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Error from District Court, Pottawatomie appear that the bulding material, which had County; before Justice B. F. Burwell.

been placed there by the defendants, reAction by W. B. Alexander against J. J. mained in the street an unreasonable length Culbertson and Emily Culbertson. Judg- of time. ment for plaintiff, and defendants bring er- As a general rule, owners of property, l'or. Affirmed.

abutting on a street, may make certain uses This was an action brought in the probate

of such parts of the street as are necessary Court of P'ottawatomie county by W. B. Alex

for the proper enjoyment of the property. inler against J. J. Culbertson and Emily

Among these rights of an abutting owner is Culbertson, to recover damages in the sum of

the right to deposit material necessary for $500, alleged to have been sustained by rea

the construction, erection, or repair of a son of wrongfully obstructing the street im

building. But the right to deposit such mamediately in front of his place of business,

terial for the erection or repair of a building and which caused the water to dlam up and

must not interfere with the rights of the accumulate in front of his store building, so

public to use the street, or with the reasonils to greatly interfere with and injure his

able enjoyment of adjoining property by the business. To this petition the defendants owners, or unreasonably interfere with adtiled an answer, consisting of a general denial.

jacent property owners; nor must such ma

terial remain in the street an unreasonable The cause was submitted to the court, and the issues were found in favor of the plain- length of time. And when such material is tiff and against the defendants, and the damn

placed in a public strect, reasonable care

should be exercised in not endangering the ages assessed at $2.50, and judgment eutered ilccordingly. From this judgment the defend- | property or business of an adjacent property units appealed to the district court, and there

owner. Judge Elliott, in his work on Roads the (ause was submitted to a jury and a

and Streets, page 5-6, states this doctrine as Verdict returned in favor of the plaintiff for

follows: "Adjoining land owners are usually $1 and (osis. On motion, the court granted

permitted to place material upon the street the plaintiff a new trial. new trial. Thereupon, the

or sidewalk in front of their premises and Cause was again subinitted to a jury, verdict

to make a reasonable use thereof for the purreturned in favor of the plaintiff for $250,

pose of erecting, repairing, or improving and judgment entered accordingly. Motion buildings upon their land; but reasonable dilfor new trial was filed by the defendants, igence should be used to complete the work, overruled, exception saved, and the cause is and ordinary care must be taken to warn brought here for review.

travelers of the obstruction and danger."

Eng. En. Law (21 Ed.) vol. 15, J. II. Woods, for plaintiffs in error. B. B. In Am.

page 491, the doctrine is thus stated: “While Blakeney and Basham & Biggers, for defend

highways are primarily designed for the purant in error.

pose of travel, and must therefore be kept IIALNER, J. (after stating the facts.) It clear of obstructions, the law justifies obappears from the evidence that the plaintiff structions of a partial and temporary charwas engaged in the grocery and feed busi- acter, from the necessity of the case and for ness on West Main street, in the city of the convenience of mankind, when those obShawnee, during the years 1901 and 1902, structions occur in the customary or contemand that plaintiffs in error ownell a lot ad- plated use of the highway, they being reajoining immediately on the east of plain- sonably necessary, and not unduly prolonged. tiff's place of business. That on or about As to what is a proper obstruction as being December 20, 1901, the defendants placed based on a reasonable and necessary use, it two cars of brick in the street immediately is impossible to lay down any general rule, in front of the lot owned by defendants, for each case being determined by the particular the purpose of erecting a building thereon, circunstances thereof. "Question for Jury. which brick extended about 30 feet out in The question whether a particular use of a the street, piled about 7 feet high, and were highway involves an improper obstruction placed in close proximity to the plaintiff's thereof is generally a question for the jury." building where he was conducting a store. In State v. Mayor (Web.) 15 N. W. 210, 45 That the material not only obstructed the Am. Rep. 108, Mr. Justice Maxwell, in displaintiff's view, but that when it rained it cussing this subject, says: "Temporary obdammed the water up, and would accumu- structions in a street which are reasonable late and leave a pool of water in front of and necessary for the erection of a building the plaintiff's place of business, which great- upon an adjacent lot do not so constitute a ly impaired, and practically destroyed, his nuisance, provided they are not unreasonably business. That the obstruction remained prolonged. Such obstructions are not invathere for some five or six months. It is ar- sions of the rights of the public to the use of gued by plaintiff in error that the court erred the street, but merely incident to or a limiin permitting the plaintiff to recover dam- tation on such right; but are justified only ages for loss of business, the contention be- so long as they are reasonably necessary. ing that the evidence is insufficient to sup- The party placing the obstructions therein, port a verdict, on the ground that it did not however, will not be justified in leaving the street in an unsafe condition.” In Raymond The judgment of the district court is therev. Kiseberg (Wis.) 54 N. W. 612, 19 L. R. A. fore affirmed. 643, the Supreme Court of Wisconsin said: "The right of an abutting lot owner to tem- BURWELL, J., who presided in the court porarily use a part of the street for building below, not sitting; all the other Justices conoperations is founded on reasonable necessity, curring. and not as owner of the fee of any part of the street; and, in the absence of municipal

