court, the appeal will be dismissed for want of jurisdiction. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1926, 1927; Dec. Dig. 8 356.*] Error from County Court, Creek County; Warren H. Brown, Judge. Action between Harry Wood and L. W. McEwen. From the judgment, Wood brings error. Dismissed. C. R. Barry, of Ft. Smith, Ark., and J. E. Whitehead, of McAlester, for plaintiff in erгог. Wm. L. Cheatham, of Bristow, for de fendant in error. ed on October 11, 1913. Petition in error and case-made were lodged in this court on the 20th day of July, 1914, more than six months after the date of the final order sought to be reviewed. The record discloses that the original plaintiff, one W. N. Eaton, departed this life on the 15th day of March, 1914, and that the case was revived in the trial court on the 23d day of June, 1914, in the name of Ernest Eaton, administrator, who is made defendant in error in this proceeding. There is nothing in the statutory provisions authorizing the revivor of an action which extends the time within which a proceeding in error must be filed in this court. The statutory period for perfecting an appeal having expired, this court is without jurisdiction to entertain the same. Malloy v. Johnson et al., 40 Okl. 454, 139 Pac. 310, and cases there cited. RIDDLE, J. Judgment denying motion to reinstate this cause was rendered in the trial court on March 31, 1914. The proceedings in error were filed in this court on October 4, 1914. Motion to dismiss has been filed, upon the ground that the proceedings were not commenced in this court within the time This proceeding is therefore dismissed. required by chapter 18, Sess. Laws 1910-11, All the Justices concur. It is so ordered. (44 Okl. 318) When petition in error is not filed in this court for more than six months after the date of the final order sought to be reviewed, this court is without jurisdiction to entertain the appeal. [Ed. Note.-For other cases, see Appeal and CHESTNUTT-GIBBONS GROCER CO. Y. Error, Cent. Dig. §§ 1879-1882, 3057; Dec. Dig. § 338.*] Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by W. M. Eaton against J. B. Caswell and R. W. Talbot. On the death of plaintiff, the action was revived in the name of Ernest Eaton, administrator. Judgment for plaintiff, and defendants bring error. Dismissed. Blakeney & Maxey, of Muskogee, for plaintiffs in error. Brook & Brook, of Muskogee, for defendant in error. CONSUMERS' FRUIT CO. (No. 3937.) (Supreme Court of Oklahoma. Nov. 24, 1914.) (Syllabus by the Court.) TRIAL (§ 170*)-DIRECTING VERDICT. The question presented to a trial court on ting the truth of all the evidence which has been a motion to direct a verdict is whether, admitgiven in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough evidence to reasonably sustain a verdict, should the jury find in accordance therewith. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 390-394; Dec. Dig. § 170.*] Commissioners' Opinion, Division No. 2. Error from District Court, Muskogee County; R. C. Allen, Judge. BLEAKMORE, J. This case presents error from the superior court of Muskogee county, and now comes on to be heard upon motion of defendant in error to dismiss the appeal. Motion for new trial was overrulFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Action by the Consumers' Fruit Company against the Chestnutt-Gibbons Grocer Com pany. Judgment for plaintiff, and defend- | nutt-Gibbons Company, disposed of the car ant brings error. Affirmed. Irwin Donovan, of Muskogee, for plaintiff in error. John H. Mosier and Rush Greenslade, both of Muskogee, for defendant in error. for their account. This suit is for the dif ference between the proceeds of such sale and the original contract price. The motion for an instructed verdict presented to the trial court the question whether or not the evidence offered on behalf of the defendant was sufficient to support a GALBRAITH, C. The one assignment of judgment in its favor, should one be returnerror urged for the reversal of the judgmented for it. The rule announced by the court appealed from in this cause is that the trial in Solts v. Southwestern Cotton Oil Co., 28 court erred in directing the jury to return a Okl. 706, 115 Pac. 776, and quoted with apverdict for the plaintiff. proval in Duncan Cotton Oil Co. v. Cox, 41 Okl. 638, 139 Pac. 272, is as follows: "The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith." The record shows that the Consumers' Fruit Company was a California corporation, with offices at San Francisco, in that state; that it was engaged in the business of the sale and distribution of dried fruits; that the plaintiff in error was a wholesale grocery company, doing business at the city of Muskogee, Okl.; that in the summer of the year 1907 the Chestnutt-Gibbons Grocer Company, acting through a brokerage firm in Kansas City, Mo., executed a number of orders for dried fruit, amounting in the aggregate to a car load; that the brokerage firm ordered the car of dried fruit from the defendant in error to be shipped to the plaintiff in error at Muskogee, Okl.; that, before the car was shipped, the panic of 1907 came on, and the Chestnutt-Gibbons Grocer Company were in financial distress, and were desirous of being released from the contract; that Mr. Gibbons, the secretary-treasurer of this company, went to Kansas City on January 10, 1908, and conferred with the brokerage firm who had placed the order; that an unsuccessful effort was made to have the order canceled, and arrangements were then made with the brokerage firm to take the car and dispose of the fruit and account for the proceeds to the Chestnutt-Gibbons Company, dividing the profit, if any, with the brokerage firm, and the loss, if any, was to be sustained by the Chestnutt-Gibbons Grocer Company. On February 1st, and before the car was shipped from Fresno, Cal., the brokerage firm at Kansas City notified the ChestnuttGibbons Company that they were informed that the car of dried fruit was about to be shipped, and that if they still thought they would be unable to take care of it upon its arrival at Muskogee to advise promptly, and they (the brokers) would wire the shipper to divert the car to them at Kansas City. To this letter the Chestnutt-Gibbons Grocer Company replied that they thought their Mr. Gibbons had settled the matter with the brokerage firm by the arrangements of January 10, 1908, and that they could not use the car, and trusted that the brokerage firm would carry out their agreement about it. On receipt of this letter, the brokerage firm wired the shipper to divert the car to them at Kansas City, and the car was diverted by the railroad company and delivered accordingly. The brokers, as agents for the Chest There is really no conflict in the evidence. The purchase of the car of dried fruit and its delivery are admitted. The evidence clearly shows that the brokers at Kansas City were authorized by the Chestnutt-Gibbons Grocer Company to have the car diverted and delivered to them at Kansas City, and that they were to dispose of it, and the Chestnutt-Gibbons Grocer Company were to be liable for the difference, if any, between the proceeds of such sale and the original contract price. The evidence offered on behalf of the defendant in the trial court was not sufficient to sustain a verdict in its favor. Under this state of the record, it was the duty of the trial court to peremptorily instruct a verdict for the plaintiff. Homeland Realty Co. v. Robison, 39 Okl. 591, 136 Pac. 585; Jones v. First State Bank of Bristow, 39 Okl. 784, 136 Pac. 737; Van ArsdaleOsborne Brokerage Co. v. Wiley, 40 Okl. 651, 140 Pac. 153; Horne v. Oklahoma State Bank, 139 Pac. 992. We recommend that the exception be overruled, and that the judgment appealed from be àffirmed. PER CURIAM. Adopted in whole. (43 Okl. 799] GRAYSON et al. v. DURANT et al. (No. 3328.) (Supreme Court of Oklahoma. Nov. 24, 1914.) (Syllabus by the Court.) 1. INDIANS (§ 13*)-ALLOTMENT-ENROLLMENT RECORDS HEARSAY EVIDENCE. In cases involving the validity of conveyances of lands allotted to members of the Five fect of Act Cong. May 27, 1908. c. 199, 35 Stat. Civilized Tribes, made prior to the taking ef312, where there are living witnesses in court who testify to the age of the allottee, the en rollment records of the Commission to the Five Civilized Tribes as to the age of such allottee are purely hearsay and inadmissible in evidence. [Ed. Note.-For other cases, see Indians. Cent. Dig. § 30; Dec. Dig. § 13.*] A judgment affecting distinct and independent parcels of land, and adjudging the title thereof to be in two different persons wholly disconnected in interest, is divisible; and one of such persons is not a necessary party to an appeal involving only the rights of the other in a particular parcel of such land. NECESSARY | attorney, attempted to convey to W. N. Martin and P. H. Stein certain interests in the allotment of said Israel Grayson; that on the 27th of July, 1908, and the 17th day of August, 1908, said Israel Grayson executed a warranty deed to one Walton C. Frank, attempting to convey that portion of his lands allotted as a homestead; that at the date of the execution of all of said instruments the said Israel Grayson was a minor, and that all of said conveyances were void, and clouds upon the title of the plaintiff. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1796, 1798-1805; Dec. Dig. § 323.*] (Additional Syllabus by Editorial Staff.) 8. WORDS AND PHRASES-"TESTIMONY" AND "EVIDENCE" DISTINGUISHED. One J. W. Foster, administrator of the estate of the said Israel Grayson, filed a cross Technically there is a difference between "testimony" and "evidence." The former relates to oral statements of a witness, and the lat-petition in said action, alleging that it was ter includes all that may be submitted to the jury, whether it consists of statements of the witnesses, papers, documents, or records. But in common parlance the two terms are used synonymously. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Testimony; Evidence.] BLEAKMORE, J. This action was commenced in the court below by one of the plaintiffs in error, Alice V. Grayson, to recover certain lands alleged to have been allotted to her deceased husband, Israel Grayson, as a freedman of the Creek Nation. She al leged that on the 9th day of May, 1910, Israel Grayson died, a minor without issue, and left surviving him as his only heirs at law the plaintiff, Alice V. Grayson, his widow, and Dinah Bruner, his mother, who inherited said lands. It is further alleged that on the 9th day of March, 1906, and on the 25th day of March, 1907, Israel Grayson executed deeds attempting to convey a portion of his allotment, exclusive of his homestead, to one Scott Yeatman, who thereafter executed warranty deed to the same to Thomas J. Durant; that on the 8th day of September, 1908, Israel Grayson and Alice V. Grayson executed a warranty deed to the same land to one Thomas F. Crosby, who in turn executed a deed thereto to the said Durant; that on the 16th day of November, 1907, Israel Grayson and his wife executed warranty deed to the same lands to Standford and Evans, who thereafter executed deed therefor to the said Durant; that on the 17th day of November, 1908, the said Israel Grayson executed warranty deed to the same land to the said Durant; that on the 28th day of July, 1910, said Dinah Bruner, by power of Di necessary to sell said lands to pay the debts Stein had been revoked. Martin and Stein replied, alleging that they had an undivided one-half interest in whatever interest the said Dinah Bruner inherited in said lands. Trial was had to a jury, and judgment rendered for defendants Thomas J. Durant and Walton C. Frank, adjudging said Durant to be the owner of the surplus allotment of 120 acres and Frank the owner of the homestead allotment of 40 acres. The sole question at issue was the age of the said Israel Grayson at the time of the execution of the deeds referred to. The jury found that at the date of execution of each of said deeds that Israel Grayson was of full age. Act Cong. April 21, 1904, c. 1402, 33 Stat. It is conceded that under the provisions of 189, providing that: lands of all allottees of either of the Five Civil"And all restrictions upon the alienation of ized Tribes of Indians who are not of Indian blood, except minors, are, except as to homesteads, hereby removed" the deeds in question under which Durant claims are valid, if at the time of the execution thereof the grantor had arrived at his majority. Walton C. Frank is named in the proceeding as a defendant in error, but there has been no service of summons in error upon him or waiver thereof. While the entire allotment of Israel Grayson is involved, yet removal of cloud upon the title and recovery of distinct parcels of land is sought against different individuals, disconnected in interest, claiming under sepa. rate conveyances, and the judgment adjudging the title of 120 acres thereof to be in For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 144 P.-38 defendant in error Durant, and the remaining 40 acres thereof to be in the defendant Walton C. Frank, is a judgment for distinct portions thereof, independent of each other, described in separate and individual conveyances and is in its nature severable. The errors assigned for a reversal of the cause are: (1) The trial court erred in refusing to charge the jury that the enrollment records of the Commissioner to the Five Civilized Tribes are conclusive evidence of the age of the deceased allottee; (2) in instructing the jury that the census card offered as such enrollment record was prima facie and not conclusive evidence of such age; and (3) in instructing the jury that if they found from the "testimony," as distinguished from the "evidence," that the allottee was not of age, they would so indicate in their verdict. [1] It is the contention of the plaintiff in error that the census card offered in evidence as constituting the enrollment records of the Commissioner to the Five Civilized Tribes is, under the terms of an act of Congress approved May 27, 1908 (35 Stat. 312, c. 199), providing: "That the rolls of citizenship and of freedmen of the Five Civilized Tribes approved by the Secretary of the Interior shall be conclusive evidence as to the quantum of Indian blood of any enrolled citizen or freedman of said tribes and of no other persons to determine questions arising under this act and the enrollment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman" -conclusive evidence of the age of the allottee Israel Grayson, and, it being shown by said card that at the time of the execution of the deeds in question the allottee was under the age of 21 years, that the court should have instructed the jury to return a verdict in favor of the plaintiff. It will be remembered that the conveyances under which the defendant in error Thomas J. Durant claimed that portion of the allotment exclusive of the homestead were executed prior to the taking effect of said act of Congress. The question as to whether the provisions of said act of Congress are applicable to transactions concluded prior to the date it became effective was determined by the United States Circuit Court of Appeals for the Eighth Circuit in Malone v. Alderdice, 212 Fed. 668, 129 C. C. A. 204; the court using the following language: "The Commission to the Five Civilized Tribes which made the enrollment of their citizens and freedmen was a quasi judicial tribunal empowered to determine who should be enrolled and what lands should be allotted and in what way it should be allotted to every citizen and freedman, and its adjudication of these questions, and of every issue of law and fact that it was necessary for it to determine in order to decide these questions, is conclusive and impervious to collateral attack. But its determination, recital, or report regarding issues not material to its answers to the questions who should be enrolled, and what lands should be allotted to them, and how, is, in the absence of special leg * * out judicial or other conclusive effect. Kimberlin v. Commission to Five Civilized Tribes, 104 The result is that in the determination of rights Fed. 653, 662, 44 C. C. A. 109, 112. which accrued, and of the effect of proceedings which were concluded, prior to May 27, 1908. the enrollment records of the Commission are not conclusive evidence of the age of any Indian citizen or freedman. Hegler v. Faulkner, 153 U. S. 109, 117, 118, 14 Sup. Ct. 779, 38 L. Ed. 653; Williams v. Joins, 34 Okl. 733, 126 Pac. 1013, 1015; Perkins v. Baker [41 Okl. 288] 137 Pac. 661, 663." court in the case of Scott v. Brakel et al., The same question was also before this 143 Pac. 510 (not yet officially reported), in which it was held: "In the determination of rights which accrued, and of the effect of transactions concluded, prior to May 27, 1908, the enrollment records of the Commission are not conclusive of the age of any,,Indian citizen or freedman enrolled thereon." court in the case of A. C. Phillips et al. v. The same question was again before this H. H. Byrd, 143 Pac. 684 (not yet officially reported), in which it was held: "The act of Congress of May 27, 1908 (35 Stat. 313), in part provides: "* # The enrollment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizens or it intended to be, a rule of evidence; but the freedman.' Held, that such act is not, nor was purpose of said act is to prescribe terms and ilized Tribes of Indians may alienate their conditions upon which members of the Five Civlands, and to prescribe a fixed and uniform rule by which those contracting with such members of said tribes could determine the exact date minors may reach their majority for the purpose of alienating their lands. That part of said act of Congress, quoted supra, has no application to a transaction relating to a contract or sale of lands completed prior to the date said act took effect." The court instructed the jury as follows: "The court instructs the jury that there has been introduced in evidence in this case an instrument purporting to be a certified copy of the age roll of the Commission to the Five Civilized Tribes. You are instructed as a matter of law that said card is prima facie evidence of the age of the allottee Israel Grayson, but is not conclusive evidence of his age, and is to be considered by you in this case in arriving at your verdict." The court further instructed the jury: the first question submitted to you, to wit: "The jury are further instructed that as to Was Israel Grayson 21 years of age on March 9, 1906, when he executed a deed to Scott Yeatman?-the burden is on plaintiff to establish Therefore, if you find that plaintiff has not esthat he was not 21 years of age at that time. tablished the fact that he was not 21 years of age at that time, you will make the finding that he was 21 years of age; if from the facts and circumstances of this case you find that plaintiff has established by a preponderance of the testimony that Israel Grayson was not of age at that time, you will so indicate as to the first question submitted to you." [3] It is contended by plaintiffs in error that by the use of the word "testimony" in this instruction the jury was precluded from a consideration of the census card offered in evidence, for the reason that testimony includes only oral statements of witnesses. While, technically, it is true that there is a difference between the terms "testimony" and “evidence," and the former relates to oral statements of a witness, and the latter includes all that may be submitted to a jury, whether it consists of such statements of witnesses, or papers, documents, and records, yet in common parlance they are used synonymously and understood to signify the same thing, and it is improbable that the jury in arriving at their verdict made any distinction between the meaning of the terms. In Mann v. Higgins, 83 Cal. 66, 23 Pac. 206, the Supreme Court of California held: "It is not reversible error for the court, in instructing the jury, to use the word 'testimony' instead of 'evidence,' as it is entirely improbable that the jury was misled by the inadvertence." In Noyes v. Pugin, 2 Wash. 653, 27 Pac. 548, the Supreme Court of Washington held: "An instruction that plaintiff must establish the material allegations of his complaint by preponderance of the 'testimony' is not erroneous, It will be presumed that the jury understood the word as referring to all the evidence." To the same effect are Welch v. Miller, 32 Ill. App. 110, and Jones v. Gregory, 48 Ill. App. 228. But, conceding that the jury were misled by the inadvertent use of the word "testimony," instead of "evidence," in the instruction, and by reason thereof gave no consideration to the census card, still the substantial rights of the plaintiffs in error were not prejudiced thereby, for the reason that the enrollment records of the Commissioner to the Five Civilized Tribes (in a case like the one before us, where there are living witnesses present in court who testify with reference to the fact attempted to be proved thereby) are purely hearsay and inadmissible for any purpose. Nowhere in the act of Congress of May 27, 1908, is it provided that the enrollment records shall be prima facie evidence, or any evidence, of the age of an allottee in cases involving the validity of conveyances made prior to the time it took effect. In Hegler v. Faulkner et al., 153 U. S. 109, 14 Sup. Ct. 779, 38 L. Ed. 653, this identical question was before the Supreme Court of the United States, and it was said: "And it may be admitted that the decision of the special Indian agent, in identifying the Indian half-breeds entitled to participate, and in allotting the portion of each, would, in the absence of fraud, be conclusive. Wilcox v. Jack son, 13 Pet. 498, 511 [10 L. Ed. 264]. Conclusiveness is a characteristic of the judgment of every tribunal acting judicially, whilst acting within the sphere of its jurisdiction, where no appellate tribunal is created. But such conclusiveness is restricted to those questions which are directly submitted for decision. In the case in hand, doubtless, the identity of the half-breed George Washington, and his right to receive the land in question as his share of the lands appropriated by treaty, were finally found. But neither the treaty, the act of Congress, nor the instructions of the department contemplated any special inquiry into the ages of the Indians. We do not deem it necessary to discuss this question at greater length. Our conclusion is that the court did not err in excluding the The "To show the age of the prosecutrix, there was received in evidence a translation of a copy of a parish record in Russia. This purported to give the ages of the members of the Neidens family and other matters of family history. The extract from the parish record was made by the pastor just before the family left Russia. It was made at the instance of John Neidens, the father of Mollie, and in his presence. body of the extract was written in German, and the attached certificate made by the pastor was in Latin. So much of it as related to Mollie's age was received in evidence, and translated to the jury. The document was not certified, nor authenticated in such a way as to make it receivable as an official record. It was not offered or admitted, however, as a copy of the parish record, but was received as a family record. Was it admissible as a matter of pedigree or family history? It is argued that it is not the declaration of the Russian clergyman who made the document, but that, as it was made at the request and in the presence of Mr. Neidens, it was in fact his entry and his declaration. If it be granted that it was his own act, still the entry and declaration was only secondary evidence, and is governed by the rules for the admission of such evidence. This class of evidence is admitted under certain restrictions because of necessity and the improbability of the evidence being false. On the ground of necessity it is received because the facts as to pediwitnesses after the lapse of many years, and, if gree and relationship cannot be shown by living family reputation were not admissible, in many cases the real facts could not be established. time the entries or statements are made those The improbability of falsehood is that at the who made them are acquainted with the facts. They have no reason to distort them, and, if they did, their falsity could easily be detected and corrected at that time. In the admission of such entries or declarations there are limitations as to those who may make them, and also as to the character of the declarations. Judge Elliott, in his work on Evidence, classified the limitations as to the declarant as follows: (1) The declarant must be dead; (2) the declarant must be a legal relative; and (3) there must be no desire actuating the declarant to make a false statement.' And he makes the following classification as to the declaration : (1) The declaration must be relevant to a matter of pedigree; (2) the information in the declaration must come from qualified persons; and (3) the declarations must be ante litem motam. But the declarations are not limited to any par ticular form.' 1 Elliott on Evidence, §§ 364, 469. Treating Mr. Neidens as the declarantthe one who made the entry-his declarations are not available, as he was alive and in court, and actually gave testimony in regard to his daughter's age. Entries in family Bibles and registers may be received to prove the age of children; but they are only secondary evidence, and are necessarily excluded when better evidence may be produced. In Robinson v. Blakely, 4 Rich. [S. C.] 586, 55 Am. Dec. 703, it was held that a father's declarations, or his entries of the birth of his children in a family register, were not admissible in evidence where he is alive and competent to testify. In Young v. Shulenberg, 165 N. Y. 385, 59 N. E. 135, 80 Am. St. Rep. 730, it was said that: 'Pedigree is |