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livering the opinion, remarked: "It remains to consider the suggestion that, the contract having been executed, the doctrine of ultra vires is inapplicable to the case. There can be no question that in many instances where an invalid contract, which the party to it might have avoided or refused to perform, has been fully performed on both sides, the courts have refused to sustain an action for the recovery of the property or money transferred." The case of Central Transportation Co. v. Pullman Car Co., 139 U. S. 24, 11 Sup. Ct. 478, 35 L. Ed. 55, has been strongly urged upon our attention as holding a different doctrine. An examination of the case shows it to be an action between two corporations, brought by the plaintiff to enforce the performance of a contract which the court holds was ultra vires as to both plaintiff and defendant.

As hereinbefore remarked, if this action had been one brought by the bank against the county treasurer to compel him to issue the tax deed upon presentation of the certificates, and the treasurer had defended upon the ground that the bank had no right or power to deal in real estate, a very different question would have been presented.

We have given the case most careful consideration, because of its importance and the principles of law applicable to it, but we are unable to discover that the plaintiff has been in any way wronged by the decision of the court below. No error appearing in the record, the judgment of the trial court must be affirmed. All the Justices concurring, except BURFORD, C. J., who presided in the court below, not sitting.

(15 Okl. 599)

ELDRIDGE et al. v. ROBERTSON. (Supreme Court of Oklahoma. Sept. 6, 1905.) EXECUTION-PROBATE COURT-JURISDICTION.

By section 1 of article 15. tit. court, of the Statutes of Oklahoma of 1893 (which article was ratified by Congress), which provides that probate courts shall not order or decree the sale or partition of real estate, a sale of real estate made under an execution issued out of such court is absolutely void, and a sheriff's deed to the purchaser conveys no title. And when the land has been condemned for railroad purposes, and the money paid into court, the original owner of the land (who was the judgment debtor in the suit in which the land was sold under such execution) will be entitled to the condemnation money.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, § 793.]

(Syllabus by the Court.)

Error from District Court, Logan County; before Justice Jno. H. Burford.

Condemnation proceedings by the Denver, Enid & Gulf Railroad Company against George C. Eldridge and A. D. Adams. W. S. Robertson intervened, claiming proceeds of certain lots. From the judgment, Eldridge and Adams bring error. Reversed.

Buckner & Son, for plaintiff in error. Cotteral & Horner, Devereux & Hildreth, Houston & Buckner, and Buckner & Son, for defendants in error.

BURWELL, J. Lots Nos. 16, 17, and 18, in block No. 26, in the city of Guthrie (proper), were by the townsite board deeded to George C. Eldridge. He executed his note to the Guthrie National Bank, and W. S. Robertson and Thomas Seely were sureties on such note. When it became due, the bank sued Eldridge and the sureties in the probate court of Logan county, and recovered judgment for $341.50. Execution was issued out of that court, and as no personal property belonging to Eldridge could be found, the sheriff levied the execution on the lots in question, and after giving notice sold them. Robertson purchased the lots at such sale, and a sheriff's deed was executed to him therefor. The Denver, Enid & Gulf Railroad Company, in December, 1902, began proceedings to condemn the land for a right of way. The appraisers were appointed, and the condemnation money paid into court. Several parties applied for and were granted leave to intervene in the case, claiming the proceeds of the lots. This case, however, involves only the issue between Eldridge and Robertson. The issues between the other claimants and these parties are presented in a separate appeal filed and now pending in this court. If the deed executed by the sheriff pursuant to the sale made under the execution issued out of the probate court is valid, then Robertson should recover. If not valid, the judgment is incorrect.

We have examined all of the cases cited by appellee, which his counsel contend support the theory that the sheriff may sell real estate under an execution issued out of the probate court, and they do not support the contention. They hold that a judgment, under the statutes then in force, was a lien on the real estate of the judgment debtor in the county wherein he resided, except the case of Chandler v. Colcord, 1 Okl. 261, 32 Pac. 330, which involved the issuance of an execution by the clerk of the district court. on a judgment rendered in the probate court, without the judgment being transferred to the district court by the filing of the proper transcript therein.

By section 1 of article 15, tit. court, of the Statutes of Oklahoma 1893 (which was ratified by Congress) it is provided: "That probate courts shall not not have jurisdiction

in any matter wherein the title or boundaries of land may be in dispute, nor to order or decree the sale or partition of real estate." The selling of the lots in question, under the execution issued out of the probate court, was in violation of this statute, which we have, heretofore, in other cases, held has all of the force of a direct act of Congress; and the deed executed by the sheriff, under which Robertson claims,

is absolutely void and gave him no right whatever to the land or to the proceeds thereof. By the language, "nor to order or decree the sale of real estate," it is meant that the probate court in cases within the jurisdiction of the district court, cannot, directly or indirectly, by execution or otherwise, sell or cause to be sold real estate. By this act it was intended that all court sales of real estate should be had either by a decree or order therefor in the district court, or under execution issued therefrom. The Legislature may make judgments of the probate courts liens on the real estate of the judgment debtor situated in the county wherein the judgment is rendered, but it cannot authorize the sale of such lands under process issued out of the probate courts.

The judgment of the district court, decreeing the rights of Robertson to the proceeds of the lots to be paramount to the rights of Eldridge thereto, should be reversed at the cost of appellee. It is so ordered, with direction to the trial court to proceed in conformity with the views herein expressed. All the justices concurring, except BURFORD, C. J.. who presided at the trial below, not sitting.

(17 Okl. 501)

ANGLEA v. MCMASTER et al. (Supreme Court of Oklahoma. Sept. 7, 1906.) JUDGMENT MOTION TO VACATE.

A judgment which is entirely outside of the issues in the case and upon a matter not submitted to the court for its determination, is A nullity, and may be vacated and set aside at any time, on motion of a party, or any person affected thereby.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 34-37, 434-437.]

(Syllabus by the Court.)

Error from Probate Court, Comanche County; W. H. Hussey, Judge.

Action by the City National Bank of Lawton against the Peoples' Bank of Edmond and others. Thereafter Frank McMaster was substituted as plaintiff. Judgment for plaintiff, and John M. Anglea brings error. Reversed.

This is a proceeding in error from an order and judgment of the probate court of Comanche county, rendered on the 6th day of July, 1903, in which it was determined that the court had no jurisdiction to hear and determine the motion of the plaintiff in error to vacate and set aside a judgment rendered against him and in favor of Frank McMaster in said court on January 30, 1902.

It appears from the record that on the 14th day of November, 1901, the City National Bank of Lawton, Okl., brought an action in the probate court of Comanche county, Ok.. against the Peoples' Bank of Edmond, Okl., John M. Anglea, J. R. Keaton, G. W. Childs, Virgil Childs, and Frank McMaster, to recover the sum of $500 claimed to be

due on a check dated November 1, 1901. It further appears that each of the defendants filed a verified answer to this petition, denying the execution of the check, and each and every material allegation contained in the petition; that on January 29, 1902, the defendant Frank McMaster moved the court to be allowed to amend the process, pleadings, and petition, and that he be substituted as plaintiff in the action. To this application for substitution, each of the other defendants at the time objected, which motions were overruled, and the motion to substitute McMaster as plaintiff was sustained. Thereupon McMaster filed three amended petitions: The first of which was against the Peoples' Bank and Keaton; the second was against J. R. Keaton alone; and the third was against the Peoples' Bank of Edmond alone. In neither of these amended petitious was the plaintiff in error, John M. Anglea, made a party defendant; nor was any relief asked as against him. Thereupon the Peoples' Bank of Edmond, John M. Anglea, and J. R. Keaton appeared specially, and moved to dismiss the several amended petitions filed by Frank McMaster, on the ground that the original plaintiff, the City National Bank of Lawton, had no interest in the controversy; and, second, on the ground that McMaster's cause of action is an entirely different action than was originally instituted. This motion was overruled, and, on January 30th, the court found the issues in favor of the plaintiff and against the defendants the Peoples' Bank of Edmond, John M. Anglea, and J. R. Keaton, and assessed the plaintiff's recovery at $525 and costs. On November 28, 1902, a motion was made by the plaintiff in error to vacate and set aside the judgment above rendered on January 30, 1902, on the ground that he was not made a party defendant in either of the plaintiff's amended petitions, and that at the time of the trial of the cause the plaintiff. Frank McMaster, stated that John M. Anglea was not made a party defendant to any of the amended petitions; and that the probate judge, in open court, in deciding the case, stated that no judgment would be rendered against the plaintiff in error, John M. Anglea; and further, that no judgment against the said John M. Anglea was within the issues of said cause. This motion was overruled by the probate judge on July 6, 1903, on the ground that he had no jurisdiction to hear and determine said motion to vacate said judgment; to which ruling and order of the court the plaintiff in error duly excepted, and brings the case here for review.

Shartel, Keaton & Wells, W. C. Stevens, and F. P. Cease, for plaintiff in error. Frank McMaster, for defendants in error.