(17 Okl. 387) regulations as to the space to be occupied,

WILITACRE v. NICHOLS. the extent of the necessity depends on the circumstances of each particular case."

(Supreme Court of Oklahoma. Sept. 6, 1906.) Whether the material remained in the

1. APPEAL-CASE- JADE-EXTENSION OF TIME.

The presiding judge of a district, either at street an unreasonable time, and whether

chambers or while sitting as a court, or the reasonable care was exercised to prevent in- judge who tried the case, if clothed with auterfererce with the property or business of

thority by assignment, while in the district, adjacent property owner, were questions of

may extend the time in which to make and

serve a case-made. fact for the jury to determine under all the

2. PLEADING-CONSTRUCTION-EXHIBITS-DEcurcumstances of the case; and in this case

MURRER. the court submitted those questions to the Where the instrument, which is the basis jury under appropriate instructions. And

of ihe action, is attached, by copy, to the peti

tion and made a part thereof, such copy shouldi the evidence, in our opinion, fully sustains

be made a part of the petition when construing the verdict of the jury.

the allegations thereof as against a general It is assigned as error and argued that demurrer. counsel for the plaintiff made a prejudicial

[Ed. Yote.-For cases in point, see Cent. Dig. statement during the closing argument, for

vol. 39, Pleading, $$ 555, 916.] which this cause should be reversed. The

3. APPEAL--REVIEW-ASSIGNMENTS OF ERROR.

Where the appellant fails to assign as error record discloses that the cause was tried in

the overruling of the motion for a new trial, the probate court, and judgment entered for in the petition in error, no question is properly the plaintiff for $250, and that when the presented in this court to review errors alleged Cause was last tried in the district (ourt,

to have occurred during the progress of the

trial in the court below. and during the closing argument, counsel for

4. CHATTEL MORTGAGES RIGHTS OF MORTplaintiff stated that such a judgment had

GAGEE-REPLEVIN-PETITION-DEMURRER. been rendered in the court below. Such a In replevin by mortgagee, petition held not statement by counsel was improper, and the

subject to general demurrer, because it fails

to allege condition broken in chattel mortgages, court should have sustained the defendant's

and that the notes were due, since the mortobjection thereto. But, under the facts and

gages were attached to the petition and made circumstances of this case, we are of the a part thereof, and contained copies of the notes opinion that the remark was not of such showing they were past due at the time the it character as would justify a reversal of

suit was instituted, also, the condition that,

upon default in payment of note, mortgagee was this cause. In vol. 2 Enc. Pl. & Prac. page entitled to possession. 734, it is said: "Statements of the result of (Syllabus by the Court.) a former trial of the same case are regarded

Error from District Court, Lincoln County; as improper and unjustifiable, and in some cases so extremely harmful as to constitute

before Justice Bayard T. Hainer.

Action by Clara E. Nichols against Alva ground for a new trial.” And on page 7:35

Martin and Noble Whitacre. Judgment for of the same volume, it is said : “But the appellate court will not disturb the verdict un

plaintiff, and defendant Whitacre brings er

l'or. Aflirmed. less it appears that the party complaining was probably prejudiced.” In Attaway v.

