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is virtually the same as scction 252 of the Nebraska procedure act, and section 4437 of Wilson's Revised & Annotated Statutes of Oklahoma for 1903 is exactly the same as section 263 of the Nebraska procedure act quoted above. Congress, having put these two sections of the Nebraska laws in force, thereby conferred all of the powers therein named upon the judges of the district courts of the territory, and clearly recognized the right of the territorial Legislature to re-enact these or other similar laws upon the same subject. The power was clearly thereby conferred upon the judges of the courts, and could not be taken away by the Legislature. It could only change the procedure. The writs of mandamus and habeas corpus are, by reason of their peculiar character, usually named specifically in Constitutions and organic law, such as the organic act of this territory, while injunctions are not necessarily named specifically, because this class of actions fall strictly within chancery jurisdiction. Nor is the judge of the court prohibited from dissolving a temporary injunction because the statute provides that, "if the injunction be granted without notice, the defendant, at any time, before the trial, may apply, upon notice, to the court in which the action is brought, or any judge thereof, to vacate or modify the same." By this statute, if the injunction is granted without notice, the defendant is entitled as a matter of right to have the court or judge hear him upon the question of the dissolution of the same. The language was not intended to limit the power of the court or judge where the injunction is granted upon notice, but to require it or him to hear the defendant where it is granted without notice.

The assignment that the trial judge committed error in the admission and exclusion of evidence, even if well taken, did not prejudice the plaintiff on his hearing. The court records which were excluded appear in the case-made, and, even if they had been considered, the temporary injunction should have been dissolved. If the district court, in a former action, took from the plaintiff a part of the land in question, as contended by counsel, and gave it to the defendant, and error was committed thereby, he should have appealed from the judgment therein rendered. The defendant was in possession of the land that was restored to her by the trial judge at the commencement of this action, and as to whether she was put into possession of it originally by a just or erroneous judgment cannot be litigated in this action, and the files pertaining thereto were immaterial. The files in this case would be considered by the judge in passing upon this motion to dissolve the injunction, even though they were not formally admitted in evidence. The fact that the defendant was in default of answer, if such be the fact, does not help the plaintiff. His petition did not state a cause of action for

mandatory injunction; hence the defendant, although she did not deny any allegation of the petition, could move to dissolve the temporary injunction.

It is not necessary to determine as to whether or not the trial judge had the authority in law to require the plaintiff to execute a supersedeas bond, in order to prevent that part of the order directing the possession of the land to be given back to the defendant from being carried into execution. The order made by the trial judge has been reviewed, and a determination reached that such order was correct. The erro, if any was made, has not deprived the plaintiff of any substantial right.

We have examined the appellee's cross-assignments of error, and are o the opinion that the order made, in so far as it affects the growing crops, und all of the circumstances, should, with the other provisions thereof, be sustained. The evidence on the final hearing as to the condition of the growing crop may be more satisfactory than it appears from this record.

The order of the district judge of Noble county is affirmed, at the costs of appellant. All of the Justices concurring, except BURFORD, C. J., and HAINER, J., who took no part in this court. and IRWIN, J., absent.

(19 Okl. 240)

GUNN v. TERRITORY. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. OBSCENITY OFFENSE AGAINST PUBLIC MORALS EVIDENCE.

One Bessie l'atterson applied to the defendant, W. H. Gunn, at his office, for employment as an office girl. The two were in the office alone. The defendant requested the prosecutrix to submit to a physical examination in order that he might determine if she was virtuous, and upon her refusal he ran his hands under her clothes and placed them upon her lower limbs, and used vile, indecent, lewd, and lascivious language to her. Held, that such acts did not constitute a violation of section 2552 of the Statutes of Oklahoma of 1893, which makes it a misdemeanor to "willfully and wrongfully commit any act *** which openly outrages public decency, and is injurious to public morals." The acts complained of were not open or public, and did not outrage public decency, nor injure public morals, but constituted a personal injury inflicted privately.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Obscenity, § 1.] 2. SAME.

The section of the statute under which the defendant was convicted is intended to cover only those acts for the punishment of which no other penalty is by statute provided.

(Syllabus by the Court.)

Error from Probate Court, Oklahoma County: Wm. P. Harper, Judge.

