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Error from District Court, Pottawatomie County; before Justice B. F. Burwell.

Action by W. B. Alexander against J. J. Culbertson and Emily Culbertson. Judgment for plaintiff, and defendants bring error. Affirmed.

This was an action brought in the probate court of Pottawatomie county by W. B. Alexander against J. J. Culbertson and Emily Culbertson, to recover damages in the sum of $500, alleged to have been sustained by reason of wrongfully obstructing the street immediately in front of his place of business, and which caused the water to dam up and accumulate in front of his store building, so as to greatly interfere with and injure his business. To this petition the defendants filed an answer, consisting of a general denial. The cause was submitted to the court, and the issues were found in favor of the plaintiff and against the defendants, and the damages assessed at $250, and judgment entered accordingly. From this judgment the defendants appealed to the district court, and there the cause was submitted to a jury and a verdict returned in favor of the plaintiff for 81 and costs. On motion, the court granted the plaintiff a new trial. Thereupon, the cause was again submitted to a jury, verdict returned in favor of the plaintiff for $250, and judgment entered accordingly. Motion for new trial was filed by the defendants, overruled, exception saved, and the cause is brought here for review.

J. II. Woods, for plaintiffs in error. B. B. Blakeney and Basham & Biggers, for defendant in error.

HAINER, J. (after stating the facts.) It appears from the evidence that the plaintiff was engaged in the grocery and feed business on West Main street, in the city of Shawnee, during the years 1901 and 1902, and that plaintiffs in error owned a lot adjoining immediately on the east of plaintiff's place of business. That on or about December 20, 1901, the defendants placed two cars of brick in the street immediately in front of the lot owned by defendants, for the purpose of erecting a building thereon, which brick extended about 30 feet out in the street, piled about 7 feet high, and were placed in close proximity to the plaintiff's building where he was conducting a store. That the material not only obstructed the plaintiff's view, but that when it rained it dammed the water up, and would accumulate and leave a pool of water in front of the plaintiff's place of business, which greatly impaired, and practically destroyed, his business. That the obstruction remained there for some five or six months. It is argued by plaintiff in error that the court erred in permitting the plaintiff to recover damages for loss of business, the contention being that the evidence is insufficient to support a verdict, on the ground that it did not

appear that the bulding material, which had been placed there by the defendants, remained in the street an unreasonable length of time.

As a general rule, owners of property, abutting on a street, may make certain uses of such parts of the street as are necessary for the proper enjoyment of the property. Among these rights of an abutting owner is the right to deposit material necessary for the construction, erection, or repair of a building. But the right to deposit such material for the erection or repair of a building must not interfere with the rights of the public to use the street, or with the reasonable enjoyment of adjoining property by the owners, or unreasonably interfere with adjacent property owners; nor must such material remain in the street an unreasonable length of time. And when such material is placed in a public street, reasonable care should be exercised in not endangering the property or business of an adjacent property owner. Judge Elliott, in his work on Roads and Streets, page 5-15, states this doctrine as follows: "Adjoining land owners are usually permitted to place material upon the street or sidewalk in front of their premises and to make a reasonable use thereof for the purpose of erecting, repairing, or improving buildings upon their land; but reasonable diligence should be used to complete the work, and ordinary care must be taken to warn travelers of the obstruction and danger." In Am. Eng. Enc. Law (2d Ed.) vol. 15, page 491, the doctrine is thus stated: "While highways are primarily designed for the purpose of travel, and must therefore be kept clear of obstructions, the law justifies obstructions of a partial and temporary character, from the necessity of the case and for the convenience of mankind, when those obstructions occur in the customary or contemplated use of the highway, they being reasonably necessary, and not unduly prolonged. As to what is a proper obstruction as being based on a reasonable and necessary use, it is impossible to lay down any general rule, each case being determined by the particular circumstances thereof. "Question for Jury. The question whether a particular use of a highway involves an improper obstruction thereof is generally a question for the jury."

