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livering the opinion, remarked: “It remaing Buckner & Son, for plaintiff in error. Cotto consider the suggestion that, the contract teral & Horner, Devereux & Hildreth, Hloushaving been executed, the doctrine of ultra ton & Buckner, and Buckner & Son, for de vires is inapplicable to the case. There can fendants in error. be no question that in many instances where an invalid contract, which the party to it BURITELL, J. Lots Nos. 16, 17, and 18, might have aroided or refused to perform, in block No. 26, in the city of Guthrie (prophas been fully performed on both sides, er), were by the townsite board deeded to

the courts have refused to sustain George C. Eldridge. He executed his note an action for the recovery of the property to the Guthrie National Bank, and W. S. or money transferred.” The case of Cen- Robertson and Thomas Seely were sureties tral Transportation Co. v. Pullman Car Co., on such note. When it became due, the bank 139 U. S. 24, 11 Sup. Ct. 478, 35 L. Ed. 55, sued Eldridge and the sureties in the probate has been strongly urged upon our attention court of Logan county, and recovered judg. as holding a different doctrine. An examina- ment for $341.50. Execution was issued out tion of the case shows it to be an action be of that court, and as no personal property tween two corporations, brought by the plain- belonging to Eldridge could be found, the tiff to enforce the performance of a contract sheriff levied the execution on the lots in which the court holds was ultra vires as to question, and after giving notice sold them. both plaintiff and defendant.

Robertson purchased the lots at such sale, As hereinbefore remarked, if this action and a sheriff's deed was executed to him had been one brought by the bank against therefor. The Denver, Enid & Gulf Railroad the county treasurer to compel him to is- Company, in December, 1902, began proceedsue the tax deed upon presentation of the ings to condemn the land for a right of way. certificates, and the treasurer had defended The appraisers were appointed, and the conupon the ground that the bank had no right demnation money paid into court. Several or power to deal in real estate, a very differ- | parties applied for and were granted leare ent question would have been presented, to intervene in the case, claiming the pro

We have given the case most careful con- ceeds of the lots. This case, however, insideration, because of its importance and the volves only the issue between Eldridge and principles of law applicable to it, but we are Robertson The issues between the other unable to discover that the plaintiff has been

claimants and these parties are presented in in any way wronged by the decision of the a separate appeal filed and now pending in court below. No error appearing in the rec

this court. If the deed executed by the ord, the judgment of the trial court must

sheriff pursuant to the sale made under the be affirmed. All the Justices concurring, ex

execution issued out of the probate court is

valid, then Robertson should recover. If not cept BURFORD, C. J., who presided in the

valid, the judgment is incorrect. court below, not sitting.

We have examined all of the cases cited

by appellee, which his counsel contend sur(15 Okl. 599)

port the theory that the sheriff may sell ELDRIDGE et al. v. ROBERTSON.

real estate under an execution issued out of

the probate court, and they do not support (Supreme Court of Oklahoma. Sept. 6, 1905.)

the contention. They hold that a judgment, EXECUTION-PROBATE COURT-JURISDICTION. under the statutes then in force, was a lien By section 1 of article 15, tit. court, of the

on the real estate of the judgment debtor in Statutes of Oklahoma of 1893 (which article

the county wherein he resided, except the was ratified by Congress), which provides that probate courts shall not order or decree the sale case of Chandler v. Colcord, 1 Okl. 261, 32 or partition of real estate, a sale of real es- Pac. 330, which involved the issuance of an tate made under an execution issued out of such

execution by the clerk of the district court, court is absolutely void, and a sheriff's deed to the purchaser conveys no title. And when the

on a judgment rendered in the probate court, land has been condemned for railroad purposes, without the judgment being transferred to and the money paid into court, the original the district court by the filing of the proper owner of the land (who was the judgment debtor

transcript therein. in the suit in which the land was sold under such execution) will be entitled to the condenna

By section 1 of article 15, tit. court, of the tion money.

Statutes of Oklahoma 1893 (which was rati[Ed. Note.-For cases in point, see Cent. Dig. fied by Congress) it is provided : “That provol. 21, Execution, $ 793.]

bate courts shall not have jurisdiction (Syllabus by the Court.)

in any matter wherein the title or

boundaries of land may be in dispute, nor Error from District Court, Logan Coun

to order or decree the sale or partition of ty; before Justice Jno. H. Burford.

real estate.” The selling of the lots in quesCondemnation proceedings by the Denver,

tion, under the execution issued out of the Enid & Gulf Railroad Company against

probate court, was in violation of this statGeorge C. Eldridge and A. D. Adams. W. S.

ute, which we have, heretofore, in other Robertson intervened, claiming proceeds of

cases, held has all of the force of a direct certain lots. From the judgment, Eldridge act of Congress; and the deed executed by and Adams bring error. Reversed.

the sheriff, under which Robertson claims,

is absolutely void and gave him no right whatever to the land or to the proceeds there of. By the language, "nor to order or decree the sale of real estate," it is meant that the probate court in cases within the jurisdiction of the district court, cannot, directly or indirectly, by execution or otherwise, sell or cause to be sold real estate. By this act it was intended that all court sales of real estate should be had either by a decree or order therefor in the district court, or under execution issued therefrom. The Legislature may make judgments of the probate courts liens on the real estate of the judgment debtor situated in the county wherein the judg. ment is rendered, but it cannot authorize the sale of such lands under process issued out of the probate courts.

The judgment of the district court, decreeing the rights of Robertson to the proceeds of the lots to be paramount to the rights of Eldridge thereto, should be reversed at the cost of appellee. It is so ordered, with di. rection to the trial court to proceed in conformity with the views herein expressed. All the justices concurring, except BURFORD, C. J.. who presided at the trial below, not sitting

(17 Okl. 501)

ANGLEA v. MCMASTER et al. (Supreme Court of Oklahoma. Sept. 7, 1906.) JUDGALEXT-MOTION TO VACATE.

A judgment which is entirely outside of the issues in the case and upon a matter not submitted to the court for its determination, is A nullity, and may be vacated and set aside At any time, on motion of a party, or any person affected thereby.

[Ed. Note.-.For cases in point, see Cent. Dig. rol. 30, Judgment, 88 31-37, 434-437.]

(Syllabus by the Court.)

due on a check dated November 1, 1901. It further appears that each of the defendants filed a verified answer to this petition, denying the execution of the check, and each and every material allegation contained in the petition; that on January 29, 1902, the defendant Frank McMaster moved the court to be allowed to amend the process, pleadings, and petition, and that he be substituted as plaintiff in the action. To this application for substitution, each of the other defendants at the time objected, which motions were overruled, and the motion to sub stitute McMaster as plaintiff was sustained. Thereupon McMaster filed three amended petitions: The first of which was against the Peoples' Bank and Keaton; the second was against J. R. Keaton alone; and the third was against the Peoples' Bank of Edmond alone. In neither of these amended petitious was the plaintiff in error, John M. Anglea, made a narty defendant; nor was any relief asked as against him. Thereupon the Peoples' Bank of Edmond, John M. Anglea, and J. R. Keaton appeared specially, and moved to dismiss the several amended petitions filed by Frank McMaster, on the ground that the original plaintiff, the City National Bank of Lawton, bad no interest in the controversy; and, second, on the ground that McMaster's cause of action is an entirely different action than was originally instituted. This motion was overruled, and, on January 30th, the court found the issues in favor of the plaintiff and against the defendants the Peoples' Bank of Edmond, John M. Anglea, and J. R. Keaton, and assessed the plaintiff's recovery at $525 and costs. On November 28, 1902, a motion was made by the plaintiff in error to vacate and set aside the judgment above rendered on January 30, 1902, on the ground that he was not made a party defendant in either of the plaintiff's amended petitions, and that at the time of the trial of the cause the plaintiff, Frank McMaster, stated that John M. Anglea was not made a party defendant to any of the amended petitions; and that the probate judge, in open court, in deciding the case, stated that no judgment would be rendered against the plaintiff in error, John M. Anglea; and further, that no judgment against the said John M. Anglea was within the issues of said cause. This motion was overruled by the probate judge on July 6, 1903, on the ground that he had no jurisdiction to hear and determine said motion to vacate said judgment; to which ruling and order of the court the plaintiff in error duly excepted, and brings the case here for review.

Shartel, Keaton & Wells, W. C. Stevens, and F. P. Cease, for plaintiff in error. Frank Melfaster, for defendants in error.

Error from Probate Court, Comanche County; W. H. Hussey, Judge.

Action by the City National Bank of Lawton against the Peoples' Bank of Edmond and others. Thereafter Frank McMaster was substituted as plaintiff. Judgment for plaintiff, and John M. Anglea brings error. Reversed.

This is a proceeding in error from an order and judgment of the probate court of Comanche county, rendered on the 6th day of July, 1903, in which it was determined that the court had no jurisdiction to hear and determine the motion of the plaintiff in error to vacate and set aside a judgment rendered against him and in favor of Frank McMaster in said court on January 30, 1902.

It appears from the record that on the 14th day of November, 1901, the City National Bank of Lawton, Okl., brought an action in the probate court of Comanche county, Okl., against the Peoples' Bank of Edmond, Okl., John M. Anglea, J. R. Keaton, G. W. Childs, Virgil Childs, and Frank McMaster, to recover the sum of $500 claimed to be

HAINER, J. (after stating the facts). The record discloses that the judgment which

was sought to be vacated in this case was R. Eminons had executed two promissory rendered on January 30, 1902, and the motion notes, and, to secure the payment thereof, to vacate said judgment was made on Novem- had executed a mortgage upon a tract of ber 30, 1902, on the ground that the court had real estate, Carrie L. Emmons joining in the 10 jurisdiction to render judgment against execution of the mortgage; but she did not the plaintiff in error. The court declined to sign the notes. Subsequently an action was sustain the motion, on the supposed ground brought by James M. Gille, the owner of the that he had no jurisdiction to hear and deter- notes, to foreclose the mortgage, and to remine the same. This ruling of the court was (over a personal judgment against I. R. made on July 6, 1903, to which ruling of the Emmons. I trial was had, which resulted court the plaintiff in error duly excepted, and in il judgment in favor of Gille upon the asked time to make a case for the Supreme notes, and for a foreclosure of the mortgage.

Various extensions were madle, and A journal entry was subsequently entered by the cause was served within time; and the case the clerk, in which personal judgment was was filed in this court on July 5, 1904, with- entered against Carrie L. Emmons, as well in a year from the time that the order was as against her husband, D. R. Emmons. It made denying the motion of the plaintiff in further appears in this case that Carrie L. (tror to vacate and set aside the judgment. Emmons had no knowledge of the fact that TIence the motion to dismiss the appeal must ju'lgment had been entered against her perne (lenical.

sonally until about four years thereafter. This presents the sole question, whether She thereupon filed a motion to vacate the the court below erred in holding that it had judgment, and the trial court sustained the no jurisdiction to hear and determine the motion to vacate the judgment, on the ground motion to vacate the judgment which was that it was voiel as against hier. The cause rendered against the plaintiff in error on was thereupon appealed to the Supreme Court January 30, 1902. The record conclusively and affirmed. Mr. Justice Johnston, in deestablishes that the plaintiff in error was livering the opinion of the court, says: *The not made a party to either of the amended validity of the judgment was challenged in petitions, and no relief was asked against the court, and in the same case in which it him. We are therefore unable to perceive was rendered. It is true that the applicahow any judgment could have been rendered tion to vacate was not made until more than against him. It also appears from the affi- four years after the judgment was rendavits in support of the motion to vacate. dered, but, as the judgment was void, the that it was admitted that at the time the court was not hampered by a limitation of judgment was entered, the plaintiff in error time. The statute relating to proceedings was not a party to either of the amendeel for the vacation and modification of judgpetitions; and further, that the judge stated ments provides that it 'void judgment may that no judgment would be entered igainst be vacated at any time on motion of it him. However, in the journal entry, it ap- party or any person affected thereby.' Code pears. judgment was in fact entered against Civ. Proc. $ 575; Beach 1. Shoenmaker, 18 him. The probate judge certainly had juris- Kan. 147; llanson v. Wolcott, 19 Kan. 207." cliction to hear and determine the motion ; We think the facts under consideration prein question. Section 593 of the Code of

sent a much stronger case than the facts in Civil Procedure (St. 1893) provides as fol- Gille v. Emmons. Ilence we are clearly of lows: “A void judgment may be vacated the opinion that the court was without jurisat any time on motion of a party, or any per- diction to render judgment against the plainson offertell therely." Phonix Bridge Co. titt in error, and that the judgment was ab5. Street, 9 Okl. 122, 60 Pac. 2:21. And by solutely void; that the court had jurisdicsection 1873 of the probate court extension tion to hear and determine the motion to act St. 1903. p. 550, it is provided as follows: Vacate the judgment; and that it was error "In all cases commenced in said probate

to overrule the same. courts wherein the sum exceeds the juris- The judgment of the probate court is re

liction of justices of the peace the pleadings versed, and the cause remanded, with direcind practice and proceedings in said court tions to sustain the motion to vacate the judg. both before and after judgment shall be ment. All the Justices concurring governed by the chapter on civil procedure of the territory governing pleading and practice and proceedings in the district court."

(17 Okl. 312) In Gille r'. Emmons (Kan. Sup.) 18 Pac. 569,

PROVINS v. TERRITORY. 02 Am. St. Rep. 609, it was held that: “A

(Supreme Court of Oklahoma. Sept. 7, 1906.) judgment is entirely outside of the issues

1. CRIMIXAL LAW-INSTRUCTIOX-WAIVER OF in the case, and upon a matter not submitted

OBJECTIOXS, to the court for its determination, is a mulli- In the absence of an exception or a rety, and may be vacatel and set aside at any quest for more specific instructions, it will be time upon motion of the defendant." In

presumed that the defendant was satisfied with

the general charge given by the court. this case, the Supreme Court of Kansas had

Ed. Yot--For cases in point, see ('ent. D'ig. under consideration an action in which D. vol. 15, Criminal Law, $8 2008, 3032.]

2. SAME.

or exception to the instructions, uses the On appeal to the Supreme Court, technical

following language: “The correctness of errors or defects, and exceptions which do not affect the substantial rights of the accused, will

some of the instructions given by the court be disregarded.

is questioned in the brief of counsel, but we (Syllabus by the Court.)

are unable to find in the record that the inError from District Court, Pottawatomie

structions were ever objected to or any exCounty; before Justice B. F. Burwell.

ceptions taken to them in the trial court.

Under such state of the record we must deJohn Provens was convicted of a violation of the game law, and brings error. Affirined.

cline to review and pass upon them."

It is also contended that the court erred P. O. Cassidy and Ed. 0. Cassidy, for

in the admission of testimony, and that plaintiff in error. P. C. Simons, Atty. Gen.,

the county attorney asked prejudicial quesand Don C. Smith, Asst. Atty. Gen., for the

tions of the witnesses. We have examined Territory.

the record referred to, and are clearly of the

opinion that there is no merit in this conHAINER, J. The appellant, John Pro

tention. Nor was there any error comvens, was prosecuted by the territory, on

mitted by the court in sustaining the objecinformation, charging him with unlawfully

tion to the following question propounded fishing in the North Canadian river. The

to Mr. Barto: "Q. Well in other sales what cause was orginally tried in the probate quantities did you sell him?" In ruling on court, to a jury, and verdict returned finding

this question the court said: “The only purthe defendant guilty as charged in the in

pose of this would be to affect his crediformation, and judgment rendered in ac

bility, that is all.” This is not a comment cordance therewith. The defendant appealed

upon the evidence, and we are unable to to the district court, the cause was again perceive how it could be so construed. Fitried to a jury, a verdict of guilty returned, nally it is contended that the evidence is inand the defendant fined in the sum of $25,

sufficient to warrant the conviction of the and costs. From this judgment the defend

defendant. We have examined the record, ant appeals.

