site for the upholding of the judgment of the court below affirmatively appears, and from that time on all intendments must be taken in favor of the regularity and validity of the judgment and proceedings in the trial court. In this case, where a conviction has been had and judgment rendered, all the trial proceedings standing unchallenged, it clearly was incumbent upon the plaintiff in error to affirmatively show the error of which he complains, and, in the absence of a record showing what evidence was considered by the trial court on the hearing and overruling of the motion, can it be said that he has done so: Where the question raised for review depends largely upon the evidence, as in this case, such evidence must be incorporated in a bill of exceptions or case-made for the examination of the appellate court, and, in case of a failure to do so, the error complained of cannot be reviewed.

Counsel for plaintiff in error contends that, inasmuch as the facts set up and sworn to in their motion for a new trial were not contradicted, they should stand as admitted, and cite Sharp v. U. S., 138 Fed. 878, 71 C. C. A. 258, which contains a statement in the opinion to that effect, based, however, upon the case of Neal v. Delaware, 103 U. S. 394. 26 L. Ed. 567. An examination of that case, however, will disclose that it is not an authority for the statement found in Sharp v. U. S. In the case of Neal v. Delaware the defendant filed a petition in the trial court asking that his case be transferred to the Circuit Court of the United States for the District of Delaware upon the grounds that in the state court he was being deprived of the equal civil rights of citizens of the United States guaranteed to him under the Constitution; and in his petition, which was duly verified by him, he set out the facts which he claimed amounted to a denial of his rights, and which consisted of the exclusion under the laws of Delaware from the juries of that state of all colored persons, contrary to the provisions of the Constitution of the United States. His petition to have the case removed was denied, and he then, before arraignment in the state court, moved to quash the indictment and the panel of the jury upon the same ground set out in the petition for the removal of the cause to the federal court. It was then agreed between the Attorney General, on behalf of the state of Delaware, and the defendant, through his counsel,

with the consent of the court, that the statements and allegations of the defendant, in his petition for the removal of the indictment and its prosecution for trial to the Circuit Court, and their verification by his oath, should be taken and treated and given the same force and effect in the consideration and decision of the motion to quash the indict

ment and the lists and panels of grand and petit juries as if the statements and allegations were made and verified by him in a separate and distinct affidavit. The court overruled the motion, and thereupon the defendant was arraigned under the indictment, and before he had. pleaded thereto he asked the court to be permitted to produce witnesses in support of his motion to quash the indictment, which was also denied. On page 396 of 103 U. S. (26 L. Ed. 567) the Supreme Court of the United States says: "But, passing by this ruling of the court below as insufficient in itself to authorize a reversal of the judgment, we are of the opinion that the motions to quash, sustained by the affidavit of the accused, which appears to have been filed in support of the motions without objection to its competency as evidence, and was uncontradicted by counter affidavits, or even by a formal denial of the grounds assigned, should have been sustained. If, under the practice which obtains in the courts of the state, the affidavit of the prisoner could not, if objected to, be used as evidence in the support of a motion to quash, the state could waive that objection, either expressly or by not making it at the proper time. No such objection appears to have been made by its Attorney General. On the contrary, the agreement that the prisoner's verified petition should be treated as an affidavit in the consideration and decision of the motions implied, as we think, that the state was willing to risk their determination upon the case as made by that affidavit, in connection, of course, with any facts of which the court might take judicial notice."

The record in this case fails to show any agreement on the part of the territory and defendant whereby the facts set out in the motion for a new trial were to be taken as true. Under the statutes of this territory it was not incumbent upon the territory to file any adverse pleading negativing the allegations set out in defendant's motion. The same could be disproved by competent evidence. In the absence of a record showing that the affidavit in support of the motion was not controverted, or that it constituted all the evidence offered at the hearing, we

are unable to see wherein the case of Neal v. Delaware can be construed as an authority in support of the position, taken in this case, "that inasmuch as the facts set up and sworn: to in the motion for a new trial were not con

tradicted they should stand as admitted.”

There being no other assignment of error, the judgment of the district court of Comanche county in overruling the motion for a new trial will be affirmed.

GILLETTE, J., who presided in the court below, not sitting. All the other Justices concurring, except IRWIN, J., absent.

(19 Okl. 252)

ALTON-DAWSON MERCANTILE CO. v. STATEN et al.

(Supreme Court of Oklahoma. Sept. 5, 1907.) 1. APPEAL-REVIEW-HARMLESS ERRORS.