HAINER, J. (after stating the facts). The record discloses that the judgment which

was sought to be vacated in this case was rendered on January 30, 1902, and the motion to vacate said judgment was made on November 30, 1902, on the ground that the court had no jurisdiction to render judgment against the plaintiff in error. The court declined to sustain the motion, on the supposed ground that he had no jurisdiction to hear and determine the same. This ruling of the court was made on July 6, 1903, to which ruling of the court the plaintiff in error duly excepted, and asked time to make a case for the Supreme Court. Various extensions were made, and the cause was served within time; and the case was filed in this court on July 5, 1904, within a year from the time that the order was made denying the motion of the plaintiff in error to vacate and set aside the judgment. Hence the motion to dismiss the appeal must be denied.

This presents the sole question, whether the court below erred in holding that it had no jurisdiction to hear and determine the motion to vacate the judgment which was rendered against the plaintiff in error on January 30, 1902. The record conclusively establishes that the plaintiff in error was not made a party to either of the amended petitions, and no relief was asked against him. We are therefore unable to perceive how any judgment could have been rendered against him. It also appears from the affidavits in support of the motion to vacate. that it was admitted that at the time the judgment was entered, the plaintiff in error was not a party to either of the amended petitions; and further, that the judge stated that no judgment would be entered against him. However, in the journal entry, it appears, judgment was in fact entered against him. The probate judge certainly had jurisdiction to hear and determine the motion in question. Section 593 of the Code of Civil Procedure (St. 1893) provides as follows: "A void judgment may be vacated at any time on motion of a party, or any person affected thereby." Phoenix Bridge Co. v. Street. 9 Okl. 422, 60 Pac. 221. And by section 1873 of the probate court extension act St. 1903. p. 550, it is provided as follows: "In all cases commenced in said probate courts wherein the sum exceeds the jurisdiction of justices of the peace the pleadings and practice and proceedings in said court both before and after judgment shall be governed by the chapter on civil procedure of the territory governing pleading and practice and proceedings in the district court." In Gille v. Emmons (Kan. Sup.) 48 Pac. 569, 62 Am. St. Rep. 609, it was held that: judgment is entirely outside of the issues in the case, and upon a matter not submitted to the court for its determination, is a nullity, and may be vacated and set aside at any time upon motion of the defendant." In this case, the Supreme Court of Kansas had under consideration an action in which D.

R. Emmons had executed two promissory notes, and, to secure the payment thereof, had executed a mortgage upon a tract of real estate, Carrie L. Emmons joining in the execution of the mortgage: but she did not sign the notes. Subsequently an action was brought by James M. Gille, the owner of the notes, to foreclose the mortgage, and to recover a personal judgment against D. R. Emmons. A trial was had, which resulted in a judgment in favor of Gille upon the notes, and for a foreclosure of the mortgage. A journal entry was subsequently entered by the clerk, in which personal judgment was entered against Carrie L. Emmons, as well as against her husband. D. R. Emmons. It further appears in this case that Carrie L. Emmons had no knowledge of the fact that julgment had been entered against her personally until about four years thereafter. She thereupon filed a motion to vacate the judgment, and the trial court sustained the motion to vacate the judgment, on the ground that it was void as against her. The cause was thereupon appealed to the Supreme Court and affirmed. Mr. Justice Johnston, in delivering the opinion of the court, says: "The validity of the judgment was challenged in the court, and in the same case in which it was rendered. It is true that the application to vacate was not made until more than four years after the judgment was rendered, but, as the judgment was void, the court was not hampered by a limitation of time. The statute relating to proceedings for the vacation and modification of judg ments provides that a void judgment may be vacated at any time on motion of a party or any person affected thereby.' Code Civ. Proc. § 575; Beach v. Shoenmaker, 18 Kan. 147; Hanson v. Wolcott, 19 Kan. 207." We think the facts under consideration present a much stronger case than the facts in Gille v. Emmons. Hence we are clearly of the opinion that the court was without jurisdiction to render judgment against the plaintiff in error, and that the judgment was absolutely void; that the court had jurisdiction to hear and determine the motion to vacate the judgment; and that it was error to overrule the same.

The judgment of the probate court is reversed, and the cause remanded, with directions to sustain the motion to vacate the judg ment. All the Justices concurring

(17 Okl. 512)

PROVENS v. TERRITORY. (Supreme Court of Oklahoma. Sept. 7, 1906.) 1. CRIMINAL LAW-INSTRUCTION-WAIVER OF OBJECTIONS,

In the absence of an exception or a request for more specific instructions, it will be presumed that the defendant was satisfied with the general charge given by the court.

