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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 erroi, if any was made, has not deprived the paintiff of any substantial right.

We have examined the appelee'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.

is virtually the same as section 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 203 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 law's 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 gare 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, anal 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 form:llIs 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

(19 Okl. 240) GUNN V. TERRITORY (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. OBSCENITY - OFFENSE AGAINST PUBLIC MORALS-EVIDENCE.

One Bessie Patterson 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 virtuqus, 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 25.72 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. Ilarper, Judge.

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

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

BURWELL. J. Section 25.12 of the Stat- erally a mixed question of law and fact, but utes of Oklahoma of 1893 provides: “Every it cannot be seriously contended that a docperson who wrongfully commits any act tor's private office is such a place as to give which grossly injures the person or property an act committed therein the character of an of another, or which grossly disturbs the open act, especially when no one was prespublic peace or health, or which openly out- ent except the one against whom the act wis rages public decency, and is injurious to pub- committed. The Supreme Court of Indiana lic morals, although no punishment is ex- held, in the case of Jennings v. State, 10 Ind. pressly prescribed therefor lıy this chapter, is 335, that a statute similar to the one under guilty of a misdemeanor." The indictment in which the defendant in this case was prosthis case charges “that the defendant, Dr. W'. ecuted was so indefinite that it did not define II. Gunn, did, in Oklahoma county and in the any public offense, and hence no one could be territory of Oklahoma, on the 10th day of convicted under it; but the Court of Special January, 1. D. 1906, commit an act which Sessions of the First Division of the City of openly outraged public decency and was in- New York (People v. Jost, 36 Misc. Rep. 1:39, jurious to public morals, in this: That, at 73 X. Y. Supp. 220) upheld a conviction under the time and place aforesaid, the sixid defend- a statute almost identical with ours. Ilowant, being a physician, was maintaining an ever, the validity of the statute is not quesoffice in his residence at No. 310 North Wal- tioned by appellant, and we will not pass upnut street, in Oklahoma City, Okl. T., and on on that question. By referring to cases said day one Bessie Patterson, being an un- which discuss the meaning of the words married female of the age of 17 years, and “openly" and "public," as, for instance, "open of previous chaste and virtuous character, adultery," “public nuisance," and "public through the directions of an employment | morals,” etc., one will see that the acts chargagent, applied to the said defendant at his ed against the defendant do not fall within office for employment as an office girl; that the purview of the statute. That the acts said defendant was alone in his office at said charged constituted an assault there can be time with the said Bessie Patterson; that he no doubt. The prosecution is not for that then and there, willfully and wrongfully, in- crime. The punishment in the opinion of formed said Bessie Patterson that before he some for that offense may be inadequate in could employ her as an office girl it would the circumstances of this case, but we must be necessary for him to make a physical ex- interpret the law as it is, and not as we may amination of her to see if she was a virtuous wish it were. The Legislature has made the girl, and requested the said Bessie Patterson law, and it is the duty of the courts to folto then and there occupy his operating chair, low it as enacted. which she refused to do. He thereupon in- The section of the statute under which the sisted on making a physical examination of defendant was convicted is intended to cover the said Bessie Patterson, and for said pur- only those acts for the punishinent of which pose undertook to, and did, run his, hands un- no other penalty is by statute provided. Con. der the clothes and place them upon the low- ceding the validity of the statute under which er limbs of her, the said Bessie Patterson, the defendant was indicted, the acts chargeil and against her will and protest, and did, constituting the crime of assault, he must be then and there, unlawfully. willfully, and prosecuted, if at all, for that crime. To be wrongfully, use all kinds of vile, indecent and sure, if the assault was made with the intent lewd and Jascivious language, in the presence to commit some other crime detined in the and hearing and to the said Bessie Patter- crimes act, the defendant could be prosecutson, which language is so indecent, lewd and ed for such crime. But the rule is that, if lascivious it is not proper to state herein, the acts charged constitutes any specific crime contrary to the form of the statutes in such defined in the statutes one should be prosecutcases made and provided, and against the el for such crime, an.. not under a blanket peace and dignity of the territory of Okla- statute like the section quoted above. homa." Upon the trial, the jury found the The judgment of the lower court is hereby defendant guilty, and the court sentenced reversed and remanded, with directions to the him to one year in the county jail and to pay lower court to proceed in conformity with the a fine of $.300.

