for a dismissal of the suit. A reply controverted the averments of new matter in the supplementary answer, and alleged that the settlement relied upon had been secured by fraud. The prayer of the reply was that the alleged compromise might be set aside and the plaintiff allowed to retain the sum of money which she had received as an equitable advancement on account of what might be found to be due her upon the final settlement of the estate. Testimony in support of the revised issues was received, and, the cause having been submitted, the suit was dismissed, whereupon the plaintiff appealed and the decree was reversed. Hadley v. Hadley, 73 Or. 179, 144 Pac. 80. The mandate having been sent down, the defendants served upon plaintiff's counsel a notice that on December 28, 1914, upon the convening of the trial court, it would be asked to make an order, requiring the plaintiff forthwith to repay the defendant C. E. Hadley the sum of money which she had thus received from him, before she would be permitted further to prosecute the cause, and in default of such payment, that the suit be dismissed. At the time designated in the notice, the plaintiff's counsel filed objections to the right of the trial judge, Hon. Webster Holmes, to make any order in the cause, except to direct the mandate to be entered, by reason of his alleged interest in the subject-matter of the suit. The affidavit of such counsel, in support of the objections, is to the effect that, immediately prior to his appointment to the bench, the judge had stated to the affiant that a compromise of the issues involved in this suit could be concluded, and that if a settlement thereof was made he should ex pect, as his fee, a part of the consideration to be paid. These objections were overruled, the mandate was recorded in the journal, and, the plaintiff having refused to comply with the order of the court to repay the sum of $7,000, the suit was dismissed. Thereupon plaintiff's counsel moved for leave to file a supplemental complaint, which application was denied. Thereafter he applied to Hon. H. H. Belt, the successor of Judge Holmes, to vacate the order of the latter dismissing the suit. In order to controvert the sworn statement of the plaintiff's counsel, as to the alleged disqualification of the former trial judge, the defendant C. E. Hadley filed a counter affidavit, stating, in substance, that Judge Holmes had never been retained by the defendants, nor had either of them ever consulted with him in any matters. Based thereon, the motion was denied, and the plaintiff seeks to review the action of the court dismissing the suit. court, and there was no tender back of the $7,000 as a condition of her right to proceed with the trial." Hadley v. Hadley, supra. The language thus employed was controlling upon the trial court, whose duty it was to cause the mandate to be entered and to enforce the condition prescribed. 3 Cyc. 488, Apex Trans. Co. v. Garbade, 32 Or. 582, 592, 52 Pac. 573, 54 Pac. 367, 882, 62 L. R. A. 513. It remains to be seen whether or not the expression last quoted correctly states the rule applicable to the facts involved. In a note to the case of Bryant v. Isburgh, 74 Am. Dec. 655, 661, 662, it is observed: "In legal actions, brought as though the condoes not allege restoration, or an offer to retract had been rescinded, a complaint which store, does not state a cause of action. In a suit in equity for a decree of rescission, the complaint need not allege a tender of [or] offer to perform." of Crossen v. Murphy, 31 Or. 114, 122, 49 Pac. 858, 860, where it is said: These excerpts are set forth in the case "The maxim that 'he who seeks equity must do equity' is evidently not violated by the failure of the plaintiff in a suit to rescind a contract for fraud to allege a restoration of, or an offer to return, the consideration, or a willingness even to do so; for by his application to the court for equitable redress he concedes that before it will be awarded, he must do equity, which will compel him to account for everything of value he may have received, thereby tacitly inviting the court to protect the rights of the defendant by decreeing a restoration in considpermit a vendor who had been defrauded, but eration of the rescission. This method would who was unable to restore the consideration, to institute a suit to rescind a contract voidable for fraud; for the court could do equity by all parties by decreeing that the amount so receivof the vendee." ed should be a lien upon the property in favor [2, 3] A suit in equity by a vendor to rescind a sale of land, alleged to have been induced by fraud, is generally predicated upon the assumption that the real property is worth more than the consideration received, so that when the decree impresses upon the premises a lien in favor of the purchaser for the amount of money paid out, ample security is thereby afforded him. Such suits proceed upon the theory that the vendor's title to the realty was perfect, and when the contract for the sale of the land is rescinded by the decree, he is thus restored