W. H. Gunn was convicted of crime, and brings error. Reversed and remanded.

W. A. Smith, for plaintiff in error. W. O. Cromwell, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

BURWELL. J. Section 25.2 of the Statutes of Oklahoma of 1893 provides: "Every person who wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency, and is injurious to public morals, although no punishment is expressly prescribed therefor by this chapter, is guilty of a misdemeanor." The indictment in this case charges "that the defendant, Dr. W. II. Gunn, did, in Oklahoma county and in the territory of Oklahoma, on the 10th day of January, A. D. 1906, commit an act which openly outraged public decency and was injurious to public morals, in this: That, at the time and place aforesaid, the said defendant. being a physician, was maintaining an office in his residence at No. 316 North Walnut street, in Oklahoma City, Okl. T., and on said day one Bessie Patterson, being an unmarried female of the age of 17 years, and of previous chaste and virtuous character, through the directions of an employment agent, applied to the said defendant at his office for employment as an office girl; that said defendant was alone in his office at said time with the said Bessie Patterson; that he then and there, willfully and wrongfully, informed said Bessie Patterson that before he could employ her as an office girl it would be necessary for him to make a physical examination of her to see if she was a virtuous girl, and requested the said Bessie Patterson to then and there occupy his operating chair, which she refused to do. He thereupon insisted on making a physical examination of the said Bessie Patterson, and for said purpose undertook to, and did, run his, hands under the clothes and place them upon the lower limbs of her, the said Bessie Patterson, and against her will and protest, and did, then and there, unlawfully. willfully, and wrongfully, use all kinds of vile, indecent and lewd and lascivious language, in the presence and hearing and to the said Bessie Patterson, which language is so indecent, lewd and lascivious it is not proper to state herein, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the territory of Oklahoma." Upon the trial, the jury found the defendant guilty, and the court sentenced him to one year in the county jail and to pay a fine of $500.

Does the indictment charge a public offense? The indictment charges the defendant with openly outraging public decency, and committing an act injurious to public morals. The facts pleaded in the indictment do not sustain the charge. If the defendant did the acts charged, he outraged decency and committed an act injurious to morals; but he did not openly outrage public decency and commit an act injurious to public morals. The statute is directed against acts which are committed openly and affect the public. As to whether an act is committed openly is gen

erally a mixed question of law and fact, but it cannot be seriously contended that a doctor's private office is such a place as to give an act committed therein the character of an open act, especially when no one was present except the one against whom the act was committed. The Supreme Court of Indiana held, in the case of Jennings v. State, 16 Ind. 335, that a statute similar to the one under which the defendant in this case was prosecuted was so indefinite that it did not define any public offense, and hence no one could be convicted under it; but the Court of Special Sessions of the First Division of the City of New York (People v. Most, 36 Misc. Rep. 139, 73 N. Y. Supp. 220) upheld a conviction under a statute almost identical with ours. However, the validity of the statute is not questioned by appellant, and we will not pass upon that question. By referring to cases which discuss the meaning of the words "openly" and "public," as, for instance, "open adultery." "public nuisance," and "public morals," etc., one will see that the acts charged against the defendant do not fall within the purview of the statute. That the acts charged constituted an assault there can be no doubt. The prosecution is not for that crime. The punishment in the opinion of some for that offense may be inadequate in the circumstances of this case, but we must interpret the law as it is, and not as we may wish it were. The Legislature has made the law, and it is the duty of the courts to follow it as enacted.

The section of the statute under which the defendant was convicted is intended to cover only those acts for the punishment of which no other penalty is by statute provided. Conceding the validity of the statute under which the defendant was indicted, the acts charged constituting the crime of assault, he must be prosecuted, if at all, for that crime. To be sure, if the assault was made with the intent to commit some other crime defined in the crimes act, the defendant could be prosecuted for such crime. But the rule is that, if the acts charged constitutes any specific crime defined in the statutes one should be prosecuted for such crime, and not under a blanket statute like the section quoted above.

The judgment of the lower court is hereby reversed and remanded, with directions to the lower court to proceed in conformity with the views expressed in this opinion, and to dismiss said action. All of the Justices concurring, except IRWIN, J., and GARBER, J., absent

(19 Okl. 243) GOLDSTANDT-POWELL HAT CO. v.

CUFF.

(Supreme Court of Oklahoma. Sept. 5, 1907.) 1. SALES-ACCEPTANCE OF GOODS PURCHASED -FINDINGS OF JURY-SHIPMENT OF GOODS NOT PURCHASED.

Where an action is brought by a wholesaler against a retail merchant for the price of

goods sold and delivered. and the defense is that the goods not paid for were not the goods ordered, and that they were returned to the wholesale house within two weeks after they were received, and that they were never exposed for sale, and the evidence is conflicting, the issue of acceptance is one of mixed law and fact, which the jury must decide under proper instructions.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43. Sales, § 453.]