views expressed in this opinion, and to disDoes the indictment charge a public of- miss said action. All of the Justices concurfense? The indictment charges the defendant ring, except IRWIN, J., and GARBER, J., with openly outraging public decency, and absent committing an act injurious to public morals. The facts pleaded in the indictment do not sustain the charge. If the defendaut did the

(19 Okl. 243) acts charged, he outraged decency and com

GOLDSTANDT-POWELL HAT CO. V. mitted an act injurious to morals; but he did

CUFF. not openly outrage publie decency and com

(Supreme Court of Oklahoma. Sept. 5, 1.907.)

, mit in act injurious to public morals. The

1. SALES-ACCEPTANCE or Goods PURCHASED statute is directed against acts which are


Net PURCHASED. committed openly and affert the public. Us

Where an action is brought by a wholeto whether an act is committed openly is yen- saler against a retail merchant for the price of

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goods sold and delivered. and the defense is the above state of facts, no matter whether that the goods not paid for were not the goods

or not the goods shipped were of the kind ordered, and that they were returned to the wholesale house within two weeks after they

and quality ordered, the defendant wils eswere received, and that they were never ex- topped from saying that he did not accept posed for sale, and the evidence is conflicting, them. Is to whether or not the goods shipthe issue of acceptance is one of mixed law and fact, which the jury must decide under proper

ped were of the kind and quality ordered, and instructions.

were accepted by the defendant, were issues [El. Wote.-For cases in point, see Cent. Dig.

which the court submitted to the jury, which vol. 13. Sales, 4.53.]

found in favor of the defendant. These find2. SAJE.

ings, being supported by the evidence, are Where a retail merchant orders goods of a conclusive and binding upon the court. Mr. certain class and quality from a wholesale deal- Justice Clifford, in the case of Garfield v. --r. and it ships a part of the goods ordered. and also other goods which were not ordered.

laris, 8 l'. S. 77, 24 L. Ed. 821, commenting the retailer nay pay for the goods of the kind upon the law on this subject, said: "Accept and quality ordered without making himself and receive' are the words of the statute in liable for the goods not ordered ; and where he

question, but the law is well settled that an does not accept the goods not ordered, but within a reasonable time, in the light of the sur

acceptance suflicient to satisfy the statute rounding circumstances, returns them, he will may be constructive: the rule being that the not be liable therefor.

question is for the jury whether the circumEd. Not - For cases in point, see l'ent. Dig. stances proved, of acting or forbearing to vol. 13. Sales.. $ 19.5.)

act, do or do not amount to an acceptance (Syllabus by the ('ourt.)

within the statute. Questions of this kind Error from Probate Court, Pottawatomie are undoubtedly for the jury." And again, in County: William X. Malen. Judge.

the same opinion: "Controlling authorities Action by the Golilstandt-Powell Hat Com

already referred to show that the question pany against J. J. Cuff. Judgment for de

whether the goods or any part of the same fendant, anil plaintiff brings error. Af- were received and accepted by the purchaser firmed.

is one for the jury, to which list of citations R. X. MoConnell and Chambers, Taylor &

many more may be given of equal weight llooker, for plaintiff in error. C. G. Pitman,

and directness." See, also, Am. & Eng. Enc.

of Law (2d Ed.) vol. 27. p. 1088 for defendant in error.