to his original estate in the premises. Where a sum of money is paid as a compromise, and not because it was conceded to be due, the party receiving the payment cannot set aside and cancel a release given by him, on the ground of fraud, and yet retain the whole consideration therefor. McMichael v. Kilmer, 76 N. Y. 36. Before the settlement of a claim by the payment of any sum less than the amount due thereon can be set aside on the [1] On the former appeal, Mr. Justice Eak- ground of fraud, the party receiving the monin, referring to the plaintiff, says: ey must rescind the settlement and tender "When she filed her reply to the supplemental back whatever sum had been paid in effectanswer, she should have proved the fraud and ing the agreement. Bisbee v. Ham, 47 Me. offered to put the defendant in statu quo by tendering back the $7,000. The question of fraud 543. A party sui juris, seeking to rescind a was not tried out or passed upon by the circuit | compromise agreement, alleged to have been [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2750-2764; Dec. Dig. 628.] induced by fraud, is not relieved of the obli- | Or. 616, 117 Pac. ix) the appeal will not be disgation to restore the benefits which he has missed; the hearing not being delayed. received merely because of his inability to do so, and it is not sufficient, under such circumstances, to offer to set off the amount so obtained against what is claimed from the other party. Babcock v. Farwell, 245 Ill. 14, 91 N. E. 683, 137 Am. St. Rep. 284, 19 Ann. Cas. 74. [4] In the case at bar it will be remembered that the alleged existence of a partnership of C. B. Hadley at and prior to his death, with his son C. E. Hadley is denied. The settlement of the plaintiff's demand was the compromise of a disputed claim for which $7,000 was paid, evidently in order that peace might be secured. There is no certainty that the plaintiff's charge of fraud would be sustained, so that she could obtain a greater sum of money upon a settlement of the alleged partnership estate. This being so, the plaintiff, as indicated in the opinion on the former appeal, was properly required to return the sum of money which she had received, before she was entitled further to prosecute this suit. Judge Belt, on the motion to set aside the order complained of, inferentially determined that Judge Holmes had not been interested in the compromise that was entered into by the plaintiff, and in this conclusion we concur. It follows that the decree should be affirmed; and it is so ordered. In Banc. Appeal from Circuit Court, Baker County; Gustav Anderson, Judge. Action by Bernard Flynn against Watson P. Davidson and others. From an order setting aside the default of the named defendant, plaintiff appeals. On motion to dismiss. Motion denied, with permission to renew at hearing on merits. Bernard Flynn commenced a suit to foreclose a delinquent tax certificate. All the defendants, having defaulted, the court rendered a judgment and decree;. but afterwards the default of Watson P. Davidson, one of the defendants, was set aside, the judgment and decree were vacated, and he was permitted to file an answer. The plaintiff appealed from the order. The respondent Davidson moves to dismiss the appeal: (1) Because the order is not appealable; and (2) because the abstract of record was not filed within the required time. Geo. E. Allen, of Sumpter, and John L. Rand and A. A. Smith, both of Baker, for appellant. J. J. Heilner, of Baker, and McCulloch & Wood, of Ontaria, Or., for respondent. HARRIS, J. (after stating the facts as above). [1, 2] As a general rule, an order setting aside a default is of an intermediate BENSON, BURNETT and MCBRIDE, JJ., character and is not appealable, although it concur. 2. APPEAL AND ERROR 801 MOTION TO DISMISS. On motion to dismiss an appeal from an order opening a default, the merits of the order cannot be considered, therefore, where appellant, conceding, the general rule that such orders are not appealable, contended that the order was a nullity and appealable, a motion to dismiss the appeal will be denied, with permission to renew on final hearing; nothing remaining to be done except for respondent to file a brief. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3161-3164; Dec. Dig. 801.] 3. APPEAL AND ERROR 628-ABSTRACT OF RECORD-DISMISSAL. Where through an honest mistake in calculating the time, appellant failed to file an abstract of the record within 20 days after transcript was filed, as required by court rule 6 (56 may be reviewed if an appeal is taken from the final judgment or decree. Taylor v. Taylor, 61 Or. 257, 121 Pac. 431, 964; Hall v. McCan, 62 Or. 556, 126 Pac. 5. The appellant concedes the general rule, but relies upon what is said in First Christian Church v. Robb, 69 Or. 283, 138 Pac. 856, contends that the order was void and therefore an utter nullity, and argues that a void order is appealable. The merits of the order can neither be examined nor determined on a motion to dismiss the appeal. Since nothing remains to be done on the appeal except