[Ed. Not-For cases in point, see Cent. Fig. vol. 15, Criminal Law, §§ 2668, 3032.]

2. SAME.

On appeal to the Supreme Court, technical errors or defects, and exceptions which do not affect the substantial rights of the accused, will be disregarded.

(Syllabus by the Court.)

Error from District Court, Pottawatomie County; before Justice B. F. Burwell.

John Provens was convicted of a violation of the game law, and brings error. Affirmed.

P. O. Cassidy and Ed. O. Cassidy, for plaintiff in error. P. C. Simons, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

HAINER, J. The appellant, John Provens, was prosecuted by the territory, on information, charging him with unlawfully fishing in the North Canadian river. The cause was orginally tried in the probate court, to a jury, and verdict returned finding the defendant guilty as charged in the information, and judgment rendered in accordance therewith. The defendant appealed to the district court, the cause was again tried to a jury, a verdict of guilty returned, and the defendant fined in the sum of $25, and costs. From this judgment the defendant appeals.

On

The first error assigned is that the court misdirected the jury in regard to the presumption of innocence. It is claimed by counsel for appellant that the court should have instructed the jury on this question in the language of the statute, which provides as follows: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted." this branch of the case the trial court instructed the jury as follows: "Gentlemen, in this case it is incumbent upon the territory to prove each and every material allegation as charged in the information. Nothing can be presumed or taken by implication against the defendant; and it is incumbent upon the territory to prove each material allegation of the information, and each fact necessary to constitute the guilt of the defendant,, beyond a reasonable doubt." We think this instruction was sufficient to satisfy the requirements of the statute. Be that as it may, it is a sufficient answer to the contention of counsel for appellant, that no objection or exception was taken to the charge of the court, and no additional instructions were offered. The rule is well settled by the authorities that, in the absence of an exception or a request for more specific instructions, it will be presumed that the defendant was satisfied with the charge given by the court. Douthitt v. Territory, 7 Okl. 55, 54 Pac. 312; People v. Appleton (Cal.) 52 Pac. 582. In Drury v. Territory, 9 Okl. 398, 60 Pac. 101, Chief Justice Burgord, speaking for the court, upon a record which failed to show show any objection

or exception to the instructions, uses the following language: "The correctness of some of the instructions given by the court is questioned in the brief of counsel, but we are unable to find in the record that the instructions were ever objected to or any exceptions taken to them in the trial court. Under such state of the record we must decline to review and pass upon them."

It is also contended that the court erred in the admission of testimony, and that the county attorney asked prejudicial questions of the witnesses. We have examined the record referred to, and are clearly of the opinion that there is no merit in this contention. Nor was there any error committed by the court in sustaining the objection to the following question propounded to Mr. Barto: "Q. Well in other sales what quantities did you sell him?" In ruling on this question the court said: "The only purpose of this would be to affect his credibility, that is all." This is not a comment upon the evidence, and we are unable to perceive how it could be so construed. Finally it is contended that the evidence is in

sufficient to warrant the conviction of the defendant. We have examined the record, and are clearly of the opinion that the evidence was sufficient to fully warrant the jury in finding the defendant guilty as charged in the information. In our opinion, there is no merit in this appeal, and section 482 of the Criminal Code, Wilson's Rev. & Ann. St. 1903, § 5618, which provides that "on an appeal the court must give judgment without regard to technical error or defects, or to exceptions which do not affect the substantial rights of the parties," is applicable to this

case.

The judgment of the district court is affirmed.

BURWELL, J., having presided in the court below, not sitting. All of the other Justices concurring.

(17 Okl. 401) RICHARDSON-GAY OIL CO. v. ASIITON, Inspector of Oils. (Supreme Court of Oklahoma. Sept. 6, 1906.) 1. INSPECTION-OILS.

The law, with reference to the inspection of oils, was enacted to protect the public against the sale of unsafe and dangerous oils, and for those purposes is a remedial statute, to be interpreted so as to reasonably carry into effect its objects.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Inspection, § 21.] 2. SAME-SUFFICIENCY.