Although a petition fails to state a cause of action for affirmative relief in the first instance, still, where the defendant files an answer and cross-petition, and the facts pleaded in the petition constitute a defense to the crosspetition, and the parties go to trial on such pleadings, and the court, on the merits, finds against the cross-petitioner, mere irregularities will be ignored, and only those errors considered which may have affected the substantial rights of the parties.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4029.]

2. MORTGAGES - FORECLOSURE DEFENSES FRAUD AND MISREPRESENTATION.

Where a mortgage on real estate is executed without consideration, and by reason of fraudulent representations made by the mortgagee to the mortgagors, such fraud and want of consideration may be shown at any time by the mortgagors in an action by the mortgagee to foreclose.

[Ed. Note. For cases in point, see Cent. Dig. vol. 35, Mortgages, § 1212.]

3. APPEAL-REVIEW-EVIDENCE.

Where a judgment is reasonably supported by the evidence, it will not be disturbed on appeal to this court on the ground that it is against the weight of the evidence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3938-3943.]

(Syllabus by the Court.)

Error from District Court, Woods County; before Justice J. L. Pancoast.

Action by James M. Staten and Cora Staten against the Alton-Dawson Mercantile Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Shartel, Keaton & Wells and H. A. Noah, for plaintiff in error. Snoddy & Son, for defendants in error.

BURWELL, J. John W. Ashcroft and James M. Staten were partners in the mercantile business at Aline, Woods county, Okl. The firm's creditors were pressing them for payment, but the partners were unable to raise the money to meet their obligations. They were indebted at the time to the Alton-Dawson Mercantile Company in the sum of $1,500. James M. Staten and Cora Staten, his wife, on January 9, 1902, executed to the appellant two notes for this debt, as follows: One note for $800, and one note for $700; and also executed to the appellant a mortgage to secure the payment of these notes on the N. E. 14 of section 4, in township 23 N. of range 11 W., in Woods county, Okl., which tract of land was the homestead of the mortgagors. On June 16, 1933, the plaintiffs herein commenced this action in the district court of Woods county praying for a cancellation of the mortgage. The defendant filed an answer and cross-petition, praying for a foreclosure of the mortgage in question. Judgment was rendered for the plaintiffs, and the defendant appeals to this court.

The plaintiffs alleged in their petition, and offered evidence tending to prove, that the agent of the Alton-Dawson Mercantile Company, one C. B. Tuohy, promised the members of the firm of Ashcroft-Staten Mercantile Company that, if they would give his firm security for its claim, it and another firm (which was also given security under a similar promise) would protect them against bankruptcy and their other creditors and enable them to continue in business, which they wholly failed to do, and, as a result of such failure, the firm of Ashcroft-Staten Mercantile Company, although their assets were considerably in excess of their liabilities, were compelled to go through the bankruptcy court and their business sacrificed. The case was tried to the court and jury on special interrogatories. No general verdict was rendered. The jury found that C. J. Tuohy, the agent of the Alton-Dawson Mercantile Company, induced the plaintiffs to execute the mortgage in question by falsely and fraudulently representing to the plaintiffs that, if they would execute the notes and mortgage described above, his company would protect the firm of Ashcroft-Staten Mercantile Company against its other creditors; that Tuohy stated to the mortgagors that if it was necessary his firm would purchase the claims of certain other creditors who were threatening to bring bankruptcy proceedings against the Ashcroft-Staten Mercantile Company; that these representations were made by Tuohy for the purpose of inducing the mortgagors to execute the mortgage, but without any intention of keeping such promises; that these promises never were fulfilled in whole or in part by the Alton-Dawson Mercantile Company; and that the representations by Tuohy were the inducement which caused the plaintiffs to execute the notes and mortgage. A number of questions are argued by counsel on the respective sides; but, while we have considered them all, we have discussed only such of them as we deem necessary to a fair determination of this case.

First, it is insisted that the petition of the plaintiffs below failed to state a cause of action, and that the court erred in overruling the demurrer thereto. In our opinion this point is immaterial. Even if equity will not cancel a mortgage simply because it was obtained through fraud and constitutes a cloud upon the title to real estate (which point we do not here decide), there is a remedy pointed out in the statute where the mortgagor is in possession, as in this case. By section 4787, Wilson's Rev. & Ann. St. Okl. 1903, it is provided: "An action may be brought by any person in possession, by himself or tenant, of real property, against any person who claims an estate, or interest therein adverse to him, for the purpose of determining such adverse estate or interest." Although the petition failed to state a cause of action for cancellation. as contended by appellee. it does not necessarily follow that the judgmem

of the court is erroneous. The defendant's cross-petition prayed for a foreclosure of the mortgage, and the evidence offered in behalf of the petitioners might have been introduced as a defense to the foreclosure, and the facts pleaded in the petition might have been pleaded in an answer as a defense. Therefore the error, if any were committed, related to mere matters of procedure which have not in the least affected the substantial rights of the parties. Such irregularities will be ignored by this court. Willoughby, Rec., v. Ball (Okl.) 90 Pac. 1017. And, again, if the defendant had commenced the action to foreclose its mortgage, the court could have entered a judgment canceling the mortgage, if it denied foreclosure. First National Bank of Wellington v. Stewart, 8 Kan. App. 22, 54 Pac. 16.

