APPEAL AND ERROR-Continued.

RECORD AND MATTERS NOT OF RECORD:

9. Tender of Evidence.

On exclusion of testimony for plaintiff, the refusal to permit plaintiff to have incorporated into the record a formal tender or offer of the evidence which his witness would furnish is error.-Talliaferro v. Atchison, T. & S. F. R. Co., 27.

10. Record Contents-Order of Court.

A certified copy of order of court referred to in answer as being attached, but not in fact attached, and not filed in trial court, but filed with clerk of Supreme Court and attached to transcript of record after more than a year, is not a part of the transcript.— Robert v. Mullen, 40.

11. Case-Made-Petition in Error-Conflict.

Where the statutes require that the casemade shall be attached to and filed with the petition in error, such case-made is a necessary exhibit to the petition in error, and will control the allegations of the petition in error, where it incorrectly describes the casemade or the proceedings set forth therein.Champion v. Oklahoma City Land & Development Co., 133.

12. Motions-Orders-Entry in Journal

Necessity.

The requirements of section 5317, Revised Laws of 1910, as to entering all orders upon the journal of the court is directory, and it is not essential to the validity of such orders that the same be so entered, and that the case-made show affirmatively such recording. -Mutual Life Ins. Co. of N. Y. v. Buford, 158.

13. Same-Record-Defects-Effect.

That the case-made does not affirmatively show that orders extending time to prepare and present case-made are entered upon the journal of the court, is not sufficient ground for dismissal of appeal.-Idem, 158. 14. Same-Record-Sufficiency.

A recital in the case-made of due extension of time and of the filing of such orders, together with the orders themselves, signed and filed, although one of such orders does not show the date of filing, is a substantial compliance with the law.-Champion v. Oklahoma City Land & Development Co., 133. 15. Case-Made-Time for Serving-Order of Extension.

An order, extending the time for service of case-made, made under the provisions of sec. 5246, Rev. Laws 1910, which is regular on its face and which contains a recital, "And it appearing that notice of this application has been duly given, and it appearing that, on account of accident and misfortune which could not reasonably have been avoided by the above named defendants, the said defendants have not been able to serve casemade upon the plaintiff within the time heretofore fixed by a previous order allow

APPEAL AND ERROR-Continued.

ing time," will be reviewed on motion to dismiss.--O'Neil Engineering Co. v. City of Lehigh, 57.

16. Case-Made-Settlement-Time.

In the absence of a waiver by the defendants in error, a case-made signed and settled by the trial court before the expiration of the time granted for suggestion of amendments is a nullity.-Hubbard v. Meek, 60. 17. Same.

Where no notice of the time of settlement of a case-made is given or waived, and there is no appearance of the opposite party either in person or by counsel, a case-made so settled is a nullity, and no jurisdiction is vested in the Supreme Court to decide any question arising thereon.-Idem, 60.

18. Case-Made-Authentication.

Where a case-made is signed by the trial judge, but is not attested by the signature of the clerk and the seal of the court, it is not sufficiently authenticated, as required by the statute, to constitute a valid casemade, and the judgment of the trial court cannot be reviewed.-Berryhill v. Miller, 36. 19. Defects in Case-Made—Amendment.

An appeal will not be dismissed by the Supreme Court upon motion of defendant in error for fatal defects in the case-made, when there is a motion timely filed by plaintiff in error to be permitted to withdraw such case-made for correction, supported by certificate of the clerk of the trial court showing that the defects existing in the casemade may be removed by amendment, when it appears from the record that such matters are amendable under sec. 5243, Rev. Laws 1910. O'Neil Engineering Co. v. City of Lehigh, 57.

20. Same.

The Supreme Court is without authority to amend a case-made, but will, upon motion, permit same to be withdrawn for the purpose of proper amendment under supervision of the judge of the trial court.-Idem, 57.

ASSIGNMENT OF ERRORS:

21. Necessity for Assignments of ErrorRulings on Motion for New Trial.

Errors occurring during the trial cannot be considered by the Supreme Court, unless the ruling of the trial court upon the motion for new trial is assigned for error in the Supreme Court.-Witherspoon v. Smith, 26. 22. Assignments of Error-Amendment.