and are clearly of the opinion that the eviThe first error assigned is that the court

dence was sufficient to fully warrant the jury misdirected the jury in regard to the pre

in finding the defendant guilty as charged sumption of innocence. It is claimed by

in the information. In our opinion, there is counsel for appellant that the court should

no merit in this appeal, and section 482 of have instructed the jury on this question in

the Criminal Code, Wilson's Rev. & Ann. St. the language of the statute, which provides

1903, § 5618, which provides that won an apas follows: "A defendant in a criminal ac

peal the court must give judgment without tion is presumed to be innocent until the con

regard to technical error or defects, or to extrary is proved, and in case of a reasonable

ceptions which do not affect the substantial doubt as to whether his guilt is satisfactorily

rights of the parties,” is applicable to this shown, he is entitled to be acquitted.” On

case. this branch of the case the trial court in

The judgment of the district court is afstructed the jury as follows: "Gentlemen,

firmed. in this case it is incumbent upon the territory to prove each and every material allegation as charged in the information. Noth

BURWELL, J., having presided in the ing can be presumed or taken by implica

court below, not sitting. All of the other

Justices concurring. tion against the defendant; and it is incumbent upon the territory to prove each material allegation of the information, and each fact necessary to constitute the guilt of the

(17 Okl. 401) defendant, beyond a reasonable doubt." We RICIIARDSON-GAY OIL CO. V. ASIITON, think this instruction was sufficient to satis

Inspector of Oils, fy the requirements of the statute. Be that (Supreme Court of Oklahoma. Sept. 6, 1906.) ) as it may, it is a sufficient answer to the

1. INSPECTION-OILS. contention of counsel for appellant, that no The law, with reference to the inspection of objection or exception was taken to the oils, was enacted to protect the public against cliarge of the court, and no additional in

the sale of unsafe and dangerous oils, and for

those purposes is a remedial statute, to be instructions were offered. The rule is well

terpreted so as to reasonably carry into effect settled by the authorities that, in the absence its objects. of an exception or a request for more specific [Ed. Note.-For cases in point, see Cent. Dig. instructions, it will be presumed that the

vol. 28, Inspection, $ 21.) defendant was satisfied with the charge giv


Where oil is brought into Oklahoma and en by the court. Douthitt v. Territory, 7

inspected as required by law, and then stored Okl. 55, 54 Pac. 312; People v. Appleton

in a warehouse outside of the limits of the ter(Cal.) 52 Pac. 582. In Drury v. Terri- ritory, and there held in storage in the same tory, 9 Okl. 398, 60 Pac. 101, Chief Justice barrels, and in same receptacles in which it

was inspected, and in the same condition, and Burgord, speaking for the court, upon a rec

thereafter the same oil is sold to consumers ord which failed to show any

show any objection within the territory: Held, that one inspection -GAY OIL CO. v.

satisfies the requirements of the statute, and the said defendant as such territorial inno second inspection is required.

spector of oils inspected, examined and tested (Syllabus by the Court.)

said 60 barrels of oil belonging to plaintiff Error from District Court, Logan County: at Oklahoma City in Oklahoma Territory, before Justice Jno. H. Burford.

and said barrels of oil met all the requireAction by the Richardson-Gay Oil Com- ments specified by the statutes of the terripany against F. A. Ashton, territorial in- tory of Oklahoma, and thereupon the said spector of oils. Judgment for defendant,defendant issued to plaintiff his certificate and plaintiff brings error. Reversed and re- certifying that said 60 barrels of oil had manded.