Another question urged by the appellant is that the appellees delayed an unreasonable time before commencing the action to cancel the mortgage; that, to rescind a contract on the ground of fraud, one must act promptly. We have just held that the petition did not state a cause of action for cancellation, and it is only because the appellant asked for a foreclosure of the mortgage that we consider the merits of the case at all. The statute of limitation has not run as against the mortgage, nor were the mortgagors precluded from urging any defense they might have against the same. Both parties litigated their rights as fully as they could have done if the answer and cross-petition had been the petition, and the petition of the mortgagors the answer thereto. The real issues were presented by the pleadings, although informally, and the merits of the controversy decided by the court; and the time has come when courts should adopt rules that will attain the ends of justice, rather than build up technical theories which defeat or unreasonably delay litigants of their rights. We do not wish to be understood as in any way indorsing the theory that litigants should be bound by the theory on which a case is tried, rather than the pleadings. The pleadings are the foundation of a lawsuit. From them courts must determine the issues involved; but in the case before us the irregularity, if any, did not even amount to a reversal of the order of proof, for, the execution of the mortgage being admitted, the burden was on the mortgagors to show some state of facts that would defeat foreclosure. The trial court found against the mortgagee. But we are not inclined to decide this case on the ground alone that the notes and mortgage were obtained by fraud. It is true that the trial court found in effect that they were obtained by fraud and false representations, but there is one other feature to be considered, and that is. the land embraced in the mortgage was the homestead of the mortgagors. It was not liable for the debts of the firm. It was exempt property. The consideration for executing the mortgage, at least as far as Mrs. Staten

was concerned, was the fulfillment of the promises made by Tuohy to the mortgagors and the firm, to the effect that the mortgagee would, if necessary, purchase the claims of certain creditors and aid them to continue in business. The trial court also found that these promises influenced Mr. Staten to execute the mortgage. The defendant (appellant) having wholly failed to keep those promises, or any of them, there was no consideration for the mortgage as far as Mrs. Staten was concerned, and failure of consideration can be urged at any time against the original mortgagee. There is sufficient evidence to support the findings of the trial court, and, those findings having determined the issues of fact against the appellant, we are bound thereby. The appellant received the same dividend in the bankrupt proceedings as was paid to the other creditors of the Ashcroft-Staten Mercantile Company; but, as to whether or not the receiving of such dividends estopped it from foreclosing this mortgage, it is unnecessary to decide.

No valid reason having been urged why the judgment should be reversed, the same will be affirmed, at the cost of appellant. All of the Justices concurring, except PANCOAST, J., who presided at the trial below, not sitting, and IRWIN, J., absent.

(19 Okl. 260)

HOWELL v. BLESH et al. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. APPEAL-REVIEW-EVIDENCE.

Where the evidence reasonably supports the verdict, the finding of fact will not be disturbed by this court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3928-3934.] 2. SAME--HARMLESS ERROR.

Errors committed by a trial court which do not affect the substantial rights of the party against whom it was committed will be ignored on appeal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4033, 4063.] 3. HUSBAND AND WIFE-AGENCY.

Where a wife requests medical treatment for an infant, it will be presumed, in the absence of proof, that she is acting as the agent of her husband; but such presumption may be overcome by evidence.

[Ed. Note. For cases in point. see Cent. Dig. vol. 26, Husband and Wife, § 146.]

4. PARENT AND CHILD-MEDICAL EXPENSESLIABILITY OF PARENT.

A father is liable for medical or surgical services rendered his child at the request of his duly authorized agent; also, for hospital service received under similar circumstances. (Syllabus by the Court.)

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

Action by A. L. Blesh and Horace Reed against Mode Howell. Judgment for plaintiffs, and defendant brings error. Affirmed.

Lowry & Lowry, for plaintiff in error. Chas. E. Bush and F. C. Hunt, for defendants in error.