Nor did the defendant, by accepting and BURWELL, J. The Goldstandt-Powell llat

paying for the goods ordered, make himself

liable for the goods shipped to him which Company is engaged in the wholesale busi

he did not order. The defendant had a right ness in Kansas City, Mo., and on or about November 17, 1904, it, through its traveling

to pay for the goods ordered and return those sitlesman, sold the defendant a bill of goods

not ordered. He could also insist upon the

plaintiff delivering the remainder of the goods consisting of bats, caps, gloves, etc. The

ordered, or waive the same. The authorities goods were not all shipped at one time. The

cited by counsel for appellant regarding the first shipment, amounting to about $190, w:rs

interpretation of contracts for the sale of received by the defendant at his place of busi

different articles of personal property at one ness in Maud, Okl., during the first week in

sale, and their insistence that a vendee unDecember, 1904. When the defendant opened the boxes in which the goods were shipped, he

der such circumstances must receive all of

the different articles, have no application to found only about $10 or $30 worth of the goods

this case.

The jury found that the articles were of the sizes and kinds of goods ordered.

returned by the defendant were not ordered These he put on the shelves for sale. The remainder of the shipment he set back and

by him, and hence they were not includel in

the contract of purchase. never offered to the trade. On Demember 17. 1201, the defendant wrote to the wholesale

The judgment of the probate court of 'Pot

tawatomie county is affirmed, at the cost house, stating that the goods sent to him were not what he had ordered, and requesting the

of appellant. All of the Justices concurring, house to send him the remainder of the goods

except IRWIN, J., absent. als per his order given the traveling salesman. On December 19, 1904, he received the

(19 Ok]. 104) remainder of the order, and, finding that the

MCCLELLA. MINOR. goods sent loin in that shipment were not the . (Supreme Court of Oklahoma. Sept. 4. 1907.) :

) goods ordered. lie boxel them up, as well as 1. WRIT OF ERROR-REVIEW OF EVIDENCE. the other goods which lie had not ordered

Where the case-maile does not contain an and returned them to the wholesale house at

averment by way of recital to the effect that

it contains all the evidence introduced on the Kans:s City : but, although it received due

trial of the cause, this court will not review notice from the transportation company and any question which requires an examination of the defendant, it never would receive the the evidence in order to arrive at its correct

determination. goods, and brought this suit for the purchase

Eil. Sote-For (ases in point. see Cont. Dig. price thereof. The defendant paid for the

vol. 3, Appeal and Error. $$ 2910, 2017.) goods not returneil by him. On the trial tlie

2. SAME-CASE-VADE_VERIFICATIOx. jury found for the defendant.

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 are authorized or recognized. The case itsei. case; but this rule does not apply to certif

must contain the positive avernient, by way of icates of counsel, or to other matters incorporated into the case.

recital or other equivalent showing, that it

does contain all the evidence submitted or (Syllabus by the Court.)

introduced on the trial of the cause, and in Error from District Court, Kay County ; the absence of such recital this court will not before Justice Bayard T. Hainer.

review any question depending upon the facts Action by Otis A. Minor against John F. for its determination.” This rule is concluMcClellan. Judgment for plaintiff. Defend- sive of the case at bar. ant brings error. Affirmed.

Notwithstanding this rule, we may say that D. S. Rose, for plaintiff in error. Hackney

we have examined the whole record, and, up

on the assumption that the case does contain & Lafferty, for defendant in error.

all the evidence, we are of the opinion that

the cause was rightly decided upon the law BURFORD, C. J. This was an action by

and facts, and that the plaintiff in error is in Minor against McClellan to enforce specific

no position to complain. performance of a contract to convey real es

The judgment of the district court of Kay tate. Issues were made and the cause tried

county is affirmed, at the costs of plaintiff to the court. Upon the evidence introduced in error. All the Justices concur, except the court found the issues in favor of the

HAINER, J., who tried the cause below, not plaintiff and decreed specific performance of

sitting, and IRWIN, J., absent. the contract. The defendant below brings the cause here on petition in error and prays for a reversal of the judgment.