In State v. Mayor (Neb.) 15 N. W. 210, 45 Am. Rep. 108, Mr. Justice Maxwell, in discussing this subject, says: "Temporary obstructions in a street which are reasonable and necessary for the erection of a building upon an adjacent lot do not so constitute a nuisance, provided they are not unreasonably prolonged. Such obstructions are not invasions of the rights of the public to the use of the street, but merely incident to or a limitation on such right; but are justified only so long as they are reasonably necessary. The party placing the obstructions therein, however, will not be justified in leaving the

street in an unsafe condition." In Raymond v. Kiseberg (Wis.) 54 N. W. 612, 19 L. R. A. 643, the Supreme Court of Wisconsin said: "The right of an abutting lot owner to temporarily use a part of the street for building operations is founded on reasonable necessity, and not as owner of the fee of any part of the street; and, in the absence of municipal regulations as to the space to be occupied, the extent of the necessity depends on the circumstances of each particular case."

Whether the material remained in the street an unreasonable time, and whether reasonable care was exercised to prevent interference with the property or business of adjacent property owner, were questions of fact for the jury to determine under all the curcumstances of the case; and in this case the court submitted those questions to the jury under appropriate instructions. And the evidence, in our opinion, fully sustains the verdict of the jury.

It is assigned as error and argued that counsel for the plaintiff made a prejudicial statement during the closing argument, for which this cause should be reversed. The record discloses that the cause was tried in the probate court, and judgment entered for the plaintiff for $250, and that when the cause was last tried in the district court, and during the closing argument, counsel for plaintiff stated that such a judgment had been rendered in the court below. Such a statement by counsel was improper, and the court should have sustained the defendant's objection thereto. But, under the facts and circumstances of this case, we are of the opinion that the remark was not of such a character as would justify a reversal of this cause. In vol. 2 Enc. Pl. & Prac. page 734, it is said: "Statements of the result of a former trial of the same case are regarded as improper and unjustifiable, and in some cases so extremely harmful as to constitute ground for a new trial." And on page 735 of the same volume, it is said: "But the appellate court will not disturb the verdict unless it appears that the party complaining was probably prejudiced." In Attaway v. Mattax (Tex. App.) 14 S. W. 1017, the Court of Appeals of Texas lays down this rule: "It is reversible error for plaintiff's counsel to state, in his closing argument to the jury. that, on a former trial, plaintiff recovered upon the same evidence now before them." Ordinarily such a statement is sufficient ground for reversal of the cause, but in this case we have carefully examined the record with reference to the amount of damages awarded by the jury, and, in our opinion, it is fair and just; and we believe that in case of another trial upon the same state of facts, the plaintiff ought to recover at least the amount of damages awarded in this case. And for that reason, we are of the opinion that the remarks that were made would not warrant this court in reversing the cause, and awarding a new trial.

87 P.-55

The judgment of the district court is therefore affirmed.

BURWELL, J., who presided in the court below, not sitting; all the other Justices concurring.

(17 Okl. 387)

WHITACRE v. NICHOLS. (Supreme Court of Oklahoma. Sept. 6, 1906.) 1. APPEAL-CASE-MADE-EXTENSION OF TIME. The presiding judge of a district, either at chambers or while sitting as a court, or the judge who tried the case, if clothed with authority by assignment, while in the district, may extend the time in which to make and serve a case-made.

2. PLEADING-CONSTRUCTION-EXHIBITS-DE

MURRER.

Where the instrument, which is the basis of the action, is attached, by copy, to the petition and made a part thereof, such copy should be made a part of the petition when construing the allegations thereof as against a general demurrer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 555, 946.]

3. APPEAL--REVIEW-ASSIGNMENTS OF ERROR. Where the appellant fails to assign as error the overruling of the motion for a new trial, in the petition in error, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below.

4. CHATTEL MORTGAGES - RIGHTS OF MORTGAGEE-REPLEVIN-PETITION-DEMURRER.

In replevin by mortgagee, petition held not subject to general demurrer, because it fails to allege condition broken in chattel mortgages, and that the notes were due, since the mortgages were attached to the petition and made a part thereof, and contained copies of the notes showing they were past due at the time the suit was instituted, also, the condition that, upon default in payment of note, mortgagee was entitled to possession.

(Syllabus by the Court.)

Error from District Court, Lincoln County; before Justice Bayard T. Hainer.

Action by Clara E. Nichols against Alva Martin and Noble Whitacre. Judgment for plaintiff, and defendant Whitacre brings error. Affirmed.

J. B. A. Robertson, for plaintiff in error. S. D. Decker and V. S. Decker, for defendant in error.

GARBER, J. This is an action in replevin brought in the district court of Lincoln county by Clara E. Nichols, plaintiff, against Alva Martin and Noble Whitacre, defendants, for the recovery of the possession of 31 head of neat cattle. Alva Martin, one of the defendants and the mortgagor made no appearance, and Noble Whitacre, the other defendant, entered a general denial. A jury being waived and the cause submitted to the court, the issues were found in favor of the plaintiff (defendant in error), and a judgment given in the alternative that the plaintiff recover the possession of 18 head of cattle described in plaintiff's petition, and, if a return thereof could not be had, then for their value in the

sum of $324, and costs of suit. The record shows that the case was tried at the May, 1905, term of the district court of the First judicial district in and for Lincoln county, before Hon. Bayard T. Hainer, presiding judge; and that the time to make and serve a case-made was by the court extended 90 days; that thereafter, on the 9th day of August, 1905, at his chambers, the time was further extended 30 days, by Hon. John H. Burford, judge of that district.

Objection is raised to the consideration of this case by this court upon the ground that the Hon. John H. Burford, the regular presiding judge of said district, not being the trial judge, did not have power to extend the time for making and serving case-made. Section 4742 of Wilson's Rev. & Ann. St. 1903, provides: "The court or judge may upon good cause shown extend the time for making a case and the time which the case may be served. The above section gives

the court, while in session, or the judge of the court, power to grant the extension. In this case Hon. Bayard T. Hainer, was the trial judge, while Hon. John H. Burford was the judge of the court, the regular appointed and acting judge of the district court of that county, and in possession of the office, and, as such, he had power to grant the extension at chambers. Hulme et al. v. Diffenbacher, 53 Kan. 181, 36 Pac. 60; Railroad v. Leeman, 5 Kan. App. 804, 48 Pac. 932; Wallace v. Caldwell (Kan. App.) 59 Pac. 379.

Defendant below filed his motion for a new trial, which was overruled and excepted to, but the overruling of the motion is not assigned as error in the petition in error in this case. Hence the numerous assignments of error, alleged to have occurred during the progress of the trial in the court below, are not properly presented in this court for review. It has been repeatedly held by this court that errors occurring during the trial are not properly presented for consideration unless a motion for a new trial setting forth such errors has been made by the complaining party, acted upon by the trial court, its rulings excepted to, and afterwards assigned as error in the Supreme Court. Beall v. Ins. Co.. 7 Okl. 285, 54 Pac. 474; Menten v. Shuttee et al., 11 Okl. 381, 67 Pac. 478, and cases therein cited.

The overruling of the demurrer to plaintiff's petition, however, having been assigned as error in the petition in error, is properly here by transcript, and may be considered. In her petition, plaintiff alleged that she was the qualified owner of the cattle in controversy (describing them); that her qualified ownership was by virtue of two chattel mortgages, executed on the 13th and 16th days of January, 1904, by one of the defendants below, Alva Martin, to the plaintiff, to secure the sum of $742.25, copies of said mortgages being set out in full, attached, marked Exhibits A and B respectively, and made a part of the petition; that she was entitled to the

immediate possession of the property; and that the defendants wrongfully detained the possession thereof from the plaintiff; then followed prayer for judgment for the possession, and damages for wrongful detention. It is insisted that the petition herein is fatally defective, in that it did not allege condition broken, and that the notes for which the mortgages were given as security, were due. On demurrer to a petition, as defective, in that it does not state facts sufficient to constitute a cause of action, the petition should be liberally construed with a view to substantial justice between the parties, and a demurrer will only be sustained where the petition presents defects so substantial and fatal as to authorize the court to say, that, taking all the facts to be admitted, they furnish no cause of action whatever. If the facts stated in the complaint entitled the plaintiff to any relief, a demurrer for want of sufficient facts should be overruled. Pl. & Prac. vol. 6,346; Pl. & Prac. vol. 4, 749, and cases cited therein. Under our civil procedure, adopted from the state of Kansas, with the construction placed thereon, the chattel mortgages were a part of the petition, the same as if set out in full, when tested by general demurrer. Grimes v. Cullison, 3 Okl. 268, 41 Pac. 355; Ward v. Clay (Cal.) 23 Pac. 50; Budd v. Kramer, 14 Kan. 101; State v. School District No. 3, 34 Kan. 237, 8 Pac. 208.

The plaintiff alleged ownership by virtue of two chattel mortgages which were attached to, and made a part of, her petition. The mortgages contained copies of the notes showing they were past due at the time the suit was instituted, and no presumption existed that they had been paid-one note for $318.25 due April 13, 1904, and one note for $424 due April 16, 1904-the petition being filed August 8, 1904. The mortgages also contained the provision: "And the said mortgagor hereby covenants and agrees to and with the said mortgagee, that in case of default made in the payment of the above mentioned promissory note, the mortgagee, or his agent, may take immediate possession of the above goods and chattels." "In our statutory action of replevin the gist of the action is the wrongful detention of the property in controversy on the part of the defendant as against the plaintiff. And the plaintiff, in order to maintain the action, must plead and prove: * First, that he owns or has

a special ownership or interest in the property; second, that he is entitled to the immediate possession of the same; and, third, that the property is wrongfully detained by the defendant. The defendant cannot wrongfully detain property as against the plaintiff unless all of these facts exist." Wilson v. Fuller, 9 Kan. 176; Robb v. Dobrinski, 14 Okl. 563, 78 Pac. 101. Plaintiff in error was not the mortgagor, and his possession was wrongful at all times as to the mortgagee under the terms of the mortgage. Although we think it the better practice, it was not neces

sary to allege specifically in the petition the nonpayment of the notes and a breach of any of the conditions of the mortgages, inasmuch as they were made a part of the petition, and it fully appeared from the mortgages themselves that at least one of the conditions had been broken by the mortgagor making default in the payment of the notes. Wilkins v. Moore, 20 Kan. 538; Chaffee v. Browne, 109 Cal. 211, 41 Pac. 1028; Baldwin v. Boyce (Ind. Sup.) 51 N. E. 334; Johnson v. Anderson, 60 Kan. 578, 57 Pac. 513. The notes being past due and unpaid, one of the conditions in the mortgages was broken, and the mortgagee was then entitled to the possession of the property. Bearss v. Preston, 66 Mich. 11, 32 N. W. 912; Johnston v. Robuck, 104 Iowa, 523, 73 N. W. 1062; Cobby on Chattel Mortgages (vol. 2), 1069.

It is insisted that from the petition the defendant could not ascertain upon what grounds the plaintiff relied for her right to possession. In view of the fact that the plaintiff alleged a qualified ownership by virtue of two chattel mortgages which were attached to, and made a part of, the petition, containing copies of the notes showing default in payment and condition broken, we are unable to see anything in that contention, and, while we do not hesitate to express our disapproval of the degree of carelessness exhibited by the petition in this case, the defendant should have filed his motion to make more definite and certain. Having failed to do so, he cannot now be heard to complain that he was unable to proceed intelligently because of his failure to invoke a proper remedy. Defects of form, of averment, or uncertainty cannot be considered upon general demurrer. The petition, with the exhibits attached, and made a part thereof, stated a cause of action, and, there being no other ussignment of error properly presented to this court, the judgment of the district court will be affirmed. All the Justices concurring except HAINER, J., who tried the case below, not sitting.

(17 Okl. 495)

JACKSON v. TENNEY et al. (Supreme Court of Oklahoma. Sept. 7, 1906.) 1. PROCESS-RETURN OF SERVICE-EXPLANATION-PAROL EVIDENCE.

Where the return of a sheriff that he has served a summons on the defendants personally is ambiguous, and open to the construction that but one copy was delivered to both defendants, parol evidence is admissible to show that no service, in fact, was had on one of the defendants.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Process, §§ 197-201.]

2. JUDGMENT-MOTION TO VACATE.

Where there is a direct proceeding, by motion in the cause, to set aside a judgment, by one of the defendants in the action, at the same term of court at which the judgment is rendered, and the return of the officer is ambiguous, and open to the construction that but one writ was served on both defendants, and

the evidence conclusively shows that no service was had upon such defendant, it is error to overrule the motion.

(Syllabus by the Court.)

Error from District Court, Canadian County; before Justice C. F. Irwin.

Action by John Tenney against A. H. Jackson and Jennie Jackson. Judgment for plaintiff, and defendant Jennie Jackson brings error. Reversed and remanded.

M. D. Libby, for plaintiff in error. J. I. Phelps, for defendants in error.

HAINER, J. This is an action brought in the district court of Canadian county, on the 19th day of December, 1902, by John Tenney against A. II. Jackson and Jennie Jackson, to recover the sum of $122.50, alleged to be due and owing as commission for the sale of real estate. On the same day summons was duly issued and placed in the hands of the sheriff to be served. The return of the undersheriff is as follows: "Received this writ this 19th day of December, at 9 o'clock a. m., 1902. Served the same by delivering a copy thereof, with the indorsements thereon, duly certified, to the within-named defendants, A. H. Jackson and Jennie Jackson, personally. On the 19th day of December, 1902. A. A. Cosby, Sheriff, by C. M. Spiker, Undersheriff." On the 10th day of February, 1903, at a regular term of the district court, judgment was rendered by default against the defendants, for the sum of $139.25 and costs of action. On the 21st day of February, 1903, and during the same term of the court, motion was filed by Jennie Jackson, one of the defendants in the court below, plaintiff in error, to set aside the judgment, on the ground that the court had no jurisdiction of the person of the defendant, in this, to wit: "That service of summons in said action was not had upon the said Jennie Jackson, either by delivering to her a copy of the summons issued in said action, personally, or by leaving a copy thereof at her usual place of residence, or at all. That she enters her appearance herein for the purposes of this motion only."' And said motion was duly verified. This motion was overruled by the trial court, to which an exception was reserved, and the case is brought here for review.

The sole question presented by the record is whether or not the service upon Jennie Jackson was sufficient. The affidavit of Jennie Jackson that no summons was served on her, either in person or by leaving a copy at her usual place of residence, was not controverted, except as shown by the return of the officer. Section 64 of the Code of Civil Procedure (St. 1893, § 2938) provides as follows: "The service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day." Upon an examination of the

return of the officer, it will be observed that the summons was served "by delivering a copy thereof, with the indorsement thereon, dly certified, to the within-named defendants, A. H. Jackson and Jennie Jackson, personally." Hence the return is clearly open to construction, as to whether a copy of the summons was served on one or both of the defendants. The law requires that the summons shall be served by delivering a copy to each of the defendants personally, or by leaving the same at their usual place of residence. The undisputed testimony shows that the requirements of the statute were not satisfied, and that no summons was served upon the plaintiff in error, either in person or by leaving a copy at her usual place of residence.

In Randolph v. Schwingle (Tex. Civ. App.) 27 S. W. 955, it was held that: "A return of a writ by a sheriff as served by 'delivering to J. R., R. II., W. S., the within-named defendant, in person, a true copy of this note.' is sufficient to support a judgment by default." In this case, the Court of Civil Appeals of Texas, speaking by Chief Justic James, says: "The return is open to the construction that but one writ was served on all the defendants, and has been held in several cases to be insufficient to support a judgment by default." In Swilley v. Reliance Lumber Co. (Tex. Civ. App.) 46 S. W. 387, the same court, in passing upon a similar question, says: "The return is clearly insufficient to authorize a judgment against either one of the defendants named therein. The law requires that each defendant be served with a copy of the writ, and this can only be done by the officer executing the writ delivering a copy of the same to each defendant in person. This is not shown to have been done by the return in this case. Holliday v. Steele, 65 Tex. 388; King v. Goodson, 42 Tex. 153. The judgment is therefore reversed as to the plaintiff in error, Swilley, and the cause remanded as to him."

Counsel for defendant in error rely upon the authority of Goodard v. Harbour (Kan. Sup.) 44 Pac. 1055, 54 Am. St. Rep. 608, where the Supreme Court of Kansas held that: "The return of a sheriff that he has served a summons on the defendants personally, being a matter as to the truth or falsity of which he has personal knowledge, is conclusive between the parties, and cannot be questioned in an action afterwards brought to enjoin the enforcement of a judgment based on such service, on the ground that the court was without jurisdiction of the person of the defendants." In this case the learned court announced the doctrine that, as to matters falling within the personal knowledge of the officer, his return is conclusive as between the parties unless the falsity of the return is disclosed by some other portion of the re. ord in the cause. But, in this case, it must be

borne in mind that the court had under consideration an action to enjoin the enforcement of a former judgment, and it was a collateral attack made upon such judgment; while in the case under consideration the motion was filed in the same case, and at the same term of court at which the judgment was rendered, and was a direct proceeding by motion a very short time after the rendition of the judgment. Again, it must be observed, in the Goodard Case, that the Supreme Court of Kansas assumed that the return showed that personal service was had upon both defendants, and upon that assumption based its opinion. But it also appears from the opinion that parol evidence was allowed to be introduced to show that service was, in fact, had on each of the defendants. The court apparently failed to discuss, or overlooked, the question whether the return of the officer was ambiguous, and open to construction as to whether service was in fact had upon each of the defendants, in the mode required by the statute.

In the case at bar the return is clearly ambiguous, and it does not appear that the oflicer served a summons on each of the defendants, and in the mode prescribed by statute. Hence we think it was clearly competent to show by the record, as well as by parol evidence, that the summons in fact. was not served upon the defendant. We also think that the doctrine herein announced is clearly distinguishable from the rule announced in the Kansas case, and similar cases.

We do not wish to be understood as holding in this case that, where the return of an officer shows personal service, which is within the personal knowledge of such officer. the return may be impeached or contradicted by parol testimony. Upon this question the American authorities are conflicting, and we think it is unnecessary to decide it at this time. It is sufficient to hold in this case that the return under consideration was open to the construction that but one writ was served on both defendants, and that therefore the service did not conform to the requirements of the statute. And, since the evidence conclusively established that service was had on the defendant, we think the court erred in not sustaining the motion to set aside the judgment, so far as it affected the rights of the plaintiff in error. Moreover, we think the well-recognized doctrine that every court has absolute control over its judgments and decrees at the term at which they are rendered, and may therefore at any time before the expiration of such term vacate or modify any judgment or decree rendered during such term, in the exercise of its sound discretion, is applicable to the case under consideration. 17 A. & E. Enc. Law (2d Ed.) p. 813, and numerous cases there cited in the note.

The judgment of the district court is re

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