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verdict? If it does not, then it is the duty of Wis. 270, 63 N. W. 1003.

Wis. 270, 68 N. W. 1003. A proper administhe court after a verdict to set it aside and tration of justice requires that such a sitgrant a new trial. Must the court go through uation should be met, and the duty involved the idle ceremony in such a case of submit- be discharged as contemplated by our judicial ting to the jury the testimony on which plain- system, just as much as that the province tiff relies, when it is clear to the judicial of the jury to decide the facts from the evimind that if the jury should find a verdict dence, where there is any conflict in that rein favor of plaintiff that verdict would be set gard, should not be invaded by the court. aside and a new trial had? Such a proposi. The scope of judicial duty, and of that of tion is absurd, and accordingly we hold the the jury as well, is clearly marked, and a true principle to be that if the court is sat- failure to maintain the integrity and inviolaisfied that, conceding all the inferences which bility of either is subversive of the system the jury could justifiably draw from the tes- itself, and tends to throw doubt upon its eftimony, the evidence is insufficient to warrant ficacy to secure the highest attainable degree a verdict for the plaintiff, the court should of justice between individuals, and to prosay so to the jury." And in Bowditch v. mote the ends of good government." Boston, 101 U. S. 18, 2: L. Ed. 980, the set- Tested by these decisions, we think the untled doctrine of the Supreme Court of the disputed testimony shows that the plaintiff United States is stated as follows: "It is was guilty of such contributory negligence now a settled rule in the courts of the United

as would preclude her from recovering in this States that whenever, in the trial of a civil case, and therefore the motion to direct a case, it is clear that the state of the evidence verdict for the defendant should have been is such as not to warrant a verdict for a par- sustained. This is not a case, as was stated ty, and that if such a verdict were rendered by the Supreme Court of the United States in the other party would be entitled to a new Elliott v. Chicago, Milwaukee & St. Paul trial, it is the right and duty of the judge | Railway Company, supra, in which one, placto direct the jury to find according to the ed in a position of danger through the negliviews of the court. Such is the constant

gence of the company, confused by his surpractice, and it is a convenient one. It saves roundings, makes perhaps a mistake in choice time and expense. It gives scientific certain

as to the way of escape, and is caught in an ty to the law in its application to the facts, accident. For in the case at bar the plaintiff and promotes the ends of justice. Merchants' was in no danger. She was at a place of abBank v. State Bank, 10 Wall. (U. S.) C01, 637, solute safety on the east side of the street car 19 L. Ed. 1008; Improvement Company v. track. She suddenly, as she states, “circled Munson, 14 Wall. (U. S.) H2, 20 L. Ed. 867; around" from a place of safety and drove Pleasants v. Fant, 22 Wall. (U. S.) 116, 22 L. heedlessly and carelessly over the track, withEd. 780."

out looking for an approaching car from the In Cawley v. LaCrosse City Ry. Co., 101 south, and without taking the ordinary care Wis. 151, 77 N. W. 181, the Supreme Court and precautions that she was bound to exerof Wisconsin states the rule as follows: "Can

cise under the circumstances for her own dor compels us to say that in this case the safety. Hence she was clearly lilty of conlearned trial court appears to have shifted a tributory negligence, as a matter of law. duty onto the jury which was plainly judi- The judgment of the district court is therecial, and, when they failed to discharge it

fore reversed, and the cause remanded, with properly, allowed the result to stand as the

directions to a ward a new trial. law of the case. The jury did not find the fact because there was no controversy in that BURWELL, J., who presided in the court regard. They said that the conduct on the

below, not sitting; all the other Justices conpart of defendant was actionable negligence, curring, except IRWIN, J., absent. and conduct on the part of plaintiff was consistent with ordinary care, when the proper application of well-settled rules of law would

(19 Okl. 367) have led to a contrary result. The peculiar BUTTS et al. v. ANDERSON et al. . circumstances of this case move us to reiter