After the expiration of the statutory time allowed for filing petition in error, it cannot be amended by setting up new and distinct assignments of error, and where permission to amend has been given and a new assignment is set out in the amended petition in error, such assignment will be considered as having been inadvertently made, and will not be considered by the court.-Brown v. Anderson, 136.

APPEAL AND ERROR-Continue 1.

BRIEFS:

23. Failure to File Brief-Dismissal.

Where an appeal was filed May 11, 1915, and dismissed April 16, 1916, but reinstated April 27, 1916, and set for oral argument September 7, 1916, and continued by agreement till October 2, 1916, and counsel do not appear and no briefs have been filed, the appeal will be dismissed.-Hagel v. Griffin, 254.

24. Failure to File Brief-Reversal.

Where the brief of the plaintiff in error, served and filed conformably to the rules of the Supreme Court, appears reasonably to sustain the assignments of error, and the defendant in error has not filed a brief or offered excuse for failure so to do, it is not the duty of the court to search the record in order to find some theory upon which the record may be sustained, but such judgment may be reversed in accordance with the prayer of the petition in error.-Braden v. Panther Creek Oil Co., 61; Missouri, K. & T. R. Co. v. Blue, 125; Champion v. Oklahoma City Land & Development Co., 135.

25. Contents of Brief-Substance of Evidence.

The Supreme Court will not review admission or rejection of testimony not set out in substance in the brief, where no specific ob jections thereto are stated.-Farmers' Product & Supply Co. v. Bond, 244.

REVIEW:

26. Granting New Trial-Showing for Reversal.

As the granting of a new trial places the parties in position to have the issues again submitted to the jury, a showing for reversal must be much stronger than where it is denied.-Missouri, K. & T. R. Co. v. James 1.

27. Scope and Extent of Review-Jurisdiction of Trial Court.

The jurisdiction of the court from which an appeal comes to the Supreme Court is afundamental question in every case, and if such court had no jurisdiction, the parties cannot waive its want of jurisdiction, and the Supreme Court should not overlook the want of jurisdiction of the trial court, even though the parties have not seen fit to challenge the jurisdiction of the trial court in some proper manner.-First Nat. Bank of Poteau v. School Dist. No. 49, Hughes County, 45.

28. Same-Ground of Decision.

An order of court, setting aside an order granting a new trial and directing judgment to be entered upon the verdict, upon the grounds that the court was without jurisdiction at the term at which the new trial was granted to set its previous order aside rendered at the same term, overruling the motion for a new trial, was prejudicial error.—St. Louis, I. M. & S. R. Co. v. Lowrey, 126.

APPEAL AND ERROR-Continued.

29. Scope of Review-Instructions-Equity. In cases of purely equitable cognizance, where court adopts verdict, instructions will not be reviewed.-Smith v. Aldridge, 274. 30. Questions of Fact-Verdict.

A verdict sustained by the evidence, approved by the trial court, will not be disturbed.--Thompson v. Vaught, 195. 31. Same.

Where the evidence reasonably tends to support a verdict, the judgment will not be reversed.-Berryhill v. Thrailkill, 235. 32. Same.

Where there is evidence or inferences therefrom tending to support the findings, the verdict will not be disturbed.-Midland Valley R. Co. v. Rippe, 314.

33. Same.

Where there was evidence reasonably tending to support verdict, Supreme Court will not set aside on the weight of the evidence.First Nat. Bank v. Lewis, 247.

34. Same-Excessiveness of Verdict.

A verdict in tort will not be set aside as excessive, unless it clearly appears that the jury committed some gross error, or acted under some improper bias, or totally mistook the rules of law.-Bellevue Gas & Oil Co. v. Carr, 290.

35. Questions of Fact-Equity Case.

Where judgment adopting verdict in case of purely equitable cognizance is sustained by the evidence, it will be approved.-Smith v Aldridge, 274.

36. Questions of Fact-Trial to Court.

Where a cause is tried to the court and there is a conflict in the evidence, the Supreme Court will not determine the credibility of witnesses nor weigh the evidence.— Falls City Clothing Co. v. Sweazea, 154. 37. Same.

