court of Day county, that they in the nighttime secreted his (Richards') have passed to the plaintiff, an innocent property upon Flohr's place, and the next purchaser, and that the county is liable for morning sent an officer there and had him the full face value thereof; and we conclude find the property so secreted. The property that the district court did not err in the

alleged to have been stolen was set out in rendition of the judgment complained of.

the indictment, and a description of it reThe judgment of the district court will

quired 14 pages of closely typewritten mattherefore, be affirmed. All the Justices con

ter, a large portion of which was reror red curring, except PANCOAST, J., who presided

by a writ of replevin. Such a defense to an in the court below, not sitting, and IRWIN

indictment charging the larceny of such propand GARBER, JJ., absent.

erty by fraud and stealth precludes the theory that Flohr and his wife had the possession of the property at his home at all, but

substantially avers that, when the same was (19 Okl. 414)

found there, it was by reason of the frauduFLOIR et al. v. TERRITORY.

lent and vicious act of Richards in secreting (Supreme Court of Oklahoma. Sept. 5, 1907.) it there without his (Tlobr’s) knowledge or

consent, and during his and his wife's abCRIMINAL LAW – NEW TRIAL NEWLY DISCOVERED EVIDENCE.

sence from home. A motion for a new trial upon the ground

The evidence upon the trial of the case of newly discovered evidence, made after the showed that the property, when found at term at which the defendant was convicted and his place. was secreted in different portions sentenced, which motion sets forth the evidence relied on, is not sufficient to justify a new trial

of the house, some of it in the back part of of the cause, unless from a consideration of it and inside an organ, and some in the attic the court can determine that the result of the of the building; that, when Dr. Richards and trial would probably have been different, had

his wife left Rusk, they left the key to their such new evidence been heard upon the trial.

place of business with one Chamberlain, and [Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 2:336.)

that Flohr obtained possession of it from him (Syllabus by the Court.)

by writing Richards, who was then in Illi

nois, that Chamberlain was disposing of the Error from District Court, Woods County; property and was not caring for it, and that before Justice J. L. Pancoast.

if he (Flohr) had possession of it he would Charles Flohr and Emma Flohr were con- take good care of the same. Thereupon victed of crime, and bring error. Atfirmed. Richards telegraphed to Chamberlain to turn

the key over to Flohr. Chamberlain testified that upon receipt of such telegram he did turn the key over to Flohr. The testimony of Flohr himself upon the trial of the case upon cross-examination showed that he procured the key and possession of the store from Chamberlain; that he lived some ten miles from Rusk, and had no opportunity to know what Chamberlain's acts were; and that such statements written to Richards were made in the consciousness that he did not know the facts. In this way the evicience for the prosecution upon the trial of the cause accounted for the ability of Flohr to have gotten possession of the property charged to have been fraudulently stolen. From this it will appear that Flohr's possession of the property was, upon the trial, accounted for by each side upon theories that were directly antagonistic-upon the part of the territory by proof tending to establish a fraudulent larceny of the same, and by the defendant's attempting to show that the property was fraudulently taken to his premises by Richards with a view of accusing him of the larceny thereof. These conflicting theories were settled by the verdict of the jury against the Flohrs.

Upon this motion for a new trial on the ground of newly discovered evidence it is proposed to show as a matter of defense to the charge of larceny in the indictment that the property charged to have been stolen, and which was found secreted at Flohr's house, was there by the mutual consent of the parties, through an alleged credit statement made by Dr. Richards to a business house in Wichita, Kansas, to which credit statement there was attached a written exhibit, and in which exhibit appears the following:

“I instructed Mr. Flohr, who had the keys to the store while I was away, to take all the jewelry and silverware in the store to his place, and I kept the most expensive jewelry and silverware, including: I also gave him or sent him keys to my trunk, where good gold watches and rings, etc., * * and told him to take it out and put in security somewhere, in case of fire or robbery or burglary. He took all this, includ. ing the musical instruments, silver-mounted ebony brushes, and silver-mounted combs, the best of the fancy china ware, perfumes, and some other things up to his house for safekeeping. I should think he has about $1,000 or $1.200 worth of goods in this line at his place." This written statement is attached to the credit statement, without any reference in the credit statement to the same; the pearson making it averring that, when Richards made it, he (Richards) said he would make it more complete property statement, which he afterwards did, and handed him the statement containing the language above quoted. The execution and delivery of this statement is positively denied by Richards and his wife, who also deny that the same is in the handwriting of either of them. The

authenticity of this newly discovered evidence is therefore placed in much doubt, judging the same from the basis of the motion for a new trial alone; and it seems to us, when considered in connection with the defense made by Flohr upon the trial of the cause, it is so fully discredited as to justify the trial court in refusing to grant a new trial based thereon.

The defense now proposed, that Flohr received these goods under the direction of Richards and took them from the store to his dwelling house, 11 miles distant, is at direct variance with the defense stated at the beginning of the trial, to wit, that Dr. Richards had, while he (Flohr) was absent from home in Wichita, slipped down there and secreted them in the house for the purpose of accusing him of the larceny of them. The motion for a new trial, if granted for such a reason, would be equivalent to authorizing a new trial upon such separate and distinct grounds as to permit the defendant to confess that he had originally defended the case upon false and malicious grounds, wherein he sought to charge Dr. Richards with an offense more heinous than the one charged in the indictment against himself, and, having been defeated in such falsehood, he now seeks to present the truth. Courts will not permit litigants to aver a given statement of facts to be true, and, when defeated in such averment, to have another trial upon a theory which confesses the first to have been falsely presented.

There is one other matter presented by the record deserving of notice. In the credit statement made at Wichita, Richards in the enumeration of his business obligations set forth an item of indebtedness to Charles Flohr in the sum of $200, and also the fact that there was certain property at Flohr's place belonging to him, which Flohr claimed he held in satisfaction of $200 indebtedness from Richards to him. Touching this indebtedness and this property, it appears from the record that there was a cattle deal between them wherein Flohr received some 23 head of cattle from Richards which had a mortgage on them, which Richards testified he considered paid in the transfer of the cattle. This transaction was made the subject of investigation on the trial of the cause. Flohr claimed that he held certain property, such as mill fixtures and a buggy and harness, found in his possession, as security for this indebtedness; Richards denying that he had any right to the possession of the same for such purpose. The testimony pro and con upon this subject shows that there was an unsettled difference between them with regard to this $200 item, and the fact that Richards should make mention of it in listing his obligations in a statement of liabilities to a mercantile concern we do not think would be such a confesssion of fact as to justify the granting of a motion for a new trial. The important question upon the trial

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was not so much the matter of indebted- ceptions should be prepared and presented to the ness of Richards to Flohr as it was the

referee for his allowance and signature, to be

filed in court with his report. question as to whether or not the property

(Syllabus by the Court.) of Richards found at Flohr's place had been by Richards hypothecated to Flohr as a mat- Error from District Court, Comanche Counter of security or in discharge of such obli- ty; before Justice Frank E. Gillette. gation. This Richards denied, while Flohr Action by G. H. Block against W. J. Pearattempted to account for his possession by son and others. Judgment for defendants, claiming that that particular property was at and plaintiff brings error. Reversed, with his place by authority of Richards in the set- directions. tlement of such $200 item of claimed indebt

Stevens & Myers, for plaintiff in error. edness. Such indebtedlness may be admitted,

W. E. Iludson, for defendants in error. and Flohr still be guilty as charged. The mercantile statement of Richards, if known at the

BURFORD, C. J. Prior to the year 1903, time of the trial, would have been competent

one 0. P. M. Butler leased from the school as an item of evidence for the consideration of

land leasing board section 36, township 2 the jury, but we think not of such importance

north, range 12 west, reserved for school as that the verdict of the jury would have

purposes, and adjacent to the city of Lawprobably been changed in consideration of it.

ton, in Comanche county, Okl. The lessee The judgment of the court below is there.

was permitted to plat a portion of the secfore affirmed. All the Justices concurring,

tion for town site purposes as an addition to except PANCOAST, J., who presided in the

the city of Lawton, and to sublease the lots trial court, not sitting, and IRWIN and GAR

embraced in said addition. The lots in conBER, JJ., absent.

troversy in this case were leased to E. T.