J. B. A. Robertson, for plaintiff in error. Mattax (Tex. App.) 14 S. W. 1017, the Court S. D. Decker and V. S. Decker, for defendof Appeals of Texas lays down this rule: "It ant in error. is reversible error for plaintiff's counsel to state, in his closing argument to the jury, GARBER, J. This is an action in replevin that, on a former trial, plaintiff recovered brought in the district court of Lincoln counupon the same evidence now before them.” ty by Clara E. Nichols, plaintiff, against Alva Ordinarily such a statement is sufficient Martin and Noble Whitacre, defendants, for ground for reversal of the cause, but in this the recovery of the possession of 31 head of case we have carefully examined the record neat cattle. Alva Martin, one of the defendwith reference to the amount of damages ants and the mortgagor made no appearance, awarded jy the jury, and, in our opinion, it and Noble Whitacre, the other defendant, enis fair and just; and we believe that in case tered a general denial. A jury being waived of another trial upon the same state of facts, and the cause submitted to the court, the isthe plaintiff ought to recover at least the sues were found in favor of the plaintiff (deamount of damages awarded in this case. fendant in error), and a judgment given in And for that reason, we are of the opinion the alternative that the plaintiff recover the that the remarks that were made would not possession of 18 head of cattle described in warrant this court in reversing the cause, plaintiff's petition, and, if a return thereof and awarding a new trial,

could not be had, then for their value in the 87 P.-55

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sum of $324, and costs of suit. The record immediate possession of the property; and shows that the case was tried at the May, that the defendants wrongfully detained the 1905, term of the district court of the First possession thereof from the plaintiff; then judicial district in and for Lincoln county, followed prayer for judgment for the possesbefore Hon. Bayard T. Hainer, presiding sion, and damages for wrongful detention. judge; and that the time to make and serve It is insisted that the petition herein is fatal: a case-made was by the court extended 90 ly defective, in that it did not allege condidays; that thereafter, on the 9th day of Aug- tion broken, and that the notes for which ust, 1905, at his chambers, the time was fur- the mortgages were given as security, were ther extended 30 days, by Hon. John H. Bur- due. On demurrer to a petition, as defective, ford, judge of that district.

in that it does not state facts sufficient to Objection is raised to the consideration of constitute a cause of action, the petition this case by this court upon the ground that should be liberally construed with a view to the Hon. John H. Burford, the regular pre substantial justice between the parties, and siding judge of said district, not being the a demurrer will only be sustained where the tria! judge, did not have power to extend the petition presents defects so substantial and time for making and serving case-made. Sec- fatal as to authorize the court to say, that, tion 4742 of Wilson's Rev. & Ann. St. 1903, taking all the facts to be admitted, they furprovides: “The court or judge may upon nish no cause of action whatever. If the good cause shown extend the time for making a case and the time which the case may be / Tacts stated in the complaint entitled the

plaintiff to any relief, a demurrer for want * " The above section gives of sufficient facts should be overruled. Pl. & the court, while in session, or the judge of the Prac. vol. 6,346; Pl. & Prac, vol. 4, 749, and court, power to grant the extension. In this cases cited therein. Under our civil procedcase Hon. Bayard T. Hainer, was the trial ure, adopted from the state of Kansas, with judge, while Hon. John H. Burford was the the construction placed thereon, the chattel judge of the court, the regular appointed and mortgages were a part of the petition, the acting judge of the district court of that same as if set out in full, when tested by county, and in possession of the office, and, general demurrer. Grimes v. Cullison, 3 Okl. as such, he had power to grant the extension 268, 41 Pac. 355 ; Ward v. Clay (Cal.) 23 Pac. at chambers. Hulme et al. v. Diffenbacher, 50; Budd v. Kramer, 14 Kan. 101 ; State v. 53 Kan. 181, 36 Pac. 60; Railroad v. Leeman, School District No. 3, 34 Kan. 237, 8 Pac. 208. 5 Kan, App. 804, 48 Pac. 932; Wallace v. The plaintiff alleged ownership by virtue Caldwell (Kan. App.) 59 Pac. 379.

