With "a firm cable" (Goodrum v. Buffalo, 162 Fed. 817, 89 C. C. A. 525) at all times attached to this allotment in severalty to its ward, Jimmie Bighead, in order to hold it to the exclusive use and enjoyment of him and his lawful heirs, the federal government, in the act of Congress of March 1, 1901, supra, placed this provision, which is the last clause of section 7 thereof:

"The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children born to him after the ratification of this agreement, but if he have no such issue, then he may dispose of his homestead by will, free from limitation herein imposed, and if this be not done, the land shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, free from such limitation."

And in the act of June 30, 1902, supra, placed this provision, which is sec. 6 of said act:

"The provisions of the act of Congress approved March 1, 1901 (31 Stat. L. 861), in so far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed and the descent and distribution of land and money provided for by said act shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas now in force in Indian Territory: Provided, that only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation: And provided further, that if there be no person of Creek citizenship to take the descent and distribution of said estate, then the inheritance shall go to non citizen heirs in the order named in said chapter 49."

Alive at all times to the keenest appreciation of the true condition of these unlearned, unlettered, and inexperienced children of destiny, who live close to nature and closer still to nature's God, and fully apprised of their simple lives and primitive customs, and for their welfare and protection from the avaricious greed of their pale-faced neighbors, the greatest and best government in the universe threw the following mantle of protection around the full-blood Indian heirs of a deceased Indian allottee by means of the provisions of sec. 22 of the act of Congress of April 26, 1906 (34 Stat. 137):

"That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States

court for the Indian Territory. And in case of the organization of a state or territory, then by a proper court of the county in which said minor or minors may reside or in which said real estate is situated, upon an order of such court made upon petition filed by guardian. All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe."

And it continued said protection under sec. 9 of the act of Congress of May 27, 1908, supra, which is as follows:

"That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: Provided further, that if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issues, during their life or lives, until April twenty-sixth, nineteen hundred and thirtyone; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event the issue hereinbefore provided for die before April twenty-sixth, nineteen hundred and thirtyone, the land shall then descend to the heirs. according to the laws of descent and distri bution of the state of Oklahoma, free from all restrictions: Provided further, that the provisions of section twenty-three of the act of April twenty-sixth, nineteen hundred and six, as amended by this act, are hereby made applicable to all wills executed under this section."

These two sections of these acts supra have been construed in the following cases: Western Investment Co. v. Marchie Tiger, 21 Okla. 630, 96 Pac. 602; Id., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738; Harris v. Gale (C. C.) 188 Fed. 712; U. S. v. Shock (C. C.) 187 Fed. 862; Id., 187 Fed. 870; Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615; Id. (C. C.) 162 Fed. 331; Id., 225 U. S. 561, 32 Sup. Ct. 704, 56 L. Ed. 1205; U. S. v. Knight, 206 Fed. 145, 124 C. C. A. 211; Sanders v. Sanders, 28 Okla. 59, 117 Pac. 338; McHarry v. Eatman, 29 Okla. 46, 116 Pac. 935; Wilson v. Morton, 29 Okla. 745, 119 Pac. 213; Skelton v. Dill, 30 Okla. 278, 119 Pac. 267; In re Davis' Estate, 32 Okla. 209, 122 Pac. 547; Parkinson v. Skelton, 33 Okla. 813, 128 Pac. 131; Heckman v.

supported by the record, is conclusive on this appeal.

(Syllabus by Galbraith, C.)

Error from County Court, Pittsburg County; P. B. Hammond, Judge.

Action by W. H. Savage, M. T. Savage, and T. H. Savage, copartners doing business as W. H. Savage and Sons, against the Tollison Coal Company, begun in justice court and appealed to the county court. A. C. Brown and another, sureties on defendant's appeal bond, moved to modify the judgment against defendant, and, their motion being denied. bring error. Affirmed.

Kent V. Gay and Robert N. McMillen, for plaintiffs in error.

Wilkinson & Scott, for defendant in error.

Opinion by GALBRAITH, C. W. H. Savage & Sons, a copartnership, sued the Tollison Coal Company before a justice of the peace in an action for debt, charging in its bill of particulars:

"That the Tollison Coal Company is justly indebted to the said W. H. Savage & Sons, in the sum of $97.85; no part of the same has ever been paid, also one note for $100 made payable to Guy Shevill."

Statutory grounds for attachment were also alleged, and the prayer was for judgment for $197.85, interest, and costs of suit. An attachment was issued and levied upon 60 tons of coal as the property of the defendant. At the trial the justice rendered judgment against the coal company for $97.85 and sustained the attachment. The same day this judgment was entered, the Tollison Coal Company, as principal, and A. C. Brown and M. Wallace, as sureties, executed an appeal bond and caused the same to be approved and filed by the justice of the peace transferring said cause to the county court for trial de novo. In the county court Brown filed a petition for intervention, claim. ing the ownership of the coal seized under the order of attachment. He was allowed to intervene in the cause. Plaintiff then filed an amended bill of particulars in two counts, in one of which it set out its claim on the open account, and in the other its claim on the promissory note. At the trial in the county court the Tollison Coal Company made default. There was an appearance by the plaintiffs and intervenor Brown. Α jury was waived and trial had to the court. The plaintiffs offered their evidence, "the defendant and intervenor offering none." The court found that the Tollison Coal Company was indebted to the plaintiff in the sum

of $197.85, and that the attachment should not be sustained for the reason that the coal seized under the order of attachment belonged to the intervenor Brown and judgment was entered accordingly. Afterward an execution was issued on the judgment against the coal company and returned nulla bona. More than a year after the rendition of this judgment and after an action had been commenced to recover on the appeal bond against Brown and Wallace, the sure ties thereon, Brown and Wallace filed a motion in the county court "to modify" the judg ment rendered therein as above set out against the Tollison Coal Company, on the ground that said court never obtained jurisdiction of said cause on appeal, for the reason that the judgment rendered by the justice of the peace was upon confession and I could not be appealed from. The county court, after hearing testimony, denied this motion. From the order denying a new trial therein, this appeal was prosecuted.

We are not strongly impressed with the justice of the contention of the movants. It will be observed that they, as sureties on the appeal bond, were active participants in transferring the original action from the justice of the peace court to the county court. and that Brown there received a substantial benefit from the exercise of that jurisdiction, inasmuch as the judgment in the county court released to him the 60 tons of coal that had been seized under the attachment sus tained by the judgment of the justice of the peace. He willingly accepted the advantages accruing to him from the judgment of the county court, and, while retaining this advantage, seeks to be relieved from its disad vantages, the obligation of his bond, by asking the court to modify a judgment against the Tollison Coal Company and in his favor. The judgment defendant in that cause is not complaining of the judgment. The order of the county court denying the motion to modify its judgment was based upon a gener finding, and as such comprehends the specific findings necessary to sustain it. including, as we take it, that the judgment of the justice of the peace was not a judgment "on confession" so as to bar an appeal therefrom, under the act of April 24, 1913 (Sess. Laws 1913, ch. 135, p. 292).

After a review of the record, we are not prepared to say that the finding of the county court ought to be set aside. Assum ing, under such finding, that the judgment in the justice court was not one "on confession." the movants were entitled to no relief.

The judgment should be affirmed.

The former opinion filed herein is withdrawn.

By the Court: It is so ordered.

BENNETT v. MOORE.

No. 8239-Opinion Filed Jan. 9, 1917.
(162 Pac. 707.)

1. Jury-Jury Trial-Right to.

Issues of fact arising in an action for the recovery of money only must be tried to a jury, unless a jury trial is waived or a reference ordered as provided by statute. 2. Appeal and Error-Petition in ErrorAssignments of Error.

To be availing the petition in error should, in an orderly and specific manner, clearly point out the error or errors complained of and sought to be reviewed, and errors occur ring during the trial cannot be considered by the Supreme Court unless the ruling of the trial court on the motion for a new trial is assigned as error in the petition in error. 3. Appeal and Error-Case-Made-Extension of Time.

The recital in a case-made, duly certified to by the judge, that an order was made extending the time in which to prepare and serve a case, where the substance of the order is contained in the case-made, is sufficient, and motion to dismiss because it does not affirmatively appear in the case-made that such order of extension has been recorded upon the journal will be overruled.

(Syllabus by Davis, C.)

Error from County Court, Osage County: Elmer J. Black, Judge.

Action by M. L. Moore against William U. Bennett. There was a judgment for plaintiff, and defendant brings error. Dismissed.

Leahy & McDonald, for plaintiff in error. A. M. Widdows, for defendant in error. Opinion by DAVIS, C. Herein the parties will be spoken of as they stood in the court below. Plaintiff, Moore, sued defendant, Bennett, for $500 for grazing, herding, and feeding certain domestic animats belonging to defendant under employment by defendant so to do. Said domestic animals consisted of hogs, horses, mules, cattle, etc., and said services were performed by plaintiff for defendant under contract from November 20, 1914, to September 30, 1915. Plaintiff demanded said recompense for his said services, but defendant failed, neglected, and refused to pay the same. Plaintiff claimed and asked for

a lien on 62 head of hogs, 200 head of cattle, 12 head of horses, six cows, and mules, under our statutes in such cases made and provided. The defendant's answer was a general denial simon pure and nothing more. The day of trial finally came, as sometimes happens under the Code of Civil Procedure of this state. Defendant strenuously objected to the cause being tried to a jury, and when his objection was duly overruled by the court, which not infrequently occurs, and this notwithstanding the defendant's insistence that this case was a proceeding in equity, and that there was no cause for a jury, and that a jury was improper in said cause, saved his exception upon the record to the court's action. The record contains no waiver of a jury trial on the part of the plaintiff. Unless a jury was duly waived by both parties in this cause. it was properly a jury case under our statutes. Avery et al. v. Hays, 62 Okla. 160 Pac. 712, and cases therein cited.

The plaintiff has filed a motion to dismiss this appeal, the first ground of which is as follows:

"Because the overruling of motion for new trial is not assigned as error in the petition in error, and the only errors complained of are alleged to have occurred during the trial. and are therefore not properly presented, and cannot be reviewed."

The petition in error examined, and this first ground of plaintiff's motion to dismiss found to be only too everlastingly true. Nichols et al. v. Dexter, 52 Okla. 152, 152 Pac. 817, and cases therein cited on this question; Avery v. Hays, 44 Okla. 71, 144 Pac 624; Maddox v. Barrett, 44 Okla. 101, 143 Pac. 673; Nidiffer v. Nidiffer, 44 Okla. 218. 144 Poc. 150: Beugler v. Polk. 46 Okla 403, 148 Pac. 990.

The motion for a new trial was overruled, and exceptions saved by defendant on October 29, 1915, and the petition in error with case-made attached was filed in this court on April 25, 1916. The time for perfecting the appeal in this cause in this court, under our statutes, is now long since a mellow memory of the languid long ago, and therefore it is too late now to amend said petition in error in this regard.

The second ground of plaintiff's motion to dismiss reads as follows:

"Because it does not affirmatively appear from the case-made that the judgment or the journal entry overruling motion for new trial and extending time to make and serve casemade were entered of record as required by statute."

This erstwhile deadly doctrine has been fully and finally exploded by this court, speaking through Mr. Justice Hardy, in the case of St. Louis & S. F. R. Co. v. Taliaferro, 58 Okla. 585, 160 Pac. 610. Were it not for this opinion this second ground of said motion to dismiss would also be well taken.

For the reasons herein set forth, the plaintiff's motion to dismiss the defendant's appeal in this cause on the first ground thereof is sustained, and said appeal is accordingly dismissed.

By the Court: It is so ordered.

WESTERN UNION TELEGRAPH CO. v.
KAUFMAN et al.

No. 7020-Opinion Filed Jan. 9, 1917.
(162 Pac. 707.)

1. Commerce-Power to Regulate-Exclusive or Concurrent Powers.

Same as in Western Union Telegraph Company v. Bank of Spencer, 53 Okla. 398, 156 Pac. 1175.

2. Commerce-Telegraphs and Telephones— Exclusive Power of Congress-Limitation of Liability-Validity.

Same as in Western Union Telegraph Company v. Bank of Spencer, 53 Okla. 398, 156 Pac. 1175.

A telegraph company in the transmission of a message from one point in the state to another point in the state where the usual, customary, and necessary route for the transmission thereof is over the company's line, a part of which is located outside of the state, is engaged in an act of interstate commerce, and the same is subject to and controlled by the federal law applicable thereto (Syllabus by Hooker, C.)

Error from District Court, Caddo County; Will Linn, Judge.

Action by M. Kaufman and others against the Western Union Telegraph Company. There was a judgment for plaintiffs, and defendant brings error. Reversed and remanded.

Keaton, Wells & Johnston, for plaintiff in

error.

Opinion by HOOKER, C. The plaintiffs below sued the company for damages alleged to have accrued to them for nondelivery of a telegram sent from Apa he, Okla, to Henry

etta, Okla., by them to Reynolds Bros., on June 3, 1916. The answer of the company alleged it was engaged in interstate commerce, and that the message in question was an interstate message, in that to transmit the same from Apache to Henryetta it was necessary to and this message was transmitted from Apache, Okla., over the wires of the company to Wichita, Kan., and was forwarded from Wichita to Henryetta, and that such routing of said message was the regular, usual, and customary one used by the company in transmission of a message from Apache to Henryetta, and the company also pleaded as special defenses: (1) the unrepeated clause limiting the recovery of an unrepeated message to the cost or value paid; (2) the agreed valuation clause limiting the same to $50; (3) the 60-day clause providing that written notice of a claim must be filed with the company within 60 days. And it was alleged in the said answer that these conditions were not complied with. A demurrer to said special defenses was filed by defendants in error and sustained by the court. Was the court right?

This court, in Western Union Telegraph Company v. Spencer, 53 Okla. 398, 156 Pac. 1175, said:

"(1) Act Cong. June 18, 1910, ch. 309, 36 Stat. 539, amending the act to regulate commerce (Act Feb. 4, 1887, ch. 104, 24 Stat. 379), which placed telegraph companies, with respect to interstate business, in the same class as other common carriers and made such companies liable under the federal law for any dereliction of duty, supersedes all state laws on the subject.

"(2) A stipulation, on the back of a regular printed form upon which messages are written that a telegraph company will not be liable for mistakes or delays in the transmission or delivery of an unrepeated message beyond the amount received for sending the same, and a further stipulation that the company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing in 90 days after the message is filed with the company, are as applied to interstate messages valid and binding upon the sendee of such message, and are not affected by section 9, art. Const."

This rule was later followed by this court in Western Union v. Orr et al., 60 Okla. 39, 158 Pac. 1139. The pleadings here show that the message was written on the regular form with the stipulations given above printed on the back thereof, and if the message was an interstate one, then under rule announced in this Spencer Case, supra, the answer stated a defense, and it was error to sustain a demurrer thereto. Was this an interstate message?