BURWELL, J. The son of the appellant, Mode Howell, received an injury to his leg, caused by being thrown from a horse. One Dr. R. W. Holbrook, a physician, was called by Mr. Howell to attend his son. The injury continued to get worse, and other physicians were called in. Finally, there being no improvement in the boy's condition. Holbrook (so he testified) advised Howell that the boy should be taken to a hospital, and that Howell told him in that connection that he wanted Holbrook to do all for the boy that he could, and that he wanted the leg saved, if possible. Finally during the absence of Mr. Howell, the boy was taken to the hospital of the appellees at Guthrie, and an incision made in the leg, and the blood clots and pus removed therefrom. He remained in the hospital some 13 days, receiving the care of the plaintiffs as physicians, as well as the usual hospital service. The appellant insists that he instructed Dr. Holbrook that he did not want his son taken to the hospital at Guthrie. On this point, however, the evidence is conflicting; but the appellant arrived at the hospital the next morning, and, without complaint at what had been done, he let the boy remain in the hospital 12 more days without objection, and without advising the appellees that Holbrook had no authority to put his boy in the hospital. There is also evidence to the effect that Mrs. Howell, the wife of the appellant and mother of the boy, accompanied the boy and Dr. Holbrook to Guthrie, and that she told the appellees before the operation to do what they could for the boy, and, if found necessary, to amputate his leg. The real contention of the appellant is that his boy was put in the hospital without his authority and in violation of his express directions.

We have read the record, and believe that the judgment should be sustained. It is probably true that one of the instructions assumes a fact which was in controversy, viz., that the wife acted as the agent of her husband, if she authorized the operation. That she was acting as the agent of her husband was only a presumption, which might be overcome by evidence. We are satisfied, however, that the jury were not misled by this error. The appellant's own conduct after he went to the hospital and learned of the operation was sufficient to authorize the jury in finding that Dr. Holbrook and Mrs. Howell had authority to direct that the operation be performed. The issues involved were issues of fact, and there is ample evidence to sustain the verdict. Under the evidence, the boy would probably have died without the operation, and, while a physician cannot recover for professional services rendered in the face of objections of one who would be liable therefor, in this case the evidence, taking it altogether, is sufficient to uphold the finding that the services were rendered at the request of the appel lant.

Therefore the judgment is hereby affirmed, at his costs. All of the Justices concurring, except HAINER, J., who presided at the trial below, not sitting, and IRWIN, J., 2bsent.

(19 Okl. 238)

RYAN v. BROWN. (Supreme Court of Oklahoma. Sept. 5. 1907.) APPEAL-FAILURE TO BRIEF CASE.

The presumption is always in favor of the correctness of a judgment of a trial court, and, in case of an appeal therefrom, the burden is upon the appellant to affirmatively point out error, and where he fails to brief his case, as provided by the rules of this court, it may continue or dismiss the cause, or reverse or affirm the judgment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3101-3107.]

(Syllabus by the Court.)

Error from District Court, Garfield County; before Justice J. L. Pancoast.

Action by Caroline C. Ryan against W. E. Brown. Judgment for defendant, and plaintiff brings error. Affirmed.

Manatt & Sturgis, for plaintiff in error.

BURWELL, J. This is an action for injunction commenced by the appellant in the district court of Garfield county against the appellee. Judgment was rendered denying the injunction and taxing the costs to the plaintiff below. He brings the case here on appeal, but, although the case was filed in this court on November 6, 1906, appellant has not filed any briefs with the clerk of the district court. Rule No. 6 of the rules of this court (82 Pac. xiii) requires an appellant to serve his brief upon the appellee within 40 days after his appeal is filed in this court, and at the same time to file with the Supreme Court clerk 15 copies of such brief; and the rule further provides that, for a failure to comply with the rule, the court may continue or dismiss the cause, or reverse or affirm the judgment.

No excuse is offered for failure on the part of the appellant to brief his case. Νο error has been pointed out to this court, and the presumption is that the judgment is correct.

Therefore it will be affirmed, at the cost of appellant. All of the Justices concurring, except IRWIN, J., absent, and PANCOAST, J., who tried the cause below, not sitting.

(19 Okl. 206) ANDERST v. ATCHISON, T. & S. F. RY. CO. (Supreme Court of Oklahoma. Sept. 5, 1907.) APPEAL-REVIEW-INSUFFICIENT RECord.

When on the trial of a case in the district court the defendant interposes a demurrer to plaintiff's evidence, which is sustained by the court and the cause dismissed, such ruling will not be reviewed by this court on appeal, unless the case-made contains all of the evidence introduced upon such trial; and where the case-made contains a statement that all of the evidence in

troduced upon the trial is contained therein, but the record upon its face shows that it does not. and that a material plat or chart was omitted therefrom, the record is the best evidence, and will prevail over such statement.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2911.]