2. SAME.

Where a retail merchant orders goods of a certain class and quality from a wholesale dealr. and it ships a part of the goods ordered. and also other goods which were not ordered. the retailer nay pay for the goods of the kind and quality ordered without making himself liable for the goods not ordered: and where he does not accept the goods not ordered, but within a reasonable time, in the light of the surrounding circumstances, returns them, he will not be liable therefor.

Ed. Note. For cases in point, see Cent. Dig. vol. 43. Sales., § 495.]

(Syllabus by the Court.)

Error from Probate Court, Pottawatomie County: William N. Maben. Judge.

Action by the Goldstandt-Powell Hat Company against J. J. Cuff. Judgment for defendant. and plaintiff brings error. Affirmed.

R. N. McConnell and Chambers, Taylor & Hooker, for plaintiff in error. C. G. Pitman, for defendant in error.

BURWELL, J. The Goldstandt-Powell Hat Company is engaged in the wholesale business in Kansas City, Mo., and on or about November 17, 1904, it, through its traveling salesman, sold the defendant a bill of goods consisting of hats, caps, gloves, etc. The goods were not all shipped at one time. The first shipment, amounting to about $190, was received by the defendant at his place of business in Maud, Okl., during the first week in December, 1904. When the defendant opened the boxes in which the goods were shipped, he found only about $40 or $50 worth of the goods were of the sizes and kinds of goods ordered. These he put on the shelves for sale. The remainder of the shipment he set back and never offered to the trade. On December 17. 1904, the defendant wrote to the wholesale house, stating that the goods sent to him were not what he had ordered, and requesting the house to send him the remainder of the goods as per his order given the traveling salesman. On December 19, 1904, he received the remainder of the order, and, finding that the goods sent him in that shipment were not the goods ordered, he boxed them up, as well as the other goods which he had not ordered. and returned them to the wholesale house at Kansas City: but, although it received due notice from the transportation company and the defendant, it never would receive the goods, and brought this suit for the purchase price thereof. The defendant paid for the goods not returned by him. On the trial the jury found for the defendant.

the above state of facts, no matter whether or not the goods shipped were of the kind and quality ordered, the defendant was estopped from saying that he did not accept them. As to whether or not the goods shipped were of the kind and quality ordered, and were accepted by the defendant, were issues which the court submitted to the jury, which found in favor of the defendant. These findings, being supported by the evidence, are conclusive and binding upon the court. Mr. Justice Clifford, in the case of Garfield v. Paris, 96 U. S. 557, 24 L. Ed. 821, commenting upon the law on this subject, said: "Accept and receive' are the words of the statute in question, but the law is well settled that an acceptance suflicient to satisfy the statute may be constructive: the rule being that the question is for the jury whether the circumstances proved. of acting or forbearing to act. do or do not amount to an acceptance within the statute. Questions of this kind are undoubtedly for the jury." And again, in the same opinion: "Controlling authorities already referred to show that the question whether the goods or any part of the same were received and accepted by the purchaser is one for the jury, to which list of citations many more may be given of equal weight and directness." See, also, Am. & Eng. Enc. of Law (2d Ed.) vol. 24. p. 1088.

Nor did the defendant, by accepting and paying for the goods ordered, make himself liable for the goods shipped to him which he did not order. The defendant had a right to pay for the goods ordered and return those not ordered. He could also insist upon the plaintiff delivering the remainder of the goods ordered, or waive the same. The authorities cited by counsel for appellant regarding the interpretation of contracts for the sale of different articles of personal property at one sale, and their insistence that a vendee under such circumstances must receive all of the different articles, have no application to this case. The jury found that the articles returned by the defendant were not ordered by him, and hence they were not included in the contract of purchase.

The judgment of the probate court of Pottawatomie county is affirmed, at the cost of appellant. All of the Justices concurring, except IRWIN, J.. absent.

(19 Okl. 164)

MCCLELLAN v. MINOR. (Supreme Court of Oklahoma. Sept. 4. 1907.) 1. WRIT OF ERROR-REVIEW OF EVIDENCE. Where the case-made does not contain an averment by way of recital to the effect that it contains all the evidence introduced on the trial of the cause, this court will not review any question which requires an examination of the evidence in order to arrive at its correct determination.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error. §§ 2916, 2917.] 2. SAME-CASE-MADE-VERIFICATION.

The certificate of the judge to a case-made

It is contended by the appellant that, under, verifies and makes conclusive, as to their truth

fulness, all recitals and averments made in the case; but this rule does not apply to certificates of counsel, or to other matters incorporated into the case.

(Syllabus by the Court.)