Where there is any evidence reasonably tending to sustain the judgment on a trial to the court, it will not be disturbed on appeal. -Idem, 154.

38. Same-Findings-Conclusiveness.

Where a jury is waived and a cause tried to the court, a general finding is given the same weight as a verdict.--Idem, 154.

39. Presumptions-Ground of Decision.

When the court in granting an order specifies fully and in detail the reasons for granting the same, it will be presumed that the ground thus stated is the only one upon which the court acts.-St. Louis, I. M. & S. R. Co. v. Lowrey, 126.

40. Discretionary Rulings-Opinion Evidence -Qualification.

The question of opinion evidence is addressed very largely to the sound discretion of the trial court, and its ruling that the witness is sufficiently qualified will not ordi

APPEAL AND ERROR-Continued.

narily be disturbed unless it clearly appears that this discretion has been abused.—Incorporated Town of Sallisaw v. Priest, 9.

41. Same-Refusal of New Trial.

The judgment of the trial court denying a motion for a new trial will not be disturbed, unless it clearly appears that the trial court abused its discretion.-Sinopoulo Oil Co. v. Bell, 93.

42. Same-Granting New Trial.

In view of the discretionary nature of the granting of a new trial, an order granting new trial will not be disturbed unless it is obvious that the trial court erred on some point of law, and that such was the reason for the granting of a new trial.-Missouri, K. & T. R. Co. v. James, 1.

43. Harmless Error-Rulings on Evidence.

Error in the exclusion of testimony is harmless where the witness has already testified to the same facts.-Farmers' Product & Supply Co. v. Bond, 244.

In an action for personal injuries, where there is no assignment of error that the verdict is excessive, an erroneous instruction in relation to the measure of damage is harmless.-St. Louis & S. F. R. Co. v. Walker, 37. 47. Same.

Instructions and refusal of instructions on plaintiff's damages are immaterial, where he does not prevail. Farmers' Product & Supply Co. v. Bond, 244.

48. Burden to Show Prejudicial Error-Instructions.

It must clearly appear that instructions probably caused miscarriage of justice before reversal will be ordered. Thompson v. Vaught, 195.

49. Prejudicial Error-Instructions.

It is prejudicial error to give conflicting instructions leaving the jury to decide confliciing principles of law.-Petroleum Iron Works Co. v. Bullington, 311.

50. Same-Refusal to Submit Issue.

Refusal to submit the theory of contributory negligence supported by the evidence in a passenger's action for injuries held ground for reversal.-Atchison, T. & S. F. R. Co. v. Jamison, 305.

APPEAL AND ERROR-Continued.

51. Questions Presented for Review-Evidence.

Unless party complaining of exclusion of testimony incorporates into record a showing of what the testimony would be, its admissibility will not be reviewed.-Farmers' Product & Supply Co. v. Bond, 244.

LIABILITIES ON BONDS:

52. Supersedeas Bond-Acerual of Cause of Action.

A cause of action upon a bond given to supersede an order directing the delivery of personal property to a receiver, upon appeal to the Supreme Court, arises upon the affirmance of such order, and it is not necessary for the receiver to await the termination of the main cause before beginning action upon said bond.-English v. Severns, 184.

General appearance by giving bond to discharge garnishment converts action from one in rem to one in personam.-Idem, 250. ARGUMENT-See "Contempt."

ASSESSMENTS-See "Taxation."

ASSIGNMENT OF ERRORS-See "Appeal and Error," 3, 21, 22.

ASSIGNMENTS-See "Brokers": "Fraud," 4; "Indians," 6.

Equitable Assignment-What Constitutes.

An order or request in writing upon a third person to deliver to the maker thereof for his indorsement certain checks thereafter to be drawn against an accruing fund of the maker in the hands of another, such checks, after receiving such indorsement, to be delivered by another third person to the beneficiary of such order or request, does not operate as an equitable assignment of the fund against which such checks are to be drawn; the maker of the order or request not having relinquished full control over such fund.—Day v. Charlton, 130.

ASSUMPTION OF RISK-See "Master and Servant."

ATTACHMENT-See "Exemptions"; "Judgment." 10; "Landlord and Tenant."

1. Jurisdiction-Process-Service.

In attachment the court does not acquire

ATTACHMENT-Continued.

jurisdiction to pass absolutely on rights of parties until defendant has been given legal notice, either actual or constructive, to appear and defend.-Davies v. Thompson, 21.

2. Wrongful Levy-Petition-Essential Averments.

In a petition for wrongful attachment, it is not necessary to aver want of probable cause or a determination of the action in which the attachment was issued.-Reliable Mut. Hail Ins. Co. v. Rogers, 226.

3. Same-Actual Damages-Proof.

Actual damages only for wrongful attachment may be recovered against the attachment plaintiff independent of the undertaking required by Rev. Laws 1910, sec. 4814, without allegation or proof of malice or want of probable cause.-Idem, 226.

4. Same-Exemplary Damages.

If exemplary or punitive damages are sought for wrongful attachment, both malice and want of probable cause must be alleged and proved.-Idem, 226.

ATTORNEY AND CLIENT-See "Guardian and Ward."

1. Liability for Acts-Good Faith.

Attorneys at law are not liable if their acts are in good faith and pertinent to the matter in question.-Waugh v. Dibbens, 221.

2. Action for Compensation-New Party.

Under Rev. Laws 1910, sec. 4696, where a firm of two attorneys bring action on an oral contract for services, refusal to bring in as a party another attorney who was in partnership with plaintiffs in another firm was not error.-Grisso v. Crump, 83.

AUDITS-See "Counties."

AUTOMOBILES-See

"Intoxicating Liq

uors"; "Negligence," 5, 6.

BAILMENTS:

1. Bailee for Hire-Duty of Care.

Under Rev. Laws 1910, sec. 1109, a bailee for hire must use at least ordinary care for the preservation of the article bailed.-Kesterson & Telle v. Marlow, 255.

2. Same-Renting Piano.

Where the owner of a moving picture show engaged the owner of a piano to play it, paying rent for the use of the piano, he is a bailee for hire of the piano and bound to exercise ordinary care for its preservation, though the piano owner received a salary for playing.-Idem, 255.

BANKRUPTCY-See "Corporations." BANKS AND BANKING-See "Courts"; "Estoppel"; "Taxation."

1. National Banks-Powers and Liabilities -Defense of Ultra Vires-ContractsTorts.

A plea of ultra vires is available to a national bank in a suit upon, or for the enforce

BANKS AND BANKING-Continued. ment of, a contract beyond the powers of such bank, under the National Banking Act (Act Cong. June 3, 1864, c. 106, 13 Stat. 99), but if the bank has received the money or property of the plaintiff under an ultra vires contract, not malum in se, and refuses to return the same, he may maintain an action for the recovery of so much of such money or property by which the bank has actually benefited, but in an action of tort, even though an ultra vires contract was an incident leading up to the tort, the plea of ultra vires is not available to such bank.-Gilbert v. Citizens' Nat. Bank of Chickasha, 112.

2. National Banks Suit for Recovery of Usury Paid-Pleading.

Petition against national bank for penalty for usury under Rev. St. U. S. sec. 5198 (U. S. Comp. St. 1913, sec. 9759), when not alleging that the receiving of the usury was knowingly done, is subject to general demurrer.— Temple Nat. Bank v. Johnson, 310. 3. Same-Demand.

An action against a national bank to recover double the amount of usurious interest paid is governed by sec. 5198, Rev. St. U. S. (U. S. Comp. St. 1913, sec. 9759), and not by sec. 1005, Rev. Laws Okla. 1910, and in such action it is not necessary to allege and prove a demand for the return of the usury claimed.-Commercial Nat. Bank of Checotah v. Phillips, 179.

4. Same-Action for Usury-Direction of Verdict.

Where, in an action against a national bank to secure penalty for usury, the facts are undisputed and show a simple loan of money, upon which a sum is collected as interest in amount greatly in excess of that allowed by law, there being no other contracts or transactions involved, and the whole matter being carried on by one of the officers of the defendant bank, the trial court is justified in assuming that the collecting of such usurious interest was knowingly done, and in peremptory charging the jury to return a verdict for the plaintiff.-Idem, 179.

BAR-See "Judgment," 9.

BILLS AND NOTES-See "Alteration of Instruments"; "Contracts," 2; "Estoppel"; "Guardian and Ward," 1; "Principal and Agent"; "Usury."

1. Maturity-Extension.

Where a creditor, without inadvertence or mistake, receives a payment of interest in advance on the note of a debtor, and does not expressly reserve the right to sue before the expiration of the period for which interest is taken, there is a contract created to extend the time of payment during the period for which the interest is paid.-Ardmore State Bank v. Lee, 169.

BILLS AND NOTES-Continued. terial alteration of note by payee, without consent of maker, avoided it against the maker even in the hands of a holder in due course.-Wayne County Nat. Bank v. Kneeland, 265.

3. Actions-Evidence-Answer.

In an action by S. upon an unindorsed note made payable to C., where the answer of the defendants alleges that the note was executed in consideration of a contract for the conveyance of lands by S. to defendants, and that the payee, C., acted as the agent of S. in the transaction, such answer admits the ownership of the note in S., and S. may maintain the action in his own name, and no proof that he is the owner and holder of the note is required, even though such ownership be denied in the answer.-Choate v. Stander, 148.

BILLS OF LADING-See "Carriers," 6, 7. BONA FIDE PURCHASERS-See "Bills and Notes."

PONDS See "Appeal and Error." 52; "Appearance"; "Guardian and Ward"; "Municipal Corporations."

BREACH OF CONTRACTS-See "Contracts."

BREACH OF WARRANTY-See "Insurance," 6-9.

BRIDGES:

Defects - Injuries — Liability of County Com❜rs.

County commissioners are personally liable for injuries from their negligent failure to repair a county bridge when there were sufficient public funds available therefor.-Strong v. Day, 166.

BRIEFS-See "Appeal and Error," 23-25. BROKERS:

1. Compensation—Performance of Contract

-Tender.

In suit for commission for procuring assignments of leases, where client wrongfully refused to accept assignments, broker is not required to prove that proper abstracts showing good title were tendered.-Rawlings v. Ufer, 299.

2. Same-Sufficiency of Evidence.

Evidence in action for commission for procuring assignments of leases held sufficient as against demurrer thereto.--Idem, 299. BURDEN OF PROOF-See "Negligence," 7; "Release."

CANCELLATION OF INSTRUMENTS-See "Insurance," 7, 8; "Pleading," 5. CAPITAL STOCK-See "Taxation." CARRIERS-See "Appeal and Error," 50; "Master and Servant"; "Railroads": "Trial," 8.

1. Carriers of Passengers-Care Required. A carrier of persons for reward must use

One injured while riding as a passenger on platform of caboose of a freight train makes out a prima facie case when he shows injury was caused by an unusually sudden stop which was unnecessary, and surrounding circumstances indicate negligence.-Chicago, R. I. & P. R. Co. v. Grace, 12.

5. Same-Contributory Negligence.

Despite general rules as to contributory negligence and Rev. Laws 1910, sec. 1423, a passenger who believed when a freight train stopped that it had reached its destination and went on caboose platform to alight is not guilty of negligence in remaining thereon when he finds the train has to go a short distance if he holds securely to guard rail.— Idem, 12.

6. Carriage of Goods-Duty of Carrier— "Bill of Lading."

A "bill of lading" is an instrument in writing signed by a carrier or his agent, describing the freight so as to identify it; and it is the duty of a carrier or its agent, issuing a bill of lading, for those products for which it is the general custom for shippers to draw drafts upon the consignee or others with bill of lading attached, to use ordinary care in issuing such bill of lading, in reference to the quantity and description of the product for which such bill of lading is issued. Chicago, R. I. & P. R. Co. v. Cleveland, 64.

7. Same-Misdescription of Cotton Products -Liability for Damages.

A bill of lading, issued by a carrier upon the receipt of 61 bales of "grabbots," describing the same as 61 bales of cotton, without any qualifying or modifying term, is not a correct description of the freight; and, where an innocent person has paid money relying on the representations contained in such bill, and sustains damages thereby, he may re