(Syllabus by the Court.)

Error from District Court, Woods County; before Justice J. L. Pancoast.

Action by Peter Anderst against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

W. S. Roark, A. C. Towne, and T. J. Womack, for plaintiff in error. Henry E. Asp. Charles II. Woods, George M. Green, and Jesse J. Dunn, for defendant in error.

BURWELL, J. This action was brought by the appellant for the death of his infant child, alleged to have been caused by the negligence of the defendant company. When the plaintiff rested his case, the defendant company interposed a demurrer to the evidence, which was sustained, and the cause dismissed at the cost of the plaintiff.

On the trial of the case, a certain plat or chart showing the location of the plaintiff's house from which the infant strayed, the fences, railway track, railway crossing, and the location of different important objects, and the conditions generally in the immediate place and vicinity of the accident, was admitted in evidence. This chart was used in examining the different witnesses, and, instead of detailing conditions, references were made to the objects on the chart, which were designated by letters, etc. This chart is omitted from the case-made, and, although the Supreme Court gave leave to amend the case-made, this omission of evidence was not supplied. The parties and the trial court were of the opinion that it was necessary to exhibit this chart or plat to the jury and have the witnesses testify in relation thereto, and this court should have the benefit of the same in reviewing the evidence. This omission is fatal to a consideration of the evidence. This identical question was decided in the case of Pappe v. American Insurance Co., 8 Okl. 97, 56 Pac. 860. The court said: "When the case-made contains a statement that all of the evidence introduced upon the trial is contained therein, but the record itself shows upon its face that it does not, and that material written instruments were omitted therefrom, the record is the best evidence and will prevail over such statement." The same rule applies to photographs, plats. maps, or instruments of any kind, and where such exhibits are omitted from the evidence, it will not be considered. Board v. Wagner, 138 Ind. 609, 38 N. E. 171: Marvin v. Seger, 145 Ind. 261, 44 N. E. 310; Saxon v. State, 116 Ind. 6. 18 N. E. 268: Cowger v. Land, 112 Ind. 263, 12 N. E. 96; Harris v. Tomlin

son, 130 Ind. 426, 30 N. E. 214; Stout v. Turner, 102 Ind. 418, 26 N. E. 85.

The ruling on the demurrer to the evidence cannot be reviewed because the case-made does not contain all of the evidence introduced upon the trial, and on which the ruling was based.

The judgment of the lower court is affirmed, at the cost of appellant. All of the Justices concurring, except PANCOAST, J., who presided at the trial below, not sitting, and IRWIN, J., absent.

(19 Okl. 246)

CRUTCHER et ux. v. BLOCK. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. MECHANICS' LIENS-MATERIALMAN'S LIEN -GOVERNMENT LAND-LEASEHOLD ESTATE.

Where one causes to be erected a building on real estate in his possession, and material furnished for such purposes is not paid for, a materialman's lien may be had under the laws of Oklahoma, even though the person for whom such building was erected is not the owner of a perfect legal title. A leasehold estate, if the building is erected within the authority conveyed by such instrument, is a sufficient title of ownership to authorize such a lien; and, in default of payment, such lien may be foreclosed and the rights of the lessee in the land or to the occupancy thereof under his lease, as well as the building, may be sold to satisfy the judgment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 21.]

2. COURTS-JURISDICTION.

Where a court has jurisdiction over the persons to an action, by legal service or voluntary appearance and the cause is the kind of a cause triable in such court it has jurisdiction of the subject of the action and power to render any rightful judgment therein.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 83.]

(Syllabus by the Court.)

Error from District Court, Comanche County; before Justice Frank E. Gillette. Action by G. H. Block against S. O. Crutcher and wife. Judgment for plaintiff, and defendants bring error. Affirmed.

Hudson & Keys, for plaintiffs in error. Stevens & Myers, for defendant in error.

BURWELL, J. The board for leasing school, public building, and college lands of Oklahoma Territory leased to one O. P. M. Butler, for townsite purposes, the E. of the N. E. 14 of section 36, township 2 N., of range 12 W. of the Indian Meridian, in Comanche county. Butler platted the land into lots and blocks and streets and alleys, and it is known as Butler's addition to the city of Lawton. He subleased, as he had a right to under the law and the written condition of his lease, to S. O. Crutcher a certain lot in this addition. One L. II. Robinson, under contract with S. O. Crutcher, erected a house on this lot in question, and the plaintiff below, having furnished lumber for the erection of this building, and the same haying been used in the building and not paid for, filed a materialman's lien for the lumber