Error from District Court, Kay County; before Justice Bayard T. Hainer.

Action by Otis A. Minor against John F. McClellan. Judgment for plaintiff. Defendant brings error. Affirmed.

D. S. Rose, for plaintiff in error. Hackney & Lafferty, for defendant in error.

BURFORD, C. J. This was an action by Minor against McClellan to enforce specific performance of a contract to convey real estate. Issues were made and the cause tried to the court. Upon the evidence introduced the court found the issues in favor of the plaintiff and decreed specific performance of the contract. The defendant below brings the cause here on petition in error and prays for a reversal of the judgment.

are authorized or recognized. The case itsei. must contain the positive averment, by way of recital or other equivalent showing, that it does contain all the evidence submitted or introduced on the trial of the cause, and in the absence of such recital this court will not review any question depending upon the facts for its determination." This rule is conclusive of the case at bar.

Notwithstanding this rule, we may say that we have examined the whole record, and, upon the assumption that the case does contain all the evidence, we are of the opinion that the cause was rightly decided upon the law and facts, and that the plaintiff in error is in no position to complain.

The judgment of the district court of Kay county is affirmed, at the costs of plaintiff in error. All the Justices concur, except HAINER, J., who tried the cause below, not sitting, and IRWIN, J., absent.

TILE CO.

(Supreme Court of Oklahoma.

(19 Okl. 115)

Sept. 4, 1907.) 1. MOTIONS-CONCLUSIVENESS OF ADJUDICA

TION.

Generally, when an order is made denying a motion to quash service of summons, and a final judgment is rendered, an appeal will lie from such judgment, and the ruling arising upon the motion to quash service may be assigned as ground for reversal, and, if no appeal is taken, the matter arising on the motion to quash service becomes res adjudicata and a bar to the right of the defendant to raise the same question upon a subsequent motion involving the seme subject-matter.

None of the questions presented and argued ROGERS v. McCORD-COLLINS MERCANby counsel for plaintiff in error can be determined without a review of the evidence introduced on the trial of the cause. The casemade attached to the petition in error contains what purports to be the evidence; but this court has established the rule that, unless the case-made contains the recital or its equivalent, the case contains all the evidence introduced on the trial of the cause, this court will decline to consider any question dependent upon an examination of the evidence for its determination. Frame v. Ryel, 14 Okl. 536, 79 Pac. 97; Board of Washita County v. Hubble, 8 Okl. 169, 56 Pac. 1058; Sawyer Lumber Co. v. Champlain Lumber Co., 16 Okl. 90, 84 Pac. 1093; B. K. & S. W. Ry. Co. v. Grimes, 38 Kan. 241, 16 Pac. 472; Ryan v. Madden, 46 Kan. 376, 26 Pac. 680; Pelton v. Bauer, 4 Colo. App. 339, 35 Pac. 918; Eddy v. Weaver, 37 Kan. 540, 15 Pac. 492; Hill v. Bank, 42 Kan. 364, 22 Pac. 324.

The case in question contains a statement signed by counsel, as follows: "The foregoing contains a true and correct statement of all the pleadings, motions, orders, evidence, findings, judgments, decrees, and proceedings upon which judgment was rendered."

not equivalent to a statement that the case contains all the evidence introduced on the trial of the cause. Nor is a statement or certificate of counsel of any greater weight or significance than any other document copied into the case. The court verifies and makes conclusive every recital contained in the case; but this rule does not apply to certificates of counsel or of other officers which may be incorporated into the case. This court said, in Sawyer Lumber Co. v. Champlain Lumber Co., 16 Okl. 90, 84 Pac. 1093: "There is a certificate of counsel that the case contains all the evidence, and also a certificate of the stenographer that his transcript contains all the evidence; but neither of these certificates

2. APPEARANCE-GENERAL APPEARANCE.

Where a motion is made in which questions are raised which go to the jurisdiction of the court over the parties, and in which questions are also raised which cannot be raised by special appearance, but can only be heard upon a general appearance, the parties will be taken and held to have entered a general appearance, and in such case defects in the service of summons will be deemed and held to have been waived, even though such appearance be made after judgment and upon a motion to vacate and set aside such judgment.

(Syllabus by the Court.)

Error from Probate Court, Lincoln County; Fred A. Wagoner, Judge.

Action by the McCord-Collins Mercantile Company against J. M. Rogers. Judgment for plaintiff, and defendant brings error. Affirmed.

S. A. Cordell and J. B. A. Robertson, for plaintiff in error. S. D. Decker, for defendaut in error.

PANCOAST, J. This action was brought in the probate court of Lincoln county to recover the sum of $127.50. Summons was regularly issued and was served on the 24th day of November, 1904, by leaving a certified copy thereof, with the indorsements thereon, at defendant's usual place of residence. On the 5th day of June, 1905, the

plaintiff appeared specially and moved to quash and set aside the summons and service thereof, for the reason the defendant was not at the time of service a resident of the county or territory. Evidence was introduced upon this motion, and overruled by the court, and judgment was thereupon rendered as upon default. Following this, on the 15th day of June, 1905, the plaintiff in error filed a motion, supported by affidavits, praying that the judgment rendered on the 5th day of June be set aside, upon the ground that the defendant was a nonresident when service was made, and that the court had no jurisdiction of the person of the defendant. Evidence was introduced upon this motion also, and heard by the court, and after consideration thereof the court overruled the

Time was given to make a case upon the last order. The case-made, however, contains the record of the action of the court upon the motion to quash, as well as upon the motion to set aside the judgment, although no time was given to make a case upon the first motion. No extension of time having been given to make a case upon the ruling upon the motion to quash service, the action of the court in that regard cannot be considered in this appeal, except in so far as the court may be apprised of the first action of the court, and in so far as it may be necessary to consider the same in connection with the subsequent orders. It seems, however, from the record, that this motion was heard, and upon the hearing that evidence was introduced and considered, which was held by the court insufficient, and the return of the sheriff and the service was sustained.

It is insisted by the plaintiff in error that both of these motions ought to have been sustained. There was, however, evidence offered and considered, and we think that the return of the sheriff was sufficient as against the evidence offered by the defendant. The affidavits offered by the defendant are very unsatisfactory. The affidavit of the wife of the defendant was incompetent and could not have been considered by the court. The other affidavits contain conclusion and evidently appeared to the court as evasive and unsatisfactory. Upon this, however, the only question that can be considered here is the question arising upon the motion to set aside the judgment. This same question, having been presented to the court upon the motion to quash service, became res adjudicata, and the court would have been justified in overruling the motion upon that ground, if none other. An order overruling a motion to quash summons and service is as conclusive on appeal from a subsequent order involving the same question, and becomes res adjudicata to the same extent, as if the order had been made upon the final judgment. Generally, when an order is made denying a motion to quash service of summons, and a final judgment is rendered, an appeal will

91 P.-55

lie from such judgment, and the ruling arising upon the motion to quash service may be assigned as ground for reversal, and, if no appeal is taken, the matter arising on the motion to quash service becomes res adjudicata and a bar to the right of the defendant to raise the same question upon a subsequent motion involving the same subject-matter. While there are exceptions to the letter of this rule, yet, whenever the exceptions have been recognized, they have been based upon what seems necessary for the full protection of the rights of the parties. "Orders made on motions affecting the substantial rights of parties from which an appeal lies, if the matter in question has been fully tried, are as conclusive upon the issue necessarily decided as are final judgments." Halverson v. Orinoco, 89 Minn. 470, 95 N. W. 320; Board of Commissioners of Wilson County v. McIntosh, 30 Kan. 234, 1 Pac. 572.

It is insisted by the plaintiff in error that a void judgment can always be attacked, even collaterally. As an abstract proposition of law this is probably correct, but this was not a void judgment. At most it was only voidable, and it is also true that the court upon a proper showing could have quashed the service, inasmuch as the service was not personal, but by leaving a copy at what was claimed as the usual place of residence of the defendant. This could only be taken advantage of by a special appearance, and, should the defendant in such a case at any time make a general appearance, such general appearance would have waived any defect of service. Not only that, but a general appearance in such a case may be made even after judgment, and when so made will have the effect of waiving any defect which may appear in the service.

In the brief of the plaintiff in error in this case, they argue two propositions which can in no wise be taken advantage of by special appearance, and an appearance in any case which is designated as a special appearance, and in which special appearance propositions are contended for which cannot be taken advantage of by a special appearance, but can only be heard upon a general appearance, the parties will be taken and held to have made a general appearance. Counsel argue, upon pages 10 and 11 of their brief, that the judgment was rendered without testimony; also, that the petition was not subscribed by the plaintiff in error, and for this reason the court erred in rendering judgment; also, the service was made on Thanksgiving Day. The first two of these propositions are not matters that can be considered under the head of a special appearance. They are matters that do not pertain to the jurisdiction of the person, and the defendant, having presented these two matters to the court, will be deemed to have entered a general appearance in the action, and, having entered a general appearance, all matters affecting the service are waived, and the court will be held

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