Pearson, a married woman and the wife of (19 Okl. 422)

W. J. Pearson. L. H. Robinson entered into

a contract with W. J. Pearson to furnish the

material and construct a dwelling house on (Supreme Court of Oklahoma. Sept. 5, 1907.) the lots leased to Jr's. Pearson. G. H. Block 1. MECHANICS' LIENS-PROPERTY SUBJECT.

furnished the material which was used in By the provisions of section 4817, Wilson's the construction of the house and received Rev. & Ann. St. 1903, one who, under contract no compensation therefor. lle filed a lien with the husband of the owner of land, furnishes material for the erection of a building upon

upon the property, alleging that W. J. Pearsaid land, is entitled to a lien upon such land son was the owner of the property, and that and the improvements thereon for the amount he furnished the material under a contract due for such material.

with the contractor, Robinson. On April 25), [Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Mechanics' Liens, $ 8.5.]

19903, the plaintiff in error, G. II. Block, com

menced his action in the district court of 2. SAJE-PROPERTY OF LESSEE. I lessee, who holds under a lease from the

Comanche county against the defendants in school land leasing board, is an "owner" of land error, W. J. Pearson, E. T. Pearson, L. II. as contemplated in the mechanic's lien law, and

Robinson, and 0. P. M. Butler, in which he such a lien may attach to such a leasebold estate

sought to recover personal judgment against subject to the paramount interest of the United States, the lessor, or the holder of the fee.

W. J. Person for the amount of his claim Ed. Note.-For cases in point, see Cent. Dig.

for material used in the construction of vol. 31, Mechanics' Liens, $ 21.]

į saill house, and the enforcement of a lien 3. BILL OF EXCEPTIONS-VECESSITY-EVIDENCE against the property.

against the property. Robinson and Butler BEFORE REFEREE.

made no defense. The Pearsons answered Where a referee for the trial of a cause in the district court is not ordered to report the

setting up that the title to the land was yet evidence, but is ordered to hear the evidence and

in the United States; that Mrs. Pearson orrạport his findings of fact and conclusions of (upied the same by virtue of a lease from law, the evidence so taken can only be made a part of the record and subject to review by the

Butler, who was the lessee of the school trial or Supreme ('ourt by having the referee

land leasing board, and she did not purchase allow and sign a bill of exceptions containing the material or enter into the contract for the evidence taken by him.

the construction of said house; that W. J. [Ed. Yote.-For cases in point, see Cent. Dig.

Pearson had no interest in the property ; vol. 21, Exceptions, Bill of, § 41.)

that he had contracted with Robinson to 4. SUME--FiXpiXGS OF REFEREE. Where the evidence taken upon a trial he

build the house upon his wife's lease, but forn a referee is not made part of the record,

that he had not made any contract with the findings of such referee are conclusive upon Block for the material used in the constructhe parties, as well as the court, and cannot be tion of said house. A reply was filed setting reviewed.

up the authority of Butler from the school El. Yote. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 910.1

land leasing board to subdivide the land anal 5. SAME-REVIEW OF PROCEEDIXGS.

sublease the lots for town site purposes. The Where a party desires to have the procreil- cause was ordered to a referee for trial, with ings before a referee reviewed, he should file a directions to hear the evidence and report motion for now trial before the referee, and have the same ruled upon before the report of

his findings of fart and conclusions of law. the referep is filed in court; and, in order to

This was done; the referee recommending a preserve a record before a referee, a bill of ex- | judgment for the defendants for their costs.


The court approved the report of the referee and rendered judgment that the plaintiff take nothing by his action, and that he pay the costs of suit. From this judgment the plaintiff below has appealed, and the case is before us for review.