the filing of a brief by the respondent, and in view of the condition of the record and the question involved, we do not now decide whether the order is appealable, but merely deny the motion, with permission to renew it on the final hearing. [3] The appellant did not file an abstract of the record within 20 days after the transcript was filed, as prescribed by rule 6 of our rules (56 Or. 616, 117 Pac. ix). The record shows that there has not been any disposition unduly to delay the hearing; only a few days of delay resulted from an honest mistake in calculating the time for the filing of the abstract, and therefore the mistake should be excused. shott, 151 Pac. 706. St. Martin v. Hender The motion to dismiss is denied, with the right to renew the motion when the cause is heard on the merits. [1, 2] On the 12th day of January, 1916, the Attorney General filed a motion to dismiss the appeals in both of the above styled and numbered causes on the ground that the EAKIN, J., took no part in the considera- said plaintiff in error had left the jurisdiction of this case. tion of this court and had become a nonresident of the state of Oklahoma. Attached to the motion to dismiss and in support thereof a number of affidavits have been filed; among them that of John W. Bain, postmaster at La Verne in Harper county, Okl., which was the home of plaintiff in error at the time of his arrest and conviction. In this affidavit facts are set forth which indicate that plaintiff in error left Oklahoma some two years ago; had lived at Cuba, Kan., a portion of the time and at Logan, Kan., a portion of the time. His present whereabouts appear to be unknown. The facts set forth, however, indicate that plaintiff in error is a resident of the state of Kansas. There has been no answer filed to the motion. The plaintiff in error has not been produced in person to answer to the orders of this court. In the absence of a showing to the contrary, the motion of the Attorney General, supported by affidavits, as this is, should be and is conclusive. The appeal is dismissed in both cases. Mandate ordered forthwith. DOYLE, P. J., concurs. FURMAN, J., ab Appeal from District Court, Beaver Coun- sent. ty; R. H. Loofbourrow, Judge. In Case A-2334: Appeal from District Court, Harper County; W. C. Crow, Judge. Lot Ravenscraft was convicted of larceny of live stock, and appeals. Appeal dismissed. Charles Swindall, of Woodward, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State. ARMSTRONG, J. The plaintiff in error, Lot Ravenscraft, was convicted at the August, 1913, term of the district court of Beaver county in cause No. A-2194 on a charge of larceny of live stock, and his punishment fixed at imprisonment in the state penitentiary for a term of two years. The conviction in No. A-2334 occurred in the district court of Harper county, Okl., at the March, 1914, term of said court; the charge in that court being larceny of domestic imals, and the punishment fixed at two years in the penitentiary. 1. BROWDER v. STATE. (No. A-2451.) * (Criminal Court of Appeals of Oklahoma. March 4, 1916.) (Syllabus by the Court.) CRIMINAL LAW 1159-APPEAL-WEIGHT OF EVIDENCE-REVERSAL. The credibility of witnesses and the weight and value to be given their testimony is a question solely for the jury's determination; and, to reverse a judgment on the ground that the verdict is contrary to law and the evidence, this court must find as a matter of law that the evidence is insufficient to warrant the conviction. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.] 2. INTOXICATING LIQUORS 236 UNLAW FUL CONVEYING-SUFFICIENCY OF EVIDENCE. In a prosecution for the unlawful conveyan-ered, and held sufficient to sustain the conviction. ance of intoxicating liquor, the evidence consid The prosecution in these cases grew out of a transaction which occurred about the 19th day of April, 1913, and involves the charge of stealing cattle from two different individuals. Upon the submission of this cause on the briefs and oral arguments the attention of the court was not called to the fact that plaintiff in error was a nonresident of Oklahoma. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. 236.] Appeal from County Court, Stephens County; J. W. Marshall, Judge. Bill Browder was convicted of violating the prohibitory law, and appeals. Affirmed. J. B. Wilkinson, of Duncan, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [Ed. Note.