(19 Okl. 115) None of the questions presented and argued ROGERS V. McCORD-COLLINS MERCANby counsel for plaintiff in error can be de

TILE CO. terminell without a review of the evidence in

(Supreme Court of Oklahoma. Sept. 4, 1907.) troduced on the trial of the cause. The casemade attached to the petition in error con


TION. tains what purports to be the evidence; but

Generally, when an order is made denying this court has established the rule that, un- a motion to quash service of summons, and a less the case-made contains the recital or its final judgment is rendered, an appeal will lie equivalent, the case contains all the evidence

from such judgment, and the ruling arising

upon the motion to quash service may be asintroduced on the trial of the cause, this

signed as ground for reversal, and, if no appeal court will decline to consider any question is taken, the matter arising on the motion to dependent upon an examination of the evi- quash service becomes res adjudicata ard a bar dence for its determination. Frame v. Ryel,

to the right of the defendant to raise the same

question upon a subsequent motion involving 14 Okl. 536, 79 Pac. 97; Board of Washita

the seme subject-matter, County v. Hubble, 8 Okl. 169, 56 Pac. 1038; 2. APICARANCE-GENERAL APPEARANCE. Sawyer Lumber Co. v. Champlain Lumber Co.,

Where a motion is made in which ques16 Okl. 91, 8+ Pac. 1093; B. K. & S. W. Ry.

tions are raised which go to the jurisdiction of

the court over the parties, and in which quesCo. v. Grimes, 38 Kan. 241, 16 Pac. 472; Ry

tions are also raised which cannot be raised by an v. Madden, 46 Kan. 376, 26 Pac. 680;

, Pać

special appearance, but can only be heard upon Pelton r. Bauer, 4 Colo. App. 339, 35 Pac. a general appearance, the parties will be taken

and held to have entered a general appearance, 918; Eddy v. Weaver, 37 Kan. 510, 15 Pac.

and in such case defects in the service of sum492; Hill v. Bank, 42 Kan. 364, 22 Pac. 324. mons will be deemed and held to have been

The case in question contains a statement waived, even though such appearance be made signed by counsel, as follows: "The foregoing

after judgment and upon a motion to vacate

and set aside such judginent. contains a true and correct statement of all

(Syllabus by the Court.) the pleadings, motions, orders, evidence, findings, judgments, decrees, and proceedings up

Error from Probate Court, Lincoln Counon which judgment was rendered.” This is

ty; Fred A. Wagoner, Judge. not equivalent to a statement that the case

Action by the McCord-Collins Mercantile contains all the evidence introduced on the Company against J. M. Rogers. Judgment trial of the cause. Nor is a statement or cer- for plaintiff, and defendant brings error. tificate of counsel of any greater weight or

Affirmed. significance than any other document copied S. A. Cordell and J. B. A. Robertson, for into the case. The court verifies and makes plaintiff in error. S. D. Decker, for defendconclusive every recital contained in the case; ant in error. but this rule does not apply to certificates of counsel or of other officers which may be in- PAXCOAST, J. This action was brought corporated into the case. This court said, in in the probate court of Lincoln county to reSawyer Lumber Co. v. Champlain Lumber cover the sum of $127.50. Suminons was ('o., 16 Okl. 90, 81 Pac. 1093: "There is a regularly issued and was served on the 24th certificate of counsel that the case contains day of November, 1901, by leaving a certiall the evidence, and also a certificate of the

fied copy

thereof. with the indorsements stenographer that his transcript contains all thereon, at defendant's usual place of resithe evidence; but neither of these certificates dence. On the 5th day of June, 1905, the plaintiff appeared specially and moved to lie from such judgment, and the ruling arisquash and set aside the summons and serv- ing upon the motion to quash service may ice thereof, for the reason the defendant was be assigned as ground for reversal, and, if not at the time of service a resident of the no appeal is taken, the matter arising on the county or territory. Evidence was intro- motion to quash service becomes res adjudiduced upon this motion, and overruled by the cata and a bar to the right of the defendant court, and judgment was thereupon rendered to raise the same question upon a subsequent as upon default. Following this, on the 15th motion involving the same subject-matter. day of June, 1905, the plaintiff in error filed While there are exceptions to the letter of a motion, supported by affidavits, praying this rule, yet, whenever the exceptions have that the judgment rendered on the 5th day been recognized, they have been based upon of June be set aside, upon the ground that what seems necessary for the full protection the defendant was a nonresident when sery- of the rights of the parties. "Orders made ice was made, and that the court had no ju- on motions affecting the substantial rights risdiction of the person of the defendant. of parties from which an appeal lies, if the Evidence was introduced upon this motion matter in question has been fully tried, are also, and beard by the court, and after con- as conclusive upon the issue necessarily desideration thereof the court overruled the cided as are final judgments.” Halverson y.

Time was given to make a case upon Orinoco, 89 Minn. 470, 93 N. W. 320; Board the last order. The case-made, however, con- of Commissioners of Wilson County v. Mctains the record of the action of the court Intosh, 30 Kan. 234, 1 Pac. 572. upon the notion to quash, as well as upon It is insisted by the plaintiff in error that the motion to set aside the judgment, al- a toid judgment can always be attacked, though no time was given to make a case even collaterally. As an abstract proposiupon the first motion. No extension of time tion of law this is probably correct, but this having been given to make a case upon the was not a void judgment. At most it was ruling upon the motion to quash service, the only voidable, and it is also true that the action of the court in that regard cannot be court upon a proper showing could have considered in this appeal, except in so far quashed the service, inasmuch as the seryas the court may be apprised of the first ice was not personal, but by leaving a copy action of the court, and in so far as it may at what was claimed as the usual place of be necessary to consider the same in connec- residence of the defendant. This could only tion with the subsequent orders. It seems,

be taken advantage of by a special appearhowever, from the record, that this motion ance, and, should the defendant in such a was heard, and upon the hearing that evi- case at any time make a general appearance, dence was introduced and considered, which such general appearance would have waived was held by the court insufficient, and the any defect of service. Not only that, but a return of the sheriff and the service was sus- general appearance in such a case may be tained.

made even after judgment, and when so It is insisted by the plaintiff in error that made will have the effect of wairing any deboth of these motions ought to have been fect which may appear in the service. sustained. Tbere was, however, evidence In the brief of the plaintiff in error in this offered and considered, and we think that case, they argue two propositions which can the return of the sheriff was sufficient as in no wise be taken advantage of by special against the evidence offered by the defendant. appearance, and an appearance in any case The affidavits offered by the defendant are which is designated as a special appearance, very unsatisfactory. The affidavit of the and in which special appearance propositions wife of the defendant was incompetent and are contended for which cannot be taken adcould not have been considered by the court. vantage of by a special appearance, but can The other affidavits contain conclusion and only be heard upon a general appearance, the evidently appeared to the court as evasive parties will be taken and held to have made and unsatisfactory. Upon this, however, the a general appearance. Counsel argue, upon only question that can be considered here is pages 10 and 11 of their brief, that the judg. the question arising upon the motion to set ment was rendered without testimony; also, aside the judgment. This same question, that the petition was not subscribed by the having been presented to the court upon the plaintiff in error, and for this reason the motion to quash service, became res adjudi- court erred in rendering judgment; also, the cata, and the court would have been justified service was made on Thanksgiving Day. in overruling the motion upon that ground, The first two of these propositions are not if none other. An order overruling a motion matters that can be considered under the to quash summons and service is as conclu- head of a special appearance. They are sive on apreal from a subsequent order in- matters that do not pertain to the jurisdicvolving the same question, and becomes res tion of the person, and the defendant, haradjudicata to the same extent, as if the or- ing presented these two matters to the court, der had been made upon the final judgment. will be deemed to have entered a general apGenerally, when an order is made denying pearance in the action, and, having entered a a motion to quash service of summons, and a general appearance, all matters affecting the final judgment is rendered, an appeal will service are waived, and the court will be held

91 P.-55

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