(Supreme Court of Oklahoma. Sept. 5, 1907.) ate, what has often before been said by this

NEW TRIAL(ROUNDS. court, that though the rule that where there

The district court is only authorized to is any credible evidence which, under any grant new trials for the causes, in the manner, reasonable view of it, will sustain a recovery, and within the time set forth in the statute, and there is opposing evidence, it is for the

and it is manifest and material error to grant a

new trial for the reason the complaining party jury to say where the truth lies, shoulil be

is unable to procure any one who can transcribe firmly adhered to, where the evidence is clear- a deceased stenographer's shorthand notes of the ly susceptible of only one reasonable infer

procreilings on the trial. ence, the motion for a nonsuit, or the direc

[Ed. Yote.-For cases in point, see Cent. Dig.

vol. 37, New Trial, $ 189.] tion of a verdict accordingly, should be grant

(Syllabus by the Court.) ed as a matter of right, which implies a judicial duty to decide that way, and not to Error from District Court. Kingtisher abrogate the judicial function and shift it County: before Justice C. F. Irwin. outo the jury. Finkelston v. Railway Co., 94 action by J. H. Butts and J. A. Butts

against Emma E. Anderson and H. H. Anderson. Verdict for plaintiffs. From an order granting a new trial, they bring error. Reversed.

P. S. Nagle and W. A. McCartney, for plaintiffs in error. D. K. Cunningham, for defendants in error.

BURFORD, C. J. The plaintiffs in erro brought their action in the district court of Kingfisher county, Okl., to recover from the defendants in error upon a written contract for building material furnished by them to the defendants and for the enforcement of a mechanic's lien against the real estate upon which the building material had been used. The defendants in error answered, first, by a general denial, and, second, by alleging that the plaintiffs in error were dealers in lumber and building material at Kingfisher, Okl., and as such dealers were members of a pool or unlawful agreement with other luniber dealers, in restraint of trade, and for such reason were not entitled to recover in said action. To this answer the plaintiffs replied by general denial. On March 11, 1901, the cause was tried to the court; a jury having been waived by both parties. After hearing the evidence the court found for the plaintiff's and against the defendants, and rendered judgment in favor of the plaintiffs, Butts & Co., against H. H. and Emma E. Anderson, the defendants, for the sum of $70267, with interest at 6 per cent. from May 22, - and decreed the foreclosure of the lien filed by plaintiffs. It appears that the clerk failed to record this judgment upon the journals of the court until the 13th day of March, 1905. On March 14, 1901, the defendants.filed their motion for new trial, which was by the court overruled, and time given to make and serve case for an appeal. The record occupied this status until March 13, 1905, at which time the defendants filed a second motion for new trial, in which it was alleged as grounds therefor that after the trial of the cause, and before the defendants had been able to procure a transcript of the evidence submitted on the trial, the court stenographer died, and no one had been found who was able to read his notes, and that defendants were, for this reason, entitled to a new trial. This motion was presented to the court on March 14, 1903, and by the court sustained, for the reason, as set forth in the order and judgment of the court, "that the defendants were unable to get a transcript of the evidence of the trial held on March 11, 1904, by reason of the death of the court stenographer, Thomas F. Millikan.” To this order granting a new trial the plaintiffs excepted, and bring the cause here on appeal from such order.

This court in the case of Weller v. Western State Bank (No. 1,917, decided Feb. 14, 1907) 90 Pac. 877, stated the rule to be that orders of the trial court granting new trials

should not be reversed unless it can be seen that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law, without which error the ruling of the court granting the new trial would not have been made, yet where the question presented was one purely of law, and the reviewing court is satisfied that an error of law was committed by the trial court, the order granting the new trial will be reversed, and the judgment reinstated. Applying this rule to the case at bar, what is the result?

Our Code of Civil Procedure controls in such matters. Section 295, Civ. Code (W'ilson's Rev. & Ann. St. 1903, $ 1193), provides: "A new trial is a re-examination in the same court of an issue of fact, after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated and a new trial grantel on the application of the party aggrieved for any of the following causes affecting materially the substantial rights of such party: First. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. Second. Misconduct of the jury or prevailing party: Third, Accident or surprise which ordinary prudence could not have guarded against. Fourth. Excessive damages, appearing to have been given under the influence of passion or prejudice. Fifth. Error in the assessment of the amount of recovery whether too large or too small, where the action is upon a contract, or for the injury or detention of property. Sixth. That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law. Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. Eighth. Error of law occurring at the trial, and excepted to by the party making the application." By the provisions of section 4197, the maximum time in which any proceedings may be commenced for the granting of a new trial is one year from the date final judgment was rendered. The cause for which the court granted a new trial does not even remotely come within any of the causes set forth in section 4193 for which the trial court may grant a new trial.

The next statutory provision in relation to new trials is section 4760, Wilson's Rev. & Ann. St. 1903, which is as follows: "The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made: First. By granting a new trial for the cause, within the time and in the manner prescribed in section two hundred and ninety-nine. Second. By a new trial granted in proceedings against defendants constructively summoned as provided in section seventy-eight. Third. For mistake,

neglect or omission of the clerk, or irregular- ments as he may deem necessary, and upon ity in obtaining a judgment or order. Fourth, roper notice by either party the court will For fraud practiced by the successful party settle the case. Upon such a case ne inay file in obtaining the judgment or order. Fifth. his petition in error and have the juugment For erroneous proceedings against an infant, complained of reviewed by the appellate or a person of unsound mind, where the con- court. While the law contemplates that eidition of such defendant does not appear in ther party may have the stenographer to the record, nor the error in the proceedings. transcribe his shorthand notes, upon payment Sixth. For the death of one of the parties be- of the necessary fees therefor, it does not confore the judgment in the action. Seventh. template that such is the only method of preFor unavoidable casualty or misfortune, paring a record for a case made. preventing the party from prosecuting or de- Ever since courts of record have been esfending. Eighth. For errors in a judgment tablished and courts of appeals authorized to shown by an infant in twelve months after review the proceedings whereby judgments arriving at full age, as prescribed in section have been obtained, records have been prefour hundred and four. Ninth. For taking pared, the oral testimony of witnesses reprojudgments upon warrants of attorney for duced in writing, and the rulings of the court more than was due to the plaintiff when the and exceptions thereto saved, and it is only defendant was not summoned or otherwise within the past quarter of a century that legally notified of the time and place of tak- shorthand reporters have been known to the ing such judgment.” These several provi- courts. It is a manifest injustice to the plainsions embrace the causes for which the dis- tiff in this case to have his judgment vacated trict court may set aside its judgments and and a new trial ordered, not for any error in grant new trials. The causes for which a the proceedings or mistake of the parties or court may grant new trials are for errors or court officers, but because, long after the omissions occuring prior to the rendition of julgment was rendered, a condition arose by judginent, except for newly discovered evi- which the dissatisfied party was unable to dence after the trial, for which cause the perfect an appeal from a judgment which this judgment may be vacated and a new trial or court must presume was right and just. The dered.

district court erred upon a pure and simple In the case under consideration the cause question of law, and granted a new trial was regularly tried and judgment rendered. without cause, when it was in duty bound to The motion for new trial was filed long after overrule the motion. judgment, and was based upon statutory The ruling and order of the court sustaingrounds; but no statutory grounds were | ing the motion and granting a new trial is found to exist. It is true the clerk had failed reversed, set aside, and vacated, and the said to record the judgment; but this did not go motion for new trial is overruled, at the costs to the merits of the controversy, or affect of the defendants in error; and said judgment any substantial right of the defendants. The is reinstated in full force and effect as origcourt had the power at any time to cause its inally rendered and entered. All the Jusclerk to make a record of the judginent it tices concur, except IRWIN, J., who tried had rendered, and if the court had rendered a the case below, not sitting. judgment, and it is conceded by both parties that the judgınent was regularly rendered on the 11th day of March, 1904, and the clerk

(19 Okl. 208) failed to record such judgment, it was the

ALLEN DUDLEY & CO. V. CLEVENGER duty of the court to direct the clerk to prop

et al. erly record its proceedings, and this could be and was in fact done nunc pro tunc. The

(Supreme Court of Oklahoma. Sept. 5, 1907.) cause upon and for which the court set aside

1. SHERIFFS---FEES AND Costs_RETURN-CON

CLUSIVENESS. its judgment was that after the trial, and aft

The return of a sheriff on an order of er the judgment had been rendered, the court replerin is conclusive and binding against him ; stenographer who took the shorthand notes

and where he show's by his return that he de

ivered cattle seized by him under the writ to of the trial had died, and the defendants, de- the defendant, with the consent of the plaintiff. siring to appeal the case, could find no one within 10 days after taking such property under who could transcribe the shorthand notes of such writ, he cannot be allowed as a part of the the deceased stenographer. We know of no

costs of the case for feeding and caring for such

cattle for a period of 70 days. law, nor have we been advised of any, which

2. SAME-EXPENSES IN REPLEVIX. einpowers the court to grant a new trial be

Where a sheriff takes charge of property cause of the inability of the judgment debtor under an order of replevin, he can only be alto procure his record or prosecute his ap

lowed for caring for the same during the time peal. The law provides that the party desir

that he is in possession thereof. ing to take an appeal will prepare a case,

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

vol. 43, Sheriffs and Constables, § 72.] setting out substantially so much of the rec

(Syllabus by the Court.) ord as will make apparent the errors relied upon, and the service of his prepared case Error from District Court, Canadian Counlipon the adverse party, who may, if not sat-ty; before Justice C. F. Irwin. isfied with its contents, propose such amend- Action by Allen Dudley & Co. against 0. M. Clevenger and A. Baird. Judgment for "Sec. 4337. If within twenty-four hour :

defendants, and plaintiffs bring error. Re- after service of the copy of the order, there versed and remanded.

is executed by one or more sufficient sureties

of the defendant, to be approved by the sherBlake, Blake & Low, for plaintiff in error.

iff, an undertaking to the plaintiff, in not J. W. Clark, H. L, Fogg, and W. L. Baxter,

less than double the amount of the value of for defendants in error.

the property, as stated in the affidavit of the

plaintiff, to the effect that the defendant will BURWELL, J. The plaintiffs, Allen Dud- deliver the property to the plaintiff, if such deley and S. L. Dudley, partners doing business | livery be adjudged, and will pay all costs as Allen Dudley & Co., on February 2, 1904, and damages that may be awarded against commenced an action against O. M. Clevenger him, the sheriff shall return the property to and A. Baird for the possession of 63 head the defendant. If such undertaking be not of cattle in the district court of Canadian given within twenty-four hours after service county. On the 4th day of February, 1904, of the order, the sheriff shall deliver the having filed the necessary affidavit and bond,

property to the plaintiff. the clerk of the court issued a writ of re- "Sec. 4358. The plaintiff may, within twenplevin for these cattle, which was placed in ty-four hours from the time the undertaking the hands of the sheriff, who duly served the referred to in the preceding section is given same on February 5, 1904, by taking posses- by the defendant, give notice to the sheriff sion of the cattle. The sheriff retained pos- that he excepts to the sufficiency of the suresession of these cattle for 24 hours, and at ties. If he fail to do so, he must be deemed the end of that time delivered them to the to have waived all objections to them. When defendant 0. M. Clevenger, with the consent the plaintiff excepts, the sureties must justiof the plaintiffs' attorney. On November 21,

fy, upon notice, as bail on arrest. The sheriff 1901, the action was dismissed by plaintiffs or other officer sball be responsible for the at plaintiffs' cost. On November 26, 1904, the sufficiency of the sureties until the objection sheriff filed in the clerk's office a bill for to them is waived, as above provided, or unfeeding and caring for these cattle, which, til they justify." omitting the caption, was as follows:

From these sections of the statutes it will Sheriff's costs for feeding and pastur

be obserted that the law directs the sheriff ing cattle replevined in the above-en

to seize the property, and, if the defendant titled case:

fails to execute a bond, within 24 hours after Feeding fifty-nine head for 70 days at 15¢. per head per day....

$619 50

the service of the writ, conditioned for the Pasturing ditto for 3i4 months at

delivery of the property to the plaintiff, if 50¢. per head per mo.....

103 25

such delivery be adjudged, the sheriff shall $S22 73

deliver the property to the plaintiff ; but, if J. C. Ozmun, Sheriff.

the defendant executes such bond, then the

plaintiff has 24 hours in which to except to This bill was taxed as costs by the court the sureties. This makes 48 hours that the against the plaintiffs. A motion was filed to sheriff may hold the property replevined ; retax the costs, which was overruled, and the and, if he desires, he may also hold it a reaplaintiff appeals from such order; and the sonable length of time after this, to afford only question presented by the appeal is the the sureties an opportunity to justify, and allowance of this item of $822.75 to the sher- | during all of this time he is entitled to charge iff for caring for the cattle.

up as costs in the case the expenses of caring Section 4352, Wilson's Ann. St. Okl., pro- for such property. But the law does not convides for the filing of the affidavit of replerin template that the sheriff shall remain in and what such affidavit shall contain; and possession of property seized by him in resection 4353 fixes the conditions of the re- plevin actions for a long period of time, corplevin bond; and then section 4354 refers to ering weeks and months. Under the statutes the order or writ of replevin. We here quote above quoted either the plaintiff or the deit, together with other sections of the statutes fendant should be given possession of the in relation thereto:

property within a few days at most after its "Sec. 4351. The order for the delivery of the seizure by the sheriff. It is true that the property to the plaintiff shall be addressed parties to the suit might stipulate as to what and delivered to the sheriff. It shall state may be done with the property, and such the names of the parties, the court in which agreement would be binding. If the property the action is brought, and command the sher- is retained, or delivered to some one else, by iff to take the property, describing it, and virtue of an agreement, the return of the deliver it to the plaintiff, and to make return sheriff should show that fact. The sheriff's of the order on a day to be named therein." return should always show what he has done

"Sec, 1356. The sheriff shall execute the or- with the property. der by taking the property therein mentioned. Turning to the record in the case under He shall also deliver a copy of the order to consideration, we find that the sheriff states the person charged with the unlawful de- in his return to the order of replerin that he tainer of the property, or leave such copy at received the same on February 1, 1904, and his usual place of residence.

served it by taking into his possession the

property in controversy, describing it, and then states that, "after keeping the same for the period of 24 hours, I delivered the abovedescribed property to 0. M. Clevenger, with consent of attorney for plaintiff.” The return is duly signed by the sheriff, and was filed in the office of the clerk of the court on February 15, 1901, or 10 days after the order of replevin was received by him. This return shows that the sheriff returned the property to the defendant 0. M. Clevenger, with the consent of the attorney for the plaintiff, and this delivery of the property to the defendant could not have been later than February 15, 1904, for that is the day on which the return was filed with the clerk of the court. If this return is true, the sheriff could not have had possession of the cattle for a period of 70 days, for which he put in his claim. The expense bill for caring for these cattle is not accompanied with any explanation or showing as to why it should be allowed. Under the return made by the sheriff, in no circumstances could he charge for caring for these cattle for a period of more than 10 days. He took charge of them on February 5, 1904, and delivered them to the defendant 0. M. Clevenger before making his return on February 13, 1904. A fair interpretation of his return is that he delivered the cattle to the defendant immediately after the expiration of 24 hours.

Under the law the sheriff is bound by his return. In 18 Ency. of Pleading and Practice, p. 981, the law is stated as follows: "It is the general rule that, when an officer's return comes in question in a proceeding wherein rights may be based thereon as against the officer, he may not be heard to contradict it" -citing authorities. In the case of Cox et al. v. Patten et al. (Tex. Civ. App.) 66 S. W. 64, the Court of Civil Appeals for the state of Texas, in a case where a sheriff was sued for conversion, said: "In an action against a sheriff for conversion of cotton sold under execution, the sheriff's return indorsed on the execution, showing a levy upon the cotton, precludes him from denying the legality of such levy." The Supreme Court of Colorado, in the case of People, to Use of Kenfield, v. Finch et al., 19 Colo. App. 512, 76 Pac. 1120, in discussing the effect of an officer's return, said: "Did the facts pleaded in the second, third, and fourth defenses constitute a defense to the cause of action alleged in the complaint? As to the second defense: Bishop v. Poundstone, 11 Colo. App. 73, 52 Pac. 222, was an action against a constable and his sureties upon his official bond for damages by reason of the unauthorized release by the constable of property levied upon under writs of attachment. The constable's return on the writs was that he had levied upon the property and afterwards released it. At the trial the constable was permitted to testify in contradiction of his return upon the attachment writs. The court said: "The

officer was concluded by his returns, as were also the sureties on his bond, and the evi. dence was inadmissible. An incorrect returc may be amended, so as to show the facts; but the amendment must be made in the cause in which the writ issued, and, when made, it becomes the return. Except upon application to vacate or amend in the court having jurisdiction of the writ, the incorrectness of the return cannot be shown by the officer, or by the parties or privies to the suit. Freeman on Executions, 88 365, 366. If the return of an officer did not, as against himself and all parties connected with the litigation, import absolute verity, the records of the courts would be unreliable, and the administration of justice involved in uncertainty and confusion.'

The authorities are practically uniform in holding that an officer is concluded by his return. The return may be amended; but, whatever the return, it is conclusive against the officer making it. Therefore it necessarily follows that the trial court committed reversible error when it allowed the sheriff for feeding and caring for the cattle seized by him under the order of replevin for a period of 70 days, when the sheriff's return affirmatively shows that he could not have had the cattle in his possession for a period to exceed 10 days. If the return made by the sheriff was incorrect, he should have obtained leave of court and corrected it. Without such amendment, he is bound by the recitations therein. It is possible that the sheriff is entitled to compensation for keeping these cattle for the period that elapsed between the time he made the levy and the filing of the return. His return shows no expense therefor; but, desiring that full justice may be done, instead of entering judgment on the record as presented, the case will be reversed and remanded, with direction to disallow all of the item of $822.75 for feeding and pasturing the cattle in question, unless the sheriff shows himself entitled thereto under the rules stated in this opinion.

It is so ordered. All the Justices concurring, except IRWIN, J., who presided at the trial below, not sitting.

(19 Okl. 279) MOORE et al. v. LINN et al. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. PUBLIC LANDS - HOMESTEAD ENTRY — RE

LINQUISIIMENT RIGHTS OF SUBSEQUENT ENTRYMAN.

Where one sows wheat on land embraced in a homestead entry under a contract that he is to have two-thirds of the crop and the entryman one-third, and before the maturity of the crop the entryman sells his improvements and growing crops to another and relinquishes his homestead entry, so that such other person may file on the land, and such other person files on the land, he acquires, not only the right of posses. sion to the land itself, but also title to all improvements and growing crops thereon.

[Ed. Note.-For cases in point, see Cent. Dig vol. 41, Public Lands, § 102.)

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