-For other cases, see Criminal Law. Cent. Dig. §§ 2971-2979, 2985; Dec. Dig. 1131.] DOYLE, P. J. On information filed in the tion of his appeal, this court will on proper mocounty court of Stephens county, charging tion dismiss the appeal. that he did unlawfully convey intoxicating liquor, the plaintiff in error Bill Browder was tried and found guilty, and was sentenced to be confined in the county jail for 60 days, and to pay a fine of $200. From the judgment rendered on the 18th day of February, 1915, he appealed by filing in this court on May 4, 1915, a petition in error with casemade. [2] The one question presented by the record in this case which we are asked to review is the sufficiency of the evidence to sustain the conviction. The sheriff and two other officers, as witnesses for the state, testified that they saw the defendant driving from his home, and followed him, and just before they overtook him saw him break a bottle of alcohol over the wheel of his buggy; that they picked up two broken bottles that had contained alcohol while they were following him. The defendant, as a witness in his own behalf, denied that he was conveying the alcohol or that he broke the bottles. Another witness testified that he was with the defendant in his buggy on the occasion of his arrest, and that he did not see any bottles thrown out of the buggy before they met the sheriff. Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge. E. F. Glover was convicted of violating the prohibition law, and appeals. Appeal dismissed. W. J. Crump, M. G. Bailey, and Don M. Crump, all of Muskogee, for plaintiff in error. R. McMillan, Asst. Atty. Gen., and Fred P. Branson, Co. Atty., and Glenn Alcorn, Asst. Co. Atty., both of Muskogee, for the State. DOYLE, P. J. Plaintiff in error, E. F. Glover, was convicted in the superior court of Muskogee county of a violation of the prohibition law. From the judgment rendered on the verdict, he appealed by filing in this court on September 14, 1915, a petition in error with case-made. On January 28, 1915, counsel for the state filed a motion to dismiss the appeal, in part as follows: "That on or about the 20th day of April, 1915, the said plaintiff in error, E. F. Glover, was tried in the superior court in and for Muskogee county, Okl., upon the charge of having the unlawful possession of intoxicating liquors, and was there convicted of said crime. That on the 24th day of April, 1915, the said E. F. Glover was, by the judgment of said superior court, sen [1] After a careful examination of the evidence in this case, we are not prepared to say that the jury were not warranted in find-tenced to 30 days in jail and to pay a fine of ing the verdict returned by them. The credibility of witnesses and the weight and value to be given to their testimony was a question solely for the jury's determination, and to reverse the judgment on the ground that the verdict is contrary to law and to the evidence this court must find as a matter of law that the evidence is insufficient to warrant the conviction. $100. That said plaintiff in error, E. F. Glover, thereupon served notice of appeal and has filed in this court his appeal from said judgment and sentence of said superior court. That on or about the 24th day of April, 1915, the said E. F. Glover, plaintiff in error herein, filed in the superior court of Muskogee county and in said cause, his supersedeas and appeal bond from said judgment and sentence and was released upon said bond pending his appeal to this court. "That on or about the 16th day of December, 1915, an indictment against B. S. Glover, alias E. F. Glover, for keeping and maintaining a place for the purpose of violating the liquor laws of the state of Oklahoma, was returned and filed in the district court by the legally sworn and impaneled grand jury of the district court in and for Muskogee county, Okl.; that thereupon a bench warrant was issued for the said B. S. Glover, alias E. F. Glover, It follows that the judgment must be, and and placed in the hands of the sheriff of Musthe same is hereby, affirmed. We find nothing in the record indicating improper motive or passion or prejudice on the part of the jury, and the court fully and fairly covered the law of the case in a charge to which no objection was made nor exception taken. kogee county for service. That the said sheriff and his deputies have made diligent search FURMAN and ARMSTRONG, JJ., concur. for the said B. S. Glover, alias E. F. Glov er, and have been unable to find him within Muskogee county, Okl., nor have they been able to learn his whereabouts since the return of the said indictment. That the said E. F. Glover, plaintiff in error herein, and the said B. S. Glover, alias E. F. Glover, the defendant named in said indictment, is one and the same person. That the said E. F. Glover has removed from Muskogee county to some place unknown to the sheriff of Muskogee county or any of his deputies, and that they have not been able to locate him or learn his whereabouts after diligent search. That in support of this motion there is attached hereto the affidavits of J. D. Robbins and B. G. Hughes, deputy sheriffs of Muskogee county, Okl." In the response filed the material averments of the motion are not denied. It is claimed * * * that plaintiff in error is only temporarily | such hearing, it shall appear that any property absent from the state, and that he intends so seized was not kept or used for an unlawful to and will return if his conviction is affirmed. to its lawful owner," the interpleader was enpurpose, the same shall be returned On the facts as averred in the motion and titled to a hearing under the allegations of its in the affidavits attached thereto, we think interplea, and the court erred in sustaining said the motion to dismiss the appeal should be demurrer and dismissing said plea. sustained as coming within the rule declared Liquors, Cent. Dig. §§ 389, 390; Dec. Dig. [Ed. Note.