of two chattel mortgages which were attachDefendant below filed his motion for a new ed to, and made a part of, her petition. The trial, which was overruled and excepted to, mortgages contained copies of the notes showbut the overruling of the motion is not as- ing they were past due at the time the suit signed as error in the petition in error in this was instituted, and no presumption existed case. Hence the numerous assignments of that they had been paid-one note for $318.25 error, alleged to have occurred during the due April 13, 1904, and one note for $424 due progress of the trial in the court below, are April 16, 1904—the petition being filed Aunot properly presented in this court for re

gust 8, 1904. The mortgages also contained view. It has been repeatedly held by this the provision: “And the said mortgagor here court that errors occurring during the trial by covenants and agrees to and with the are not properly presented for consideration said mortgagee, that in case of default made unless a motion for a new trial setting forth in the payment of the above mentioned promsuch errors has been made by the complain- issory note, * *

the mortgagee, or his ing party, acted upon by the trial court, its agent, may take immediate possession of the rulings excepted to, and afterwards assigned above goods and chattels.” “In our statutory as error in the Supreme Court. Beall v. Ins. action of replevin the gist of the action is Co., 7 Okl. 285, 54 Pac. 474; Menten v. Shut- the wrongful detention of the property in tee et al., 11 Okl. 381, 67 Pac. 478, and cases controversy on the part of the defendant as therein cited.

against the plaintiff. And the plaintiff, in The overruling of the demurrer to plain- order to maintain the action, must plead and tiff's petition, however, having been assigned prove: * * * First, that he owns or has as error in the petition in error, is properly a special ownership or interest in the prophere by transcript, and may be considered.erty; second, that he is entitled to the immeIn her petition, plaintiff alleged that she was diate possession of the same; and, third, that the qualified owner of the cattle in contro

the property is wrongfully detained by the versy (describing them); that her qualified defendant. The defendant cannot wrongfully ownership was by virtue of two chattel mort

detain property as against the plaintiff unless sages, executed on the 13th and 16th days of all of these facts exist." Wilson v. Fuller, 9 January, 1904, by one of the defendants be

Kan. 176; Robb v. Dobrinski, 14 Okl. 563, 78 low, Alva Martin, to the plaintiff, to secure Pac. 101. Plaintiff in error was not the the sum of $742.25, copies of said mortgages mortgagor, and his possession was wrongbeing set out in full, attached, marked Ex- ful at all times as to the mortgagee under hibits A and B respectively, and made a part the terms of the mortgage. Although we of the petition; that she was entitled to the think it the better practice, it was not neces

sary to allege specifically in the petition the the evidence conclusively shows that no service nonpayment of the notes and a breach of any was had upon such defendant, it is error to of the conditions of the mortgages, inasmuch

overrule the motion. as they were made a part of the petition,

(Syllabus by the Court.) and it fully appeared from the mortgages Error from District Court, Canadian Counthemselves that at least one of the conditions

ty; before Justice C. F. Irwin. had been broken by the mortgagor making Action by John Tenney against A. H. default in the payment of the notes. Wil- Jackson and Jennie Jackson. Judgment for kins v. Moore, 20 Kan. 538; Chaffee v. plaintiff, and defendant Jennie Jackson Browne, 109 Cal. 211, 41 Pac. 1028; Baldwin

brings error. Reversed and remanded. v. Boyce (Ind. Sup.) 51 N. E. 334; Johnson v. Anderson, 60 Kan. 578, 57 Pac. 513. The

M. D. Libby, for plaintiff in error. J. I. notes being past due and unpaid, one of the

Phelps, for defendants in error, conditions in the mortgages was broken, and the mortgagee was then entitled to the pos- HAINER, J. This is an action brought in session of the property. Bearss v. Preston, the district court of Canadian county, on the 66 Mich. 11, 32 N. W. 912; Johnston v. Ro- 19th day of December, 1902, by John Tenney buck, 104 Iowa, 523, 73 N. W. 1062; Cobby on against A. H. Jackson and Jennie Jackson, Chattel Mortgages (vol. 2), 1069.