been by him inspected and approved, and This is an action brought in the district

said certificate also contained the actual court of Logan county by the Richardson

test of said oil, and the said defendant also Gay Oil Company against F. A. Ashton, as

fixed his brand on each and every one of said territorial oil inspector, to restrain and en

barrels of coal oil, giving the actual test join the latter from inspecting two barrels

with the date of his official signature upon of oil, or interfering with the sale thereof,

the same. That upon the making of said inon the ground that the oil had been regularly spection by the defendant the plaintiff paid inspected, and that no second inspection to him his fees as provided by law. That was required, under the laws of Oklahoma.

after said 60 barrels of coal oil were inspectThe case was submitted to the court upon

ed and approved as aforesaid, the same were the following agreed statement of facts:

forwarded to and placed in plaintiff's ware-Comes now the parties hereto and agree

house at said town of Chickasha for shipupon a case containing the facts herein- ment to and consumption in the territory of after set forth, upon which a controversy

Oklahoma as aforesaid. That on or about lepends between said parties, and present a

the - day of June, 1903, the plaintiff submission of the same to this court, which shipped to one of its customers at Cement, said facts as agreed upon by and between Okl., two barrels of said barrels of coal oil, said parties are as follows, to wit: That said

which had been inspected and proved by plaintiff is a corporation organized and ex- said defendant as aforesaid, the said coal oil isting under the laws of the state of Texas,

being the identical coal oil and in the same with headquarters at Corsicana, Tex., and

identical barrels as when it was inspected engaged in the refining and selling at whole- by said defendant at Oklahoma City as aforesale the products of petroleum in Texas,

said. But that said fact is not within the and the neighboring states and territories. personal knowledge of said oil inspecor or That plaintiff has complied with the laws of any of his deputies. That the said defendOklahoma Territory concerning foreign cor

ant immediately forbade and prevented plainporations and has appointed one G. S. Bur- tiff under the penalty of a criminal prosecunett of Shawnee, Okl., as its agent in said tion from selling said two barrels of oil to territory, and who is duly authorized to ac- its customers at Cement, Okl., unless plaintiff cept service of process, and upon whom pro

should have said two barrels inspected over ress of service may be made in any action, again by said defendant, and defendant still in which said corporation may be a party.

demands the right to inspect said oil over That the plaintiff maintains an agency and again and to collect his fees therefor from il warehouse at the town of Chickasha in said plaintiff, notwithstanding the fact that the Indian Territory, and at which is stored he had already inspected and approved and its coal oils and gasolines for prompt ship- certified to the same, and branded the barment to its customers in the vicinity of Chick- | rels as hereinbefore set forth. That said alsha.

That the plaintiff is engaged only brands upon said barrels were and are plain in the wholesale trade, and has a number and intact. Wherefore, both parties pray of customers in the towns and villages in that the court hear this case, and determine Oklahoma, having close and convenient rail- whether or not the said defendant should road connection with the said town of Chick- be restrained and enjoined from inspecting 2sha, and also a number of customers in said two barrels of oil again, or in interfering small towns off of the railroad lines. That with plaintiffs selling of the same without on or about the 16th day of May, 1905, the a second inspection.” And upon this agreed plaintiff shipped 60 barrels of coal oil into statement the district court found the is. and through the territory of Oklahoma to sues for the defendant, and against the plainbe stored in its warehouse at Chickasha, and tiff, and entered judgment for costs. From intended for shipment to its customers as this judgment the plaintiff appeals. aforesaid in the territory of Oklahoma, and

Lawrence & Huston, for plaintiff in error. consumption of the same in the territory of

P. C. Simons, Atty. Gen., and Don C. Smith, Oklahoma. That the defendant is the duly

Asst. Atty. Gen., for the Territory. appointed, qualified, and acting territorial inspector of oils of the territory of Oklahoma, HAINER, J. (after stating the facts). The and was such officer at all times herein men- sole question presented by the record is this: tioned, and now resides in the city of Guthrie, Whether under the laws of Oklahoma oil Logan county, Oklahoma Territory. That on that has been brought into the territory and or about the said 16th day of May, 1905, | inspected, as required by law, and then

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