There are some questions argued in the brief of plaintiff in error that we cannot consider on the record presented. The case contains the evidence taken before the referee, but there was no bill of exceptions allowed and signed by the referee preserving the evidence, nor was there any order of the (“ourt directing the referee to report the evi(lence. There is no order of court making the evidence taken before the referee a part of the record. Ilence the evidence is no part of the record, and was not properly before the district court for consideration, nor is it before this court for its consideration. This question was before this court in the case of Ilowe v. City of Ilobart, 90 Pac. 431, wherein we held that: "The evi(lence taken before a referee in a cause where the referee is directed to try the cause, make findings of fact and conclusions of law and report the same to the court, can only be preserved and made available for review in the district or Supreme Court by incorporating the same into a bill of exceptions, and having the referee to allow and sign the same." This rule might probably be avoided by having the court order the referee in the first instance to report the evidence taken, together with his findings of fact and conclusions of law thereon; but neither of these steps were followed in the case at bar, and consequently we cannot review any question which, for its determination, depends upon a consideration of the evidence. Upon this state of the record, the findings of fact stated by the referee and adopted by the ('ourt are absolutely conclusive upon all parties, as well as upon the court.

The only question we are authorized to inquire into is whether or not there was error in the conclusions of law applied to the facts found. The referee found that Mrs. E. T. Pearson was the lessee of the lots upon which the lien was claimed; that she held as the sublessee of Butler, who was the lessee of the school land leasing board; that her husband, W. J. Pearson, had no interest in the land; that he procured the building to be erected upon her lots for her use and largely at her expense, although he procured some of the means upon his own credit; that W. J. Pearson contracted with Robinson to construct the house; and that W. J. Pearson was about the premises a great deal of the time and acting as agent for his wife. In relation to the claim of plaintiff, he found as follows: "December 28, 1902, Robinson and W. J. Pearson entered into a contract whereby for the sum of $1,000 Robinson was to build on said lot a dwelling; the material and workmanship to be first-class. Plaintiff furnished materials which went into the con

struction of the house. The materials furnished were for the prices agreed upon between plaintiff and Robinson. Pearson had

. full knowledge that Robinson was getting the materials from plaintiff, and knew when he paid Robinson that plaintiff had furnished materials for the house. Pearson paid the full contract price to Robinson and to others for work and material; the amount of cash paid to Robinson being $568.10, February 28, 1903. l'earson directed plaintiff to charge the materials to him and promised to pay for them. That materials which plaintiff furnished and which went into the construction of the house amounted to $863.70, no part of which has been paid plaintiff. Pearson moved into the house in February, 1.903. Pearson accepted the house as completed according to contract. At the time of the execution of the lease by Butler, E. T. Pearson was a married woman, and W. J. Pearson was her husband." Other findings show that Mrs. Pearson was the lessee; that Block filed his lien statement in proper time; and that Butler, the lessor of Mrs. Pearson, was the lessee from the school land leasing board of section 30, township 2 north, range 12 west, which embraces the lots in controversy. Upon these facts the referee stated as conclusions of law that the plaintiff was not entitled to a lien, for the reason that he had given no notice to Mrs. Pearson of the filing of such lien, as required by the provisions of section 1819, Wilson's Rev. & Ann. St. 1903, and that having proceeded against a subcontractor, and alleged a sale to a subcontractor, he was not entitled to a personal judgment against Pearson. Before the cause proceeded to judgment, the plaintiff applied for and obtained leave to amend his lien statement to conform to the facts as found by the referee, so as to show that the contract was made with W. J. Pearson, the husband of the owner of the property, and to amend the petition by appropriate allegations, changing the facts to conform to the amended lien. These amendments must be treated as made, and they changed the entire theory of the pleadings. The case was tried as one against W. J. Pearson, as owner, and in which Block had furnished material to Pearson's contractor. The facts having shown that Mrs. Pearson was the owner, that W. J. Pearson was her husband, and that Block had sold the material to him to go into the construction of her house, the law as stated by the referee became inapplicable to the issues. There seems to have been no objection made to the request to amend the lien statement and petition or to the allowance of such request. The trial court followed the recommendations of the referee and rendered judgment in favor of the defendants. It seems that either the amendments of the lien statement and petition were overlooked, or the statute on the subject was misapplied. Section 1817. Wilson's Rev. & Ann. St. 1903, governing the amended lien statement

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