to recover the sum of $122.50, alleged to be It is insisted that from the petition the due and owing as commission for the sale defendant could not ascertain upon what of real estate. On the same day summons grounds the plaintiff relied for her right to was duly issued and placed in the hands of possession. In view of the fact that the the sheriff to be served. The return of the plaintiff alleged a qualified ownership by vir- undersheriff is as follows: "Received this tue of two chattel mortgages which were at- writ this 19th day of December, at 9 o'clock tached to, and made a part of, the petition, a. m., 1902. Served the same by delivering containing copies of the notes showing de- a copy thereof, with the indorsements therefault in payment and condition broken, we on, duly certified, to the within-named deare unable to see anything in that contention, fendants, A. H. Jackson and Jennie Jackson, and, while we do not hesitate to express our personally. On the 19th day of December, disapproval of the degree of carelessness ex- 1902. A. A. Cosby, Sheriff, by C. M. Spiker, hibited by the petition in this case, the de- Undersheriff.” On the 10th day of Februfendant should have filed his motion to make ary, 1903, at a regular term of the district more definite and certain. Having failed to court, judgment was rendered by default do so, he cannot now be heard to complain against the defendants, for the sum of $139.that he was unable to proceed intelligently 23 and costs of action. On the 21st day of because of his failure to invoke a proper rem- February, 1903, and during the same term edy. Defects of form, of averment, or un- of the court, motion was filed by Jennie certainty cannot be considered upon general Jackson, one of the defendants in the court demurrer. The petition, with the exhibits below, plaintiff in error, to set aside the attached, and made a part thereof, stated a judgment, on the ground that the court had cause of action, and, there being no other us- no jurisdiction of the person of the defendsignment of error properly presented to this ant, in this, to wit: "That service of sumcourt, the judgment of the district court will mons in said action was not had upon the be affirmed. All the Justices concurring ex- said Jennie Jackson, either by delivering to cept HAINER, J., who tried the case below, her a copy of the summons issued in said not sitting.

action, personally, or by leaving a copy thereof at her usual place of residence, or at

all. That she enters her appearance here(17 Okl. 495)

in for the purposes of this motion only." JACKSON V. TENNEY et al.

And said motion was duly verified. This (Supreme Court of Oklahoma. Sept. 7, 1906.) motion was overruled by the trial court, to 1. PROCESS-RETURN OF SERVICE-EXPLANA

which an exception was reserved, and the TION-PAROL EVIDENCE.

case is brought here for review. Where the return of a sheriff that he has

The sole question presented by the record served a summons on the defendants personally

is whether or not the service upon Jennie is ambiguous, and open to the construction that but one copy was delivered to both defendants, Jackson was sufficient. The affidavit of Jenparol evidence is admissible to show that no nie Jackson that no summons was served on service, in fact, was had on one of the de- her, either in person or by leaving a copy fendants.

at her usual place of residence, was not coll[Ed. Note.For cases in point, see Cent. Dig. vol. 40, Process, SS 197–201.]

troverted, except as shown by the return

of the officer. Section 64 of the Code of 2. JUDGMENT—MOTION TO VACATE. Where there is a direct proceeding, by mo

Civil Procedure (St. 1893, 8 3938) provides tion in the cause, to set aside a judgment, by as follows: "The service shall be by deliverone of the defendants in the action, at the same ing a copy of the summons to the defendant term of court at which the judgment is rendered, and the return of the officer is am

personally, or by leaving one at his usual biguous, and open to the construction that but

place of residence, at any time before the one writ was served on both defendants, and return day." Upon an examination of the

return of the officer, it will be observed that the summons was served "by delivering a (opy thereof, with the indorsement thereon, dily certified, to the within-named defendants, A. H. Jackson and Jennie Jackson, personally.” Hence the return is clearly open to construction, as to whether a copy of the summons was served on one or both of the defendants. The law' requires that the summons shall be served by delivering a copy to each of the defendants personally, or by leaving the same at their usual place of residence. The undisputedl

undisputedl testimony shows that the requirements of the statute were not satisfied, and that no summons was serveil upon the plaintiff in error, either in person or by leaving a copy at her usual place of residence.