-For other cases, see Intoxicating by this court in numerous decisions. That 251.] this court will not consider an appeal, unless the plaintiff in error is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and when the plaintiff in error becomes a fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss the appeal. Williams v. State, 11 Okl. Cr. 35, 141 Pac. 453. We are of the opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined. The appeal as to plaintiff in error, E. F. Glover, is therefore dismissed. Mandate forthwith. FURMAN and ARMSTRONG, JJ., concur. 2. INTOXICATING LIQUORS 249-PROceedINGS UNDER SEARCH WARRANT-PARTICULARITY OF DESCRIPTION. tion, in reference to search warrants, should Liquors, Cent. Dig. §§ 376-385; Dec. Dig. Commissioners' Opinion, Division No. 4. Proceeding under search warrant by the State, wherein the Milwaukee Beer Company MILWAUKEE BEER CO. et al. v. STATE. filed an interplea. Interplea dismissed, and (No. 6054.) interpleader brings error. Reversed and re (Supreme Court of Oklahoma. Feb. 1, 1916.) manded. (Syllabus by the Court.) McNeill & McNeill, of Pawnee, for plaintiff 1. INTOXICATING LIQUORS 251 - PROCEED-in error. INGS UNDER SEARCH WARRANT-INTERPLEA -DISMISSAL. A search warrant was issued by the county judge of Pawnee county under sections 3612, 3613, and 3615, of article 3, c. 79, Rev. Laws 1910, entitled "Intoxicating Liquors," directing the sheriff of said county to search the depot, cars, and other premises in the town of Keystone, Okl., in said county, for intoxicating liquors. The sheriff returned the warrant showing seizure of 19 barrels of beer found in the depot of the Frisco Railway Company in said town and county. Upon the return of the warrant, the magistrate, as provided by law, fixed a time for hearing upon said return to determine whether or not the property so seized, or any part thereof, was kept or used in violation of any of the provisions of the statute in regard to intoxicating liquors. On the day fixed for hearing, the Milwaukee Beer Company appeared and filed an interplea, claiming to be the owner of said property, and further alleging therein that at the time said beer was seized it was in the possession of the Frisco Railway Company; that said railway company was operating a line of railroad engaged in interstate commerce between Keystone, Okl., and Joplin, Mo.; and that the same was not in the possession of said company for the purpose of violating any law, but was held by it for the sole purpose of transportation as interstate commerce between the points named, and at the time the same was seized it was the property of the interpleader and held by the railway company for no other purpose than that of transportation from the state of Oklahoma, to the state of Missouri; and that said beer was not kept nor held by the railway company for the purpose of sale, or any other unlawful or illegal purpose. To this interplea the county attorney, representing the state, filed a general demurrer, which was sustained by the court and the interplea dismissed. Held, that under section 3613, supra, which provides that, “if, upon ROBBERTS, C. This case comes from the county court of Pawnee county, and is a proceeding under search warrant as provided for in article 3, c. 39, entitled "Intoxicating Liquors," Rev. Stat. of Okl. 1910 Ann., sections 3612, 3613, and 3615 of which article are as follows: "3612. If it shall be made to appear to any judge of the district or county court or justice of the peace that there is probable cause to believe that liquors are being manufactured, sold, bartered, given away, or otherwise furnished, or are being kept for the purpose of selling, bartering, giving away, or otherwise furnishing liquors in violation of this chapter, such judge or magistrate shall issue a warrant directed to any officer of the county whom the complainant may designate, having the power to serve criminal process, commanding him to search the premises described and designated in such complaint and warrant, and to seize all such liquors there found, together with the vessels in which they are contained, and all implements, furniture and fixtures used or kept for such illegal manufacturing, selling, bartering, giving away, or otherwise furnishing of such liquors, and safely keep the same, and to make return within three days of said warrant, showing all acts and things done thereunder, with a particular statement of all property seized, of the person or persons in whose possession the same was found, if any, and if no person be found in the possession of said property, his return shall so state. A copy of said warrant shall be served upon the person or persons found in possession of any such liquors, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found. "3613. Upon the return of such warrant as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |