Opinion of the Court. thereby, or which in the ordinary course of things would likely result therefrom. And in such cases if the cause of action.as set forth is doubtful or ambiguous as to whether the allegations set out present an action in contract or tort, every intendment will be given to construe the cause as in contract and not in tort. See 4 Ency. Pl. & Pr. 754, and Smith v. McCarthy, 39 Kan. 308 [18 Pac. 204]. And in order to determine the question of whether the action sounds in tort or contract, the measure of damages, the demand for judgment, and prayer may be consulted with a view of ascertaining and making the same certain. See 4 Ency. Pl. & Pr. 754, and authorities cited under note 1." With these rules in mind, we therefore observe that the answer in this case sought to recover damages for the violation of a contract, and under the authority of this court in Standard Sewing Machine Co. v. New State Shirt & Overall Co., 42 Okla. 557, 141 Pac. 1111, we do not think there is any doubt but that this claim for dama S was assignable by Davis to the plaintiff in error. See authorities cited in this case at page 557 of 42 Okla., 141 Pac. 1111. Having reached the conclusion that the claim of Davis against the defendant was an assignable claim, and inasmuch as the answer alleges that the same was assigned by Davis to the plaintiff in error before the institution of the suit upon the notes involved in this action, it follows that the answer stated a defense, and that the trial court committed an error in sustaining the demurrer thereto and refusing to permit the plaintiff in error to make his defense. It is therefore recommended that this cause be reversed and remanded for a new trial. By the Court: It is so ordered. Scanland et al. v. Board of Com'rs of Ottawa County et al. SCANLAND et al. v. BOARD OF COM'RS OF OTTAWA 1. 2. COUNTY et al. No. 5809. Opinion Filed February 29, 1916. (155 Pac. 898.) JUDGMENT-Vacation-Power of Court. Courts of general jurisdiction have inherent power to set aside a judgment and grant a new trial on account of prejudicial error at the same term of court at which said judgment is rendered. TAXATION-Property Exempt-Allotted Lands-Effect of Alienation. Allotted lands of the United Peoria and Miami Tribes of Indians, upon alienation, pursuant to Acts of Congress of June 7, 1897, and May 31, 1900, cease to be exempt from taxation. (Syllabus by Rummons, C.) Error from District Court, Ottawa County; Preston S. Davis, Judge. Action by W. B. Scanland and others against the Board of County Commissioners of the County of Ottawa and others. Judgment for defendants, and plaintiffs bring error. Affirmed. S. C. Fullerton and A. Scott Thompson, for plaintiffs in error. Ray McNaughton, Co. Atty. (F. D. Adams, of counsel), for defendants in error. Opinion by RUMMONS, C. This action arises out of an attempt by the authorities of Ottawa county to levy taxes upon certain lands of the plaintiffs in error, hereinafter styled the plaintiffs, which they had acquired by purchase from allottees and the heirs of allottees of the United Peoria and Miami Tribes of Indians. In the court below the defendants in error, hereinafter styled the defendants, demurred to the petition of plaintiffs, which Opinion of the Court. demurrer was overruled. The defendants declined to plead further, and the court granted a permanent injunction restraining the collection of the taxes complained of. Defendants filed a motion for a new trial, which motion. was overruled, to which ruling they excepted. Thereafter, at the same term of court, defendants moved the court to vacate the judgment theretofore rendered in this cause, which motion was sustained by the court, and the decree granting a permanent injunction was "set aside for mistake of law of the court," and the defendants were given five days to answer, and the plaintiffs five days thereafter to plead, and a temporary restraining order granted to the plaintiffs. Thereafter defendants answered, plaintiffs replied to the answer, and the cause was tried to the court upon the following statement of facts: "It is hereby agreed by the parties to this suit that all of the facts are as follows: "(1) That the allegation of facts set forth in petition of plaintiff are true; it not being agreed that conclusions of law therein set forth are correct. "(2) That the plaintiffs have paid the taxes levied. against their lands as set forth in Schedule A, attached to the answer of the defendants filed herein, but that the said plaintiffs nor either of them ever knowingly or intentionally waived any of the rights, privileges, benefits, or exemptions appurtenant to the lands owned by them respectively. "(3) That the plaintiffs, all of them, except the folnowing named persons, to wit: Charley Stoner, S. C. Fullerton, D. H. Wilson, William Story, R. F. Wessell, J. W. Powers, W. L. McWilliams, Mrs. E. Gramley, Henry Vogler, T. J. Cardin, L. L. McManaman, D. H. Wilson, E. A. Trigg, as to the W. 1/2 of S. E. 14 and N. E. 14 of S. E. 14 and S. W. 14 of N. E. 14, Sec. 21, and N. 11⁄2 of S. W. 14, Sec. 22, all in Twp. 28 N., range 23, listed the lands Scanland et al. v. Board of Com'rs of Ottawa County et al. owned by them respectively for taxation for the year 1911, but that those plaintiffs whose names are above set forth did not list their lands for taxation for said year of 1911, except as above set forth. "(4) That the present owners, being the plaintiffs above, and all former owners since the title to the lands described in plaintiffs' petition has been passed from the original allottee, have neglected to assert, prior to the year 1912, their claim to an exemption from taxation; that the said plaintiffs were not advised of their right to claim an exemption from taxation on the lands described in plaintiff's petition prior to 1912. "That the above and foregoing constitutes all of the facts in the above-entitled action." The court rendered judgment for defendants, and plaintiffs appeal. The first contention of plaintiffs is that the court erred in sustaining the motion of defendants to vacate the judgment theretofore rendered in this cause, for the reason that there were no grounds assigned in the motion to vacate the judgment upon which to base such action. We do not think there is any merit in this contention. It has been settled by this court that the inherent power rests in courts of general jurisdiction upon their own motion to set aside a judgment and grant a new trial on account of prejudicial error at the same term of court at which such judgment is rendered. Todd v. Orr, 44 Okla. 459, 145 Pac. 393. The principal contention of plaintiffs is that the lands in controversy were exempt from taxation until the year 1915. The plaintiffs in this action sought to enjoin the collection of taxes levied for the year 1912 upon said lands, and the further levy and assessment of taxes thereon until Opinion of the Court. the year 1915 by virtue of the provisions of the act of Congress approved March 2, 1889 (25 Stats. 1013, c. 422), allotting these lands to the members of the United Peoria and Miami Tribes of Indians. After the passage of such act of Congress, by virtue of which each member of said tribes received an allotment of 200 acres, the adult allottees, who had each received allotments of 200 acres or more, were authorized to sell 100 acres thereof under such rules and regulations as the Secretary of the Interior might prescribe. Act Cong. June 7, 1897, c. 3, 30 Stats. 62. By Act Cong. May 31, 1900, c. 598, 31 Stats. 221, the heirs of allottees of the members of said tribes who were authorized by the act of 1897 to sell a portion of their lands were empowered, subject to the approval of the Secretary of the Interior, to sell their inherited lands. The plaintiffs claim title to the lands involved herein by virtue of the provisions of the acts of Congress of 1897 and 1900, above cited, having purchased them from the allottees or from the heirs of deceased allottees with the approval of the Secretary of the Interior, upon application of such allottees and heirs, pursuant to the authority granted by said acts. The act of March 2, 1889, provided: "The land so allotted shall not be subject to alienation for twenty-five years from the date of the issuance of patent therefor, and said lands so allotted and patented shall be exempt from levy, sale, taxation, or forfeiture for a like period of years." (25 Stat. 1014.) Under this provision the plaintiffs claim that their lands are exempt from taxation until the expiration of the 25-year period. The defendants contended that, inasmuch as the plaintiffs had for a period of four years prior to the commence |