In Randolph v. Schwingle Tex. Civ. App.) 27 S. W. 9), it was held that: “A return of a writ by a sheriff as served by delivering to J. R., R. II., W. S., the within-named defendant, in person, a true copy of this note.' is suslicient to support a judgment by default." In this case, the Court of Civil Anpeals of Texas, speaking by Chief Just:c.. James, says: “The return is open to the ('onstruction that but one writ was servid on all the defendants, and has been held in several cases to be insufficient to support a judgment by default.” In Swilley v. Reliance Lumber Co. (Tex. Civ. App.) 16 S. W. 387, the same court, in passing upon a similar question, says: "The return is clearly insuflicient to authorize a judgment against either one of the defendants named therein. The law requires that each defendant be served with a copy of the writ, and this can only be done by the oflicer executing the writ delivering a copy of the same to each defendant in person. This is not shown to have been done by the return in this case. Holliday v. Steele, 65 Tex. 388; King v. Goodson, 12 Tex. 1.13. The judgment is therefore reversed as to the plaintiff in error, Swilley, and the cause remanded as to him."

Counsel for defend:int in error rely upon the authority of Goodard v. Harbour (Kan. Sun.) 44 Pac. 1035, 54 Am. St. Rep. C09, where the Supreme Court of Kansas beld that: “The return of a sheriff that he has served a summons on the defendants personally, being a matter as to the truth or falsity of which he has personal knowledge, is conclusive between the parties, and cannot be questioned in an action afterwards brought to enjoin the enforcement of a judgment based on such service, on the ground that the court was without jurisdiction of the person of the defendants." In this case the learned court announced the doctrine that, as to matters falling within the personal knowledge of th3 officer, his return is conclusive as between the parties unless the falsity of the return is disclosed by some other portion of the re, ord in the cause. But, in this case, it must be

borne in mind that the court had under consideration an action to enjoin the enforcement of a former judgment, and it was a collateral attack made upon such judgment; while in the case under consideration the motion was filed in the same case, and at the same term of court at which the judgment was rendered, and was a direct proceeding by motion a very short time after the rendition of the judgment. Again, it must be observeil, in the Goodard (ase, that the Supreme Court of Kansas assumed that the return showed that personal service wils had upon both defendants, and upon that assumiition based its opinion. But it also appears from the opinion that parol evidence was allowed to be introduced to show that s.rvice was, in fact, had on each of the difendants. The court apparently failed to discuss, or overlooked, the question whether the return of the officer was ambiguous, and open to construction as to whether service was in fact had upon each of the defendants, in the mode required by the statute.

In the case at bar the return is clearly anbiguous, and it does not appear thit the ollicer served a summons on each of the defendants, and in the mode prescribed by statute. Hence we think it was clearly competent to show by the recoril, as well as b;' parol evidence, that the summons in fact was not served upon the defendant. We also think that the doctrine herein announced is clearly distinguishable from the rule announced in tbe Kansas case, and similar cases.

We do not wish to be understood as holding in this case that, where the return of an officer shows personal service, which is within the personal knowledge of such oflicer. the return may be impeached or contradicted by parol testimony. Upon this question the American authorities are conflicting, and we think it is unnecessary to decide it at this time. It is sufficient to hold in this case that the return under consideration was open to the construction that but one writ was served on both defendants, and that therefore the service did not (onform to the requirements of the statute. And, since the evidence conclusively established that no service was had on the defendant, we think the court erred in not sustaining the motion to set aside the judgment, so far as it affected the rights of the plaintiff in error. Moreover, we think the well-recognized dortrine that every court has absolute control over its judgments and decrees at the term at which they are rendered, and may therefore at any time before the expiration of such term vacate or modify any judgment or decree rendered during such term, in the exercise of its sound discretion, is applicable to the case under consideration. 17 A. & E. Enc. Law (2d Ed.) p. 813, and numerous cases there cited in the note.

The judgment of the district court is re

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