Where oil is brought into Oklahoma and inspected as required by law, and then stored in a warehouse outside of the limits of the territory, and there held in storage in the same barrels, and in same receptacles in which it was inspected, and in the same condition, and thereafter the same oil is sold to consumers within the territory: Held, that one inspection

satisfies the requirements of the statute, and no second inspection is required. (Syllabus by the Court.)

the said defendant as such territorial inspector of oils inspected, examined and tested said 60 barrels of oil belonging to plaintiff

Error from District Court, Logan County; at Oklahoma City in Oklahoma Territory, before Justice Jno. H. Burford.

Action by the Richardson-Gay Oil Company against F. A. Ashton, territorial inspector of oils. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

This is an action brought in the district court of Logan county by the RichardsonGay Oil Company against F. A. Ashton, as territorial oil inspector, to restrain and enjoin the latter from inspecting two barrels of oil, or interfering with the sale thereof, on the ground that the oil had been regularly inspected, and that no second inspection was required, under the laws of Oklahoma. The case was submitted to the court upon the following agreed statement of facts: "Comes now the parties hereto and agree upon a case containing the facts hereinafter set forth, upon which a controversy depends between said parties, and present a submission of the same to this court, which said facts as agreed upon by and between said parties are as follows, to wit: That said plaintiff is a corporation organized and existing under the laws of the state of Texas, with headquarters at Corsicana, Tex., and engaged in the refining and selling at wholesale the products of petroleum in Texas, and the neighboring states and territories. That plaintiff has complied with the laws of Oklahoma Territory concerning foreign corporations and has appointed one G. S. Burnett of Shawnee, Okl., as its agent in said territory, and who is duly authorized to accept service of process, and upon whom process of service may be made in any action, in which said corporation may be a party. That the plaintiff maintains an agency and a warehouse at the town of Chickasha in the Indian Territory, and at which is stored its coal oils and gasolines for prompt shipment to its customers in the vicinity of Chickasha. That the plaintiff is engaged only in the wholesale trade, and has a number of customers in the towns and villages in Oklahoma, having close and convenient railroad connection with the said town of Chickasha, and also a number of customers in small towns off of the railroad lines. That on or about the 16th day of May, 1905, the plaintiff shipped 60 barrels of coal oil into and through the territory of Oklahoma to be stored in its warehouse at Chickasha, and intended for shipment to its customers as aforesaid in the territory of Oklahoma, and consumption of the same in the territory of Oklahoma. That the defendant is the duly appointed, qualified, and acting territorial inspector of oils of the territory of Oklahoma, and was such officer at all times herein mentioned, and now resides in the city of Guthrie, Logan county, Oklahoma Territory. That on or about the said 16th day of May, 1905,

and said barrels of oil met all the requirements specified by the statutes of the territory of Oklahoma, and thereupon the said defendant issued to plaintiff his certificate certifying that said 60 barrels of oil had been by him inspected and approved, and said certificate also contained the actual test of said oil, and the said defendant also fixed his brand on each and every one of said barrels of coal oil, giving the actual test with the date of his official signature upon the same. That upon the making of said inspection by the defendant the plaintiff paid to him his fees as provided by law. That after said 60 barrels of coal oil were inspected and approved as aforesaid, the same were forwarded to and placed in plaintiff's warehouse at said town of Chickasha for shipment to and consumption in the territory of Oklahoma as aforesaid. That on or about the day of June, 1905, the plaintiff shipped to one of its customers at Cement, Okl., two barrels of said barrels of coal oil, which had been inspected and proved by said defendant as aforesaid, the said coal oil being the identical coal oil and in the same identical barrels as when it was inspected by said defendant at Oklahoma City as aforesaid. But that said fact is not within the personal knowledge of said oil inspecor or any of his deputies. That the said defendant immediately forbade and prevented plaintiff under the penalty of a criminal prosecution from selling said two barrels of oil to its customers at Cement, Okl., unless plaintiff should have said two barrels inspected over again by said defendant, and defendant still demands the right to inspect said oil over again and to collect his fees therefor from said plaintiff, notwithstanding the fact that he had already inspected and approved and certified to the same, and branded the barrels as herein before set forth. That said brands upon said barrels were and are plain and intact. Wherefore, both parties pray that the court hear this case, and determine whether or not the said defendant should be restrained and enjoined from inspecting said two barrels of oil again, or in interfering with plaintiffs selling of the same without a second inspection." And upon this agreed statement the district court found the is sues for the defendant, and against the plaintiff, and entered judgment for costs. From this judgment the plaintiff appeals.

Lawrence & Huston, for plaintiff in error. P. C. Simons, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

HAINER, J. (after stating the facts). The sole question presented by the record is this: Whether under the laws of Oklahoma oil that has been brought into the territory and inspected, as required by law, and then

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