HUC
UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
A TREATISE
ON
PLEADING AND PRACTICE
IN COURTS OF RECORD IN
CIVIL CASES IN THE STATE OF
OKLAHOMA
WITH FORMS
BY ARTHUR B. HONNOLD
OF THE OKLAHOMA BAR
AUTHOR OF A TREATISE ON OKLAHOMA JUSTICE PRACTICE, AND A TREATISE ON WORK-
MEN ?S COMPENSATION, FORMERLY A MEMBER OF THE EDITORIAL
STAFF OF THE WEST PUBLISHING. COMPANY
IN THREE VOLUMES
VOLUME I
. KANSAS CITY, MO.
VERNON LAW BOOK COMPANY
1922
T
\J.\
COPYBIGHT, 1922
BY
VERNON LAW BOOK COMPANY
(HON.PL.& PBAC.)
-
PREFACE
THOUGH Oklahoma is one of the newest states, the Code of Civil Prac-
tice adopted from Kansas and the changes made since its adoption
in the Territory have been so thoroughly tried out and so frequently
construed by the .highest courts in clear, analytical opinions that
a comprehensive work on procedure and practice can now be
written, based on controlling authorities.
Such a work is here attempted. Every statute relating in any
way to procedure is quoted in full in connection with the treatment
of the subject td which the statute relates. Every Kansas and
Oklahoma case containing any discussion of procedural matters has
been examined and the law gleaned therefrom, in so far as it is
applicable to the practice in Oklahoma at the present time. A stu-
dious effort has been made to eliminate all decisions which are now
inapplicable, or which have been reversed or overruled.
Although the Code of Civil Procedure was adopted with a view of
simplifying and stabilizing the rules of procedure, all of these rules,
with their numerous qualifications and applications, cannot be said to
be incorporated in the statute as adopted by the Legislature. Volumes
have been written around a single clause or section of the Constitution
of the United States; likewise, pages, if not volumes, could well be
written around each of various sections of the Code — all being based
upon decisions throwing light upon the construction and application of
the Code provisions.
In the year 1850, Mr. Justice Selden, of the Supreme Court of New
York, said: "Many of the technical rules of the common-law system
of pleading may well have been considered as originating in, and con-
nected with, those distinctions between the different forms of action
which were peculiar to that law. There are, however, some of those
rules which are so well adapted to accomplish the end of all pleading
that I should find it difficult to persuade myself that the Legislature
could have intended to abrogate them."
The evil of the common-law system of pleading, depending upon a
system of rules necessarily artificial and complex, in consequence of
(iii)
IV PREFACE
which, either through ignorance or mistake, an issue would be formed
not involving the real merits of the controversy, and a decision be pro-
duced contrary to justice and equity, was originally sought to be reme-
died by allowing the widest scope in the proof of facts not strictly in
issue. This remedy has been repudiated by the Code, and this evil
remedied in large part by the liberal allowance of amendments.
The Code abolishes the distinctions between actions at law and suits
in equity, and the course of proceeding in both cases is now the same.
Whether the action depends upon legal or upon equitable principles, it
still remains .a civil action, to be commenced and prosecuted without
reference to this distinction. Although this is true in reference to the
form and course of proceeding in the action, the principles determina-
tive of the rights of the parties remain unchanged.
The more liberal view of the Code is that it is based upon an entirely
new theory, with different ends to accomplish, and that it is better,
in order to carry out its spirit, to consider it as a new theory, to be
construed and carried into e'ffect upon principles peculiar to itself.
If the attorneys of to-day were first made familiar with the rules of
common-law pleading as they existed in the early part of the last cen-
tury, it would be well to adopt this view ; but so many rules, many of
which grew out of the old rules, have been built up around the provi-
sions of the Code, in such way as to become in effect a part thereof,
that the question whether these rules are the same as those existing
at common law is of minor importance. In other words, it is generally
enough to know that, ever since the adoption of the Code, we have been
borrowing from the common law to supplement and clarify the Code ;
but the extent to which we have borrowed is not of any great impor-
tance, since the majority are more familiar with these rules than with
the original rules of the common law. However, familiarity with the
common-law rights of action is important. Mr. Justice Burwell, of the
Supreme Court of the Territory of Oklahoma, well said that, "while
the forms of actions have been changed, we must not forget that the
right of any particular action, as it existed at common law, remains the
same, unless abridged or denied by the statute ; and, while the common-
law forms of action have been abolished, the rights of such actions
continue to exist, but under a different name. Every cause of action
that existed under the common-law forms, which has not been abolish-
ed, still exists under the name of a 'civil action.' The statute did not
abolish common-law causes of action ; it only abolished their forms and
grouped them under one head."
PREFACE V
This work may be said to contain two indexes; one the table
of contents at the beginning of the work, and the other the index
proper at the close. It also contains a table of statutes and con-
stitutional provisions, showing the section of the work in which
each such statute or provision is cited. It also contains a table of
cases, in which are arranged in alphabetical order all of the several
thousand cases cited.
The arrangement and general form of the work is the result of
several years' experience, and, if it is found to be logical and work-
able, the lawyer should be able, with the other aids above mention-
ed, to find in these volumes what he wants, with a minimum of
effort, provided it is within the scope of the work.
A sample of every form suggested by the text, or the statutes
quoted, is contained in these volumes, and it is hoped that they will
be of aid, at least, in the preparation and the checking of forms
prepared by the lawyer.
I desire to acknowledge an indebtedness for valuable assistance
given by my law partner, Mr. Herbert D. Mason, and also by the fol-
lowing attorneys: Mr. Kenneth Lawing, who assisted in the prep-
aration of the entire work; Mr. L. G. Williams, who assisted in the
preparation of the forms; Mr. Roscoe E. Harper, Professor of Law
of the Oklahoma University, who assisted on the chapter on Appeal
and Review, and Mr. Elton B. Hunt, who assisted in the portion
of the work relative to certain special proceedings and special writs.
ARTHUR B. HONNOLD.
TULSA, OKLAHOMA, January 2, 1922.
TABLE OF CONTENTS
VOLUMES I TO III
VOLUME I
CHAPTER I
COURTS AND COURT OFFICERS
Sections
1-142. Article I. — Courts and judges.
1-31. Division I. — Relating to code practice in general.
32-45. Division II. — Judges in general.
46-81. Division III. — District courts and judges.
82-89. ' Division IV. — Superior courts and judges.
90-113. Division V. — County courts and judges.
114-142. Division VI. — Supreme Court and judges.
143-198. Article II. — Other court officers.
143-145. Division I. — In general.
146-162. Division II. — Court clerks.
163-172. Division III. — Sheriffs and other peace officers.
173-198. Division IV.— Attorneys.
ARTICLE I
COURTS AND JUDGES
DIVISION I.— RELATING TO CODE PRACTICE IN GENERAL
1. Courts open for administration of justice.
2. Due process.
3. Judicial power vested where.
4. Judges — Conservators of the peace.
5. Title of chapter.
6. Prior decisions and precedents — Stare decisis.
7. Decisions of federal courts,
8. Common law.
9. Obiter dictum.
10. Law of the case.
11. Statutes and construction.
12. Erroneous words and punctuation.
13. Rule of ejusdem generis.
14. Statute construed as a whole.
15. Statutes construed together or in the light of each other.
HON.PL.& PEAC.
(vii)
viii . TABLE OF CONTEXTS
Sections
16. Administrative construction.
17. Provisos or exceptions.
18. Statute adopted from another state.
19. Adjournment by sheriff.
20. Publications.
21. Affirmation.
22. Computation of time.
23. Surety — Justification. ,
24. Qualifications.
25. Real estate mortgage as bond.
26. Valuation of real estate.
27. False valuation — Penalty.
28. Action on bond.
29. Several actions on security.
30. Submission of controversy.
31. Impeachment and removal from office.
DIVISION 11. — JUDGES IN GENERAL
32. As public officer.
33. Judge pro tempore.
34. Waiver of objections.
35. Powers of special judges.
36. Liabilities.
37. Change of judge.
38. Disqualifications.
39. Relationship.
40. Bias and prejudice.
41. Objections and procedure.
42. Form — Application for disqualification of judge.
43. Waiver of disqualifications.
44. Acts of disqualified judge.
45. Powers at chambers.
DIVISION 111. — DISTRICT COURTS AND JUDGES
46. District court — Where held.
47. Districts and judges.
48. Sessions — Time for — Adjournments.
49. Change of district — Disposition of cases pending.
50. Special terms.
51. Adjournment of term.
52. Two or more judges sitting at same time.
53. Additional judge.
54. District judges — Expenses.
55. Reporter — Appointment — Qualifications.
56. Duties of court reporter.
57. Salary and fees.
58. Traveling expenses.
59. Tenure and oath of office.
60. Notes filed — Admissibility in evidence — Transcripts.
61. Appeal to district court.
62. Party in default.
63. Who may appeal.
TABLE OF CONTENTS IX
Sections
64. When appeal must be taken.
-65. Appeal how taken.
66. Appeal bond.
67. Stay of execution.
68. Commitment — How stayed.
69. Justification of sureties — Increased bond.
70. Appeal bond form — Action upon.
71. Appeal not to stay issue of letters.
72. Appeal not to stay order revoking letters, (tc.
73. Proceedings.
74. Powers of the appellate court.
75. Trial de novo.
76. Penalty for neglect of county judge to transmit record.
77. Dismissal of appeal — Effect — Costs.
78. Enforcement of decree.
79. Executor's bond stands in place of appeal bond.
80. Reversal for error not to affect lawful acts.
81. Rules of district court.
DIVISION IV.— SUPERIOB COURTS AND JUDGES
82. Superior courts in general.
83. Qualifications of judges — Term of office.
84. Election.
85. Procedure — Juries — Appeals.
86. Court stenographer.
87. Sheriffs — County attorneys.
88. Judge's salary.
89. Transfer of causes.
DIVISION V.— COUNTY COTTBTS AND JUDGES
90. Procedure — Seal.
91. Terms of court.
92. Proceedings in vacation — Out of court.
93. Calendar.
94. Stenographer.
95. Duties.
96. Oath and tenure of offlce.
97. Fees for making transcripts.
98. Ex oiucio court clerk.
99. Compensation.
100. Fees— Record.
101. Report of.
102. Fees paid to treasurer.
103. Special court towns.
104. Judge — Term of office — Qualification.
105. To give bond.
106. Office and records.
107. Practice prohibited.
108. Temporary county judge.
109. How elected.
110. Fee when affidavit of bias made.
111. County judge — County attorney — Salary.
: TABLE OF CONTENTS
Sections
112. Court reporters.
113. Rules for county court.
DIVISION VI.— SUPREME COURT AND JUDCIES
114. Membership — Quorum — Eligibility — Term of office — Vacancies — Ju-
risdiction.
115. Justices — Judicial districts — Election — Law clerks.
116. Referees and first law clerk.
117. Chief justice— Election.
118. Vice chief justice — Election.
119. Justices — Not to be candidate for other office.
120. Commencement of term.
121. Sessions — Opinions.
122. Chief justice — Expiration of terms — Election.
123. Clerk.
124. Law governing.
125. Salaries of justices.
126. Effect of invalidity.
127. Jurisdiction — Divisions.
128. Appeals from county court.
129. Appeals from corporation commission.
130. Appeals from state labor commission.
131. Formation of new counties.
132. Speedy hearing.
133. Original jurisdiction — Division of assets and liabilities among
counties.
134. Parties — Proceedings.
135. Constitution.
136. Jurisdiction — Removal of state capitol and normal schools.
137. Jury trial when.
138. Trial.
139. Jury — How selected.
140. Costs — Witness fees.
141. Reports.
142. Supreme court rules.
ARTICLE II
OTHER COURT OFFICERS
DIVISION 1. — JN GENERAL
143. Compensation.
144. Deputies — Duties.
145. Bailiffs.
DIVISION II.— COURT CLERKS
14G. Office— Selection— Eligibility.
147. Official bond— Form.
148. Powers and duties — Contestants.
149. Liabilities.
150. Deputies.
151. Vacancies.
152. Fees and salaries.
TABLE OF CONTENTS XI
Sections
153. Books to be kept.
154. Appearance docket.
155. Indorsements.
156. Execution docket.
157. Judgment docket.
158. Journal.
159. Files.
160. Cases — Court records.
161. Application of statute.
162. Journal entry — Order of sale — Homestead — Insane spouse.
DIVISION III.— SHERIFFS AND OTHER PEACE OFFICERS
163. Sheriffs and deputies.
164. Service of writs and process — Amercement.
165. Substitute for sheriff.
166. Fees and salaries.
167. Power aud duty.
168. Liability — Amercement.
169. Official bonds.
170. Acts of deputy.
171. Wrongful attachment.
172. Indemnity bonds.
DIVISION IV.— ATTORNEYS
173. Who permitted to practice — Examinations for admission.
174. Applicants to conform to rules — Fees for admission.
175. Examination — Commission.
176. Qualifications.
177. Persons not permitted to practice.
178. Attorneys from other states — How admitted.
179. Oath upon admission.
180. Foreign attorneys.
181. Duties.
182. Power, duty, and liability.
183. Implied authority — Tender — Compromise — Notice
184. May receive money for client.
185. Proof of authority to appear.
186. Purchasing property.
187. Lien for services — Extent — Notice.
188. Fees.
189. Enforcement — Compromise without notice.
190. Amount which may be recovered.
191. May not become surety in action in which employed.
192. Lien — Release by giving bond.
193. Suspension of license — Disbarment.
194. Causes.
195. Defenses — Limitations.
196. Proceedings — How commenced.
197. Trial — Judgment.
198. Attorney and client in general.
Xil TABLE OF CONTENTS
CHAPTER II
ARBITRATION, COMPROMISE, AND SETTLEMENT
Sections
199-200. Article I.— Arbitration. .
201-202. Article II. — Compromise and settlement.
ARTICLE I
ARBITRATION
199. In general.
200. Forms.
ARTICLE II
COMPROMISE AND SETTLEMENT
201. In general.
202. Construction.
CHAPTER III
JURISDICTION
203-216. Article I. — Nature, scope, elements, and exercise.
217-247. Article II. — Original, concurrent, and appellate jurisdiction.
ARTICLE I
NATURE, SCOPE, ELEMENTS, AND EXERCISE
203. Jurisdiction defined.
204. Basis and elements.
205. Original jurisdiction.
206. Scope, extent, and place of exercise.
207. Territorial extent.
208. Where parties reside or may be found.
209. Jurisdiction of subject-matter.
210. Trusts.
211. Consent and waiver.
212. Ancillary jurisdiction.
213. Rule of comity.
214. Shown by record.
215. Determination of jurisdiction.
216. Objections.
ARTICLE II
ORIGINAL, CONCURRENT, AND APPELLATE JURISDICTION
217. Concurrent jurisdiction.
218. Personal injuries.
219. Appeals— From police judges and justices of the peace.
220. From town justice court.
221. From county commissioners.
TABLE OF CONTENTS
Sections
222. How taken.
223. State and federal courts.
224. Transfer of causes.
225. Transfer to state courts.
226. County courts — Jurisdiction — Judge pro tempore.
227. Amount involved.
228. Probate jurisdiction — Sessions.
229. Title involved.
230. Bastardy proceedings.
231. Appellate jurisdiction.
232. District courts.
233. Special cases.
234. Amount involved.
235. Appeals from county court.
236. Appeals in probate cases.
237. Indians and Indian lauds.
238. Indian lands.
239. Misconduct in office.
240. Taxes and assessments.
241. Public lands.
242. Vested when — Exemption from taxation.
243. Equity.
244. Foreclosure.
245. Superior courts.
246. Supreme Court.
247. Appeals from county court.
xiii
248-264.
265-273.
CHAPTER IV
VENUE
Article I. — Where actions brought
Article II. — Change of venue.
ARTICLE I
WHERE ACTIONS BROUGHT
248. Where subject located.
249. Subject-matter.
250. Relating to real estate.
251. Land located in more than one county — Specific performance.
252. Where cause arose.
253. Residence of parties.
254. Domestic corporation — Insurance company.
255. Foreign corporations and nonresidents.
256. Process — Foreign corporations.
- 257. When charter revoked.
258. Actions against guaranty companies.
259. Actions against transportation or transmission companies.
260. Actions against turnpike companies.
261. Action against board of county commissioners.
XIV TABLE OF CONTENTS
Sections
262. Divorce and annulment.
263. Other actions.
264. Waiver of right.
ARTICLE II
CHANGE OF VENUE
265. Change of venue.
266. Discretion.
267. Grounds — Disqualification of judge.
268. Local prejudice.
269. Application.
270. Hearing and order.
271. Waiver.
272. Proceedings after change.
273. Form.
CHAPTER V
REMEDIES AND RIGHTS
274-295. Article I.— In general.
296-298. Article II.— Election of remedies.
ARTICLE I
IN GENERAL
274. Remedies.
275. Cumulative remedy.
276. Actions and special proceedings.
l'~7. Distinctions abolished.
278. Determination of character.
N279. Common-law actions.
280. Tort and contract.
281. Illegal transactions.
282. Injury without liability.
283. ' Tenders.
284. Right of action — Warrantee — Costs and expenses.
285. Action on surveyor's bond.
286. Surety against principal.
287. Money received.
288. Conditions precedent — Warranty.
289. Death pending action.
290. Claim against estate.
291. Usury.
Claim against municipality.
293. Offer — Demand — Notice.
294. Taxes.
295. Insurance.
TABLE OF CONTENTS
XV
ARTICLE II
ELECTION OF REMEDIES
Sections
296. Necessity.
297. Effect.
298. What constitutes.
299-310.
311-328.
299.
300.
301.
302.
303.
304.
305.
306.
307.
308.
309.
310.
CHAPTER VI
ABATEMENT, SURVIVAL AND REVIVOR
Article I. — Survival and abatement
Article II. — Revivor.
ARTICLE I
SURVIVAL AND ABATEMENT
What actions survive.
Death or assignment.
Death of. plaintiff.
Death of defendant.
Personal injuries.
Action for wrongful death.
Who may sue — Amount of recovery.
Party in representative capacity — Change.
Receiver.
Transfer of interest.
Where action does not survive.
Abatement — Pendency of another action.
ARTICLE II
REVIVOR
311. Where action survives upon death of party.
312. Proceedings.
313. Who may move.
314. Consent or notice.
315. Notice by publication. ,
316. Death of plaintiff.
317. Death of defendant.
318. Limitation.
$19. Amendment to petition.
320. Time of order.
321. Delay to revive.
322. Vacation of order.
323. Objections and waiver.
324. Action dismissed, when.
325. At instance of defendant.
326. Trial.
327. Death after judgment.
328. Revivor of judgment — Forms.
XVI
TABLE OF CONTENTS
CHAPTER VII
LIMITATIONS
Sections
329-342. Article I. — Purpose, validity, and operation.
343-344. Article II. — Commencement of action.
345-360. Article III. — When statute begins to run.
361-378. Article IV. — Limitation periods.
379-391. Article V. — Suspension and tolling of statute.
392-397. Article VI. — Extension and waiver.
398-400. Article VII.— Contract limitations.
ARTICLE I
PURPOSE, VALIDITY, AND OPERATION
329. Purpose and validity of statutes.
'330. What law governs — Foreign laws.
331. Construction and operation.
332. Retroactive operation.
333. Actions already barred.
334. As against state, municipality, or public officers.
.335. Will contest.
336. As to defenses in general.
.'!.'!7. As to set-off or counterclaim.
338. Computation of time.
339. Bar absolute — Operation in general.
340. Debt of husband and wife.
341. Replevin.
342. Foreclosure.
ARTICLE II
COMMENCEMENT OF ACTION
343. When action commenced.
344. Amendment.
ARTICLE III
WHEN STATUTE BEGINS TO RUN
345. Accrual of right or defense— In general.
346. Real property.
347. Personal property.
348. Contracts in general.
•'!»'•». Continuing contracts.
860. Scvcrable contracts and installments.
::"»!. Bonds.
Covenants — Mortgage deed.
Municipal warrants.
••••"•4. Torts.
Guaranty.
Malfeasance in office.
TABLE OP CONTENTS XV11
Sections
357. Statutory liability.
358. Equitable actions.
359. Conditions precedent.
360. Trusts.
ARTICLE IV
LIMITATION PERIODS
361. Application of statutes.
362. Real actions.
363. Other actions.
364. Fraud.
365. Foreign judgment — Bonds, etc.
366. Action for recovery of estate sold by guardian.
367. Liens.
368. Liens against railroads.
369. Actions against notaries.
370. Rejected claim.
371. Vacancy in administration.
372. Action against sureties on bond.
373. Actions for wrongful death.
374. Assessments — Suits to set aside.
375. Demand — Tender.
376. Actions for usurious interest.
377. Tax deed.
378. Nonresident alien landowners.
ARTICLE V
SUSPENSION AND TOLLING OF STATUTE
379. Suspension of statute in general.
380. Disability.
381. Infancy.
382. Person of unsound mind.
383. Suspension of statute by death.
384. Absence or flight.
385. Nonresidence.
386. Concealment.
387. Of person.
388. Return.
389. Fraud or fault.
390. Ignorance, mistake, and duress.
391. Revivor.
ARTICLE VI
/
EXTENSION AND WAIVER
392. Failure otherwise than on merits.
393. Extension.
394. Acknowledgment.
395. Extension agreement
HON.PL.& PRAC.— b
XV111
Sections
396.
TABLE OF CONTENTS
Part payment.
397. Waiver of limitations.
ARTICLE VII
CONTRACT LIMITATIONS
398. In general.
399. Insurance policy.
100. Mutual accident and sickness insurance.
CHAPTER VIII
PARTIES
401-406. Article I.— In general.
407-423. Article II.— Plaintiff.
424-436. Article III.— Defendant.
437^39. Article IV.— Intervenes
440-443. Article V.* — Defects, objections, and amendments.
ARTICLE I
IN GENERAL
401. Designation of parties.
402. Counties — Dental board.
403. Married women.
404. Joinder — Necessary parties.
405. Where parties numerous.
406. Style.
ARTICLE II
PLAINTIFF
407. Real party in interest.
408. Joinder.
409. New party.
410. Capacity to sue.
411. Corporations.
In particular cases.
413. Creditors.
414. Stockholders' suit.
415. Insurance.
416. Taxpayers— Injunction.
417. Assignee and assignor.
418. Persons not personally interested.
419. Guardian.
420. Infants— Wards.
421. Tenants in common.
422. Government and governmental agencies.
423. Action for death.
TABLE OF CONTENTS
XIX
ARTICLE III
DEFENDANT
Sections
424. Necessary and proper parties defendant
425. Receiver.
426. Liens.
427. Joinder.
428. Defendants severally liable.
429. Infants.
430. Guardian ad litem
431. Husband and wife.
432. State as defendant.
433. Change of parties and new parties.
434. Substitution— Plaintiff.
435. Disclaimer.
436. Substitution of judgment creditor.
ARTICLE IV
INTERVENER
437. Interplea — Affidavit — Trial.
438. Pleading.
439. Cases outside statute.
ARTICLE V
DEFECTS, OBJECTIONS, AND AMENDMENTS
440. Want of interest or capacity.
441. Nonjoinder.
442. Misjoinder.
443. Amendment.
CHAPTER IX
COMMENCEMENT OF ACTION
444-450. Article I. — Accrual of cause.
451-505. Article II. — Process.
451-460. Division I. — In general. !
461-489. Division II. — Service and return.
490-500. Division III. — Service by publication.
501. Division ,1V. — Exemption from service.
502-505. Division V. — Objections and amendments.
506-511. Article III. — Appearance.
ARTICLE I
ACCRUAL OF CAUSE
444. Definition.
445. How action commenced.
446. Effect — Notice to third persons.
XX TABLE OF CONTENTS
Sections
447. Premature actions.
448. Insurance.
449. Waiver.
450. Cure of defect.
ARTICLE II
PROCESS
DIVISION I.— IN GENERAL
451. Definition.
452. Style of process.
453. Necessity and use of process.
454. Issuance of summons.
455. To another county.
456. Prsecipe — Form.
457. Form and requisites.
458. Indorsements.
459. Alias summons.
(60. Abuse of process.
DIVISION II.— SERVICE AND RETURN
461. In general.
462. Indorsement.
463. Acceptance of service and appearance.
464. By whom served.
465. Service on only part of defendants.
466. Effect of judgment.
467. Manner of service.
468. Validity and effect of service.
469. Service out of state.
470. Service on corporation.
471. On foreign corporation.
472. On insurance company.
473. Insurance commissioner.
474. Insurance board.
475. On railroad company and stage line — Agent.
476. Where no agent appointed.
477. Where personal service impossible.
478. Actions against counties.
479. Service on infant.
480. Service on sheriff.
481. On inmates f hospitals for insane.
482. Notice or process issued by state board of arbitration.
483. County court.
484. Return.
485. Fees.
486. Conclusiveness.
487. Entering return.
488. Evidence of service.
489. Forms.
TABLE OF CONTENTS
XXI
DIVISION III. — SERVICE BY PUBLICATION
Sections
490. In general.
491. Service by publication — When authorized.
492. In what actions authorized.
493. On whom authorized.
494. Unknown heirs or devisees.
495. Affidavit— Forms.
496. Divorce.
497. Order.
498. Publication notice — Form.
499. Mailing with petition.
500. Proof of publication.
DIVISION IV. — EXEMPTION FBOM SERVICE
501. Persons attending court — Witnesses.
DIVISION V.— OBJECTIONS AND AMENDMENTS
502. Motion to quash — Form.
503. Amendment.
504. Where service by publication.
505. Waiver of objections.
ARTICLE III
APPEARANCE
506. For infant.
507. General appearance.
508. Special appearance.
509. Effect.
510. Waiver of process.
511. Objections — Preservation and waiver.
CHAPTER X
CONTINUANCE AND DISMISSAL
512-526. Article I. — Continuance.
527-539. Article II.— Dismissal.
ARTICLE I
CONTINUANCE
512. When granted — Discretion.
513. Stipulation.
514. Grounds — Illness of party.
515. Accident or mistake.
516. Amendment of pleading.
517. Absence of counsel.
518. Depositions.
519. Absence of witness.
xxn
TABLE OF CONTENTS
Sections
520. Surprise at trial.
521. Admissions to prevent continuance.
522. Offer to confess judgment.
523. Application and affidavit — Forms.
524. Time of making.
525. Further continuances.
526. Objections — Waiver.
ARTICLE II
DISMISSAL
527. Dismissal without prejudice.
528. Right — Discretion.
529. Involuntary — Discretion — Grounds.
530. Process — Pleadings — Non-compliance with order
531. Continuance.
532. Want of prosecution.
533. Forms — Motion to dismiss — Order.
534. .reinstatement.
535. Dismissal without order of court.
536. Parties.
537. Dismissal as to part of defendants.
538. Trial of counterclaim after dismissal.
539. Jurisdiction subsequent.
CHAPTER XI
PLEADINGS
540-544. Article I. — In general.
545-55o. Article II. — Rules of pleading.
554-561. Article III. — Rules for construing pleadings.
562-587. Article IV.— Petition.
562. Division I. — In general.
563-579. Division II. — Contents, form, sufficiency, and construction.
580-585. Division III. — Joinder, splitting, consolidation, and severance.
586-587. Division IV. — Exhibits and prayer.
588-637. Article V.— Answer.
588-302. Division I. — Answer in general.
603-606. Division II. — General denial.
607-615. Division III. — Verified denial.
616-635. Division IV. — Counterclaim and set-off.
636-637. Division V. — Unauthorized pleas.
638-645. Article VI.— Reply.
646-648. Article VII.— Filing and subscribing.
649-660. Article VIII. — Amended and supplemental pleadings.
661-664. Article IX. — Defects and objections.
665-702. Article X. — Motions and orders thereon.
665-673. Division 1. — Motions in general.
674-678. Division II.— Orders.
679-702. Division III.— Particular motions.
TABLE OF CONTEXTS
XX111
Sections
703-721.
722-733.
722-728.
729-732.
733.
Article XI. — Demurrer.
Article XII. — Issues, proof, and variance.
Division I. — Issues.
Division II.— Proof.
Division III. — Variance.
ARTICLE I
IN GENERAL
540. Defined.
541. Pleadings allowed.
542. Nature, how determined.
543. Caption — Forms.
544. Counties.
ARTICLE II
RULES OF PLEADING
545. Former rules abolished.
546. What must be pleaded.
547. Special matters.
548. Estoppel.
549. Pleading conclusions and law.
550. Pleading evidence.
551. Uncertainty in pleadings.
552. Pleading in the alternative.
553. Pleading by reference.
554.
555.
556.
557.
558.
559.
560.
561.
ARTICLE III
RULES FOR CONSTRUING PLEADINGS
Liberal construction.
General and specific allegations.
Admissions.
Presumptions.
Surplusage.
Construction against pleader.
Construing allegations together.
Construed as of what time.
ARTICLE IV
PETITION
DIVISION I.— IN GENERAL
562. Copy for defendant.
DIVISION IT.— CONTEXTS, FORM, AND CONSTRUCTION
563. Contents.
564. Designation of parties.
XXIV TABLE OF CONTEXTS
Sections
565. Of unknown defendant.
566. Necessary allegations.
567. Presumptions — Judicial notice.
568. Judgment — Form.
569. Form and manner of allegations. »
570. Election.
571. Contractual conditions precedent — Form.
572. Instrument for payment of money — Private statute — Form.
573. Libel or slander — Form.
574. Construction and operation.
575. Requisites and sufficiency.
576. Fraud — Form.
577. Limitations — Form.
578. Matters necessary to be pleaded.
579. Forms — Petitions.
DIVISION III.— JOINDER, SPLITTING, CONSOLIDATION, AND SEVERANCE
580. Joinder — Forms of motions.
581. Separately stating and numbering.
582. Where demurrer sustained.
583. Splitting.
584. Consolidation.
585. Order — Forms.
DIVISION IV.— EXHIBITS AND PHAYEB
586. Exhibits.-
587. Prayer.
ARTICLE V
ANSWER
DIVISION I.— ANSWER IN GENERAL
588. Contents — Forms.
589. Construction.
590. Joinder.
591. Matters necessary to plead.
592. Affirmative defenses — Forms.
593. Fraud— Form.
594. Limitations — Form.
595. Pleading defenses in action on note.
596. Pleading attachment or garnishment.
597. Defenses in replevin.
598. Adverse possession.
599. Inconsistent defenses.
600. Negative pregnant.
601. Defense in libel and slander.
602. Supplemental answer.
DIVISION II.— GENERAL DEXIAL
603. Effect and sufficiency.
604. Disclaimer — Form.
605. Must be entered for whom.
606. Effect— By guardian ad litem.
TABLE OF CONTENTS XXV
DIVISION III.— VEEIFIED DENIAL
sections
607. Verification in general.
608. Who may verify.
609. How made— On belief.
610. Execution of written instruments — Indorsement.
611. Appointment or authority.
612. Account.
613. Corporation and partnership.
614. Waiver.
615. Forms.
DIVISION IV.— COUNTERCLAIM AND SET-OFF
616. Counterclaim — Nature — Right to interpose — Set-off — Limitations.
617. Set-off — Right to interpose.
618. Defined and distinguished — Statute applied.
619. Subsisting right.
620. Equity.
621. Cross-bill or cross-petition.
c>22. Landlord and tenant.
623. Action against United States.
624. Cross-demands — Deprivation.
til'f). Assignments.
626. Definition.
627. Parties and mutuality.
02.S. New party — Counterclaim.
629. New party— Set-off.
630. Form and requisites.
631. Notice.
632. Waiver.
633. Withdrawal.
634. Neglect to claim — Cost.
635. Forms.
DIVISION V.— UNAUTHORIZED PLEAS
636. Plea in abatement.
637. Plea in bar.
ARTICLE VI
REPLY
638. Reply or demurrer.
639. When reply necessary.
640. Counterclaim or set-off in reply.
641. Demurrer or reply to answer by codefendant.
642. Construction and effect.
643. Requisites and sufficiency — Forms.
644. Departure.
645. Waiver of objections.
ARTICLE VH
FILING AND SUBSCRIBING
646. Time for filing.
647. Additional time — Withdrawal — Service of amendment.,
648. Signing.
XXVI TABLE OF CONTEXTS
ARTICLE VIII
AMENDED AND SUPPLEMENTAL PLEADINGS
Sections
649. Amendnieut before answer.
650. Formal defects.
651. Allowance of amendment — Discretion — Forms.
652. Variance.
653. Failure of proof.
654. Amendment on demurrer. '
655. Continuance after amendment.
656. Notice of amendment.
657. Interlineation.
658. Subject-matter of amendment.
659. Supplemental pleadings.
660. Lost pleadings.
ARTICLE IX
DEFECTS AND OBJECTIONS
661. Immaterial errors.
662. Cure of error.
663. Waiver.
664. Objection to introduction of any evidence — Form.
ARTICLE X
MOTIONS AND ORDERS THEREON
DIVISION I. — MOTIONS IN GENERAL
665. Definition -Several objects.
666. Notice — Form.
667. Service — Return — Form.
668. By officer — Fees.
669. Appearance.
670. Affidavits and pleadings to motion.
671. Hearing.
672. Effect of continuance.
673. Second motion.
DIVISION II.— ORDERS
674. Ruling— Form.
675. Law of the case.
676. Nunc pro tune order — Form.
677. Entry— Notice.
678. Vacating and modifying.
DIVISION III.— PARTICULAR MOTIONS
679. Motion to dismiss.
680. Motion for judgment on the pleadings— Nature — Form,
681. Grounds for sustaining or overruling.
682. Departure.
683. Judgment against verdict.
684. Motion to strike from files — Form.
TABLE OF CONTENTS XXV11
Sections
685. Affirmative pleading.
686. Defensive pleadings.
687. Demurrer.
688. Departure.
689. Limitations.
690. Amended pleading.
691. Failure to amend.
692. Motion to strike from pleading — Form.
693. Motion to strike parties — Form.
694. Motion to make more definite and certain.
695. Form and requisites.
696. Time of making.
697. Waiver— Dismissal.
698. Motion to require pleader to separately state and number.
699. Form and requisites.
700. Waiver — Dismissal.
701. Motion to require election — Form.
702. Time of making.
ARTICLE XI
DEMURRER
703. Grounds — Forms.
704. Misjoinder of parties.
705. Office of demurrer.
706. Requisites and construction.
707. Time to demur — After motions.
708. Admissions for purpose of demurrer.
709. General demurrer.
710. Limitations.
711. Objection to introduction of any evidence as alternative.
712. Demurrer and answer.
713. . Where single count.
714. Joint demurrer.
715. Demurrer to answer.
716. To amended answer.
717. To set-off or counterclaim.
718. Demurrer to reply.
719. Demurrer relating back.
720. Construction of pleading demurred to.
721. Ruling, order, and judgment.
ARTICLE XII
ISSUES, PROOF, AND VARIANCE
DIVISION I.— ISSUES
Kinds.
Of law.
Of fact.
725. Where both issues arise.
726. Allegations deemed true.
XXV111
TABLE OF CONTENTS
Sections
727. Admissions.
728. Material allegation.
DIVISION II.— PROOF
729. Proof required under certain pleadings — Verified denial.
730. Proof admissible under pleadings.
731. Under general denial.
732. When evidence admissible of facts not pleaded.
DIVISION
733. Rules and application.
III.— VARIANCE
734-774.
775-780.
Article I. — Depositions.
Article II.— Affidavits.
ARTICLE I
DEPOSITIONS
734. Defined.
735. When taken. <»
736. Subpoena for deposition.
737. Contempt — Discharge.
738. Abuse of process.
739. Stipulation.
740. Before whom taken.
741. Depositions taken out of state.
742. Officer disinterested.
743. Commission.
744. Notice.
745. Publication notice.
746. Contempt — Refusal to testify.
747. Writing of depositions.
748. Filing. •
749. Authentication.
750. Certificate.
751. When to be filed.
752. Fees for taking.
753. Exceptions.
754. Requisites and sufficiency.
755. To be decided before trial.
756. Incoinpetency and irrelevancy.
757. Motion to suppress — Form.
758. Objections at hearing. .
759. Waiver of objections.
760. Perpetuating testimony.
761. Petition— Form.
762. Order for examining witnesses — Form.
763. Cross-interrogatories.
TABLE OF CONTENTS
Sections
764. Before whom taken.
765. Filing and use — Costs.
766. Error waived by not excepting.
767. When deposition may be used.
768. Unavailability of witness.
769. Deposition as evidence.
770. May be read when.
771. Admission of part of deposition.
772. Copies.
773. Interpleader.
774. Forma.
ARTICLE II
AFFIDAVITS
775. Definition.
776. Use.
777. Jurat.
778. Before whom taken.
779. By whom made. -
780. Forms.
CHAPTER XIII
TRIAL
781-795. Article I. — In general.
796-801. Article II. — Argument and conduct of counsel.
802-824. Article III.— Issues and trial thereof.
bo2. Division I. — Issues in general.
803-824. Division II. — Taking case or question from jury.
xxix
ARTICLE I
IN GENERAL
781. Definition.
782. Time of trial.
783. Waiver of right
784. Docket.
785. Copy for bar.
786. Presence of judge.
787. Presence of parties and attorneys.
788. Conduct and remarks of judge.
789. Consolidation.
790. Separate trials — Several defendants.
791. Reporter — Duties.
792. Order of trial — Issues — Damages — Motions — Objections.
793. Waiver of right to object.
794. Issues — Trial by court or jury.
794a. Trial by court.
794b. Agreed statement of facts.
795. Submission without suit
XXX
TABLE OF CONTENTS
Sections
796.
797.
798.
799.
800.
801.
ARTICLE II
ARGUMENT AND CONDUCT OF COUNSEL
Opening statement.
Argument.
Right to open and close.
Retaliatory statements.
Conduct.
Objections and exceptions'.
ARTICLE III
ISSUES AND TRIAL THEREOF
DIVISION I.— ISSUES IN GENERAL
802. Issues not pleaded.
DIVISION II.— TAKING CASE OB QUESTION FROM JTJKT
803. In general.
804. Retrial.
805. Questions of law and fact.
806. Negligence in general.
807. Contributory negligence — Assumption of risk.
808. Agency.
809. Will contest.
810. Malicious prosecution.
811. Libel and slander.
812. Weight of evidence and credibility of witnesses.
813. Uncontroverted evidence.
814. Motions and demurrer.
815. Demurrer to evidence.
816. Effect as admission.
817. What rulings proper.
818. Cure of error.
819. Trial by court.
820. Ruling and judgment sustaining demurrer.
821. Form.
822. Direction of verdict.
823. Effect of motion.
824. Form of motion.
CHAPTER XIV
WITNESSES
825-840. Article I. — Procuring attendance and testimony.
841-859. Article II. — Examination of witnesses.
841-852. Division I. — Direct examination.
853-858. Division II. — Cross-examination.
859. Division III. — Redirect examination.
860-874. Article III. — Competency and privilege.
875-888. Article IV. — Credibility and impeachment.
TABLE OP CONTENTS XXXI
ARTICLE I
PROCURING ATTENDANCE AND TESTIMONY
Sections
825. Taking testimony — Modes.
826. Oath — Interpreter.
827. Subpoena — Issuance.
828. Contents — Duces tecum.
829. Service.
830. Disobedience of — Contempt.
831. Forms.
832. Attachment for nonatteiidance.
833. Punishment.
834. Requisites of — Form.
s35. Prisoners as witnesses.
836. Custody.
837. Attendance.
838. Of adverse party.
839. Witness may demand fees.
840. Refusal to testify — Contempt.
ARTICLE II
EXAMINATION OF WITNESSES
DIVISION I.— DIRECT EXAMINATION
841. Mode of testifying.
842. Questions.
843. Leading questions.
844. Hostile witnesses.
845. Repetition.
846. Interrogation by court.
847. Responsiveness of answer.
848. Aids to explain testimony — Diagrams — Computation.
849. Refreshing memory.
850. Memoranda as evidence.
851. Stenographer's notes.
852. Recalling witnesses. .
DIVISION II.— CROSS-EXAMINATION
853. Extent of cross-examination.
854. Limitation to subjects of direct examination.
855. Collateral and irrelevant matters.
856. Character witness.
857. Cross-examination of party.
858. Recalling witness.
DIVISION III. — REDIRECT EXAMINATION
S59. Scope and extent.
XXX11 TABLE OF CONTENTS
ARTICLE III
COMPETENCY AND PRIVILEGE
Sections
860. In general.
S61. Knowledge — Signature — Books and accounts.
• 862. Persons interested.
863. Adverse party.
864. Incompetents.
865. Husband and wife.
866. Attorney and client.
867. Clergyman or priest.
868. Physician and patient.
869. Construction of statutes.
870. Conviction of crime.
871. Self-incrimination.
872. Waiver.
873. Transactions with decedent.
874. Witness privileged from being sued.
ARTICLE IV
CREDIBILITY AND IMPEACHMENT
875. Credibility.
876. Corroboration.
877. Impeachment.
878. Impeaching own witness.
879. Character and conduct of witness.
880. Reputation — Place and time of acquiring.
881. Particular facts.
882. Conviction of crime.
883. Cross-examination to test reliability or to discredit
884. Conduct in reference to the case.
885. Inconsistent statements.
886. Contradicting witness.
887. Prior corroborating statements.
888. Sustaining evidence.
TABLE OF CONTENTS
xxxin
VOLUME II
CHAPTER XV
EVIDENCE
Sections
889-911. Article I.— In general. •
889-898. Division I.— Preparation for trial.
899-911. Division II. — Reception of evidence.
912-922. Article II.— Judicial notice.
923-949. Article III.— Presumptions.
950-965. Article IV.— Burden of proof.
966-1103. Article V.— Admissibility.
966-987. Division I. — Relevancy and materiality.
988-993. Division II. — Res gestse.
994-996. Division III. — Similar matters.
997-1019. Division IV. — Documentary evidence.
997-1010. Subdivision I. — Statutes, ordinances, and public records.
1011-1019. Subdivision II. — Private writings. '
1020-1039. Division V. — Parol and extrinsic evidence.
1040-1064. Division VI. — Opinion evidence.
1040-1060. Subdivision I. — Nonexpert testimony.
1061-1064. Subdivision II. — Expert testimony.
1065-1067. • Division VII.— Hearsay.
1068-1073. Division VIII.— Declarations.
1074-1082. Division IX. — Best and secondary evidence.
1083-1086. Division X. — Demonstrative evidence.
1087-1103. Division XI. — Admissions.
1104-1141. Article VI. — Quantum, weight and sufficiency.
ARTICLE I
IN GENERAL
DIVISION 1. — PREPABATION FOB TRIAL
889. Genuineness of writings — Admission.
890. Documents — Preliminary inspection.
891. Copy of writing.
892. Duty to furnish evidence.
893. Misconduct — Falsifying evidence.
894. Fraud or deceit to witness.
895. Preparation of false evidence.
896. Destruction of evidence.
897. Keeping witness from attending.
898. Bribery of witness.
DIVISION II.— RECEPTION OF EVIDENCE
899. Oral examination — Objections.
900. Exclusion of witnesses.
HOX.PL.& PRAC— c
XXXIV TABLE OF CONTENTS
Sections
901. Offer of proof.
902. Restricting to special purpose.
903. Withdrawal of evidence.
904. Limiting number of witnesses.
905. Order of proof.
906. Preliminary proof.
907. Rebuttal and surrebuttal.
90S. Reopening case.
909. Objections — Forms.
910. Motion to strike out — Form.
911. Exceptions.
ARTICLE II
JUDICIAL NOTICE
912. Matters of common knowledge.
913. Political subdivisions.
914. Legislature.
915. Laws and ordinances.
916. Acts of Congress.
917. Laws of other states.
918. Indians. ,
919. Jurisdiction of courts.
920. Judicial proceedings.
921. Officials— Authority.
922. Rules and acts.
ARTICLE III
PRESUMPTIONS
923. In general.
924. Knowledge of law.
925. Continuance of fact.
926. Personal status.
927. Indians.
928. Regularity in business.
929. Mail matter.
930. Available evidence not produced.
931. Laws of another state.
932. judicial proceedings.
933. Official acts.
934. Carriers.
935. Railroads — Injury to passenger.
936. Injury to employee.
937. Damage to property.
938. Wrongful death.
939. Death.
940. Fraud.
941. Contracts.
942. Agency.
943. Reports— Records— Partnership.
944. Wills.
TABLE OF CONTENTS XXXV
Sections
945. Trusts.
946. Bills and notes.
947. Marriage.
948. Payment.
949. Libel and -slander.
ARTICLE IV
BURDEN OF PROOF
950. In general.
951. Personal status.
952. Particular issues.
953. Contracts.
954. Bailment.
955. Bills and notes — Execution.
956. Holder.
957. Consideration.
958. Insurance — In general.
959. Proof of loss.
960. Misrepresentation or breach.
961. Indians.
962. Statute of limitations.
963. Damages.
964. Malicious prosecution.
965. Negligence.,
ARTICLE V
ADMISSIBILITT
DIVISION I.— RELEVANCY AND MATEBIAIJTY
966. Pertinent to issues.
967. Materiality.
968. Value.
969. Reasonable compensation.
970. Damages.
971. Personal injuries.
972. Wrongful death.
973. Negative evidence.
974. Will contest.
975. Divorce.
976. Fraud.
977. Insurance.
978. Marriage.
979. Price.
980. Title.
981. Services.
982. Condemnation proceedings.
983. Agency and partnership.
984. Unlawful arrest.
985. Entire conversation or transaction.
986. Telephone conversations.
987. Motive or intent.
XXXVi TABLE OF CONTENTS
DIVISION II.— RBS GEST^J
Sections
988. What constitutes.
989. Discretion.
990. Declarations.
991. Injury and pain.
992. Acts and statements.
993. Directions.
DIVISION III.— SIMILAR MATTERS
994. In general.
995. Fraud.
996. Custom — Accidents — Value.
DIVISION IV. — DOCUMENTARY EVIDENCE
Subdivision I. — Statutes, Ordinances, and, Public Records
997. Acts of Congress — Statute books — Legislative journals.
998. Foreign laws.
999. Ordinances.
1000. Congressional documents.
1001. Copies — Public records.
1002. Official books and records.
1003. Court records and files.
1004. Records of justice of the peace.
1005. Departmental records.
1006. Land office receipts and records.
1007. Official signatures presumed genuine.
1008. Authentication.
1009. Copies of foreign records.
1010. Translations.
Subdivision II. — Private Writings
1011. Church records.
1012. Corporate records.
1013. Written instruments.
1014. Recitals in deeds and mortgages.
1015. Account books.
1016. Memoranda.
1017. Letters.
1018. Maps and photographs.
1019. Identification and authenticity.
DIVISION V.— PAROL AND EXTRINSIC EVIDENCE
1020. Contracts.
1021. Insurance policies.
1022. Notes and indorsements.
1023. Deeds and mortgages.
1024. Tickets, bills of lading, and receipts.
1025. Release.
1026. Court records.
1027. Ordinances.
1028. Memoranda and incomplete contracts.
TABLE OF CONTENTS XXXvii
Sections
1029. Minutes.
1030. Wills.
1031. Surety and guaranty.
1032. Agency.
1033. Consideration.
1034. Delivery.
1035. Mistake.
1036. Fraud — Duress.
1037. Separate or subsequent oral contract.
1038. Evidence explanatory of writing.
1039. Evidence showing performance or discharge.
DIVISION VI. — OPINION EVIDENCE
Subdivision 1. — Nonexpert Testimony
"1040. Conclusions and opinions in general.
10±1. Nonexpert witnesses in general.
1042. Foundation.
1043. Discretion.
1044. Value.
1045. Paternity, race, and age.
1046. Mental condition.
1047. Physical appearances, conduct, and condition.
1048. Financial condition.
1049. Medical and surgical practice.
1050. Speed.
1051. Damages.
1052. Amount.
1053. Custom and usage.
1054. Habits and nature.
1055. Ownership.
1056. Agency.
1057. Handwriting.
1058. Identification.
1059. Dangerous and safe conditions — Negligence.
1060. Competency and skill.
Subdivision II. — Expert Testimony
1061. Subject-matter.
1062. Competency of experts.
1063. Examination of experts — Hypothetical questions.
1064. Handwriting.
DIVISION VII.— HEARSAY
1065. In general.
1066. Statements of others than parties or witnesses.
1067. Evidence based .on hearsay.
DIVISION VIII.— DECLARATIONS
1068. Intent.
1069. Self-serving declarations.
1070. Against interest.
1071. Persons in possession.
XXXviil TABLE OF CONTENTS
Sections
1072. Age and pedigree.
1073. Dying declarations
DIVISION IX.-*-BEST AND SECONDARY EVIDENCE
1074. Necessity of best evidence.
1075. Matters evidenced -by writing.
1076. Public records.
1077. Court records.
1077a. Evidence at former trial or other proceeding.
1078. Contents of writing.
1079. Collateral writings.
1080. Copies.
1081. Secondary evidence admissible when.
1082. Notice.
DIVISION X.— DEMONSTRATIVE EVIDENCE
1083. Exhibition of person.
1084. Exhibition of articles.
1085. Experiments and tests.
1086. Handwriting.
DIVISION XI. — ADMISSIONS
1087. Judicial admissions.
1088. Offers of compromise.
1089. Written statements.
1090. Conduct.
1091. Acquiescence or silence.
1092. Admissions by parties or others interested.
1093. Admissions of former owners or privies.
1094. Admissions by agents.
1095. Admissions by corporate and municipal officers.
1096. Husband and wife.
1097. Principal and surety.
1098. Guardian.
1099. Conspirators.
1100. Preliminary evidence.
1101. Mode of proof.
1102. Explanation.
1103. Construction.
ARTICLE VI
QUANTUM, WEIGHT, AND SUFFICIENCY
1104. Consideration of testimony in general.
1105. Uncontradicted evidence.
1106. Quantum of proof in general.
1107. Prima facie evidence.
1108. Circumstantial evidence.
1109. Affirmative and negative evidence — Conclusions.
1110. Effect of opinion evidence.
1111. Effect of admissions.
1112. Testimony of party.
111.".. Party bound by bis own evidence.
TABLE OF CONTENTS
XXXIX
Sections
1114. Contracts.
1115. Notes.
1116. Conveyances.
1117. Gifts.
1118. Insurance.
1119. Trusts.
1120. Wills.
1121. Court records and files.
1122. Partnership.
1123. Agency and official capacity.
1124. Sales.
1125. Fraud.
1126. Negligence and cause.
1127. Novation.
1128. Title.
1129. Payment — Receipts.
1130. Amount of damages.
1131. Usury.
1132. Copy of articles of incorporation.
1133. Recovery of penalties.
1134. Abandonment of homestead.
1135. Financial status.
1136. Ejectment.
1137. Attachment.
1138. Cancellation of instruments.
1139. Reformation of instruments.
1140. Divorce.
1141. Bastardy.
CHAPTER XVI
JURY
Article I. — Right to jury trial.
Article II. — Jury panel.
Article III — Qualifications, challenges, and exemptions.
Article IV. — Oath, number, term, and summoning.
Article V. — Custody, conduct, and deliberations-
Article VI.— Verdict.
] 142-1150.
1151-1162.
1163-1171.
1172-1175.
1176-1189.
1190-1203.
1204-1216. Article VII. — Special interrogatories and findings.
ARTICLE I
RIGHT TO JURY TRIAL
1142. Right to jury trial — Verdict.
1143. Waiver.
1144. In equity cases.
1145. Trial of issues.
1146. In actions at law or in equity or mixed actions.
1147. In particular actions or proceedings.
1148. In special proceedings.
xl TABLE OF CONTENTS
Sections
1149. On intermediate appeal.
1150. Infringement of right.
ARTICLE II
JURY PANEL
1151. Jury commission.
1152. Meeting of jury commissioners — Quorum.
1153. Jury lists.
1154. Lists to be certified.
1155. District court — How drawn.
1156- Venires — How served — Form.
1157. Open venires — Talesmen — Form.
1158. County court — How selected.
1159. Procedure when regular panel exhausted.
1160. Qualifications of jurors — Exemptions.
1161. Former list removed when new list selected.
11G2. Irregularities in drawing.
ARTICLE III
QUALIFICATIONS, CHALLENGES, AND EXEMPTIONS
1163. Challenges to panel.
1164. Statutory grounds for challenge.
1165. Qualifications in general.
1166. Waiver of objection.
1167. Order of challenges.
1168. Challenges for cause.
1169. Vacancies filled at once.
1170. Talesmen.
1171. Exemptions.
ARTICLE IV
OATH, NUMBER, TERM, AND SUMMONING
1172. Oath.
1173- Number of jurors.
1174. Term of service.
1175. Selection and summoning.
ARTICLE V
CUSTODY, CONDUCT, AND DELIBERATIONS
1176. Admonition.
1177. Misconduct of others.
1178. View of premises.
1179. Taking papers and articles to jury room.
1180. Additional instructions.
1181. Information after retirement.
TABLE OF CONTENTS xli
\
.Sections
1182. Custody of jury during deliberations.
1183. Deliberations.
1184. Coercing verdict.
1185. Quotient verdict.
1186. Improper considerations.
11^7. Matters considered — Evidence read — Personal knowledge of juror.
1188. Discharge of jury.
1189. Objections and exceptions.
ARTICLE VI
VERDICT
1190. Definition, form, and reception.
1191. Number of jurors assenting.
1192. Signature.
1193. Polling of jurors.
1194. Parties — Designation.
1195. Severance — Variance.
1196. Several counts.
1197. Surplusage. \
1198. Disregarding instructions.
1199. Amending and correcting verdict.
1200. Construction and operation.
1201. Impeachment of verdict.
1202. Objections and exceptions.
1203. Form.
ARTICLE VII
SPECIAL INTERROGATORIES AND FINDINGS
1204. Special verdict and findings.
1205. Power to require.
1206- Interrogatories.
1207. Preparation and form.
1208. Withdrawal.
1209. Special findings.
1210. Requisites and sufficiency.
1211. Responsiveness.
1212. Inconsistency.
1213. Defects and amendments.
1214. Construction.
1215. Objections and exceptions.
1216. Form.
CHAPTER XVII
INSTRUCTIONS
1217. Definition.
1218. Province of court.
1219. Defining words and terms.
xlii
TABLE OF CONTENTS
Sections
1220. Verdict — Findings— Deliberations and determination of jury— Ar-
gument of counsel.
1221. Province of jury.
1222. Written instructions — Request.
1223. Time of making request.
1224. Time of giving instructions
1225. Accuracy.
1226. Misleading instructions.
1227. Formal requisites and sufficiency.
1228. Instructions and pleadings.
1229. Instructions and evidence.
1230. Illustrations.
1231. Withdrawal of instructions.
1232. Instructions on issues-
1233. Applicability to pleadings and evidence.
1234. Positive and negative evidence.
1235. Limiting effect of evidence.
1236. Matters of general knowledge.
1237. Requested instructions.
1237a. Objections and exceptions.
1238. Forms.
CHAPTER XVIII
JUDGMENT
1239-1244. Article I. — Definition, validity, and parties.
1245-1252. Article II. — Confession of judgment.
1253-3261. Article III.— Conformity.
1253-1255. Division I. — Conformity to issues.
1256-1259. Division II. — Conformity to verdict.
1260-1261. Division III.— Conformity to findings.
1262-1291. Article IV.— Rendition, form, and requisites.
1262-1267. Division I— In general.
1268-1271. Division II.— Rendition.
1272-1275. Division III.— Equity.
1276-1291. Division IV. — Record of judgment.
1292-1304. Article V. — Default judgment.
1292-1299. Division I. — Requisites and validity.
1300-1304. Division II. — Opening and vacating judgment.
1305-1324. Article VI. — Reversing, vacating, or modifying.
1305-1314. Division I. — Authority to review.
1315-1324. Division II.— Proceedings.
1325-1364. Article VII. — Operation, construction, enforcement, and satis-
faction.
1325-1331. Division I.— In general.
1332-1335. Division II.— Enforcement.
1336-1347. Division III. — Payment, satisfaction, and discharge.
1348-1364. Division IV.— Judgment liens.
1365-1370. Article VIII. — Assignment of judgment.
1371-1394. Article IX.— Collateral attack.
1371-1374. Division I. — Judgment impeachable collaterally.
TABLE OF CONTENTS
xliii
Sections
13757-1390. Division II — Grounds of attack.
1391-1392. Division III — Proceedings.
1393-1394. Division IV— Probate of wills.
1395-1461. Article X.— Res adjudicata.
1395-1411. Division I. — In general-
1412-1425. Division II. — Causes of action or defenses merged, barred,
or concluded.
1426-1429. Division III. — Persons to whom bar available.
1430-1440. Division IV. — Judgments conclusive in general.
1441-1453. Division V.> — Persons concluded.
1454-1401. Division VI — Matters concluded.
1462-1467. Article XI. — Amount of recovery.
1468-1471. Article XII. — Actions on judgments.
1472-1478. Article XIII.— Equitable relief.
1479-1485. Article XIV. — Foreign judgments.
1486-1488. Article XV.— Transcript.
ARTICLE I
DEFINITION, VALIDITY, AND PARTIES
1239- Definition.
1240. Validity.
1241. Jurisdiction.
1242. Judgment in rein.
1243. Parties.
1244. New parties.
ARTICLE II
CONFESSION OF JUDGMENT
1245. Confession by defendant — Form.
1246. By prisoner — Witness.
1247. By attorney — Authority.
1248. By agreement.
1249. Cause to be stated.
1250. Affidavit.
1251. Enforcement.
1252- Offer to confess judgment — Form.
ARTICLE III
CONFORMITY
DIVISION I. — CONFORMITY TO ISSUES
1253. Conformity to issues in general.
1254. Conformity to pleadings.
1255. Prayer.
xliv TABLE OF CONTENTS
DIVISION II.— CONFORMITY TO VERDICT
Sections
1256. Judgment on verdict.
1257. Interest.
1258. On special verdict.
1259. Judgment against verdict.
DIVISION III.— CONFORMITY TO FINDINGS
1260. Supported by findings.
1261. Approval of findings.
ARTICLE JV
RENDITION, FORM, AND REQUISITES
DIVISION I.— IN GENERAL
1262. For defendant.
1263. Against infant.
1264. On motion.
1265. Judgment in foreclosure suit.
1266. Appeal from county commissioners.
1267. Corporations — Involuntary dissolution.
DIVISION II.— RENDITION
1268. Time.
1269. Ejectment.
1270. Interplea.
1271. Bastardy.
DIVISION III.— EQUITY
1272. In general.
1273. Specific performance.
1274. Foreclosure.
1275. Mechanic's lien.
DIVISION IV.— RECORD OF JUDGMENT
1276. Journal entry — Form.
1277. Clerk to make record.
1278. When made.
1279. Contents.
1280. To be signed.
1281. Completing record.
1282. Conclusiveness.
1283. Nunc pro tune orders.
1284. Lost or destroyed judgment.
1285. Filing transcript — Justice's judgment,
1286. In other county.
1287. Record in realty case-
1288. Recording.
1289. Involuntary dissolution.
1290. Record as notice.
1291. Orders and decrees.
TABLE OF CONTENTS xl
ARTICLE V
DEFAULT JUDGMENT
DIVISION I.— REQUISITES AND VALIDITY
Sections
1292. Petition.
1293. When party is in default.
1294. Proof taken — Damages.
1295. Time for rendering judgment.
1296. Validity of judgment — Service — Form of judgment.
1297- Actions to which state is party — Dismissal — Default — Notice to
Attorney General.
1298. Notice — How given — Proof-
1299. Judgment without notice void.
DIVISION II.— OPENING AND VACATING DEFAULT JUDGMENT
1800- Opening judgment after default on service by publication.
1301. Excusable default.
1302. Pleading — Form.
1303. Valid defense — Excuse — Petition — Effect of motion.
1304. Discretion of court.
ARTICLE VI
REVERSING, VACATING OR MODIFYING
DIVISION I.— AUTHORITY TO REVIEW
1305. Jurisdiction and power."
1306. During term.
1307. After term.
1308. Common-law powers.
1309. Want of jurisdiction.
1310. Other remedies.
1311. Errors — Irregularities.
1312. Law.
1313. Pleading.
1314. Operation and effect.
DIVISION II.— PEOCEEDINGS
1315. Motion— Form.
1316. Petition— Form.
1317. Hearing.
1318. ^Evidence.
1319. Trial of ground of review.
1320. Defense must be shown.
1321. Suspending proceedings — Bond — Forms.
1322. Premature judgment.
1323. Time for application.
1324. Applicable to what courts.
xlvi TABLE OF CONTENTS
ARTICLE VII
OPERATION. CONSTRUCTION, ENFORCEMENT, AND SATISFACTION
DIVISION I. — IN GENERAL
Sections
1325. ' Establishes claim.
1326. Death after verdict.
1327. For recovery of land.
1328. Surety.
1329. Joint defendants.
, 1330. Interpretation — Interest.
1331. Collusiveness.
DIVISION II.— ENFORCEMENT
1332. Judgments before death.
1333. Guaranty companies.
1334. Conveyance ordered — Form of order.
1335. Alimony.
DIVISION III.— PAYMENT, SATISFACTION, AND DiscHABaa
1336. Dormant Judgments.
1337. Revival.
1338. Necessity.
1339. Death of party.
1340. Proceedings — Forma.
1341. Effect of revival.
1342. Mode of payment.
1343. Set-off of judgments.
1344. Merger.
1345. Release.
1346. Compelling satisfaction.
1347. Vacating satisfaction — Forms.
DIVISION IV.— JUDGMENT LIENS
1348. Statutory regulations — .Lien on real estate.
1349. Nature of lien.
1350. Debtor's realty.
1351. Extent of lien.
1352. Lien of corporation commission.
1353. Homestead.
1354. Osage Indian lands.
1355. Alimony.
1356. Animals.
1357. Judgments against counties.
1358. Receipt by clerk.
1359. Priorities.
1360. Judgment and conveyances.
1361. Prior unrecorded deed.
1362. Receivership.
1363. Duration of lien.
1364. Postponement of lien.
TABLE OF COTs7TEXTS
ARTICLE VIII
ASSIGNMENT OF JUDGMENT
xlvii
Sections
1365. In general.
1366. Consideration and validity.
1367. Setting aside assignment.
1368. Effect of transfer.
1369. Rights of parties.
- 1370. As to each other.
ARTICLE IX
/
COLLATERAL ATTACK
DIVISION I.— JUDGMENTS IMPEACHABLE COLLATERALLY
1371. In general.
1372. Particular courts— County court — District court.
1373. Federal court.
1374. Nature of subject-matter.
DIVISION II.— GROUNDS OF ATTACK
1375- Invalidity — In general.
1376. Default judgment-
1377. Want of jurisdiction.
1378. Want of service.
1379. Service by publication.
1380. Presumption of jurisdiction.
1381. Effect of recitals.
1382. Extrinsic evidence.
1383. Errors and irregularities— In general-
1384. As to parties.
1385. As to pleadings.
1386. In proceedings.
1387. Perjury.
1388. Fraud.
1389. Collusion.
1390- Available defenses.
DIVISION III.— PROCEEDINGS
1391. Nature of attacks.
1392. Preventing enforcement.
DIVISION IV.— PROBATE OF WILLS
1393. In general.
1394. Ancillary probate.
xlviii TABLE OF CONTENTS
ARTICLE X
RES ADJUDICATA
DIVISION 1.— IN GENERAL
Sections
1395. Nature of former recovery.
1396. Nature of action — Warrant indebtedness.
1397. Equitable actions.
1398. Interplea.
1399. Real property.
1400. Criminal prosecutions.
1401. Scope of adjudication.
1402. Judgments without prejudice.
1403. Reserving rights.
1404. Default.
1405. Motion or summary proceedings.
1406. Void in part.
1407. Dismissal.
1408. Demurrer.
1409. Verdict without judgment.
1410. Pendency of appeal.
1411. Judgment vacated or reversed.
DIVISION II. — CAUSES OF ACTION OB DEFENSES MERGED, BABRED, OB CONCLUDED
1412. Nature of merger.
1413- Elements of judgment.
1414. Identity of actions.
1415. Identity of subject-matter.
1416. Theory of action.
1417. Form of remedy.
1418. Grounds of action.
1419. Relief.
1420. Splitting actions — Single and entire.
1421. Accounts.
1422. Installments.
1423. Torts.
1424. Successive causes of action.
1425. Defenses concluded.
DIVISION III.— PERSONS TO WHOM BAB AVAILABLE
1426. Mutuality of estoppel.
1427. Parties or privies.
1428. Joint and several contractors.
1429. Joint tort-feasors.
DIVISION IV.— JUDGMENTS CONCLUSIVE IN GENERAL
1430. Nature — In general.
1431. Failure to appeal.
1432. Judgments of federal courts.
1433. Probate jurisdiction.
1434. Finality of determination.
TABLE' OF CONTENTS xlix
Sections
1435. Special proceedings.
1436. Form of judgment.
1437. Confession or consent.
1438. Default.
1439. Judgment on motion.
1440. Erroneous judgment.
DIVISION V. — PERSONS CONCLUDED
1441. Identity of persons — In general.
1442. Unknown parties.
1443. Additional parties.
1444. Official capacity.
1445. Participating in action.
1446. Representatives.
1447. Privity in general.
1448. Vendor and purchaser.
1449. Other special relations.
1450. Coplaintiffs and codefendants.
1451. Persons not parties or privies.
1452. Evidence.
1453. Evidence of property rights.
DIVISION VI.— MATTERS CONCLUDED
1454. Scope of estoppel.
1455. Identity of subject-matter.
1456. Identity of issues.
1457- Matters not in issue.
1458. Issues undecided.
1459. Title or right to property.
1460. Rights under contracts.
1461. Real property.
ARTICLE XI
AMOUNT OF RECOVERY
1462. Damages — Assessment — Measure.
1463. Breach of warranty.
1464. Unlawful detention — Conversion.
1465. Use and occupation.
1466. Exemplary damages.
1467. Interest and attorney's fees.
ARTICLE XII
ACTIONS ON JUDGMENTS
1468. Cause of action.
1469. Who may sue.
1470. Review.
1471. Foreign judgments.
HON.PL.& PRAC.— d
TABLE OF CONTENTS
ARTICLE XIII
EQUITABLE RELIEF
Sections
1472. In general.
1473. Fraud.
1474. Injunction — Forms.
1475. Suit to vacate.
1476. Parties.
1477. Pleading.
1478. Evidence.
ARTICLE XIV
1479.
1480.
1481.
1482.
1483.
1484.
1485.
FOREIGN JUDGMENTS
In general.
Recognition-
Jurisdiction.
Judgment in rem.
Fraud.
Conclusiveness.
Divorce and alimony.
Enforcement in other states.
ARTICLE XV
TRANSCRIPT
1486. Filing judgment in district court— Forms.
1487. Certificate of amount paid.
1488. Revivor.
CHAPTER XIX
NEW TRIAL
1489-1493. Article I. — Scope of remedy.
1494-1505. Article II— Grounds.
1506-1526. Article III.— Procedure.
ARTICLE I
SCOPE OF REMEDY
1489. Inherent power.
1490. Discretion.
1491. Waiver.
1492. Second application.
1493. Pendency of application — Its effect.
TABLE OF CONTENTS
li
ARTICLE II
Sections GROUNDS
1494. Statutory power.
1494a. Errors and irregularities in general.
1495. Misconduct.
1496. Rulings and instructions.
1497. Jurors — Disqualification — Misconduct-
1498. Defective verdict or findings.
1499.. Verdict contrary to instructions.
1500. Verdict contrary to evidence.
1501. Special findings.
1502. Amount of recovery.
1503. Mistake, passion or prejudice.
1504. Surprise, accident or mistake.
1505. Newly discovered evidence.
-Communications.
ARTICLE III
PROCEDURE
1506. Application.
1507. When motion is proper — Form.
1508. Ruling of court on motion — Right to new trial.
1509. Time for making.
1510. Requisites — Application.
1511. Statement of grounds and specification of errors.
1512. Parties.
1513. Extrinsic evidence.
1514. Jurors.
1515. Affidavits — Forms.
1516. As to newly discovered evidence — Form.
1517. Transcript of evidence.
1518. Amendment.
1519. Abandonment of motion.
1520. Order — Forms.
1521. Setting aside.
1522. Hearing.
1523. Time.
1524. Conditions to granting.
1525. Reduction of verdict or remission of excess — Form of order.
1526. Petition for new trial — Form.
1527-1534.
1535-1551.
1552-1562.
1563-1571a.
1572-1578.
CHAPTER XX
COSTS
Article I. — Security for costs.
Article II. — Taxation of costs.
Article III. — Items taxable as costs.
Article IV. — Collection and payment.
Article V — Costs on appeal.
Hi TABLE OF CONTENTS
ARTICLE I
SURETY FOR COSTS
Sections
l.~>27. In general — Statute-
1528. Bond — Form.
1529. Deposit.
1530. Pauper affidavit — Form.
1531. False swearing.
1532. Additional security.
1533- Failure to give security.
1534. Remedies against sureties — Form of motion.
ARTICLE II
TAXATION OF COSTS
1535. Right to award.
1536. Costs taxed by clerk.
1537. Costs where defendant disclaims.
1538. Costs go with judgment.
1539- Prevailing party.
1540. Costs that may be taxed at discretion of court.
1541. On motions.
1542. Quo warranto.
1543. Defendant.
1544. Apportionment.
1545. Waiver.
1546. On joint liability.
1547. Effect of tender or offer to confess ju figment.
1548. Settlement, stipulation and abatement.
1549. Costs — Corporations — Involuntary dissolution.
1550. Liability of representative.
1551. Costs on interplea.
ARTICLE III
ITEMS TAXABLE AS COSTS
1552. Attorney's fees.
1553. Stenographer's fees.
1554. Receivership.
1555. Fees for legal publication — Taxed as costs.
I.~.j6. Contempt proceedings.
1557. Jurors.
1558. Witnesses-
1559. Guardian.
15GO. Court clerks — Fees.
1561. Sheriffs and constables — Fees.
1562. County judge — Fees.
TABLE OF CONTENTS
liii
ARTICLE IV
COLLECTION AND PAYMENT
Sections
1563. Fees — When due.
1564. Process — Fees for service.
1565. Cost — Proof of payment.
1566. Costs— Statement of.
'1567. Fees— Receipt for.
1568. Execution.
1569. Costs — By whom held.
1570- Mileage — Constructive.
1571. Municipal corporations.
1571a. Apportionment of deposits and collections.
ARTICLE V
COSTS ON APPEAL
1572. In general.
1573- Apportionment.
1574. Attorney fees.
1575- Case-made.
1576. Briefs.
1577. Motion to retax — Form.
1578. Dismissal of appeal.
CHAPTER XXI
EXECUTIONS
1579-1585. Article I. — Nature and requisites.
1586-1594. Article II. — Property subject.
1595-1605- Article III. — Issuance, form, and requisites.
1606-1634. Article IV. — Levy and enforcement.
1635-1653. Article V— Sale and redemption.
1654-1661. Article VI. — Proceeds, amercement, and return.
1662-1670. Article VII. — Supplemental proceedings.
1671. Article VIII. — Wrongful execution.
ARTICLE I
NATURE AND REQUISITES
1579. Kinds.
1580. Judgment.
1581. Conformity to.
1582. Enforcement of.
1583. Contribution.
1584. Principal and surety.
1585. Several executions.
TABLE OF CONTEXTS
• ARTICLE II
Sections PROPERTY SUBJECT
1586- In general.
1587- Interests subject.
1588. Crops.
1589. Movable property of public service corporation.
1590. Corporation stock — Attachment and execution.
1591. Corporate franchises.
1592. Particular estates.
1593- Equitable interests.
1594. Property in custodia legis.
ARTICLE III
ISSUANCE, FORM, AND REQUISITES
1595. Issuance.
1596. On abstract or transcript of justice.
1597. To sheriff of another county.
1598. After death.
1599. Time.
1600. Contents— Forms.
1601. Amount.
1602. Alias writ.
1603. Seal.
1604. Amendment.
1605. Collateral attack.
ARTICLE IV
LEVY AND ENFORCEMENT
1606. Enforcement — Exemptions.
1607. Homestead exemption.
1608. Exemptions not to apply, when.
1609. Exemption of personalty not to apply, when.
1610. Pensions.
1611. Ministers' libraries-
1612. Motor vehicles — Claiming exemptions — Damages.
1613- Benevolent corporations.
1614. Order to appear — Forms.
1615. Priorities between executions.
1616. Attachments and executions — Who may levy.
1617. Void when otherwise levied.
1618. The levy.
1619. Advance of printer's fees.
1620. Appraisement and return.
1621. Property of officer.
1622. Excessive levy.
1623. Appraisement waived.
1624. Mortgaged chattels.
TABLE OF CONTENTS lv
Sections
1625. Corporate stock.
1626. Redelivery bond — Form.
1627. Delivery on execution.
1628. Quashing execution — Form.
1629. Injunction.
1630. Creation of lien.
1631. Dependent on levy.
1632. Liens prior to execution.
1633- Duration of lien on realty.
1634. Claims of third persons— Bond— Form.
ARTICLE V
SALE AND REDEMPTION
1635. Duty of officer.
1636. Place of sale— Who may purchase.
1637. Alias execution.
1638. Time of sale.
1639. Notice of sale.
1640. Confirmation of sale.
1641. Setting aside sale — Form of motion and order.
1642. Waiver and estoppel.
1643. Collateral attack.
1644. Presumption of validity.
1645. Recovery of amount bid.
1646. Title of purchaser and interest acquired.
1647. Sheriff's deed— Form.
1648. Possession.
1649. Corporate stock.
1650. Corporate franchise — Form of certificate of purchase.
1651. Redemption of franchise.
1652. Irregularities.
1653. Reversal of judgment.
ARTICLE VI
PROCEEDS. AMERCEMENT, AND RETURN
1654. Clerk.
1655. Amercement — Forms.
1656. Execution mailed.
1657. Distribution among execution creditors.
1658. Surplus.
1659. Return — Form.
1660. Neglect of officer.
1661. Payment.
Ivi
TABLE OF CONTENTS
ARTICLE VII
SUPPLEMENTAL PROCEEDINGS
Sections
1662. In general.
1662a. Examination of debtor and others — Arrest — Contempt.
1663. Reference — Form.
1664. Receivers — Order of appointment — Form.
1665. Continuance.
1666. Lien on funds-
1667. Fees and costs.
1668. Contempt.
1669. Orders.
1670. Judgment enforced after death.
ARTICLE VIII
WRONGFUL EXECUTION
1671. Conversion — Damages.
CHAPTER XXII
JUDICIAL SALES
1672. Judgment or order — Forms.
1673. Appraisement.
1674. Authority to sell.
1675. Notice.
1676. Return, confirmation, and objections.
1677. Foreclosure.
1678. Opening or vacating sale — Forms.
1679. Resale — Form of order.
1680. Collateral attack.
1681. Title and rights of purchaser.
1682. Taxes.
1683. Wrongful sale-
1684. Validity.
1685. Foreclosure sale.
1686. Without appraisement.
1687. Right of redemption.
1688. Tax sales.
1689. Estray sales.
CHAPTER XXIII
REPLEVIN
1690-1703. Article I. — Rights and defenses.
1704-1707. Article II. — Jurisdiction and parties.
1708-1721. Article III — Proceedings for taking and redelivery of property.
3722-1731. Article IV. — Pleadings and evidence.
TABLE OF CONTENTS
Ivii
Sections
1732-1733. Article V.— Damages.
1734-1752. Article VI. — Trial, judgment, enforcement of judgment, and re-
view.
1753-1756. Article VII. — Liabilities on bonds and undertakings.
ARTICLE I
RIGHTS AND DEFENSES
1690. Remedy— Nature.
1691. Property subject.
1692. Scope— Equity.
1693. Liens on animals*
1694. Property seized under prohibitory law.
1695. Rent— Crop.
1696. Purchaser with notice liable-
1697. Plaintiffs right to possession.
1698. Detention by defendant.
1699. Defendant's possession.
1700- Conditions precedent-
1701. Demand for return.
1702. Defenses.
1703. Estoppel.
ARTICLE II
JURISDICTION AND PARTIES
1704. Waiver of jurisdiction.
1705. Plaintiff.
1706. Defendant.
1707. Intervention and substitution."
ARTICLE III
PROCEEDINGS FOR TAKING AND REDELIVERY OF PROPERTY
1708. In general.
1709. Affidavit — Form.
1710. Replevin undertaking — Form.
1711. Order of replevin — Form.
1712. To different counties.
1713. Execution of order.
1714. Officer may forcibly enter buildings.
• 1715. Custody of property.
1716. Statutory provisions for delivery by attachment.
1717. Redelivery to defendant — Undertaking — Form.
1718. Plaintiffs' objection to sureties — Form.
1719- Effect of redelivery.
1720. Quashing writ — Forms.
1721. Return.
Iviii TABLE OF CONTENTS
ARTICLE IV
PLEADINGS AND EVIDENCE
Sections
1722. Complaint — Form and requisites.
1723. Demand.
1724. Amended and supplemental complaint.
1725. Amendment of affidavit.
1726. Issues, proof, and variance — Matters to be proved.
1727. Variance.
1728. Burden of proof.
1729. Defenses under answer — General denial.
1730- Evidence admissible.
1731. Sufficiency of evidence.
ARTICLE V
DAMAGES
1732. Elements of compensation.
1733. Exemplary damages.
ARTICLE VI
TRIAL, JUDGMENT, ENFORCEMENT OF JUDGMENT, AND REVIEW
1734. Failure to prosecute-
1735. Scope of inquiry.
1736. Trial.
1737. Questions for jury.
1738. Directed verdict — Instructions.
1739. Verdict and findings — Requisites.
1740. Value of property — Description.
1741. New trial.
1742. Judgment — In general — Form.
1743. For defendant.
1744. Description of property.
1745. Possession or return.
1746. For value of property.
1747. Judgment in alternative.
1748. Damages.
1749. Operation and effect.
1750. Enforcement of judgment.
1751. Appeal and error.
1752. Costs.
ARTICLE VII
LIABILITIES ON BONDS AND UNDERTAKINGS
1753. Replevin bonds.
1754. Redelivery bonds.
1755. Discharge of sureties.
1756. Extent of liability.
TABLE OF CONTENTS
lix
CHAPTER XXIV
EJECTMENT
Sections
1757-1759. Article I.— Nature and right of action.
1760-1766. Article II — Trial, recovery, and defenses-
1767-1769. Article III.— Damages.
ARTICLE I
NATURE AND RIGHT OF ACTION
1757. Possessory right.
1758. Form of action.
1759. Plaintiff must have right at commencement of action.
ARTICLE II
TRIAL, RECOVERY, AND DEFENSES
1760. Title to sustain action.
1760a. Petition— Form.
1761. Right to recover.
Oil leases.
Recovery where right ceases during action.
Defenses.
Evidence and instructions.
New trial.
1762.
1763.
1764.
1765.
1766.
ARTICLE III
DAMAGES
1767. Questions to be determined.
1768. Improvements and taxes.
1769. Recovery of rent.
CHAPTER XXV
AUXILIARY PROCEEDINGS
1770-1848. Article I— Attachment.
1770-1773. Division I. — Nature and grounds.
1774-1777. Division II — Property subject.
1778-17<S3. Division III.— Procedure.
1784-1793. Division IV.— Order.
1794—1817. Division V. — Levy, lien, custody, and disposition of property.
1818-1834. Division VI.— Discharge of attachment.
1S35-1S39. Division VII. — Claims by third persons.
3840-1848. Division VIII.— Wrongful attachment.
1849-1880. Article II.— Garnishment.
Ix
TABLE OF CONTENTS
Sections
1849-1851. Division I. — Nature and grounds-
1852-1857. Division II. — Persons and property subject.
1858-1868. Division III. — Procedure.
1869-1874. Division IV — Operation and effect.
1875-1876. Division V. — Discharge of garnishment.
1877-1878. Division VI.— Claims by third persons.
1879-1880. Division VII. — Wrongful garnishment.
1881-1908. Article III.— Receivers.
1909-1915. Article IV.— Reference.
1916-1923. Article V.— Lis pendens.
ARTICLE I
ATTACHMENT
DIVISION I. — NATURE AND GROUNDS
1770. Purpose and nature.
1771. Grounds.
1772. Rent.
1773- On claim not due.
DIVISION II. — PROPERTY SUBJECT TO ATTACHMENT
1774. Personal property.
1775. Mortgaged chattels.
1776. Real property.
1777. Property in custodia legis.
DIVISION III.— PROCEDURE
1778. Jurisdiction and venue.
1779. Affidavit— Form.
1780. * Amendment.
1781. Bond — Form.
1782. Additional security.
1783. Judgment.
DIVISION IV.— ORDER
1784. Attachment order — Form.
1785. Issuance.
1786. Several orders — To different counties.
1787. Defects.
1788. Service of process.
1789. By publication — Form of affidavit.
1790. Return — When made.
1791. Contents and Form.
1792. Defects.
1793. Operation and effect.
TABLE OP CONTENTS Ixi
DIVISION V. — LEVY, LIEN, CUSTODY, AND DISPOSITION OF PROPERTY
Sections
1794. Execution of order — Inventory and appraisement.
1795. Successive levies.
1796. Return.
1797. Creation of lien.
1798. Operation and effect.
1799. Priority — How determined — Reference.
1800. Between attachments and other liens.
1801. Transfer— Notice.
1802. Duration of liens.
1803. Release or abandonment.
1804. Custody of property.
1805. Receiver.
1806. Duties.
1807. Notice to debtors.
1808. Report of proceedings.
1809. Sheriff as receiver.
1810. Redelivery bond — Form.
1811. Disposition of property.
1812. Judgment for plaintiff.
1813. Delivery to sheriff.
1814. Possession by sheriff.
1815. Confirming or setting aside sale — Form of order.
1816. Surplus property.
1817. Interest conveyed.
DIVISION VI. — DlSCHABGE OF ATTACHMENT
1818. Form of remedy.
1819. Grounds — In general.
1820. Irregular proceedings.
1821. Jurisdiction.
1822. Persons who may move.
1823. Proceedings on motion. .
1824. Affidavits of defendant
1825. Affidavits of plaintiff.
1826. Hearing.
1827. Evidence.
1828. Burden of proof.
1829. Dissolution — In general.
1830. Death of defendant.
1831. Security to discharge.
1832. Effect of dissolution.
1833. Judgment — Damages.
1834. Liability on bond.
DIVISION VII.— CLAIMS BY THIRD PERSONS
1835. Ownership — Liens.
1836- Grounds for contest.
1837. Estoppel — Mistake. «
1838. Proceedings.
1839. Trial.
Ixii TABLE OF CONTENTS
DIVISION VIII.— WRONGFUL ATTACHMENT
Sections
1840. Grounds of liability.
1841. Wrongful levy.
1842. Actions — Defenses.
1843. Pleading.
1844. Set-off— Cross-action.
1845. Evidence.
1846. Dismissal.
1847. Damages.
1848. Who liable.
ARTICLE II
GARNISHMENT
DIVISION I.— NATURE AND GROUNDS
1849. When authorized. '
1850. Nature and purpose-
1851. After return of execution.
DIVISION II. — PERSONS AND PROPERTY SUBJECT
1852. Nonliability of garnishee — Judgment.
1853. Exemption from garnishment.
1854. Contractual interest — Judgments — Plaintiff.
1855. Possession and ownership.
1856. Assignment.
1857. Partnership.
DIVISION III. — PROCEDURE
1858. Pleadings — Proceedings — Affidavit and bond — Interrogatories-
Forms.
1859. Garuishee summons— Form.
1860. Service — Appearance.
1861. Subsequent affidavits and summons.
1862. Answer or affidavit of garnishee — Form.
1863. By whom made.
1864. Time Of corporation to answer.
1865. Issues and trial.
1866. Payment into court.
1867. Default of garnishee — Judgment — Contempt.
1868. Judgment.
DIVISION IV .—OPERATION AND EFFECT
1869. Liability of garnishee.
1870. Lien— Priority.
1871. Defenses — Exemption — Judgments.
1872. Action by defendant against garnishee.
1873. Costs.
1874. Injunction.
DIVISION V. — DISCHARGE OF GARNISHMENT
1 S7.">. Grounds — Motion — Form.
1876. Bond releasing garnishment — Form — Exceptions.
TABLE OF CONTEXTS Ixili
DIVISION V I.— CLAIMS BY THIRD PERSONS
Sections .
1877. Disclosure by garnishee — Order — Notice — Default.
1878. Action by claimant-
DIVISION VII.— WRONGFUL GARNISHMENT
1879. Grounds of liability.
1880. Measure of damages.
ARTICLE III
RECEIVERS
1881. Grounds and occasion for receivership.
1882. Particular instances.
1883. Corporations — Involuntary dissolution.
1884. Petition— Form.
1885. Parties.
1886. Jurisdiction.
1887. Notice — Order — Forms.
1888. Eligibility.
1889. Oath and bond— Forms.
1890. Liability on bond.
1891. Objections— Waiver— Collateral attack.
1892. Contempt — Interference with receiver.
1893. Vacation of order — Supreme Court — Form.
1894. Powers.
1895. Title and custody of property.
1896. Liens-
1897. Disposition of litigated property — Order — Form.
1898. Existing contracts.
1899. Investment of funds — Application — Order — Forms.
1900. Receiver's sales.
1901. Distribution and disposition.
1902. Receivership expenses.
1903. Taxes.
1904. Compensation.
1905. Appeals.
1906. Actions by and against receivers.
1907. Liability of plaintiff and third persons.
1908. Additional forms.
ARTICLE IV
REFERENCE
1909. Reference by consent — Stipulation — Form.
1910. Upon application or court's motion — Order — Form.
1911. Reference In vacation.
1912. Referee— Appe'utment, qualification, and compensation — Order —
Oath — Forms.
1913. Trial — Reports — Exceptions— Forms.
1914. Review by court.
1915. New trial.
Ixiv
TABLE OF CONTEXTS
ARTICLE V
LIS PENDENS
Sections
1916. Theory of lis pendens-
1917. Notice of action.
1918. Jurisdiction.
1919- Pendency of action.
1920. Amendment.
1921. Transfers pending suit.
1922. Unrecorded deeds.
1923. Persons bound by decree.
VOLUME III
CHAPTER XXVI
PROCEEDINGS IN EQUITY
1924-1926- Article I. — Equitable remedies 'in general.
1927-1970. Article II. — Divorce and alimony.
1927-1934. Division I — Grounds.
1935-1937. Division II — Defenses.
1938-1949. Division III. — Jurisdiction and procedure.
1950-1963. Division IV — Awards.
1964-1970. Division V. — Custody and support of children.
1971-1983. Article III.— Quieting title-
1971-1974. Division I. — Right of action and defenses.
1975-1980. Division II. — Proceedings and relief.
1981-1983- Division III. — Government land.
1984-1999- Article IV- — Specific performance.
1984-1987. Division I. — Grounds, n'ature of action, and defenses.
1988-1999. Division II — Enforceable contracts and enforcement of
same.
2000-2030. Article V— Partition.
2000-2003. Division I. — Right of action-
2004-2020- Division II. — Proceedings and relief.
2021-2030- Division III. — Partition in county court.
2031-2079. Article VI.— Injunction.
2031-2038. Division I. — Nature and grounds.
2039-2055. Division II — Subjects and relief.
2056-2066. Division III. — Restraining order and temporary injunction.
2067-2071- Division IV-— Contempt.
2072-2079. Division V.— Liability on bonds.
2080-2097. Article VII. — Foreclosure.
TABLE OF CQNTENTS
Ixv
ARTICLE I
EQUITABLE REMEDIES IN GENERAL
Sections
1924. Maxims, principles, and application.
1925. Remedies.
1926. Laches.
ARTICLE II
DIVORCE AND ALIMONY
DIVISION I. — GROUNDS
1927. Enumeration of grounds.
1928- Abandonment.
1929. Pregnancy before marriage — Impotency.
1930. Cruelty.
1931. Fraudulent contract.
1932. Habitual drunkenness.
1933. Neglect of duty.
1934. Marriage of incompetents voidable.
DIVISION II. — DEFENSES
1935. Insanity.
1936. Condonation.
1937. Res judicata.
DIVISION III. — JURISDICTION AND PROCEDURE
1938. Residence.
1939. Separate domicile.
1940. Domicile to obtain a divorce.
1941. Petition — Summons or notice — Forms.
1942. Answer — Form.
1943. Default.
1944. Evidence.
1945. Appeal — Remarriage.
1946. Decree — Contents — Form.
1947- Vacation and modification — Motions — Orders — Forms.
1948. Collateral attack.
1949. Effect.
DIVISION IV.— AWARDS
1950. Where divorce refused.
1951. Jurisdiction of person and property.
1952. Orders — Forms.
1953. Restraining order — Form.
1954. Temporary alimony and expenses — Form.
1955. Permanent alimony and division of property.
1956. Without divorce.
1957. Amount.
1958. Modification of decree.
1959. Release of obligation.
1960. Agreements of parties.
1961. Disposition of property.
HON.PL.& PRAC.— e
TABLE OF CONTENTS
Sections
1962. Construction and effect of decree.
1963. Fraudulent conveyances.
DIVISION V. — CUSTODY AND SUPPORT OF CHILDREN
1964. Jurisdiction.
1965. Decree — Form — Grounds.
1966. Effect.
1967. Modification.
1968. Enforcement.
1969. Award as to support.
1970. Support where no provision decreed.
ARTICLE III
QUIETING TITLE
DIVISION I.— RIGHT OF ACTION AND DEFENSES
1971. Possession — Nature of action.
1972. Cloud on title.
1973. Title to support action.
1974- Defenses.
DIVISION II. — PROCEEDINGS AND RELIEF
1975. Petition — Form.
1976. Cotenants.
1977. Answer — Disclaimer — Forms-
1978. Reply.
1979. Parties.
1980. Decree — Form.
DIVISION III.— GOVERNMENT LAND
1981. Patent erroneously issued.
1982. Actions.
1983. Hearing and findings.
ARTICLE IV
SPECIFIC PERFORMANCE
DIVISION I. — GROUNDS, NATURE OF ACTION, AND DEFENSES
1984. Grounds of relief.
1985. Nature of action.
1986. Discretion of court.
1987. Defenses.
DIVISION II.— ENFORCEABLE CONTRACTS AND ENFORCEMENT OF SAME
1988. Requisites and validity.
1989. Mutual obligations.
1990. Consideration.
1991. Oral contracts— Statute of frauds.
1992. Fraud — Illegal contracts.
TABLE OF CONTENTS
Sections
1993. Options.
1994. Rescission or abandonment.
1995. Real property — Tender — Delay.
1996. Laches.
1997. Contracts to devise.
1998. Personal services.
1999. Performance before trial.
bcvii
ARTICLE V
PARTITION
DIVISION I.— RIGHT OF ACTION
2000. Property subject to partition.
2001. Possession and cotenancy.
2002. Agreements.
2003. Conditions precedent.
DIVISION II. — PROCEEDINGS AND RELIEF
2004. Jurisdiction.
2005. Parties.
2006. Pleadings— Forms.
2007. Order for partition — Form.
2008. Commissioners.
2009. Allotment of portions.
2010. Duty — Report — Form.
2011. Final decree — Form.
2012. Taking land at appraised value — Form.
2013. Sale— Order— Form.
2014. Return and deed — Forms.
2015. Confirmation of Sale — Form.
2016. Costs, fees, and expenses.
2017. Extent of court's power — Additional relief and orders.
2018. Taxes, rent, and incumbrances.
2019. Proceeds.
2020. Lis pendens.
DIVISION III. — PARTITION IN COUNTY COURT
2021. Common estate — Commissioners.
2022. Petition, parties, and notice.
2023. Realty in different counties.
2024. Notice — Steps by commissioners.
2025. Division of property.
2026. Assignment to one owner.
2027. Sale of estate.
2028. Report of proceedings.
2029. Assignment of residue.
2030. Advancements.
Ixviii
TABLE OF CONTENTS
ARTICLE VI
DIVISION I. — NATURE AND GBOUNDS
Sections
2031. Nature of remedy — Writ.
2032. Anticipated violation of right.
2033. Substantial injury.
2034. Defenses — Laches.
2035. Res judicata.
2036. Past wrongs.
2037. Adequate remedy at law.
2038. Mandatory injunction.
DIVISION II. — SUBJECTS AND RELIEF
2039. Tax and nuisance.
2040. Civil actions.
2041. Miscellaneous proceedings.
2042. Property and conveyances.
2043. Trespass.
2044. Public lands.
2045. Contracts.
2046. Sale of good will.
2047. Corporations.
2048. Public officers.
2049. Elections.
2050. Enforcement of ordinances.
2051. Public safety.
2052. Criminal acts and prosecutions.
2053. Infringement.
2054. Board of arbitration.
2055. Final decree.
DIVISION III. — RESTRAINING OBDEK AND TEMPORARY INJUNCTION
2056. Notice.
2057. Restraining order — Form.
2058. Temporary injunction— Grounds — Form.
2059. Bond — Form.
2060. Affidavits.
2061. Vacating or modifying — Motions — Decrees — Forms.
2062. Operation of orders.
2063. Defendant may obtain injunction.
2064. Objections.
2065. Order of injunction — Service — Form.
2066. Effective when.
DIVISION IV. — CONTEMPT
2067. Disobedience of injunction.
2068. Jurisdiction to punish.
2069. Proceedings.
2070. Acts constituting violation.
2071. Defenses.
TABLE OP CONTENTS
Ixix
DIVISION V.— LIABILITY ON BONDS
Sections
2072. In general.
2073. Extent of liability.
2074. Actions — Conditions precedent.
2075. Time for suing.
2076. Pleading— Forms.
2077. Defenses.
2078. Evidence.
2079. Damages.
ARTICLE VII
FORECLOSURE
2080. Real estate mortgage.
2081. Security deed.
2082. Appraisement.
2083. Right of redemption.
2084. Chattel mortgages.
2085. Notice— Form.
2086. Sale.
2087. Attorneys' fees.
2088. Pledges.
2089. Liens against railroads.
2090. Mechanics' and materialmen's liens.
2091. Parties to action.
2092. Consolidation.
2093. Judgment— Sale.
2094- Costs — Attorney fees.
2095. Action by owner — When.
2096. Lien claimants to share pro rata.
2097. Liens — Oil and gas property — Rent — Crops.
CHAPTER XXVII
SPECIAL WRITS
2098-2158. Article I.— Habeas corpus.
2098-2118- Division J. — Theory and purpose.
2119-2158. Division II. — Jurisdiction, proceedings, and relief.
2159-2237. Article II.— Mandamus.
2159-2173. Division I. — Nature and grounds.
2174-2213- Division II. — Subjects of relief.
2214-2237. Division III.— Procedure.
2238-2239. Article III.— Certiorari.
2240-2252. Article IV. — Prohibition.
2240-2245. Division I. — Nature and grounds.
2246-2252. Division II. — Procedure,
2253-2274- Article V. — Quo warranto.
2253-2262. Division I. — Nature and grounds.
2263-2274. Division II. — Procedure.
1XX TABLE OF CONTENTS
ARTICLE I
HABEAS CORPUS
DIVISION I.— THEORY AND PURPOSE
Sections
2098. Nature of writ.
2099. A constitutional right.
2100. Other remedies.
2101. Appeal or error.
2102. Nature of detention.
2103. Voluntary surrender.
2104. Authority for detention.
2105. Proceedings reviewable — Pardons.
2106. Arrest and commitment.
2107. Bail for murder when preliminary hearing was waived.
2108. Judgment and commitment.
2109. Grounds for issuance — In general.
2110. Want of jurisdiction or authority.
2111. Void proceedings.
2112. Irregularities.
2113. Former jeopardy.
2114. Void statute or ordinance.
2115. Excessive bail.
2116. Who entitled to relief.
2117. In whose favor granted.
2118. Habeas corpus never suspended.
DIVISION II. — JURISDICTION, PROCEEDINGS, AND RELIEF
2119. Jurisdiction — In general.
2120. When in custody of other court or officers.
2121. Of judges and judicial officers.
2122. Jurisdiction of parties. %
2123. Waiver.
2124. Application— Contents— Form.
2125. Sufficiency of petition.
2126. Security for costs not required.
2127. Dismissal — Motion to dismiss.
2128. Warrant for prisoner — P^orm.
2129. Execution.
2130. Writ may issue to admit prisoner to bail.
2131. Hearing on application.
2182. Writ— Contents— Form.
2133. Delivery of writ.
2134. Service.
2135. On Sunday.
2136. Vacating writ.
2137. Return.
2138. Requisites of return — Form.
2139. Failure to make return.
2140. Exception to return.
2141. Evidence.
TABLE OF CONTENTS
Ixxi
Sections
2142. Hearing on writ or return.
2143. Scope of inquiry and power of court.
2144. Jurisdiction..
2145. Compef attendance of witnesses.
2146. Sufficiency of evidence.
2147. Extradition.
2148. Irregularity.
2149. Determination of particular issues — Custody of infant.
2150. Commitment for contempt.
2151. Reduction of bail.
2152. Disposition of person.
2153. Discharge — Notice.
2154. Appeal.
2155. Effect of determination.
2156. Effect of refusal to discharge.
2157. Liability of officer for obeying writ.
2158. Constitutional provisions.
ARTICLE II
MANDAMUS
DIVISION I.— NATURE AND GROUNDS
2159. Nature of writ.
2160. By whom issued — Who subject to writ.
2161. Existence of remedy at law.
2162. Appeal or error.
2163. Where other proceedings are pending.
2164. Discretion of court.
2165. Joinder of proceedings.
2166. Successive applications.
2167. Nature of rights to be protected.
2168. What acts commanded.
2169. Demand of performance.
2170. Defenses.
2171. Mandamus useless.
2172. Abatement.
2173. Who entitled to relief.
DIVISION II.— SUBJECTS OF RELIEF
2174. Exercise of judicial powers and discretion.
2175. When disqualified.
2176. Acts in violation of law.
2177. Proceeding with cause — Dismissal.
2178. Injunction.
2179. Trial by jury.
2180. Entry of order.
2181. Vacation of order.
2182. Execution — Judicial sale.
2183. Proceedings for review.
2184. Enforcement of mandate on review.
2185. Taxation of costs.
Ixxii TABLE OF CONTENTS
Sections
2186. Criminal proceedings.
2187. Officers subject to mandamus.
2188. State officers and boards.
2189. Ministerial acts.
2190. Exercise of discretion.
2191. Specific acts.
2192. Elections.
2193. Appointment or recall of public officers.
2194. Title to office— Possession.
2195. Establishment of schools.
2196. Public records.
2197. Contracts.
2198. Franchise.
2199. Grant of licenses.
2200. Maintenance and repair of public bridges.
2201. Levy of taxes. .
2202. Audit and allowance of accounts.
2203. Issue of warrants and bonds.
2204. Payment of warrants.
2205. Payment of judgments.
2206. Levy of taxes to pay bonds and interest.
2207. Payment of judgments.
2208. Assessment of taxes.
2209. Payment of taxes.
2210. Meetings of corporations.
2211. Corporate franchises — Construction of works.
2212. Operation of works.
2213. Individuals.
DIVISION III.— PROCEDURE
2214. Jurisdiction.
2215. Time to sue.
2216. Parties plaintiff — In name of state.
2217. Defendants. .
2218. Pleadings.
2219. Motion or application — Affidavit — Notice — Forms.
2220. Disqualification of judge.
2221. In Supreme Court.
2222. Writ of mandamus— Contents — Forms.
2223. Peremptory writ.
2224. Issuance and service.
2225. Answer or return.
2226. Motion to quash construed as answer.
2227. Demurrer.
2228. Cross-petition.
2229. Demurrer to answer or return.
2230. Dismissal before hearing.
2231. Conduct of trial.
2232. Evidence.
2233. Scope of inquiry.
2234. Extent of relief.
2235. Damages bar to action.
TABLE OF CONTENTS Ixxil'i
Sections
2236. Punishment for contempts-Penalty.
2237. Appeal and error.
ARTICLE III
CERTIORARI
2238. Nature and office of writ.
2239. When issued — Review — Form.
ARTICLE IV
PROHIBITION
DIVISION I. — NATURE AND GROUNDS
2240. Nature of remedy.
2241. Existence of other remedies.
2242. Proceedings of courts and judges.
2243. Of public officers and boards.
2244. Grounds for relief.
2245. Prohibition not beneficial — Abatement.
DIVISION II. — PROCEDURE
2246. Jurisdiction.
2247. Objections in lower court.
2248. Parties.
2249. Scope of inquiry.
2250. Appeal.
2251. Dismissal.
2252. Forms.
ARTICLE V
QUO WARRANTO
DIVISION I. — NATUBE AND GROUNDS
2253. Nature of writ.
2254. Writ abolished — Civil action.
2255. Statutory grounds.
2256. Existence of municipality — School district organization.
2257. Exercise of corporate franchise.
2258. Trial of title to office — Usurpation.
2259. Forfeiture and maladministration.
2260. Adequate remedy at law.
2261. Discretion of court.
2262. Defenses.
DIVISION II.— PROCEDURE
2263. Venue.
2264. Parties plaintiff.
2265. Control of proceedings.
2266. Parties defendant.
2267. Petition — Contents — Form.
226S. Answer.
Ixxiv
TABLE OF CONTENTS
Sections
2269. Evidence.
2270. Powers of court — Inquiry.
2271. Judgment — Form.
2272. In contest for office.
2273. Costs.
2274. In action against corporations.
CHAPTER XXVIII
SPECIAL PROCEEDINGS
2275-2283. Article I. — Dissolution proceedings.
2284-2294. Article II. — Determination of heirship.
2295-2299. Article III.— Homestead and marital rights.
2300. Article IV. — Adoption and bastardy.
2301-2306. Article V.— Contempt.
2307-2317. Article VI.— Seizure, confiscation, and forfeiture.
2318-2338. Article VII. — Condemnation proceedings.
2339-2352. Article VIII.— Restoration of records.
2353-2358. Article IX. — Occupying claimants.
2359-2360. Article X.— Escheat.
2361-2367. Article XI.— Libel and slander.
ARTICLE I
DISSOLUTION PROCEEDINGS
2275. Dissolution of corporation
2276. Voluntary..
2277. Involuntary.
2278. Who may bring action.
2279. Not duly incorporated.
2280. Elections.
2281. Dissolution of insurance companies.
2282. Dissolution of partnership.
2283. Forms.
ARTICLE II
DETERMINATION OF HEIRSHIP
2284. Jurisdiction — Appeals.
2285. Petition— Who may file— Contents.
2286. Hearing— Notice— Service.
2287. Trial— Judgment— Rehearings.
2288. Appeals — How taken.
2289. Method not exclusive.
2290. Invoking jurisdiction in action relating to real property.
2291. Judgment— Findings.
2292. Judgment — Collusiveness.
2293. Service by publication.
2294. Proof of service.
TABLE OF CONTENTS
Ixxv
.Sections
2295.
2296.
2297.
2298.
3299.
ARTICLE III
HOMESTEAD AND MARITAL RIGHTS
Husbaud and wife.
Effect of proceedings.
Setting aside decree.
Homestead — Insane spouse.
Service of petition.
ARTICLE IV
ADOPTION AND BASTARDY
2300. Adoption — Bastardy — Delinquent children — Majority rights.
ARTICLE V
CONTEMPT
2301. Hearing — Jury trial.
2302. Evidence — Application.
2303. Alimony, support, and suit money.
2304. Corporation commission — Appeal.
2305. Burden of proof.
2306. Injunction against liquor nuisance.
ARTICLE VI
SEIZURE. CONFISCATION AND FORFEITURE
2307. Forfeiture of property used in violation of prohibitory laws.
2308. Searches.
2309. Vehicles.
2310. Automobiles.
2311. Beer.
2312. Procedure.
2313- Appeals allowed.
2314. Jurisdiction.
2315. Complaint.
2316. Interplea.
2317. Gambling apparatus.
ARTICLE VII
CONDEMNATION PROCEEDINGS
2318. Condemnation proceedings — Railroads.
2319- Compensation to owner.
2320. Report — Review — Jury trial.
2321. Appeal — Condemnation proceedings.
TABLE OF CONTENTS
Sections
2322. Application of law.
2323. Eminent domain — Oil pipe line companies.
2324. Foreign corporations may not exercise eminent domain.
2325. Condemnation proceedings — Parties entitled to prosecute.
2326. Special proceedings — Eminent domain — Lands subject.
2327. Procedure — Appeal.
2328. Pipe line companies.
2329. Water power companies.
2330. Municipalities.
2331. Other persons.
2332. Acquisition by United States.
2333. Light, heat, and power companies.
2334. Establishment of roads by county commissioners.
2335. Landowner may start proceedings.
2336. Trial and evidence.
2337. Effect of condemnation — Damages.
2338. Condemnation of Indian lands.
ARTICLE VIII
RESTORATION OF RECORDS
2339. Restoration by certified copy.
2340. Restoration where no certified copy is to be had.
2341. Restoration of probate records.
2342. Restoration of record in cases appealed.
2343. County records-
2344. Plats to be restored by court action.
2345. An interested individual may petition — Form.
2346. Duties of county commissioners.
2347. Abstract records may be used.
2348. Courts may act to establish title.
2349. Effect of court decree— Form.
2350. Certified copy of deed may be recorded.
2351. Power to act may be in legal representative.
2352. Admissibility of oral and other evidence.
ARTICLE IX
OCCUPYING CLAIMANTS
2353. Reimbursement for improvements and expenditures.
2354. Trial and appraisement.
2355. Judgment — Appeal.
2356. Purchase by occupant-
2357. Refunding purchase money.
2358. Where ejectment brought.
ARTICLE X
ESCHEAT
2359. When property escheats.
2360. Escheat proceedings, how instituted and carried on.
TABLE OF CONTENTS
Ixxvii
ARTICLE XI
LIBEL AND SLANDER
Sections
2361. Libel defined.
^362. Slander defined.
2363. Privileged communication defined.
2364. Pleading— Proof and defenses.
2365. Extent of liability.
2366. Malice presumed.
2367. Minimum judgment.
CHAPTER XXIX
APPEAL AND REVIEW
2368-2370. Article I.— Origin, right, and mode of appeal.
2371-2373. Article II.— Appellate jurisdiction.
2374-2379. Article III.— Decisions reviewable.
2380-2383. Article IV.— Eight of appeal.
2387-2418. Article V.— Presentation below.
2419-2422. Article VI.— Parties.
2423-2431. Article VII.— Manner of taking appeal.
2423-2425. Division I. — Time of taking appeal.
2426-2427. Division II.— Deposit and bond.
2428-2431. Division III. — Notice, petition in error, and appearance.
2432-2436. Article VIII. — Effect of appeal, supersedeas and stay.
2437-2464. Article IX. — Transcript and case-made.
2437-2440. Division I. — Record in general.
2441-2444. Division II. — Transcript.
2445-2464. Division III. — Case-made.
2465-2468. Article X. — Assignment of errors.
2469-2475. Article XI.— Briefs.
2476-2485. Article XII. — Dismissal and abandonment.
2486-2489. Article XIII — Hearing and rehearing.
2490-2544. Article XIV.— Review.
2490-2499. Division I. — Scope and extent.
2500. Division II. — Rulings.
2501-2502. Division III — Parties entitled to complain.
2503-2505. Division IV. — Amendments and additional proof.
2506-2515. Division V. — Presumptions.
2516-2521. Division VI. — Discretionary rulings.
2522-2524. Division VII. — Evidence, verdict and findings.
2525-2540. Division VIII. — Harmless error.
2541. Division IX. — Waiver of error.
2542-2544. Division X. — Intermediate and subsequent appeals.
2545-2556. Article XV.— Decision.
2557-2562. Article XVI.— Bonds.
2563. Article XVII. — Rules of Supreme Court
TABLE OF CONTENTS
ARTICLE L
ORIGIN, RIGHT, AND MODE OF APPEAL
Sections
2368. Origin and right of appeal.
2369. Cross-appeals and successive appeals.
2370. Consolidation for appeal.
ARTICLE II
APPELLATE JURISDICTION
2371. Powers of court.
2372. Basis of jurisdiction.
2373. Existence of controversy.
ARTICLE III
DECISIONS REVIEWABLB
2374. Final orders.
2375. New trial.
2376. Receivers.
2377. Temporary injunctions.
2378. Pleadings.
2379. Amount in controversy.
ARTICLE IV
RIGHT OF APPEAL
2380. Persons entitled.
2381. Waiver of appeal.
By compliance with order or decree.
Payment of judgment.
2384. Payment of costs.
Acceptance of benefits.
2386. By selection of another remedy.
ARTICLE V
PRESENTATION BELOW
2387. Issues in lower court.
2388. Sufficiency of presentation.
589. Objections and rulings — Venue — Parties — Process — Clerk.
J390. Jurisdiction of lower court.
2391. Judge pro tern.
2392. Motions — Incidental proceedings — Attachments
2393. Pleadings.
2394. Reference.
TABLE OF CONTENTS IxxiX
Sections
2395. Conduct of trial.
2396- Argument and conduct of counsel.
2397. Evidence and witnesses.
2398. Instructions.
2399. Sufficiency of court's findings.
2400. The verdict.
2401. Judgment.
2402. Report of referee.
2403. Appeals from justice court.
2404. Specific and general objections.
2405. Sufficiency of objection.
2406. Objection by motion — Necessity.
2407. Objection to judgment — Costs.
2408. Necessity for ruling.
2409. Exceptions.
2410. As to pleadings.
2411. Findings of jury, court, or referee.
2412. Judgment.
2413. Rulings after judgment.
2414. Sufficiency and effect— Withdrawal.
2415. Timeliness of objection and exception.
2416. Motion for new trial.
2417. Presentation of errors.
2418 Time-
ARTICLE VI
PARTIES
2419. Necessary parties.
2420. Rules.
2421. Death of party.
2422. Defect of parties.
ARTICLE VII
MANNER OF TAKING APPEAL
DIVISION I.— TIME OF TAKING APPEAL
2423. Periods applicable.
2424. Time during which limitation runs.
2425. Extension of time — Dismissal.
DIVISION II.— DEPOSIT AND BOND
2426. Deposit for costs.
2427. Bond.
DIVISION III.— NOTICE, PETITION IN EKROB, AND APPEARANCE.
2428. Notice of appeal in open court.
2429. Petition in error.
2430. Assignment of errors.
2431. Appearance.
IxXX TABLE OF CONTENTS
ARTICLE VIII
EFFECT OF APPEAL, SUPERSEDEAS, AND STAY
Sections
2432. Suspension of jurisdiction below.
2433. Collateral matters.
2434. Undertaking for stay — Form.
2435. Stay pending appeal.
2436. Inherent power to grant stay.
ARTICLE IX
TRANSCRIPT AND CASE-MADE
DIVISION I. — RECORD IN GENERAL
2437. Necessity and requisites-
2438. Presentation for review.
2439. Conclusiveness of record.
2440. Conflicts.
DIVISION II.— TRANSCRIPT
2441. Contents.
2442. Matters presented for review.
2443. Requisites and sufficiency.
2444. Certificate.
DIVISION III. — CASE-MADE
2445. Function and necessity.
2446. Attached to petition — Complete record — Costs.
2447. Service, amendment, settlement, and filing — Exceptions.
2448. Attestation— Filing.
2449. Extension of time — Motion — Order — Forms.
2450. Service.
2451. Parties served.
2452. Contents.
2453. Form and sufficiency.
2454. Amendments.
2455. Settlement and certification.
2456. Time for settlement.
2457. Notice.
2458. Death, expiration of term, or absence of trial judge.
2459. Special judge — Appellate court.
2460. Filing in both courts.
2461. Correction — Notice.
2462. Waiver of defects.
2463. Conclusiveness of certificate.
2464. Matters presented for review.
TABLE OF CONTENTS bcXXl
ARTICLE X
Sectlons ASSIGNMENT OF ERRORS
2465. Necessity.
2466. Requisites and sufficiency.
2467. Matters presented for review.
2468. Amendment.
ARTICLE XI
BRIEFS
2469. Necessity.
j 2470. Form and requisites.
2471. Specification of errors.
2472. Argument.
2473. Defective briefs.
2474. Failure to file and serve.
2475. Disposition of appeal.
ARTICLE XII
DISMISSAL AND ABANDONMENT
2476. Voluntary dismissal.
2477. Involuntary dismissal.
2478. Moot questions.
2479. Defects in proceedings.
2480. Frivolous appeals.
2481. Failure to prosecute appeal.
2482. Dismissal by court on its own motion.
2483. Motion for dismissal.
2484. Abandonment.
2485. Vacating order of dismissal and reinstatement.
ARTICLE XIII
HEARING AND REHEARING
2486. Advancement — Continuance.
2487. Rehearing.
24S8. Petition — Form.
2489. Matters considered.
ARTICLE XIV
REVIEW
DIVISION I.— SCOPE AND EXTENT
2490. Scope in general.
2491. Consideration of evidence.
2492. Agreed statement.
HO??.P:L.&PRAC.— f
Ixxxii
TABLE OF CONTENTS
Sections
2493. Questions of law and of fact.
2494. Abstract and hypothetical questions.
2495. In equity case.
2496. Special findings.
2497. Theory adopted below.
2498. Reason for decision.
2499. Dependent on nature of decision.
DIVISION II.— RULINGS
2500. On pleadings and motions.
DIVISION III. — PARTIES ENTITLED TO COMPLAIN
2501. In general.
2502. Invited error, estoppel, and waiver.
DIVISION IV. — AMENDMENTS AND ADDITIONAL PROOF
2503. Remanding for amendment.
2504. Amendment regarded as made in lower court.
2505. Additional proofs in appellate court.
DIVISION V. — PRESUMPTIONS
2506. Burden of showing error.
2507. Jurisdiction and organization of lower court.
2508. Judgment arid verdict.
2509. Findings.
2510. Pleadings.
2511. Motions and orders.
2512. Reference. ,
2513. Dismissal, demurrer to evidence, and direction of verdict.
2514. Instructions.
2515. Case-made.
DIVISION VI. — DISCRETION ART RULINGS
2516. In general.
2517. Motions and pleading.
2518. New trial.
2519. Reception of evidence and examination of witnesses.
2520. Submission of issues.
2521. Judgment, execution, and sale.
DIVISION VII.— EVIDENCE, VERDICT AND FINDINGS
2522. Evidence and witnesses.
2523. Verdicts.
2524. Findings.
DIVISION VIII. — HARMLESS ERBOB
2525. Errors not affecting substantial right.
2526. Errors not affecting result.
2527. Where judgment correct.
2528. Presumption and prejudice.
TABLE OF CONTENTS IxXXlii
Sections
2529. Pleadings.
2530. Interlocutory proceedings.
2531. Jury and trial.
2532. Evidence.
2533. Statements and conduct of counsel.
2534. Cure of error.
2535. Demurrer to evidence and direction of verdict.
2536. Submission of issues and instructions.
2537. Cure of error.
2538. Conduct of the jurors.
2539. Findings.
2540. Judgment.
DIVISION IX.— WAIVER OF EBKOB
2541. Express and implied waiver.
DIVISION X. — INTERMEDIATE AND SUBSEQUENT APPEALS
2542. Intermediate courts — Cases from justice court
2543. Cases from county court.
2544. Subsequent appeals.
ARTICLE XV
DECISION
2545. Decision in general.
2546. Affirmance.
2547. Modification.
2548. Reversal.
2549. Mandate.
2550. Direction of judgment.
2551. New trial.
2552. Proceedings in lower court.
2553. Powers and duties.
2554. Amendments.
2555. Disposition of property.
2556. Jurisdiction of appellate court after remand.
ARTICLE XVI
BONDS
2557. Liability on bonds.
2558. Action on appeal or supersedeas bond.
2559. Void or defective appeal.
2560. Accrual or release of liability.
2561. Enforcement of liability.
2562. Extent of liability.
Ixxxiv TABLE OP CONTENTS
ARTICLE XVII
RULES OF SUPREME COURT
Sections
2563. Rules stated.
TABLE OF STATUTES CITED
(Page 2557)
TABLE OF CONSTITUTIONAL PROVISIONS
CITED
(Page 2569)
TABLE OF CASES CITED
(Page 2571)
INDEX
(Page 2715)
A TREATISE
ON
HON.PL.& PBAC. (I)1
Ch. 1) COURTS AND COURT OFFICERS
CHAPTER I
COURTS AND COURT OFFICERS
Sections
1-142. Article I.— Courts and judges.
1-31. Division L — Relating to code practice In general.
32-45. Division II. — Judges in general.
46-81. Division III. — District courts and judges.
82-89. Division IV. — Superior courts and judges.
90-113. Division V. — County courts and judges.
114-142. Division VI. — Supreme Court and judges.
143-198. Article II. — Other court officers.
143-145. Division I. — In general.
146-162. Division II. — Court clerks.
163-172. Division III. — Sheriffs and other peace officers.
173-198. Division IV.— Attorneys.
ARTICLE I
COURTS AND JUDGES
DIVISION 1.— RELATING TO CODE PRACTICE IN GENERAL
Sections
1. Courts open for administration of justice.
2. Due process.
3. Judicial power vested where.
4. Judges — Conservators of the peace.
5. Title of chapter.
6. Prior decisions and precedents — Stare decisis.
7. Decisions of federal courts.
8. Common law.
9. Obiter dictum.
10. Law of the case.
11. Statutes and construction.
12. Erroneous words and punctuation.
13. Rule of ejusdem generis.
14. Statute construed as a whole.
15. Statutes construed together or in the light of each other.
16. Administrative construction.
17. Provisos or exceptions.
18. Statute adopted from another state.
19. Adjournment by sheriff.
20. Publications.
21. Affirmation.
22. Computation of time.
23. Surety — Justification.
24. Qualifications.
25. Real estate mortgage as bond.
26. Valuation of real estate.
27. False valuation — Penalty.
(3)
COURTS AND COURT OFFICERS (Ch. 1
Sections
28. Action on bond.
29. Several actions on security.
30. Submission of controversy.
31. Impeachment and removal from office.
DIVISION 11. — JUDGES IN GENERAL
32. As public officer.
33. Judge pro tempore.
34. Waiver of objections.
35. Powers of special judges.
36. Liabilities.
37. Change of judge.
38. Disqualifications.
39. Relationship.
40. Bias and prejudice.
41. Objections and procedure.
42. Form — Application for disqualification of judge.
43. Waiver of disqualifications.
44. Acts of disqualified judge.
45. Powers at chambers.
DIVISION 111. — DISTRICT COURTS AND JUDGES
46. District court — Where held.
47. Districts and judges.
48. Sessions — Time for — Adjournments.
49. Change of district — Disposition of cases pending.
50. Special terms.
51. Adjournment of term.
52. Two or more judges sitting at same time.
53. Additional judge.
54. District judges — Expenses.
55. Reporter — Appointment — Qualifications:
56. Duties of court reporter.
57. / Salary and fees.
58. Traveling expenses.
59. Tenure and oath of office.
60. Notes filed — Admissibility in evidence — Transcripts.
61. Appeal to district court.
62. Party in default.
63. Who may appeal.
64. When appeal must be taken.
65. Appeal how taken.
66. Appeal bond.
67. Stay of execution.
68. Commitment — How stayed.
69. Justification of sureties — Increased bond.
70. Appeal bond form — Action upon.
71. Appeal not to stay issue of letters.
72. Appeal not to stay order revoking letters, etc.
73. Proceedings.
74. Powers of the appellate court.
(4)
Art. 1) COURTS AND JUDGES
Sections
75. ' Trial de novo.
76. Penalty for neglect of county judge to transmit record.
77. Dismissal of appeal — Effect — Costs-
78. Enforcement of decree.
79. Executor's bond stands in place of appeal bond.
80. Reversal for error not to affect lawful acts.
81. Rules of district court.
DIVISION IV. — SUPERIOR COURTS AND JUDGES
82. Superior courts in general.
83. Qualifications of judges — Term of office.
84. Election.
85. Procedure — Juries — Appeals.
86. Court stenographer.
87. Sheriffs — County attorneys.
88. Judge's salary.
89. Transfer of causes.
DIVISION V.— COUNTY COURTS AND JUDGEB
90. Procedure — Seal.
91. Terms of court.
92. Proceedings in vacation — Out of court.
93. Calendar.
94. Stenographer.
95. Duties.
96. Oath and tenure of office.
97. Fees for making transcripts.
98. Ex officio court clerk.
99. Compensation.
100. Fees — Record.
101. Report of.
302. Fees paid to treasurer.
103. Special court towns.
104. Judge — Term of office — Qualification.
105. To give bond.
306. Office and records.
107. Practice prohibited.
308. Temporary county judge.
109. How elected.
110. Fee when affidavit of bias made.
311. County judge— County attorney— Salary.
112. Court reporters.
113. Rules for county court.
DIVISION VI.— SUPREME COURT AND JUDGES
314. Membership— Quorum— Eligibility— Term of office— Vacancies— Juris-
diction.
115. Justices— Judicial districts— Election— Law clerks.
116. Referees and first law clerk.
117. Chief justice — Election.
118. Vice chief justice — Election.
(5)
S i COURTS AND COURT OFFICERS (Ch. 1
Sections
119. Justices — Not to be candidate for other office.
120. Commencement of term.
121. Sessions — Opinions.
122. Chief justice — Expiration of terms — Election.
123. Clerk.
124. Law governing.
125. Salaries of justices.
126. Effect of invalidity.
127. Jurisdiction — Divisions.
128. Appeals from county court.
129. Appeals from corporation commission.
ISO. Appeals from state labor commission.
131. Formation of new counties.
132. Speedy heariqg.
133. Original jurisdiction — Division of assets and liabilities among counties.
134. Parties — Proceedings.
135. Constitution.
136. Jurisdiction — Removal of state capital and normal schools.
.137. Jury trial when.
138. Trial.
139. Jury — How selected.
140. Costs — Witness fees.
141. Reports.
142. Supreme court rules.
DIVISION I. — RELATING TO CODE PRACTICE IN GENERAL
§ 1. Courts open for administration of justice
"The courts of justice of the state shall be open to every person,
and speedy and certain remedy afforded for every wrong and for
every injury to person, property, or reputation; and right and jus-
tice shall be administered without sale, denial, delay, or prejudice."1
This provision is self-executing,2 and prohibits the trial of any
cause by a judge or juror prejudiced against either party. Prohibi-
tive clauses of a Constitution are always self-executing and require
no legislative provision for their enforcement.3 This clause ex-
pressly requires that courts grant relief in a speedy manner. It
does not, hpwever, require a jury trial in proceedings under the
Workmen's Compensation Act (Laws 1915, c. 246), 4 or in a pro-
1 Const. Okl. art. 2, § 6.
2 Mayes v. Pitchford, 26 Okl. 129, 109 P. 821.
3 State ex rel. Smith v. Brown, 24 Okl. 433, 446, 103 P. 762 ; Ex parte
Hudson, 3 Okl. Cr. 393, 106 P. 540; Lewis v. Russell, 4 Okl. Cr. 129, 111 P.
818.
4 Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938,
(6)
Art. 1) COURTS AND JUDGES § 2
ceeding by the state before the corporation commission to recover
a refund of excess rates,5 nor does it give a party a right to a trial
before a particular judge.6
§ 2. Due process
"No person shall be deprived of life, liberty, or property, without
due process of law." T
This provision does not always require judicial hearings. It re-
quires such hearings in matters of a purely judicial nature, but
not in matters purely administrative, such as matters of taxation.8
It requires only that a party shall have reasonable notice and op-
portunity to be heard.9 That the trial court fails to follow the stat-
ute in taxing costs raises no question as to violation of the due pro-
cess clause.10
A citizen has no property in a defense, and, while rights accrued
to him under existing laws and which have thereby become vested
may not be taken away by a change of rule, he cannot complain that
he is denied due process of law, where a rule is changed before any
rights have accrued to him thereunder.11
6 Pioneer Telephone & Telegraph Co. v. State, 40 Okl. 417, 138 P.. 1033.
6 State v. Brown, 8 Okl. Cr. 40, 126 P. 245, Ann. Cas. 1914C, 394.
7 Const. Okl. art. 2, § 7. Exercise by commissioner of land office of min-
isterial and judicial functions as to state school lands under Laws 1907-08,
c. 49, art. 2, and Rev. Laws 1910, §§ 7177, 7186, 7187, is not a denial of "due
process of law," either under Const. Amend. U. S. 14, or Const. Okl. art. 2,
§ 7. Wilhite v. Cruce (Okl.) 172 P. 962.
The equitable and common-law jurisdiction granted to the courts by the
organic act of the territory of Oklahoma were a part of that due process of
law which is guaranteed to every citizen as a protection of his life, liberty,
and property. Smith v. Speed, 66 P. 511, 11 Okl. 95, 55 L. R. A. 402. The
jurisdiction of the courts in equity as provided in the organic act of Okla-
homa Territory is as much due process of law as the right of trial by jury in
cases at common law. Id.
8 Anderson v. Ritterbusch, 22 Okl. 761, 98 P. 1002 ; Anderson v. Ritterbusch,
98 P. 1002, 22 Okl. 761.
0 Where a motion to vacate a decree of foreclosure and sale thereunder was
made by the owner of the equity of redemption upon whom no valid service
was had in the foreclosure proceeding, and the grantee of the purchaser at
the foreclosure sale was served with notice of such motion, appeared and
answered, filed an affidavit in opposition to the motion, and also a motion
to dismiss the motion to vacate, actively conducted the defense, and appeal-
ed from the decree, a decree setting aside the judgment of foreclosure ami
permitting the owner of the equity of redemption to appear, plead, and set
up her defense, did not deny to the grantee due process of law. Harding
v. Gillett, 107 P. 665, 25 Okl. 199.
10 Cramer v. Farmers' State Bank of Galva, 158 P. 1111, 98 Kan. 641.
" Dickinson v. Cole (Okl.) 177 P. 570.
(7)
§§ 2-6 COURTS AND COURT OFFICERS (Ch. 1
Failure to give notice of an application for alimony pendente lite
is not a deprivation of property without due process of law.12
Notice by publication, consisting of two successive insertions in
a paper of general circulation in the county in which the land to be
embraced within the boundaries of a drainage district is located, is
sufficient to constitute due process of law.13
A judgment of the district court affirming the action of the coun-
ty commissioners on a claim, without giving claimant a chance to be
heard, would be a deprivation of property without due process.14
The statute providing that, if a foreign corporation doing busi-
ness in the state fails to appoint an agent therein for service, service
may be made on the secretary of state, is not a denial of due process
of law.16
§ 3. Judicial power vested where
"The judicial power of this state shall be vested in the Senate,
sitting as a court of impeachment, a Supreme Court, district courts,
county courts, courts of justices of the peace, municipal courts, and
such other courts, commissions or boards, inferior to the Supreme
Court, as may be established by law." 16
§ 4. Judges — Conservators of the peace
"All judges of courts of this state, and justices of the peace, shall,
by virtue of their office, be conservators of the peace throughout
the state." 1T
§ 5. Title of chapter
The chapter relating thereto shall be known as the Code of Civil
Procedure of the state of Oklahoma.18
§ 6. Prior decisions and precedents — Stare decisis
Principles of public policy demand that a fixed construction of
constitutional law should not be unsettled, unless clearly erro-
12 Gundry v. Gundry, 68 P. 509, 11 Okl. 423.
18 Riley v. Carrico, 110 P. 738, 27 Okl. 33.
14 Cherokee County Pub. Co. v. Cherokee County, 48 Okl. 722, 151 P. 187.
18 Title Guaranty & Surety Co. v. Slinker, 143 P. 41, 42 Okl. 811.
16 Const. Okl. art. 7, 8 1.
17 Const. Okl. art. 7, § 19.
" Rev. Laws 1910, § 4641.
(8)
Art. 1) COURTS AND JUDGES § 6
neous.19 Where a series of decisions of a court of last resort have
been acted upon as the proper interpretation of the law for a
long time, they will not be interfered with, though the courts would
decide otherwise were the question a new one.20 But the doctrine
of stare decisis does not preclude a departure from precedent es-
tablished by a series of decisions clearly erroneous, unless property
complications have resulted and a reversal would work a greater
injury and injustice than would ensue by following the rule.21
The Supreme Court will give full consideration to authorities
founded upon and supported by living principles, but will not recog-
nize or follow precedents which have outlived their usefulness;
when the reason for a rule ceases, the court will not enforce such
rule.22
The construction of a statute in a civil proceeding is authority
t
« Anderson v. State, 123 P. 442, 7 Okl. Cr. 130.
20 Inman v. Sherrill, 116 P. 426, 29 Okl. 100. Judicial decisions, acted on as
settled rule of contract, are to be followed on the principle of stare decisis
whether right or wrong. Lasiter v. Ferguson, 79 Okl. 200, 192 P. 197.
21 Thurston v. Fritz, 138 P. 625, 91 Kan. 468, 50 L. K. A. (N. S.) 1167, Ann.
Gas. 1915D, 212.
Rule of property. — A decision of the Supreme Court of the United States
following the decisions of the Supreme Court of Illinois in construing "rules
of property" in Illinois, is not applit; 'e as a precedent to an Oklahoma con-
tract, where the Oklahoma decisions are in conflict with those of Illinois.
Hill Oil & Gas Co. v. White, 53 Okl. 748, 157 P. 710.
In an action to recover an Indian allotment, testimony of lawyers that
the rule laid down by the United States Circuit Court of Appeals in a certain
case had not been followed generally by the profession and trial judges
held properly excluded on objection that it was incompetent and immaterial.
McDougal v. McKay, 142 P. 987, 43 Okl. 261, judgment affirmed 35 S. Ct. 605,
237 U. S. 372, 59 L. Ed. 1001.
Though an act authorizing the vacation of town sites might be held uncon-
stitutional if the question were a new one, but it had been held valid for
many years and tracts of land have been fenced and farmed as rural lands,
and voting places have been determined accordingly, and city finances and
municipal affairs have been adjusted for years on the supposition that the
law was constitutional, the doctrine of stare decisis, based on the necessity
of stability in the interpretation of the law, applies, and the former decision
will not be disturbed. Bull v. Kelley, 112 P. 133, 83 Kan. 597.
22 Caples v. State, 104 P. 493, 3 Okl. Cr. 72, 26 L. R. A. (N. S.) 1033.
Though decision that poll tax law of 1911 did not apply to cities of first
class was influenced by language in another statute, enacted at same session,
repeal of such other statute will not change interpretation of poll tax law-
City of Topeka v. Wasson, 101 Kan. 824, 168 P. 902.
(9)
§§ g-7 COURTS AND COURT OFFICERS (Ch. 1
for a like construction in a criminal prosecution.23 It is the settled
policy of the Supreme Court to follow the construction given to
criminal statutes by the Criminal Court of Appeals.24
The Supreme Court of the state took and possesses any and all
the jurisdiction of the Supreme Court of the territory, except as
otherwise provided, and has the same power and right to re-ex-
amine a decision of that court, holding a territorial statute invalid,
and to determine whether or not such act is invalid, and, if such
decision is erroneous, to overrule it.25
Where the Legislature has, by legislative enactment, prescribed
rules and regulations governing contracts and agreements relating
to real estate, or any interest therein, such legislative enactment
must govern, any decisions of other states, or territories, to the
contrary, notwithstanding.26
The determination as to whether an instruction, abstractly cor-
rect, but inapplicable to the facts of the case was prejudicial will
not ordinarily serve as a precedent for any other case.27
§ 7. Decisions of federal courts
Where an act of Congress which governs a contract has been
construed by the Supreme Court of the United States, the deci-
sion of that court is supreme, and state courts are bound by it.28
In cases arising in state courts, involving rights and liabilities of
parties to an interstate railroad shipment, the decisions of United
28 State v. Coyle, 122 P. 243, 7 Okl. Cr. 50, rehearing denied 130 P. 316, 8
Okl. Cr. 686.
2* State v. Russell, 124 P. 1092, 33 Okl. 141; Ex parte Anderson, 124 P.
980, 33 Okl. 216 ; Ex parte Lightle, 124 P. 983, 33 Okl. 223 ; Ex parte Rial,
124 P. 983, 33 Okl. 224; Ex parte Spurlock, 124 P. 983, 33 Okl. 225.
25 State v. Chaney, 102 P. 133, 23 Okl. 788; Frick Co. v. Oats, 94 P. 682,
20 Okl. 473. \
»6 McCormick v. Bonfils, 60 P. 296, 9 Okl. 605.
"Brownell v. Moorehead (Okl.) 165 P. 408.
28 Missouri, K. & T. R>. Co. v. Walston, 133 P. 42, 37 Okl. 517. The strict
construction placed by the federal courts upon the act of Congress relative
to extradition proceedings between states, is binding on state courts. Ex
parte Owen, 136 P. 197, 10 Okl. Cr. 284, Ann. Cas. 1916A, 522.
The decisions of the United States Supreme Court holding valid the acts
of Congress suspending for 21 years the interstate federal laws which would
permit the introduction of intoxicating liquors as interstate commerce into
the Indian territory are binding upon state courts. Huff v. State, 9 Okl. Cr.
675, 133 P. 265.
(10)
Art. 1) COURTS AND JUDGES §§ 7~g
States Supreme Court, construing and applying the federal act, are
controlling.29 ,
In determining questions of federal cognizance, the state Supreme
Court is bound by rules of decisions adjudicated in the Supreme
Court of the United States.80
As to cases pending in the territorial courts in Indian Territory
and Oklahoma Territory at the time of the erection of the state, de-
cisions of the Supreme Court of the United States are controlling.31
§ 8. Common law
"The common law, as modified by constitutional and statutory
law, judicial decisions and the condition and wants of the people,
shall remain in force in aid of the general statutes of Oklahoma ;
but the rule of the common law, that statutes in derogation thereof,
shall be strictly construed, shall not be applicable to any general
statute of Oklahoma; but all such statutes shall be liberally con-
strued to promote their object." 82 „
This statute precludes the following of decisions based on the
civil law as governing authority in this jurisdiction.33 When the
people came to Oklahoma from the different states in 1889, they
29 St. Louis, I. M. & S. Ry. Co. v. Bentley (Okl.) 176 P. 250; St. Louis, I.
M. & S. Ry. Co. v. Patterson, 75 Okl. 204, 182 P. 701; Atchison, T. & S. F.
Ry. Co. v. Cooper (Okl.) 175 P. 539.
The several sections of the Act Cong. March 2, 1893, c. 196, 27 Stat. 531
(U. S. Comp. St. §§ 8605-8612), making it unlawful for railroads engaged in
interstate commerce to use cars not equipped with specified appliances, are
framed upon the same general plan, and, notwithstanding any minor differ-
ences in their language, a declaration by the Supreme Court of the United
States that one of them is intended to impose upon the railroad the absolute
duty of keeping in good repair the equipment therein required, irrespective
of any question of negligence, determines that a like interpretation is to be
given to the others. Brinkmeier v. Missouri Pac. Ry. Co., 105 P. 221, 81
Kan. 101, judgment affirmed 32 S. Ct. 412, 224 U. S. 268, 56 L. Ed. 758.
30 Miller v. State, 106 P. 810, 3 Okl. Cr. 457.
31 Fidelity & Deposit Co. of Maryland v. Rankin, 124 P. 71, 33 Okl. 7 ; State
Mut. Ins. Co. v. Craig, 111 P. 325, 27 Okl. 90; Missouri, K. & T. Ry, Co.
v. Walker, 113 P. 907, 27 Okl. 849; Stanford v. National Drill & Mfg. Co.,
114 P. 734, 28 Okl. 441; Sullivan v. Mercantile Town Mut. Ins. Co., 94 P.
676, 20 Okl. 460, 129 Am. St. Rep. 761.
32 Rev. Laws 1910, § 4642.
33 Chicago, R. I. & P. Ry. Co. v. Groves, 93 P. 755, 20 Okl. 101, 22 L. R. A.
(N. S.) 802.
§ 8-11 COURTS AND COURT OFFICERS (Ch. 1
brought with them the rules of the common law as recognized by
the American courts.84 *
Words not defined by statute, but having a fixed meaning at
common law, will be given the common-law meaning.35
§ 9. Obiter dictum
The expression of a view on a point not necessary to the decision
is "obiter dictum," 86 binding upon nobody.87
§ 10. Law of the case
The trial court's error in setting aside a verdict and in granting
a new trial where it has jurisdiction to do so, unless appealed from
or otherwise legally reviewed, becomes final, and cannot be availed
of by the litigant prejudicially affected in a subsequent trial of same
cause.88
Where plaintiff's demurrer to paragraphs of the answer has been
overruled his motion to strike the same paragraphs for the same
reasons assigned in the demurrer is properly denied.39
Where the Supreme Court renders a decision which is afterwards
overruled, the overruled decision is the law of the case in which
rendered.40 A person not a party oV privy in an action cannot have
a vested right in an erroneous decision made therein.41
:§ 11. Statutes and construction
Provision has been recently made for a compilation of all laws
of a general nature, without change or modification, except the
.elimination of all statutes which have been expressly repealed.
Each section shall be numbered consecutively with the correspond-
ing number of the Revised Laws of Oklahoma of 1910.42
»* Hoppe Hardware Co. v. Bain, Sheriff, et al., 21 Okl. 177, 95 P. 765, 17
L. R. A. (N. S.) 310, following McKennon v. Winn, 1 Okl. 327, 33 P. 582, 22
L. R. A. 501.
so Welty v. U. S., 14 Okl. 7, 76 P. 121.
*« Lansten v. Lansten, 55 Okl. 518, 154 P. 1182.
87 State v. Crosby Bros. Mercantile Co., 103 Kan. 896, 176 P. 670.
88 O'Neil Engineering Co. v. City of Lehigh, 75 Okl. 227, 182 P. 659.
s» Deerhig v. Meyers, 116 P. 793, 29 Okl. 232.
«o Stonebraker v. Ault, 59 Okl. 189, 158 P. 570.
*i Crigler v. Shepler, 101 P. 619, 79 Kan. 834, 23 L. R. A. (N. S.) 500.
*2 Sess. Laws 1921, p. 158 (H. B. 490), §§ 1-4.
(12)
Art. 1) COURTS AND JUDGES § 11
In the construction of statutes, the intention of lawmakers, when
ascertained, must govern.48
The presumption is that the Legislature does not intend to change
existing law beyond what is expressly declared ; and, where an act
creating a remedy or right does not prescribe the procedure, it will
be assumed that the general procedure was intended, unless ex-
pressly excluded.44
In construing a statute containing words which have a fixed
meaning at common law, which the statute nowhere defines, they
will be given the same meaning they have at common law.45 The
court may look to the evils and mischiefs to be remedied.48
Where there is a doubt as to the legislative intent arising from
the wording of the statute, the court should follow that construc-
tion which will lead to the most reasonable conclusion if violence
is not done to the plain meaning of the words of the statute.47
Statutes will be construed in the most beneficial way which their
language will permit to prevent absurdity, hardship, or ambiguity,
and to favor public convenience.48
When a strict construction of a particular statute would defeat
legislative intent, as shown by other enactments on the same sub-
48 In re Cleveland's Claim (Okl.) 180 P. 852.
Any rule of statutory construction which defeats the legislative intent
must be abandoned. Cherokee County Pub. Co. v. Cherokee County, 48 Okl.
722, 151 P. 187. Where the language of an act conveys a definite meaning
involving no absurdity, or any contradiction of other parts of the statute,
the apparent meaning must be accepted. Falter v. Walker, 47 Okl. 527,
149 P. 1111. •
44 State v. Hooker, 98 P. 964, 22 Okl. 712.
45 Welty v. United States, 76 P. 121, 14 Okl. 7.
4£Blevins v. W. A. Graham Co. (Okl.) 182 P. 247; Board of Com'rs of
Creek County v. Alexander, 58 Okl. 128, 159 P. 311; Blevins v. W. A. Gra-
ham Co. (Okl.) 182 P. 247.
47 St. Louis-San Francisco By. Co. v. Caldwell, 75 Okl. 153, 182 P. 688.
48McGannon v. State, 124 P. 1063, 33 Okl. 145, Ann. Cas. 1914B, 620.
A statute must be given the meaning apparent on its face where the words
used convey a distinct meaning which involves no absurdity or contradic-
tion. Leahy v. Indian Territory Illuminating Oil Co., 39 Okl. 312, 135 P. 416.
It is the duty of the courts to sustain elections when free from fraud or
charge of improper conduct, where it can be done by a liberal construction
of the laws relating thereto, rather than defeat them by requiring a rigid
conformity to technical statutory directions not affecting the substantial
rights of the electors. Town of Grove v. Haskell, 104 P. 56, 24 Okl. 707.
(13)
§§ 11-13 COURTS AND COURT OFFICERS (Ch. 1
ject in pursuance of a general purpose in accomplishing a particular
result, such construction should not be adopted.49
An apparent intent of an amendment will be carried into the
original act, and every presumption indulged to effectuate that in-
tent.50 A statute which is inconsistent with, and covers the entire
subject covered by, a prior statute, but which does not expressly
repeal it, may be construed to repeal it by substitution.61
§ 12. Erroneous words and punctuation
Where the plain intent can be gathered from the context, the
court may substitute or supply a necessary word.52
Courts are not bound by punctuation or grammatical construc-
tion, but will give effect, if possible, to the true meaning of the
statute.63 But less latitude is allowed in the construction of a crim-
inal statute than in the case of a civil statute.54
§ 13. Rule of ejusdem generis
Under the rule of ejusdem generis, where general words follow
the enumeration of particular classes, the general words will be
49 In re Cleveland's Claim (Okl.) 180 P. 852; Groom v. Wright, 121 P.
215. 30 Okl. 652.
Statutes are not to be taken literally, but are to be interpreted so as to give
effect to the purpose of the law-making power ; and to the legislative intent
is to be ascribed a reasonable and not a technical meaning. Brown v. Woods.
39 P. 473, 2 Okl. 601.
60 Bonnett v. State, 47 Okl. 503, 150 P. 198.
61 J. W. Ripey & Son v. Art Wall Paper Mill, 112 P. 1119, 27 Okl. 600.
02 Trustees', Executors' & Securities Ins. Corp. v. Hooton, 53 Okl. 530, 157 P.
293, L. R. A. 1916E, 602.
The word "and" may be substituted for the word "or" when necessary to
make a statute express the true legislative intent as gathered from the con-
text and the circumstances attending its enactment. State v. Hooked, 98 P.
964, 22 Okl. 712.
Where words have been erroneously used in a statute and the context af-
fords the means of correction, the proper words will be deemed substituted.
Schaffer v. Board of Com'rs of Muskogee County, 124 P. 1069, 33 Okl. 288.
53 Ex parte Hunnicutt, 123 P. 179, 7 Okl. Cr. 213.
The intention of the Legislature governs the construction of a statute, and,
if that requires a change in the punctuation, or even in the wording, of the
statute, such change must be made. Stiles v. City of Guthrie, 41 P. 383, 3
Okl. 26.
5* The courts have no power to add to the plain and mandatory provision of
the statute fixing the punishment for the crime of perjury (Rev. Laws 1910,
§ 2219, subd- 1), though the word "information" is clearly omitted therefrom
through an oversight of the committee revising the Code and of the Legis-
lature. Arnold v. State (Okl. Cr. App.) 132 P. 1123.
(14)
Art. 1) COURTS AND JUDGES §§ 13~14
construed as applicable only to things of the same general char-
acter or class as those enumerated,55 except where the particular
words exhaust the class.58 This rule is resorted to merely as an aid
in the construction of a statute and has no application where it clear-
ly appears that the Legislature intended the general words to go be-
yond the class specifically designated.57
Where the court finds an expression not so definite in its import
as other parts of the statute, if upon review of the whole the real
intention can be collected from the definite expressions, a construc-
tion should be adopted that will give effect to the definite expres-
sions used unless it contravenes some other potent provision of
law.58
§ 14. Statutes construed as a whole
A statute must be construed as a whole, and -every word in it
made effective if possible.59 Where there is an apparent conflict in
different portions of a statute, the court should harmonize them,
if practicable, giving that construction which will render them
operative.80
55 Board of Com'rs of Kingfisher County v. Grimes, 75 Okl. 219, 182 P. 897.
66 Where particular words of a statute exhaust the class, then general
words must be given a meaning beyond the class. Kansas City Southern
Ry. Co. v. Wallace, 38 Okl. 233, 132 P. 908, 46 L. R. A. (N. S-) 112.
57 Kansas City Southern Ry. Co. v. Tansey, 139 P. 267, 41 Okl. 543; Kajj-
sas City Southern Ry. Co. v. Wallace, 38 Okl. 233, 132 P. 908, 46 L. R. A.
(N. S.) 112.
58 Ex parte Tyler, 102 P. 716, 2 Okl. Cr. 455.
5 9 Territory v. Clark, 35 P. 882, 2j Okl. 82; Bohart v. Anderson, 103 P.
742, 24 Okl. 82, 20 Ann. Cas. 142; Bretz v. El Reno State Bank (Okl.) 177
P. 362; Matthews v. Rucker (Okl.) 170 P. 492; Board of Com'rs of Creek
County v. Alexander, 58 Okl. 128, 159 P. 311 ; Kansas City Southern Ry. Co.
v. Wallace, 38 Okl. 233, 132 P. 908, 46 L. R. A. (N. S.) 112; Blevins v. W.
A. Graham Co. (Okl.) 182 P. 247; Ex parte Hunnicutt, 123 P. 179, 7 Okl.
Cr. 213 ; Lee v. Roberts, 41 P. 595, 3 Okl. 106.
60 Trapp v. Wells Fargo Express Co., 97 P. 1003, 22 Okl. 377.
While it is part of the history of the Statutes of 1893 that different por-
tions of them were adopted without material alteration from the statutes of
different states, and that different portions are not, in all respects, consist-
ent with each other, it is yet the duty of the Supreme Court to endeavor to
reconcile them wherever it is possible so to do, in order that the legislative
intent may be, as far as possible, effective. One part of the statute will not
be allowed to defeat another, if, by any reasonable construction, the two
may be made to stand together. Durham v. Linderman, 64 P. 15, 10 Okl. 570.
There is no conflict between different provisions of a statute, if there is
(15)
§ 15 COURTS AND COURT OFFICERS (Ch. 1
§ 15. Statutes construed together or in the light of each other
To ascertain the legislative intent in the enactment of. a statute,
the court may look to other statutes upon the same or related sub-
jects.61
Statutes are in pari materia which relate to the same person or
thing or same class of persons or things. To ascertain the legisla-
tive intent in enacting a statute, not only must the whole statute
and every part of it be considered, but, where there are several
statutes in pari materia, they are all, whether referred to or not, to
be taken together, and one part construed with another in the con-
struction of any material provision.62
Acts passed at same legislative session, and particularly those
a reasonable meaning of the words used, considering the manner of their
use, which will bring them into harmony. Sackett v. Rose, 55 Okl. 398, 154
P. 1177, L. R. A. 1916D, 820.
When statutes contain two distinct provisions, one being specific with pre-
cise directions to do a particular thing for a specific purpose, and the other
general, prohibiting" certain acts which in their general sense include the par-
ticular thing authorized by the specific direction, the general prohibition
clause does not control the specific authority. The particular direction is
construed in the nature oi| an exception. Atchison, T. & S. F. R. Co. v.
Haynes, 58 P. 738, 8 Okl. 576.
61Blevins v. W. A. Graham Co. (Okl.) 182 P. 247.
Where different legislative enactments have reference to same subject
and are consistent with each other, they should be construed together and
harmonized, if possible, so that effect will be given each so far as is con-
sistent} with evident intent of latest enactment. Thacker v. Witt, 64 Okl.
169, 166 P. 713. Subsequent statutes may be considered as aid in interpret-
ing prior legislation on same subject. Id.
Subsequent legislative enactments may be considered as aid in interpreta-
tion of prior legislation on same subject. Board -of Com'rs of Creek County
v. Alexander, 58 Okl. 128, 159 P. 311. When strict interpretation of partic-
ular statute would defeat intent as shown by other legislation enacted ac-
cording to general purpose in accomplishing particular result, such construc-
tion should not be adopted. Id.
i62 De Graffenreid v. Iowa Land & Trust Co., 95 P. 624, 20 Okl. 687.
The laws regulating the issue and registration of warrants, and for issue
and sale of bonds for the purpose of realizing a fund out of which to pay
such warrants, are pari materia, and must be construed with reference to
each other. Diggs v. Lobitz, 43 P. 1009, 4 Okl. 232.
When two statutes covering the same matter are not wholly irreconcilable,
effect should be given to both. Carpenter v. Russell, 73 P. 930, 13 Okl. 277.
Where two statutes cover the same matter, and one part of them is suscep-
tible of two constructions, and language of another part is clear and is con-
sistent with one of such constructions and opposed to the other, the con-
struction harmonizing all sections must be adopted. Town of Comanche v.
Ferguson (Okl.) 169 P. 1075.
(16)
Art. 1) COURTS AND JUDGES § 15
passed at nearly the same time relating to similar subject, are pre-
sumed to be actuated by the same policy, and should be construed
each in the light of the other.88
Statutory provisions, which have been repealed or superseded,
may be looked to in construction of amendatory acts in pari ma-
teria.64
The state statutes are to be construed in connection with the
Constitution of the United States and acts of Congress adopted in
pursuance thereof.65
Where there are two statutory provisions, one of which is special
and clearly includes the matter in controversy, and prescribes dif-
ferent rules and procedure from those in the general statute, the
special statute, and not the general statute, applies.66
63 State v. Prairie Oil & Gas Co., 64 Okl. 267, 167 P. 756.
The rule that statutes relating to the same subject-matter should be con-
strued together, and effect given to each, ought specially to be applied where
the statutes were enacted at the same session of the Legislature. Hess v.
Trigg, 57 P. 159, 8 Okl. 286.
Acts passed the same day, separately* or at the same session, are to be
construed together; the presumption being that they are all intended to
operate, and may not be altered by construction, when the words may have
their proper operation without it. Trapp v- Wells Fargo Express Co., 97 P.
1003, 22 Okl. 377.
Act May 1, 1913 (Laws 1913, c. 161), consolidating certain offices and pro-
viding for deputies, and Act May 19, 1913 (Laws 1913, c. 212), fixing the sal-
ary of county officers in counties having a population of over 80,000, being
passed at the same session of the Legislature, should be construed together
as one act, so that all parts of the act may stand. Ratliff v. Fleener, 143 P.
1051, 43 Okl. 652.
Sess. Laws 1913, c. 161, consolidating the offices of register of deeds and
county clerk, should be construed, in determining its constitutionality, in
pari materia with Sess. Laws 1913, c. 212, as amended by Act Feb. 1, 1915
(Laws 1915, c. 6), and as if it had read from the beginning as it does with
the amendatory act incorporated in it. Bonnett v. State, 47/ Okl. 503, 150
P. 198.
64 Searcy v. State, 64 Okl. 257, 167 P. 476.
65 Overton v. State, 123 P. 175, 7 Okl. Cr. 203, denying rehearing 114 P.
1132, 7 Okl. Cr. 203.
6'6 Gardner v. School Dist. No. 87, Kay County, 126 P. 1018, 34 Okl. 716.
A general act is not to be construed as applying to cases covered by a
prior special act on the same subject. Carpenter v. Russell, 73 P. 930, 13
Okl. 277.
The courts in construing a general statute should interpret it so as not to
conflict with an earlier special statute which could stand independently for a
useful purpose. Incorporated Town of Valliant v. Mills, 116 P. 190, 28 Okl.
811.
HON.PL.& PBAC.— 2 (17)
§§ 15-18 COURTS AND COURT OFFICERS (Ch. 1
A joint resolution, signed by the Governor, but not having the
force of law, declaring the purpose of a former act, may be con-
sidered as an aid in construing such former act.6T
§ 16. Administrative construction
The construction placed on statutes or constitutional provisions
by officers in the discharge of their duties, and which has been long
acquiesced in, is to be considered in the interpretation of the same.68
§ 17. Provisos or exceptions
The proviso of a statute is generally a clause containing a condi-
tion that a certain thing shall or shall not be done in order that
something in another clause shall take effect.69 Its office being to
restrain or qualify some preceding matter, it should be confined to
what precedes it, unless it clearly appears to have been intended
to apply to some other matter, and is to be construed in connection
with the section of which it forms part.70 It relates to the para-
graph or distinct portion of the enactment which immediately pre-
cedes it, unless the contrary intention is clearly apparent.71
§ 18. Statute adopted from another state
Where a statute is taken from another state after its construction
by the highest court of that state, it is presumed that it was adopted
as so construed ; 72 but, to sustain the presumption, such construc-
67 Board of Com'rs of Creek County v. Alexander, 58 Okl. 128, 159 P. 311.
»8 League v. Town of Taloga, 129 P. 702, 35 Okl. 277.
The construction placed on. statutes by officers charged with the enforce-
ment thereof at or near the time of their enactment, and which has long
been acquiesced in, is a just medium for their judicial interpretation. Hun-
ter v. State, 49 Okl. 672, 154 P. 545 ; Foote v. Town of Watonga, 130 P. 597,
37 Okl. 43.
A ruling of the Commissioner of the General Land Office that the date of
application for enrollment of a citizen of the Five Civilized Tribes should
be held to be the anniversary of the birth is not a construction of Act Cong.
May 27, 1908, § 3, relating to conclusiveness of enrollment as to age of In-
dian. Heffner v. Harmon, 60 Okl. 153, 159 P. 650.
69 Trimmer v. State, 141 P. 784, 43 Okl. 152.
70 Searcy v. State, 64 Okl. 257, 167 P. 476.
71 Leader Printing Co. v. Nichols, 50 P. 1001, 6 Okl. 302.
72 Conwill v. Eldridge (Okl.) 177 P. 79; Chisholm v. Weisse, 39 P. 467.
2 Okl. 611 ; St. Louis & S. F. R. Co. v. Bruner, 52 Okl. 349, 152 P. 1103.
Where a statute is adopted from another state, decisions of the Supreme
Court of such state, construing the statute prior to its adoption, are con-
trolling. Amsden v. Johnson (Okl.) 158 P. 1148.
It will be presumed that Congress, in adopting statutes of Arkansas for
(18)
Art. 1) COURTS AND JUDGES § 18
tion must have been placed thereon by the highest judicial tribu-
nal authorized to pass upon the question, and must have been so
long established as to have been known, or so long that it reason-
ably might have been known, to the legislature adopting it.78 It
follows that the decisions of the Supreme Court of Kansas, con-
struing the Code provisions of that state before their adoption in
Oklahoma, are ordinarily binding here.7* This means that these
decisions are as conclusive on the Oklahoma Supreme Court as one
of their own former decisions would be, not that they cannot de-
cide contrary to it under the same circumstances that would justify
the revocation of one of their own prior decisions.75 The Nebras-
ka Code originally was practically identical with the Kansas Code,
and is now very similar to both the Kansas and Oklahoma Codes.
While the Nebraska decisions are not binding in Oklahoma, yet so
the Indian Territory, adopted the construction previously placed on them
by the Supreme Court of Arkansas. Steele v. Kelley, 122 P. 934, 32 Okl. 547 ;
National Live Stocks Commission Co. v. Taliaferro, 93 P. 983, 20 Okl. 177;
State v. Caruthers, 98 P. 474, 1 Okl. Cr. 428; Glenn v. City of Ardmore,
122 P. 658, 32 Okl. 414.
The Supreme Court will follow the principles of construction and inter-
pretation of the Code of Civil Procedure which are applied by the Supreme
Court of Kansas, since it was adopted from that state. United States v.
Choctaw, O. * G. R. Co., 41 P. 729, 3 Okl. 404.
The Code of Civil Procedure (St. 1890) having been adopted from Indiana,
and the Supreme Court of that state having, prior to such adoption, held
that the provision of the Code relating to the trial of rights of property was
applicable only to proceedings) before a justice of the peace, the Supreme
Court of Oklahoma is bound by that construction. Hixon v. Hubbell, 44 P
222, 4 Okl. 224.
Laws 1907-08, c. 10, art. 1, is not affected by construction placed on a simi-
lar law by the Supreme Court of Missouri, in the absence of a showing that
such act was borrowed from Missouri after the law of that state had been
construed. Wheeler v. City of Muskogee, 51 OkL 48, 151 P. 635.
73 Smith v. Baker, 49 P. 61, 5 Okl. 326.
The mining act of Pennsylvania though similar to the Kansas statute (Gen.
St. 1909, §§ 4975-5059) enacted to protect the health and safety of mine
workers, was not adopted as the law of Kansas, and hence the Pennsylvania
Supreme Court decisions interpreting it are persuasive only. Burgin v. Mis-
souri, K. & T. Ry. Co., 133 P. 560, 90 Kan. 194.
74Mulhall v. Mulhall, 3 Okl. 308, 41 P. 109; Grimes v. Cullison, 3 Okl. 270,
41 P. 355 ; Oklahoma City v. Welsh, 3 Okl. 295, 41 P. 598 ; Kilgore v. Yarnell
et al., 24 Okl. 525, 103 P. 698. Following Farmers' State Bank of Arkansas
City v. Stephenson, 23 Okl. 695, 102 P. 992 ; Brown et al. v. Massey, 19 Okl.
482, 92 P. 246; Brunson v. Merrill, 17 Okl. 44, 86 P. 431.
7° Greenville Nat. Bank v. Evans-Snyder-Buel Co., 9 Okl. 353, 60 P. 249.
(19)
§§ 18-18 COURTS AND COURT OFFICERS (Ch. 1
far as they are consistent with logic and reason they will be fol-
lowed.76
The Oklahoma Supreme Court is not bound by a subsequent
construction or by a decision of an intermediate court of appeals of
the other state.77
The rule that the Legislature in adopting a statute of another
state is presumed to have adopted the construction placed thereon
by the highest court of such state does not apply where such con-
struction is contrary to the Constitution or well-defined legislative
policy of the adopting state, or the adopted statute exists in many
states and the decided weight of authority is against such construc-
tion.78
Where a statute is not peculiar to the state from which it was
adopted, but other states have substantially the same statute "which
their courts have construed differently, the construction of the
state from which it was adopted, being opposed to the weight of
authority, will not be followed.79
§ 19. Adjournment by sheriff
"If the judge of a court fail to attend at the time and place ap-
pointed for holding his court, the sheriff shall have power to adjourn
the court, from day to day, until the regular or assigned judge at-
7«Allsman v. Oklahoma City, 21 Okl. 142, 95 P. 468, 17 Ann. Gas. 184, 16
L. R. A. (N. S.) 511, note; Swan v. Wilderson, 10 Okl. 547, 62 P. 422.
77 Given v. Owen (Okl.) 175 P. 345.
A decision of the Supreme Court of Arkansas, rendered since the laws of
that state were extended over the Indian Territory, is not even persuasive
when in conflict with the settled law of Oklahoma. Marx v. Hefner, 46 Okl.
453, 149 P. 207, Ann. Gas. 1917B, 656. Kansas decisions, construing a stat-
\ite subsequent to its adoption in Oklahoma, have no binding force here.
Richardson et al. v. Penny, 9 Okl. 655, 60 P. 501.
The construction placed upon a statute of a state by the court of last re-
sort of that state at the time of its adoption by another state is controlling
in construing the statute in the latter state, and not subsequent construc-
tions. Barnes v. Lynch, 59 P. 995, 9 Okl. 11, 156.
78Hutchinson v. Krueger, 124 P. 591, 34 Okl. 23, 41 L. R. A. (N. S.) 315,
Ann. Gas. 1914C, 98.
A statute adopted from "another state does not bring with it the construc-
tion placed upon it by the highest court of that state, where such construction
is contrary to the Constitution or well-defined policy of the adopting state
or is contrary to the decided weight of authority of other states. Western
Terra Gotta Co. v. Board of Education of City of Shawnee, 136 P. 595, 39
79 Ex parte Bowes, 127 P. 20, 8 Okl. Cr. 201.
(20)
Art 1) COURTS AND JUDGES §§ 20~23
tend, or a judge pro tempore be selected; but if the judge be
not present in his court, nor a judge be assigned or a judge pro
tempore be selected, within two days after the first day of the
term, then the court shall stand adjourned for the term. The sheriff
shall exercise the powers and duties conferred and imposed upon
him by the statutes of this State, and by the common law." 80
§ 20. Publications
"All publications and notices required by law to be published in
newspapers in this state, if published in newspapers having one side
of the paper printed away from the office of publication, known as
patent outsides or insides, shall have the same force and effect as
though the same were published in newspapers printed wholly and
published in the county where such publication shall be made,
if one side of the paper is printed in said county where said notices
are required to be published." 81
§ 21. Affirmation
"Whenever an oath is required by this Code, the affirmation of a
person, conscientiously scrupulous of taking an oath, shall have the
same effect." 82
§ 22. Computation of time
"The time within which an act is to be done shall be computed by
excluding the first day, and including the last; if the last day be
Sunday, it shall be excluded." 83
§ 23. Surety — Justification
"A ministerial officer, whose duty it is to take security in any
undertaking provided for by this Code or by other statutes, shall
require the person offered as surety to make an affidavit of his
qualifications, which affidavit may be made before such officer, and
shall be indorsed upon or attached to the undertaking. The taking
of such an affidavit shall not exempt the officer from any liability to
which he might otherwise be subject for taking insufficient se-
curity." 84
Okl. 716. The mechanics' lien law, though adopted from Kansas, will not be
given the construction placed upon it by the Supreme Court of Kansas so as
to permit liens on public property. Id.
80 Rev. Laws 1910, § 5338. 83 Rev. Laws 1910, § 5341.
« Rev. Laws 1910, § 5348. 84 Rev. Laws 1910, § 5342.
82 Rev. Laws 1910, § 5340.
(21)
§§ 24-28 COURTS AND COURT OFFICERS (Ch. 1
§ 24. Qualifications
"The surety in every undertaking provided for by this Code or
other statutes, unless a surety company, must be a resident of this
state and worth double the sum to be secured, over and above all
exemptions, debts and liabilities. Where there are two or more
sureties in the same undertaking, they must, in the aggregate, have
the qualifications prescribed in this section." 85
§ 25. Real estate mortgage as bond
"In every instance in this state where bond, indemnity or guaran-
ty is required, a first mortgage upon improved real estate within this
state shall be accepted : Provided, that the amount of such bond,
guaranty or indemnity shall not exceed fifty per cent, of the reason-
able valuation of such improved real estate, exclusive of all build-
ings thereon; provided, further, that where the amount of such
bond, guaranty or indemnity shall exceed fifty per cent, of the rea-
sonable valuation of such improved real estate, exclusive of all
buildings, then such first mortgage shall be accepted to the extent
of such fifty per cent, valuation." 8e
§ 26. Valuation of real estate
"The officer, whose duty it is to accept and approve such bond,
guaranty or indemnity, shall require the affidavits of two freehold-
ers versed in land values in the community where such real estate
is located to the value of such real estate. Said officer shall have
the authority to administer the oaths and take said affidavits." 8T
§ 27. False valuation — Penalty
"Any person willfully making a false affidavit as to the value of
.any such real estate shall be guilty of perjury and punished accord-
ingly. Any officer administering or accepting such affidavit know-
ing it to be false, shall be guilty of subornation of perjury and pun-
ished accordingly." 88
§ 28. Action on bond
"When an officer, executor or administrator within this state, by
misconduct or neglect of duty, forfeits his bond or renders his sure-
ties liable, any person injured thereby, or who is, by law, entitled to
80 Rev. Laws 1910, § 5343. «? Rev- 1>aws 1910 § 5345
ie Rev. Laws 1910, g 5344. «« Rev. Laws 1910, § 5346.
(22)
Art.1)
COURTS AND JUDGES
§§ 29-31
the benefit of the security, may bring an action thereon in his
own name, against the officer, executor or administrator and his
sureties, to recover the amount to which he may be entitled by rea-
son of the delinquency. The action may be instituted and proceed-
ed in on a certified copy of the bond, which copy shall be furnish-
ed by the person holding the original thereof." 89
§ 29. Several actions on security
"A judgment in favor of a party for one delinquency does not
preclude the same or another party from an action on the same
security for another delinquency." 00
§ 30. Submission of controversy
"Parties to a question, which might be the subject of a civil ac-
tion, may without action agree upon a case containing the facts up-
on which the controversy depends, and present a submission of the
same to any court, which would have jurisdiction if an action had
been brought. But it must appear, by affidavit, that the controver-
sy is real, and the proceedings in good faith to determine the rights
of the parties. The court shall thereupon hear and determine the
case, and render judgment as if an action were pending." 81
"The case, the submission, and a copy of the judgment, shall
constitute the record." 92
"The judgment shall be with costs, may be enforced, and shall
be subject to reversal in the same manner as if it had been rendered
in an action, unless otherwise provided in the submission." 8S
§ 31. Impeachment and removal from office
Any elective state officer may be impeached for cause.9* All
elective officers not liable to impeachment shall be subject to re-
moval from office.95
"When sitting as a court of impeachment, the Senate shall be
presided over by the Chief Justice, or if he is absent or disqualified,
then one of the Associate Justices of the Supreme Court, to be
selected by it, except in cases where all the members of said court
are absent or disqualified, or in cases of impeachment of any Jus-
89 Rev. Laws 1910, § 5349.
80 Rev. Laws 1910, § 5350.
91 Rev. Laws 1910, § 5303.
82 Rev. Laws 1910, § 5304.
»SRev. Laws 1910, § 5305.
84 Const. Okl. art. 8, § 1.
85 Const. Okl. art. 8, § 2.
(23)
§§ 31-33 COURTS AND COURT OFFICERS (Ql. 1
tice of the Supreme Court, then the Senate shall elect one of its own
members as a presiding officer for such purposes. The House of
Representatives shall present all impeachments." '
"When the Senate is sitting as a court of impeachment, the Sena-
tors shall be on oath, or affirmation, impartially to try the party
impeached, and no person shall be convicted without the concur-
rence of two-thirds of the Senators present." 97
"Judgment of impeachment shall not extend beyond removal
from office, but this shall not prevent punishment of any such
officer on charges growing out of the same matter by the courts of
the state."98
"The Legislature shall pass such laws as are necessary for carry-
ing into effect the provisions of this article." 99
DIVISION II. — JUDGES IN
§ 32. As public officer
The. judges of the district courts * and of the superior courts are
state officers.2
An attorney at law, when elevated to the bench of any court
of record, is prohibited from practicing law in any state court, so
long as he occupies such position.3 He is only permitted to finish
business on hand in the United States courts at the time of his
elevation to the bench.*
§ 33. Judge pro tempore
Where a county judge certifies his disqualification in a particular
case or proceeding, a judge pro tempore must be elected.5 The rec-
ord must show that the judge of the trial court was disqualified,
that such special judge was an attorney duly agreed on or elected,
and that he took the required oath.6 The pro tempore county judge
*• Const. Okl. art. 8, § 3.
97 Const. Okl. art. 8, g 4.
98 Const. Okl. art. 8, § 5.
99 Const. Okl. art 8, § 6.
1 Grayson v. Ferryman, 25 Okl. 339, 106 P. 954.
2 State v. Breckinridge, 34 Okl. 649, 126 Pac. 806.
3 Lilly v. State, 123 P. 575, 7 Okl. Cr. 284, Ann. Gas. 1914B, 443.
«Id.
6 State v. Taylor (Okl.) 171 P. 452; Rev. Laws 1910, § 5814.
6 Apple v. Ellis, 50 Okl. 80, 150 P. 1057.
(24)
Art. 1) COURTS AND JUDGES §§ 33~35
in a given case is, for the time being and for the purpose of that
case, a "county officer." 7
A disqualified judge should carefully abstain from taking any
part in the selection of the person who is to preside in his place in
the trial of a cause in which he has been disqualified.8 His author-
ity ceases with a lapsing of the term at which he was selected,
unless the case is finally disposed of at such term, and in that case
ceases with a final disposition of the cause.9
Prior to 1909 no provision having been made by law whereby a
judge pro tempore could be selected in the event of the disqualifica-
tion of the regular judge, a special judge elected by the members
of the bar present, which election was opposed by one of the
parties to the action was not a judge either de jure or de facto, and
a trial had before him was a nullity.10
All orders, judgments, and decrees made by a judge pro tempore
not lawfully selected are a nullity.11
§ 34. Waiver of objections
Where a special judge is chosen to sit in a particular case, which
is not finally determined at the term, and he presides at a subse-
quent term at which his authority is recognized by the parties, they
thereby waive any objection that he was not re-elected.12 And
where counsel for defendants fail to challenge the votes of attor-
neys for plaintiff on the election of a judge pro tempore, they can-
not make such objection after the election of one opposed by them.13
§ 35. Powers of special judges
A special judge, selected by agreement, has no jurisdiction over
any cause other than the one in which he is selected.1*
7 Board of Com'rs of Oklahoma County v. Twyford, 39 Okl. 230, 134 P. 968.
s Kelly v. Ferguson, 114 P. 631, 5 Okl. Or. 316; Id., 115 P. 284, 5 Okl. Cr.
700.
8 Dodd v. State, 115 P. 632, 5 Okl. Cr. 513. An order for a change of venue
by a judge pro tempore not lawfully selected, though on petition of accused,
confers no authority on a duly qualified judge in the county to which the
change is ordered. Id.
10Stanclift v. Swingle, 120 P. 252, 30 Okl. 544; Cowart v. State, 111 P.
672, 4 Okl. Cr. 122 ; Williams v. State, 113 P. 1060, 5 Okl. Or. 144.
11 Dodd v. State, 115 P. 632, 5 Okl. Cr. 513.
12 Ellington v. State, 123 P. 186, 7 Okl. Cr. 252.
is Deninger v. Gossom, 46 Okl. 596, 149 P. 220.
" Hirsh v. Twyford, 139 P. 313, 40 Okl. 220.
(25)
§§ 35-36 COURTS AND COURT OFFICERS (Ch. 1
Where an application for change of judge is granted, and the
clerk of the district court is ordered to notify the clerk of the Su-
preme Court of such change, and on the same day an order at.
chambers is made by the chief justice assigning another judge to-
hold the district court and determine all cases that may come before
him during the absence of the regular judge, the judge so assigned
has jurisdiction to try any case or matter which may come before
him while acting under such order.15
Where a district judge is assigned by the Chief Justice of the
Supreme Court to hold court in another district than his own, such
judge while so acting is a judge pro tempore of the district in which
he is sitting.16 That the regular judge is holding court in the same
district and at the same time that a special judge is trying a crimi-
nal case therein does not affect the latter's jurisdiction.17
Where the regularly elected judge is disqualified and a special
judge is selected, his authority ceases at the end of the term; and
if the case is continued to another term the special judge has no
authority to preside at the trial of the second term, unless again
lawfully selected.18
A district judge has no right or power to perform judicial acts
affecting cases pending in any other district, unless authorized to
do so by constitutional or statutory provision.19
A special county judge, appointed to try the issues in a proceed-
ing to probate a will, is without jurisdiction to appoint an adminis-
trator of the estate or to make any other order as to the adminis-
tration proceeding.20
§ 36. Liabilities
An action will not lie against a judicial officer for a judicial act,
where there is jurisdiction of the person and subject-matter, though
it was done maliciously, or even corruptly. The same protection
18 Barbe v. Territory, 86 P. 61, 16 Okl. 562; Id., 91 P. 783, 19 Okl. 119.
l«Dobbs v. State, 115 P. 370, 5 Okl. Cr. 475, denying rehearing 114 P. 358.
5 Okl. Cr. 475.
17 Johnson v. State, 97 P. 1059, 1 Okl. Cr. 321, 18 Ann. Cas. 300.
1 Patterson v. United States, 7 Okl. Cr. 272, 118 P. 150.
l9Dobbs v. State, 115 P. 370, 5 Okl. Cr. 475, denying rehearing 114 P. 358,
5 Okl. Cr. 475.
20 State v. Outcelt, 143 P. 198, 43 Okl. 482.
(26)
Art 1) COURTS AND JUDGES §§ 37~38
extends to judges of inferior and limited, as well as to those of
general, jurisdiction as to liability for official acts.21
§ 37. Change of judge
Under the constitutional provision that right and justice shall be
administered without prejudice, a change of judge for bias or
prejudice is a constitutional right.22
§ 38. — — Disqualifications
When prejudice of the trial judge is made ground for a motion
for change of judge, the Legislature may prescribe the method of
determining such matter, but it cannot abolish such ground of dis-
qualification.23
The interest of the district judge as a resident taxpayer of the
petitioning municipality in condemnation proceedings will not dis-
v. Dibbens, 61 Okl. 221, 160 P. 589, L. R. A. 1917B, 360. A
county judge, in rendering judgment in a case pending in his court, acts
judicially, and is not amenable to a civil action for damages, though the
judgment was erroneous, and, in rendering it, he erroneously exceeds the
jurisdiction of his court. Comstock v. Eagleton, 69 P. 955, 11 Okl. 487, ap-
peal dismissed (1905) 25 S. Gt. 210, 196 U. S. 99, 49 L. Ed. 402.
Where an administrator, pursuant to order of county court, paid into court
an amount in excess of inheritance tax, and the county judge failed to turn
over money after expiration of term, the money did not come into his hands
as county judge so as to render his bond liable. Pitman v. State, 59 Okl.
270, 158 P. 1137.
22 Rea v. State, 105 P. 384, 3 Okl. Cr. 276, 139 Am. St. Rep. 954.
Sess. Laws 1908, p. 285, c. 27, art. 1, § 8, provides that no judge of the coun-
ty court shall sit in any proceeding after a party has filed an affidavit in
writing, corroborated by two credible persons, that affiant has reason to be-
lieve and does believe that the judge is prejudiced, where he cannot have a
fair and impartial trial before him. Held, that this provision does not abridge
the declaration in Bill of Rights that right and justice shall be administered
without sale, denial, delay, or prejudice. Ex parte Ellis, 105 P. 184, 3 Okl.
Cr. 220, 25 L. R. A. (N. S.) 653, Ann. Gas. 1912A, 863. Under Bill of Rights,
art. 2, § 6, providing that right and justice shall be administered without
sale, denial, delay, or prejudice as well as by the unwritten dictates of nat-
ural justice, the courts are commanded to administer justice without prej-
udice. Id.
-3Mayes v. Pitchford, 109 P. 821, 26 Okl. 129; Ex parte Hudson, 106 P.
540, 3 Okl. Cr. 393, rehearing denied 107 P. 735, 3 Okl. Cr. 393; Ex parte
Hines, 106 P. 544, 3 Okl. Cr. 408, rehearing denied 107 P. 738, 3 Okl. Cr. 408.
Const. Bill of Rights, art. 2, § 6, prohibits a judge from trying a case in
which he is prejudiced by or for either party. McCullough v. Davis, 11 Okl.
Cr. 431, 147 P. 779.
A judge may be disqualified for prejudice in favor of accused, though such
disqualification is not provided for by statute, since it rests on constitutional
grounds. State v. Brown, 126 P. 245, 8 Okl. Cr. 40, Ann. Gas. 1914C, 394.
(27)
§ 39 COURTS AND COURT OFFICERS (Ch. 1
qualify him; 24 but it has been held otherwise where the action con-
stituted an attack on the validity of a special bond election to se-
cure money to build a courthouse and jail.25 That a county judge
was disqualified by prejudice in the matter of the probate of a will
did not disqualify him to determine other questions in the adminis-
tration of the estate.28
§ 39. Relationship
The word "party," as used in the statute disqualifying a judge
to sit in a case, wherein one party is related to him within the
fourth degree of consanguinity, includes any person directly inter-
ested in the subject-matter of the suit or the result of the same,
though not a party of record.27 A judge is disqualified to sit in
a case in which he is a material witness 28 or in which he partici-
pated as an attorney before his elevation to the bench.29 This rule
seems to have been qualified in one criminal case,30 but cannot be
relaxed in civil cases, particularly where there are contesting liti-
gants. It has been held that a county judge was not disqualified
from settling a guardian's account because he acted as attorney for
the guardian in the matter of his appointment.31
2* Lawton Rapid Transit Ry. Co. v. City of Lawton, 122 P. 212, 31 Okl. 458.
26Mackey v. Crump, 49 Okl. 578, 153 P. 1128; Rev. Laws 1910, § 5812.
26 State v. Johnson, 139 P. 699, 40 Okl. 511.
27 State v. Pitchford, 141 P. 433, 43 Okl. 105.
Under Rev. Laws 1910,. § 5812, a judge is disqualified to hear a cause
wherein his son is employed on a contingent fee as attorney for one party
and, under section 248, giving him a lien, has an interest in the result. State
v. Pitchford, 141 P. 433, 43 Okl. 105.
•In a proceeding in the county court by a guardian to invest the money of
his ward pursuant to Comp. Laws 1909, § 5513, the guardian was a "party"
thereto within Comp. Laws 1909, § 5139, disqualifying a judge to act in any
proceeding in which he may be related to any party within the fourth degree ;
and a brother-in-law of the guardian was disqualified to sit as judge in the
proceeding. • Hengst v. Burnett, 40 Okl. 42, 135 P. 1062.
28 Powers v. Cook, 48 Okl. 43, 149 P. 1121, L. R. A. 1915F, 766.
29 Dodd v. State, 115 P. 632, 5 Okl. Cr. 513.
30 The mere fact that a judge may be witness in case, or that he has con-
ducted a preliminary examination resulting in a prosecution of) defendant,
in the absence of any showing of bias or prejudice on his part, does not dis-
qualify him. State v. Lockridge, 118 P. 152, 6 Okl. Cr. 216, 45 L. R. A. (N. S.)
525, Ann. Cas. 1913C, 251.
81 Title Guaranty & Surety Co. v. Slinker, 128 P. 696, 35 Okl. 128; Id., 128
P. 698, 35 Okl. 153.
(28)
Alt. 1) COURTS AND JUDGES § 40
§ 40. Bias and prejudice
Public confidence in the judicial system demands that the cause
be tried by an unprejudiced judge, and a denial of a change of
judge on the ground of prejudice will be presumed a denial of
justice, at least where the prejudice is clearly made to appear.32
A constitutional provision guaranteeing every person charged
with crime a trial without prejudice does not include the opinion
of the judge as to the guilt or innocence of the defendant; but to
disqualify the judge, it must appear that he is biased against him to
such an extent as will prevent his giving a fair trial.33
Judicial officers should abstain from participating in public meet-
ings in which questions are discussed, which might afterward come
before them for decision. A judge should not commit himself on
questions of fact or law which may come before him, until the mat-
ter is properly presented in open court. There is a manifest differ-
ence between being prejudiced against the commission of a crime
and being prejudiced against a person charged with its commission,
and the fact that a judge is prejudiced against the crime does not
disqualify him from presiding at a criminal trial.34
32 Ex parte Ellis, 105 P. 184, 3 Okl. Cr. 220, 25 L. R. A. (N. S.) 653, Ann.
Cas. 1912A, 863. Accused has a right to a change of judge where the presid-
ing judge is prejudiced against him. Lewis v. Russell, 111 P. 818, 4 Okl. Cr.
129.
Under the law prior to the passage of Act March 22, 1909 (Laws 1909, c.
14; Snyder's Comp. Laws 1909, §§ 2012-2017), it was error to refuse a change
of judge, where defendant filed an affidavit stating that the presiding judge
was prejudiced against him, and for that reason he could not obtain a fair
trial before such judge. Cavenees v. State, 109 P. 125, 3 Okl. Cr. 729.
Where a judge had not consulted with the county attorney as to the facts
in a perjury case, and knew nothing concerning the facts thereof further
than that the case was pending in his court, the fact that the judge stated
upon hearing of a demurrer to the information that he thought the county
attorney was correct in desiring the trial before the trial of another person
for murder for whom the one accused of perjury was stated to be an impor-
tant witness, so that, if the latter was innocent of perjury alleged to have
been committed in a previous trial of the one. charged with murder, such per-
son might have the benefit of his evidence, and that, if the one charged with
perjury was guilty, the state might have the benefit of the exclusion of his
testimony, did not show prejudice of the judge towards the one charged with
perjury so as to disqualify him from presiding at the trial. O'Brien v.
Clark, 113 P. 543, 5 Okl. Cr. 112.
33 Ingles v. McMillan, 113 P. 998, 5 Okl. Cr. 130, 45 L. R. A. (N. S.) 511.
«4 Crawford v. Ferguson, 115 P. 278, 5 Okl. Cr. 377, 45 L. R. A. (N. S.) 519 ;
§§ 41-42 COURTS AND COURT OFFICERS (Ch. 1
§ 41. - Objections and procedure
Where accused in good faith desires a change of judge on account
of prejudice, he should exercise due diligence as soon as he can con-
veniently assert his rights after knowledge of such prejudice.85 An
application for change of judge for bias, stating no facts and filed
after the jury is impaneled, is properly denied.86 A defendant, seek-
ing to disqualify a trial judge on any ground, must follow the statu-
tory procedure.87 The application or affidavit for change of judge
for prejudice must set forth the facts on which the claim is based.88
Where speeches made by the judge in his campaign for re-election
showed that he was prejudiced against defendant, an application
for change of judge should have been granted.39
Where a district judge is disqualified to hear and determine a
cause pending before him, and refuses to certify his disqualifica-
tion when requested in the manner provided by law, mandamus will
lie.40
§ 42. - Form — Application for disqualification of judge
APPLICATION FOR DISQUALIFICATION OF JUDGE
Comes now the above-named defendant, J. D., and, after having
given^ reasonable notice to the plaintiff herein, makes this his ap-
plication^ for a certification of disqualification of the Honorable
- , judge of this eourt, in the above-entitled cause, and in
support hereof this defendant states :
That this is an action instituted by the plaintiffs for the purpose
118 R 152' 6 Okl- Cr' 216> 45 L" R- A- (N- S.) 525, Ann.
"Ingles v. McMillan, 113 P. 998, 5 Okl. Cr. 130, 45 L. R. A. (N S.) 511.
6 White v. State, 50 Okl. 97, 104, 150 P 716 718
**" ?^?f r~ Hudson' 106 p- 540' 3 Okl. Cr. 393, rehearing denied 10T P.
do, 3 Okl. Cr. 393 ; Ex parte Hines, 106 P. 544, 3 Okl. Cr. 408 rehearine
denied, 107 P. 738, 3 Okl. Cr. 408.
*ln x 0kL Cr< 129' ln R 818' Mrers v« Bail*y, 109 P. 820,
^1. 133 ; Mayes v. Pitchford, 109 P. 821, 26 Okl. 129 ; Kelly v. Ferguson
114 P. 631, 5 Okl. Cr. 316; Id., 115 P. 284, 5 Okl Cr. 700
Where it is sought to disqualify a judge because a material witness for
Defendant, the application) for change of judge must clearly show wherein
testimony of the judge is material. Johnson v. Wells, 115 P. 375, 5 Okl.
v/r. oDy.
J9McCullough v. Davis, 11 Okl. Cr. 431, 147 P 779
10 State v. Fullerton, 76 Okl. 35, 183 P. 979
(30)
Art. 1) COURTS AND JUDGES § 42
of quieting their title to certain property described as follows, to
wit: [Describe land.] That said action is a suit in equity, and
said plaintiffs seek herein to have canceled, set aside, vacated, and
held for naught a certain option contract made, executed, and de-
livered by the plaintiffs on or about , 19 — , a copy of which
said option contract is attached to the plaintiffs' petition herein,
marked Exhibit A, and to which reference is hereby made, and to
have canceled, set aside, and held for naught a certain warranty
deed and a certain contract, both dated , 19 — , executed by
the plaintiffs to this defendant, J. D., a copy of which said deed
and contract are attached to the plaintiffs' petition, marked Ex-
hibits B and C, and to which reference is hereby made.
That a prior action was heretofore instituted in this court by
the plaintiffs herein against one F. S. to have canceled and set
aside certain instruments of conveyance made, executed, and deliv-
ered by the said plaintiffs to the said F. S., which said action is No.
in the district court of county, Oklahoma, and which
said action was heretofore, on or about the day of , .
19 — , tried in this court before his honor, , judge of the said
district court of county, Oklahoma.
That in said action last above referred to it was the contention
of the said defendant therein, F. S., that at least a part of the con-
sideration for the deed executed to him by the plaintiffs, and which
the plaintiff sought to have canceled, was certain financial and
other assistance rendered by the said defendant, F. S., in connec-
tion with the conveyances to this defendant, J. D., and that upon the
trial of said cause No. in. the district court of county,
Oklahoma, before his honor, , judge of said court, testimony
was introduced and heard as to the transactions resulting in the
option contract of , 19 — , executed by the plaintiffs to this
defendant, J. D., and with reference to the contract and deed of
, 19 — , executed by said plaintiffs to this defendant, J. D.
That this defendant, J. D., was not a party to said cause No.
in the district court of county, Oklahoma, and was
not represented or heard therein.
That in the present action the plaintiffs seek to have the instru-
ments above mentioned, which were executed by the plaintiffs to
this defendant, canceled upon the ground, among others, that said
(31)
§ 42 COURTS AND COURT OFFICERS (Ch. 1
instruments are invalid on account of want of consideration, and by
pleadings filed in this cause an issue of fact has been joined upon
the question of want of consideration for the execution of said in-
struments, as well as upon other questions referring to the validity
of said instruments above mentioned executed by the plaintiffs to
said defendant, J. D.
That this cause is assigned for trial before his honor, ,
on the day of , 19 — , who is one of the judges of said
district court of county, Oklahoma. That in said cause No.
in the district court of county, Oklahoma, which
was heard by his honor, the said , on or about the day
of , 19 — , his honor, the said , made findings of fact up-
on the questions involved in said cause, and among other facts found
with reference to the instruments above mentioned, executed by
the plaintiffs to this defendant, and in connection with the pro-
curement of which the said defendant in said cause No. con-
tended that he had rendered certain financial and other assistance
as follows:
"I might add another word : Even if F. C. has paid $666.67, and
that is all the testimony in the case shows he did pay for the sixth
interest in this royalty, which to this day has produced something
like $15,000, still the $666.67 absolutely gained no advantage for A.
M. at all, because he paid it for an agreement which was supported
by absolutely not one penny's consideration, unless there is a dollar in
the agreement." (Italics ours.)
That the payment above referred to, and which his honor, the
said , found was no advantage whatever to the plaintiff here-
in, A. M., was a payment which the said defendant in said cause
No. testified he had made in connection with the execution
and delivery of the instruments which the plaintiff in this case
made, executed, and delivered to the defendant, J. D., and which
the said plaintiffs are seeking in this caus« to have canceled. That
by said findings above referred to his honor, the said , found
there was no consideration for the execution of the instruments
executed by the plaintiffs to this defendant, J. D., and which said
plaintiffs are seeking to cancel in this action.
That in his finding of facts in connection with said cause No.
his honor, the said , further found as follows :
"I am not certain that there is any more than a dollar, because
(32)
Art. 1) COURTS AND JUDGES § 42
J. D. took an agreement to collect A. M/s royalty or one-fourth
thereof and pay him back with his own royalty, with an obliga-
tion not to pay any one single penny unless he did collect the royal-
ties; in other words, J. D. was not out a single dollar, except for
the option, which he might have exercised or not as he saw fit, but
he actually made A. M. pay $333.34 back to get that option off;
and after he did that he gave him one-half of the royalty. Of
course,' I am not holding that that contract is void, because that
contract is not involved in this case. However, A. M. had still an
option for $100 on his hands."
That, as heretofore stated, this is an equitable action, and his
honor, the said , will pass upon both the questions of law
and fact involved herein.
That by reason of the matters and things above set forth this
defendant states that his honor, the said , is biased and prej-
udiced herein, and has formed and expressed his opinion upon
certain questions of fact which are involved in this action, and
upon which he, as the judge before whom this cause has been
assigned for trial, must pass upon in the trial of this cause, and
that by reason thereof he has prejudged this cause, and is disquali-
fied from hearing the same, and should so certify his disqualifica-
tion.
This defendant states that the matters and things hereinabove
referred to all appear of record in this cause and in cause No. —
in this court, and that the records and pleadings in said cause No.
and in this cause are referred to and made a part hereof
in so far as necessary to show the matters and things hereinbefore
set out.
Wherefore this defendant prays that this, application for disquali-
fication of his honor, the said , be allowed and granted, and
that his honor, the said , certify herein his disqualification to
hear this cause, and that such other and further proceedings be had
and taken herein as are consistent with right and justice and the
statutes in such cases made and provided.
J. D., Applicant,
By } His Attorneys.
HON.PL.& PEAC.— 3 (33)
§ 42 COURTS AND COURT OFFICERS (Ch. 1
State of Oklahoma,\ gg .
County of — — J
J. D., of lawful age, being first duly sworn, upon oath deposes
and says :
That he is the defendant named in the above and foregoing ap-
plication for disqualification of judge; that he has read said ap-
plication and knows the contents thereof, and that the matters
and things therein set forth are true and correct.
[Signed] J. D.
Subscribed and sworn to before me this — - day of ,
19—.
[Seal.] [Signed] , Notary Public.
My commission expires .
NOTICE; OF APPLICATION FOR DISQUALIFICATION OF JUDGE
To the Above-Named Plaintiffs, A. M. and B. M. :
You will please take notice that the above-named defendant, J.
D., will on this day file with the court clerk of county, Okla-
homa, ex officio clerk of the district court of - — county, Okla-
homa, his application for the disqualification of the Honorable
, judge of said court; in the trial of this case, and said ap-
plication, a copy of which is attached to this notice, will be present-
ed to the said Honorable — — , at the district court room in the
county court house at Oklahoma, on the day of
, 19 — , at o'clock M., or as soon thereafter as
counsel may be heard.
You will therefore govern yourselves accordingly.
— , Attorneys for Defendant, J. D.
Service of the above and foregoing notice is hereby acknowledged
to have been made upon the above-named plaintiffs, A. M;. and B.
M., upon this — - day of = , 19 — , at o'clock
M., and receipt of a copy of the application for disqualification is
also acknowledged to have been delivered simultaneously with the
service of the above and foregoing notice.
, Attorneys for Plaintiffs.
(34)
Art. 1) COURTS AND JUDGES §§ 43~46
§ 43. Waiver of disqualifications
The disqualification of a judge is a matter of public policy and
cannot be waived.41 Where a special judge is elected or agreed
upon in a particular case, which is not finally determined at the
term at which he is elected or agreed upon, and he presides at a
subsequent term at which his authority is recognized, any objec-
tions that he was not re-elected, or reagreed upon, are waived.42
But the right of accused to a change of judge where the presid-
ing judge is prejudiced against him, cannot be abrogated.43
§ 44. Acts of disqualified judge
On the filing by accused of an affidavit in proper time, stating
that he cannot have a fair and impartial trial on account of the
prejudice of the judge, such judge cannot thereafter perform any
official act binding on accused except the allowance of such change
of judge.44
A judge who is disqualified in a cause by reason of interest may
enter a formal judgment directed by the appellate court, as in such
case he is not required to exercise any judgment or discretion.45
Where a trial judge is disqualified, he cannot make a valid order
appointing a special county .attorney upon the suggestion of the
disqualification of the regular attorney.46
§ 45. Powers at chambers
"Judges of the district, superior and county courts shall, within
their respective districts and counties, be authorized to hear and
determine at chambers, motions to dissolve attachments." *7
DIVISION III. — DISTRICT COURTS AND JUDGES
§ 46. District court — Where held
"The terms of the district court shall be held at the county seat
of the respective counties." 48
41 Holloway v. Hall, 79 Okl. 163, 192 P. 219.
42 Ex parte Elgan, 126 P. 584, 8 Okl. Cr. 75.
43 Lewis v. Russell, 111 P. SIS, 4 Okl. Cr. 129.
44 Buchanan v. State, 101 P. 295, 2 Okl. Cr. 126.
45 Cullins v. Overton, 54 P. 702, 7 Okl. 470.
46 Dodd v. State, 115 P. 632, 5 Okl. Cr. 513.
47 Rev. Laws 1910, § 5318.
4 s Const. Okl. art 7, § 25.
(35)
§ 47 COURTS AND COURT OFFICERS (Ch. 1
§ 47. Districts and judges
The state js divided into district court judicial districts. Pro-
vision is made by statute for the time of holding terms of district
court in various counties. In certain districts, provision is made for
two or more judges.49 Provision is made for two additional judges
in the district composed of Pawnee and Tulsa counties.50
The state Constitution provides: "Until otherwise provided by
law, the state shall be divided into twenty-one judicial districts
and the qualified electors in each of the said districts shall elect a
judge of the district court as provided herein, except in the Thir-
teenth judicial district two judges shall be elected. Such judge
shall be a citizen of the United States, and shall have been a resi-
dent of the territory embraced within the state for two years, and
of the territory comprising his district at least one year, prior to
his election; and he shall have been a lawyer licensed by some
court of record, or shall have been a judge of some court of record,
or both such lawyer and judge, for four years next preceding his
election, and shall reside in his district during his term of office.
The term of office of the district judge shall be four years, and at
the time of his election he shall have reached the age of twenty-
five years. Regular terms of the district court shall be held in
each organized county of this state at least twice in each year.
The time of convening the district court in each county in this state,
until the Legislature shall otherwise provide, and the duration of
the term, shall be fixed by the Supreme Court of the state. The
term of the district judges elected at the first election shall expire
on the last day next preceding the second Monday in January, nine-
teen hundred and eleven, and the judges of the district court there-
after shall be elected at the general election next preceding the com-
mencement of their terms of office.
"In case of the illness of the judge elected in any district, or if
for any other cause he shall be unable to preside in the district in
which he was elected, the Chief Justice may designate any district
•
*°Rev. Laws 1910, §§ 1779, 1780, 1793; Sess. Laws 1910-11, pp. 176-178,
§§ 1-12; Sess. Laws, 1913, p. 5, §§ 1-3; p. 64, §§ 1-3; p. 605, §§ 1-2; Sess.
Laws 1915, p. 10, § 1 ; pp. 551, 552, §§ 1, 2 ; Sess. Laws 1917, p. 183, §§ 1, 2 ;
p. 185, § 1; p. 187, § 1; pp. 201-205, §§ 1-11; Sess. Laws 1919, pp. 34, 55, §§
1-3 ; pp. 115, 116, §§ 1-4 ; p. 336, §§ 1, 2 ; p. 403, § 1.
co Sess. Laws 921, p. 3 (S. B. No. 17), §§ 1-4.
(36)
Art 1) COURTS AND JUDGES § 48
judge, in the state to hold any term of court in said district in lieu
of the judge elected to hold the courts of said district. When
ever the public business shall require it, the Chief Justice may ap-
point any district judge of the state to hold court in any district,
and two or more district judges may sit in any district separately
at the same time. In the event any judge shall be disqualified
for any reason from trying any case in his district, the parties to
such case may agree upon a judge pro tempore to try the same,
and, if such parties cannot agree, at the request of either party a
judge pro tempore may be elected by the members of the bar of
the district, present at such term. If no election for judge pro tem-
pore shall be had, the Chief Justice of the state shall designate
some other district judge to try such case." 61
§ 48. Sessions — Time for — Adjournments
The terms of courts of record begin on the day fixed by law;
and if the judge be not present in his court, or a judge pro tempore
selected, within two days after the first day of the term, then the
term lapses, and cannot thereafter be revived by the judge or any
other officer of the court; and any attempted proceedings had in
such court after the lapse of the term is coram non judice and
void.52 A district judge may hold court to hear matters which may
be disposed of without a jury, though the court expense fund has
been exhausted. The statute fixing the terms of the district courts
of the state does not require a jury term to be held and expenses
to be incurred, chargeable to the court expense fund, when that
fund has been exhausted.53
The fact that the district court of one county was theoretically
in session because it had not been adjourned sine die while the
judge was presiding at a trial in another county in the same district
did not amount to a violation of the old rule that two courts can-
not be in session in the same district at the same time.54 Nor were
the proceedings of adjourned sessions of the district court coram
non judice and void, notwithstanding the regular term in another
61 Const. Okl. art. 7, § 9.
s 2 Wilson v. State, 109 P. 289, 3 Okl. Or. 714; Collins v. State, 114 P.
1127, 5 Okl. Cr. 254; Douglas v. Same, 114 P. 1128, 5 Okl. Or. 682.
53 State v. Stanfleld, 126 P. 239, 34 Okl. 524.
e* In re Dossett, 37 P. 1066, 2 Okl. 369.
(37)
§§ 48-51 COURTS AND COURT OFFICERS (Ch. 1
county in the same district had intervened between the time of
the adjournment and the convening of the adjourned session.53
Where a judge adjourns the court without fixing any time at
which it should reconvene, it cannot again convene until the next
regular session of the court;56 but if the court is adjourned to a
day certain, and the judge is unable to hold court on such day and,
at a subsequent day, within the term, a session is held, the court is
legally constituted and its proceedings are valid.57
The times for holding sessions of the district court in the coun-
ties of the fifth district were recently fixed by statute.58
§ 49. Change of district — Disposition of cases pending
"In any county detached from one judicial district and added to
another, if there be any case pending in the district court of such
county which has at any time been tried by the judge of said
court, and by him taken under advisement, and still undecided, it
shall be the duty of the judge who tried said cause to make and
render his finding and judgment therein and to determine all the
motions therein, and to allow and settle the case made therein or
dispose of such case in all respects as though said county had not
been detached from his district." 59
§ 50. Special terms
"Special terms of the district court in any county in a district
may be called by the resident judge of said district, by order en-
tered of record in such court, notice of such special term to be
given in at least two consecutive issues of a weekly newspaper
published and of general circulation in such county, prior to the
convening of such special term." 60
§ 51. Adjournment of term
"The regular term of any district court may be adjourned from
time to time, or sine die, by a resident judge of the district court
or by any other district judge assigned and holding court in such
district, but such adjournment shall be [to] a time prior to the con-
85 In re Dossett, 37 P. 1066. 2 Okl. 369.
16 Irwin v. Irwin, 37 P. 548, 2 Okl. 180.
57 St. Louis & S. F. R. Co. v. James, 128 Pac. 279, 36 Okl. 19G.
88 Sess. Laws 1919, c. 281.
59 Rev. Laws 1910, § 1781.
60 Rev. Laws 1910, § 1795.
(38)
Art. 1) COURTS AND JUDGES §§ 52~54
vening of the next regular term. The regular judge, or any judge
assigned, may make all orders with reference to the adjournment
of the term."61
§ 52. Two or more judges sitting at same time
"Two or more district judges may sit and hold court at the same
time in the same county during term time ; and regular terms or
adjourned terms of court in two or more counties in thevsame judi-
cial district shall proceed until the same are adjourned sine die." 62
§ 53. Additional judge
"When, upon petition to the supreme court of the State of the
majority of the county commissioners of the counties embraced in
any judicial district in this state, it is made to appear that any dis-
trict court within the state has such an unusual number of cases
awaiting trial by such court that a thorough, prompt and effective
administration of justice cannot be 'secured in said district, it
shall become the duty of said court to recommend to the Governor
the appointment of an additional judge for such district for such
period as the court may consider necessary to meet the condition ;
and upon such recommendation the Governor shall appoint an ad-
ditional'judge for such district for the time recommended by the
court." G3
"Such additional judge shall possess like qualifications and pow-
ers and perform such duties and receive such compensation as
provided by law for other district judges of this State." 6*
§ 54. District judges — Expenses
"All judges of the district court of the state of Oklahoma, shall
be paid their actual and necessary traveling expenses while hold-
ing court outside <5f the county wherein said district judge per-
manently resides, when said district judge shall file an itemized
61 Rev. Laws 1910, § 1794.
62 Rev. Laws 1910, § 1796.
63 Rev. Laws 1910, § 1782.
64 Rev. Laws 1910, § 1783.
Act March 22, 1909 (Laws 1909, c. 14, art. 3) § 3, authorizing the Governor
to appoint an additional district judge, held not a violation of Const, art.
7. § 9. In re Byrd, 122 P. 516, 31 Okl. 549; Oklahoma City Land & Develop-
ment Co. v. Hare (Okl.) 168 P. 407.
(39)
§§ 54-56 COURTS AND COURT OFFICERS (Ch. 1
statement of the expenses, sworn to, with receipts and vouchers
attached, with the state auditor." 65
"When any district judge is ordered by the chief justice to per-
form duties outside his district, said judge shall be entitled to his
necessary and actual expense incident to the performance of such
duties. Said judge, when so assigned outside his district, shall
certify his expense account, as above provided, to the Chief Jus-
tice, and when such account is so certified and approved the state
auditor is hereby authorized to " issue his warrant on the state
treasurer, to be paid out of any funds in the treasury not otherwise
appropriated." 66
§ 55. Reporter — Appointment — Qualifications
"The district judge in each judicial district shall appoint, when-
ever in his judgment it will expedite public business and tend to
the more economical administration of justice, a shorthand reporter
who shall be well skilled in the art of stenography and competent
to perform the duties required of him, which competency shall be
ascertained by the applicant writing correctly one hundred and
fifty words per minute for five consecutive minutes in open court,
the matter written not being previously known to him." **
§ 56. Duties of court reporter
"It shall be the duty of the court reporter to take down in short-
hand and to correctly transcribe, when required, all the proceed-
ings upon the trial of any cause, as well as all statements of counsel,
the witnesses or the court, made during the trial of any cause or
with reference to any cause pending for trial, when required by a
party or attorney interested therein, and all other matters that
might properly be a part of a case-made for appeal or proceeding
in error. An attorney in any case pending shall have the right to
request of the court or stenographer that all such statements or
proceedings occurring in the presence of the stenographer, or when
his presence is required by such attorney, shall be taken and
transcribed. A refusal of the court to permit, or, when requested,
to require any statement to be taken down by the stenographer,
or transcribed after being taken down, upon the same being shown
85 Sess. Laws 1919, c. 33, § 1. «* Rev. Laws 1910, § 1785.
«6Rev. Laws 1910, § 1784.
(40)
Art. 1) COURTS AND JUDGES §§ 57~60
by affidavit or other direct and competent evidence, to the supreme
court, shall be deemed prejudicial error, without regard to the
merits thereof." °8
-
§ 57. Salary and fees
The district* court reporter shall receive an annual salary of
$1,800 per year.69
"In addition to the annual salary of said stenographer he shall
charge and receive ten cents per folio for writing transcripts : Pro-
vided, that two carbon copies shall be furnished without charge." 70
"The reporter shall, on the request of either party in a civil or
criminal case, make out such transcript and deliver the same to-
the party desiring it, on payment of his fees therefor by such party
at the rate of ten cents per folio, which shall be allowed as taxable
cost." 71
§ 58. Traveling expenses
"The reporter shall proceed from county to county where the
district courts are held and shall be in attendance upon said courts
to perform such duties as shall be required of him, and shall re-
ceive as traveling expenses for each mile actually and necessarily
traveled in going to, and returning from each district court, to be
paid by the county to which he travels, the sum of five cents per
mile." 72
§ 59. Tenure and oath of office
"The reporter shall hold his office at the pleasure of the Judge
appointing him, and his oath of office shall be filed in the office of
the clerk of the district court." 73
§ 60. Notes filed — Admissibility in evidence — Transcripts
"The shorthand reporter in any court of record shall file his
notes taken in any case with the clerk of the court in which the
cause was tried. Any transcript of notes so filed, duly certified by
the reporter of the court who took the evidence as correct, shall be
admissible as evidence in all cases, of like force and effect as tes-
timony taken in the cause by deposition, and subject to the same
«8 Rev. Laws 1910, § 1786. « Rev. Laws 1910, § 1789.
69 Sess. Laws 1919, c. 211, § 1. 72 Rev. Laws 1910, § 1790.
70 Rev. Laws 1910, § 1787. « Rev. Laws 1910, § 1791.
(41)
§ 61 COURTS AND COURT OFFICERS (Ch. 1
objection ; a transcript of said notes may be incorporated into any
bill of exceptions or case-made. On appeal it shall be the duty of
the reporter to furnish such transcript when demanded, as requir-
ed by law. If any reporter ceases to be the official reporter of the
court, and thereafter makes a transcript of the notes taken by him
while acting as 'official reporter, he shall swear to the transcript as
true and correct, and when so verified the transcript shall have the
same force and effect as if certified while he was official reporter." 7*
§ 61. Appeal to district court
"A judgment rendered, or final order made, by any tribunal,
board or officer exercising judicial functions, and inferior in ju-
risdiction to the district court, may be reversed, vacated or modified
by the district court except where an appeal to some other court
is provided by law." 73
"An appeal may be taken to the district court from a judgment,
decree or order of the county court :
''First. Granting, or refusing, or revoking letters testamentary
or of administration, or of guardianship.
"Second. Admitting, or refusing to admit, a will to probate.
"Third. Against or in favor of the validity of a will or revoking
the probate thereof.
"Fourth. Against or in favor of setting apart property, or making
an allowance for a widow or child.
"Fifth. Against or in favor of directing the partition, sale or con
veyance of real property.
"Sixth. Settling an account of an executor, or administrator or
guardian.
"Seventh. Refusing, allowing or directing the distribution or
partition of an estate, or any part thereof or the payment of a
debt, claim, legacy or distributive share ; or,
"Eighth. From any other judgment, decree or order of the county
court in a probate cause, or of the judge thereof, affecting a substan-
tial right." 70
"If the judgment of a justice of the peace, taken on error, as
herein provided, to the county or district court, be affirmed, it shall
be the duty of such court to render judgment against the plaintiff
** Rev. Laws 1910, § 1792. ™ Rev. Laws 1910, § 6501.
75 Rev. Laws 1910, 8 5235.
(42)
Art 1)
COURTS AND JUDGES
61-63
in error for the costs of suit, and award execution therefor; and the
court shall thereupon order the clerk to certify its decision in the
premises to the justice, that the judgment affirmed may be enforc-
ed, as if such proceedings in error had not been taken; or such
court may award execution to carry into effect the judgment of
such justice, in the same manner as if such judgment had been
rendered in the county or district court." 77
"When the proceedings of a justice of the peace are taken in
error to the county or district court, in the manner aforesaid, and
the judgment of such justice shall be reversed or set aside, the
court shall render judgment of reversal, and for the costs that
have accrued up to that time, in favor of the plaintiff in error, and
award execution therefor; and the same shall be retained by the
court for trial and final judgment, as in cases of appeal." 78
"If the county or district court affirm a judgment on petition in
error, it shall also render judgment against the plaintiff in error,
for five per cent upon the amount due from him to the defendant in
error, unless the court shall enter upon its minutes that there was
reasonable grounds for the proceedings in error." 79
§ 62. Party in default
Any party aggrieved may appeal from the county court, except
where the decree or order of which he complains, was rendered or
made upon his default.80
§ 63.
Who may appeal
"A person interested in the estate or funds affected by the de-
cree or order, who was not a party to the special proceeding in
which it was made, but who was entitled by law to be heard there-
in, upon his application, or who has acquired, since the decree or
order was made, a right or interest which would have entitled
him to be heard, if it had been previously acquired, may also
appeal as prescribed in this article. The facts which entitle such
person to appeal, must be shown by an affidavit which must be filed
with the notice of appeal." 81
77 Rev. Laws 1910, § 5264.
78 Rev. Laws 1910, § 5265.
79 Rev. Laws 1910, § 5277.
80 Rev. Laws 1910, § 6502.
61 Rev. Laws 1910, § 6503.
(43)
§§ 64-66 COURTS AND COURT OFFICERS (Ch. 1
§ 64. When appeal must be taken
"An appeal by a party, or by a person interested who was pres-
ent at the hearing, must be taken within ten days, and an appeal
by a person interested, who was not a party and not present at
the hearing, within thirty days from the date of the judgment, de-
cree or order appealed from." 82
§ 65. Appeal how taken
"The appeal must be made :
"First. By filing a written notice thereof with the judge of the
county court, stating the judgment, decree, or order appealed from,
or some specific part thereof, and whether the appeal is on a ques-
tion of law, or of fact, or of both, and, if of law alone, the particular
grounds upon which the party intends to rely on his appeal; and,
"Second. By executing and filing within the time limited in the
preceding section, such bond as is required in the following sections.
It shall not be necessary to notify or summon the appellee or re-
spondent to appear in the district court, but such respondent shall
be taken and held to have notice of such appeal in the same man-
ner as he had notice of the pendency of the proceedings in the coun-
ty court." 8S
This statute may be complied with by dictating into the record
the notice of appeal, in open court, in the presence of appellee and
his counsel, and by executing and filing the required appeal bond
within ten days.84 A motion for new trial is not required to confer
jurisdiction upon the district court.88
The term "civil causes," or "civil cases," as used in the statute
and Constitution, does not include matters within the probate
jurisdiction of the county court.86
§ 66. Appeal bond
"The appeal bond shall be in such sum as the judge of the county
court shall require and deem sufficient, with at least two suffi-
cient sureties to be approved by the judge, conditioned that the
appellant will prosecute his appeal with due diligence 'to a deter-
82 Rev. Laws 1910, § 6504.
83 Rev. Laws 1910, § 6505.
8 * In re Tubbee's Estate, 48 Okl. 410, 149 P. 1120.
86 Welch v. Barnett, 34 Okl. 166, 125 P. 472.
*« Welch v. Barnett, 34 Okl. 166, 125 P. 472.
(44)
Art. 1) COURTS AND JUDGES §§ 66-67
mination, and will abide, fulfill and perform whatever judgment,
decree or order may be rendered against him in that proceeding
by the district court, and that he will pay all damages which the op-
posite party may sustain by reason of such appeal, together with all
costs that may be adjudged against him." 87
The appeal bond required on appeal from the county court to the
district court in a probate proceeding is required not only to pro-
tect the rights of the appellee, but also on the ground of public
policy and for other reasons.88
An appeal bond required by statute cannot be waived.89
§ 67. Stay of execution
"If the judgment, decree or order appealed from be for, or di-
rect, the payment of money, or the delivery of any property, or
grant leave to issue an execution, the appeal shall not stay the
execution thereof, unless the appeal bond be furthermore condition-
ed to the effect that if the judgment, decree or order, or any part
thereof be affirmed, or the appeal be dismissed, the appellant shall
pay the sum so directed to be paid or levied, or, as the case may re-
quire, shall deliver the property so directed to be delivered, or the
part thereof as to which the judgment, decree or order shall be af-
firmed." 90
" Rev. Laws 1910, § 6506.
ss Adair v. Montgomery (Okl.) 176 P. 911 ; Rev. Laws 1910, §§ 6504, 6505.
An administrator who appeals from an order of removal does not act in
his representative capacity, so as to be within Gen. St. 1889, par. 2977, provid-
ing that "no executor or administrator shall be required to enter into a bond
to entitle him to appeal." Coutlet v. Atchison, T. & S. F. R. Co., 52 P. 68,
59 Kan. 772 ; Erlanger v. Danielsoh, 26 P. 505, 88 Cal. 480 ; Mallory's Estate
v. Burlington & M. R. Co., 36 P. 1059, 53 Kan. 557.
Administrator, appealing to district court from probate court's order
charging him with interest on certain funds and deducting such charges
from an allowance of compensation and directing distribution of estate, is
required, by Gen. St. 1915, § 4678, to give a bond. In re Baird's Estate, 102
Kan. 317, 169 P. 1149.
89 The appeal bond required on appeal from county court to district court
in a probate proceeding is jurisdictional, and, without a statutory provision,
cannot be waived by court or parties. Adair v. Montgomery (Okl.) 176 P. 911.
Where a case is tried in the probate court, and judgment rendered for
plaintiff, and defendant attempts to appeal, without giving an appeal bond,
and, after the transcript of the proceedings in the probate court is filed in
the district court, plaintiff makes a timely motion to dismiss the appeal
90 Rev. Laws 1910, § 6507.
(45)
§§ 67-68 COURTS AND COURT OFFICERS (Ch. 1
-'Xo proceeding to reverse, vacate or modify any judgment or
final order of a justice of the peace shall operate as a stay of execu-
tion, unless the clerk of the district or county court, in which such
proceeding is commenced, shall take a written undertaking to the
defendant in error, executed on the part of the plaintiff in error,
by one or more sureties, to be approved by the clerk, to the effect :
"First. When the judgment directs the payment of money, that
the plaintiff will pay all costs which have accrued or may accrue in
such proceedings in error, together with the amount of any judg-
ment that may be rendered against the plaintiff in error, either upon
and after the affirmance thereof in the district or county court, or
on the further trial of the case in such court, after the judgment of
the court below shall have been set aside or reversed.
"Second. When the judgment directs the delivery of the pos-
session of lands or tenements by the plaintiff in error, he will not
commit or suffer to be committed any waste thereon; and if the
judgment be affirmed by the court above or if judgment be rendered
against the plaintiff upon further trial of the case, after the judg-
ment of the court below shall have been set aside or reversed, that
he will pay double the value of the use and occupation of the prop-
erty, from the date of the undertaking until the delivery of the prop-
erty, pursuant to the judgment, and all damages and costs that may
be awarded against him." 91
On an appeal staying proceedings, the subject-matter involved is
removed from the jurisdiction of the trial court until the appeal has
been determined.92
§ 68. Commitment — How stayed
"An appeal from any judgment, decree or order directing the
commitment of any person, does not stay the execution thereof, un-
less the appeal bond be also to the effect that if the judgment, de-
for the reason that no appeal bond was given to effectuate the appeal, and
such motion is overruled, and the parties are required to go to trial, any
appearance for the purpose of protecting his rights on the trial will not
amount to a waiver of the giving of an appeal bond, or give the court the
right to try and determine such cause. Vowell v. Taylor, 58 P. 944, 8 Okl. 625.
yi Rev. Laws 1910, § 5256.
>2 Burnett v. Jackson, 111 P. 194, 27 Okl. 275. A county court has no ju-
risdiction pending an appeal to the district court from an order transferring
a guardianship proceeding from that court to the county court of another
county under Sess. Laws 1910, c. 25, to make certified copies of the ordexs
(46)
Art 1) COURTS AND JUDGES §§ 69-70
cree or order appealed from be affirmed, or the appeal be dismissed,
the appellant shall, within twenty days after such affirmance or dis-
missal, surrender himself, in obedience to the judgment, decree or
order, to the custody of the sheriff to whom he was committed. If
the condition of such bond be violated, it may be prosecuted in the
same manner and with the same effect as an administrator's official
bond; and the proceeds of the action must be paid or distributed,
as directed by the county court, to or among the persons aggrieved,
to the extent of the pecuniary injuries sustained by them, and the
balance, if any, must be paid into the county treasury.93
§ 69. Justification of sureties — Increased bond
"The provisions of sections 6262 to 6280, inclusive, apply to
appeal bonds; and the respondent may apply to the appellate court
or the judge thereof, upon notice, for an order requiring the ap-
pellant to increase the sum fixed by the judge of the county court,
or to give additional security ; and if the applicant make default in
giving a new bond, pursuant to an order to increase the same, or
to give additional security, the appeal may be dismissed." 9*
§ 70. Appeal bond form — Action upon
"Every appeal bond must be to the state of Oklahoma; must
contain the name and residence of each of the sureties thereto, and
must be filed in the county court. The judge of the county court
may, at any time, in his discretion, make an order authorizing
any person aggrieved to bring an action on the bond, in his own
name or in the name of the state. When it is brought in the name
of the state, the damages collected must be paid over to the county
court, and therein distributed as justice may require." 95
That a bond on appeal from a county court to the district court
is made to the administrator instead of to the state does not render
it void so as to defeat the district court's jurisdiction.96
and judgments and transmit the same, as its power to act therein is sus-
pended by the appeal. Id.
93 Rev. Laws 1910, § 6508.
a* Rev. Laws 1910, § 6509.
95 Rev. Laws 1910, § 6510.
9« In re Barnes' Estate, 47 Okl. 117, 147 P. 504.
Despite Comp. Laws 1909, § 5460 (Rev. Laws 1910, § 6510), requiring bond
on appeal from the county to the district court to be made payable to the
(47)
§§ 71-73 COURTS AND COURT OFFICERS (Ch. 1
§ 71. Appeal not to stay issue of letters
"An appeal from the decree or order admitting a will to probate,
or granting letters testamentary, or letters of administration, does
not stay the issuing of letters where, in the opinion of the county
judge, manifested by an entry upon the minutes of the court, the
preservation of the estate requires that such letters should issue.
But the letters so issued do not confer power to sell real property
by virtue of any provision in the will, or to pay or satisfy legacies
or to distribute the property of the decedent among the next of kin,
until the final determination of the appeal." 9T
§ 72. Appeal not to stay order revoking letters, etc.
"An appeal from a decree or order -revoking probate of a will,
letters testamentary, letters of administration or letters of guardian-
ship, or from a decree or order suspending or removing an execu-
tor, administrator or guardian, or removing or suspending a testa-
mentary trustee or a person appointed by the county court, or ap-
pointing an appraiser of personal property does not stay the execu-
tion of the decree or order appealed from." 88
§ 73. Proceedings
"The judge of the county court must, within ten days from the
filing of the notice of appeal and the giving of the required bond,
cause a certified copy thereof and of the judgment, decree or order,
or specific part thereof appealed from, and of the minutes, records,
papers and proceedings in the case, to be transmitted to the clerk
of the district court of the county, to be filed in his office; and the
appeal may be heard and determined at any day thereafter by said
court, at any general, special or adjourned term ; and if the appel-
lant make no appearance when the case is called for trial, or other-
wise fail to prosecute his appeal, the respondent may, on motion,
have the appeal dismissed, or may open the record and move for
an affirmance." "
state of Oklahoma, an appeal bond, otherwise In conformity with the stat-
ute, is valid. Barnett v. Blackstone Coal & Mining Co., 60 Okl. 41, 158 P.
588.
97 Rev. Laws 1910, § 6511.
98 Rev. Laws 1910, § 6512.
99 Rev. Laws 1910, § 6513.
(48)
Art. 1) COURTS AND JUDGES §§74~76
§ 74. Powers of the appellate court
"The plaintiff in the county court shall be the plaintiff in the
district court, and when the appeal is on questions of law alone the
appellate court may reverse, affirm or modify the judgment, decree
or order, or the part thereof appealed from, and every immediate
order which it is authorized by law to review, in any respect men-
tioned in the notice of appeal, and as to any or all of the parties, and
it may order a new hearing. Upon such appeal, so much of the
evidence as may be necessary to explain the grounds, and no more,
may be certified into the appellate court." *
§ 75. Trial de novo
"When the appeal is on questions of fact, or on questions of both
law and fact, the trial in the district court must be de novo, and shall
be conducted in the same manner as if the case and proceedings had
lawfully originated in that court ; and such appellate court has the
same power to decide the questions of fact which the county court
or judge had, and it may, in its discretion, as in suits in chancery,
and with like effect, make an order for the trial by jury of any or
all the material questions of fact arising upon the issues between
the parties, and such an order must state distinctly and plainly the
questions of fact to be tried." 2
A "trial de novo" has a well-defined and generally understood
meaning, and does not contemplate the framing of new and differ-
ent issues in the appellate court.3 Thus on trial de novo in the
district court, on appeal from the county court in probate matters,
the district court can render only such judgment or make such or-
der as the county court should have made.4
§ 76. Penalty for neglect of county judge to transmit record
"If the judge of the county court neglect or refuse to make or
transmit such certified copies as are hereinbefore required to be
1 Rev. Laws 1910, § 6514.
2 Rev. Laws 1910, § 6515.
Appeal to district court from order of county court on questions of law
and of fact, gives jurisdiction to determine matter de novo, and hearing
therein is not simply a review to determine whether error of law was com-
mitted in court 'below. In re Standwaitie's Estate (Okl.) 175 P. 542.
Rev. Laws 1910, § 6501.
3 Parker v. Lewis, 45 Okl. 807, 147 P. 310.
4 Parker v. Lewis, 45 Okl. 807, 147 P. 310.
HON.PL.& PBAC.— 4 (49)
§§ 77-78
COURTS AND COURT OFFICERS
(Ch. 1
transmitted to the clerk of the district court in cases of appeal, he
may be compelled by the district court by an order entered, upon
motion, to do so ; and he may be fined, as for contempt, for any
such neglect or refusal. A certified copy of such order may be
served upon the county judge by the party or his attorney." 5
§ 77.
Dismissal of appeal — Effect — Costs
"The dismissal of an appeal by the district court is in effect an
affirmance of the judgment, decree or order appealed from; and
when an appellant shall have given, in good faith, notice of appeal,
but omits, through mistake, to do any other act necessary to per-
fect the appeal or to stay proceedings, the appellate court may per-
mit an amendment, on such terms as may be just." 6
"Such appellate court may award to the successful party the costs
of the appeal ; or it may direct that such costs abide the event of a
new hearing, or of the subsequent proceedings in the county court.
In either case the costs may be made payable out of the estate or
fund, or personally by the unsuccessful party, as directed by the
appellate court; or, if no such direction be given, as directed by the
county court." 7
"If the county or district court affirm a judgment on petition in
error, it shall also render judgment against the plaintiff in error, for
five per cent, upon the amount due from him to the defendant in
error, unless the court shall enter upon its minutes that there was
reasonable grounds for the proceedings in error." 8
t
§ 28. Enforcement of decree
"When a judgment, decree or order, from which an appeal has
been taken, is wholly or partly affirmed, or is modified by the judg-
ment rendered by the district court upon such appeal, it must be
enforced, to the extent authorized by the latter judgment, by the
county court, in like manner as if no appeal therefrom had been
taken ; and the district court must direct the proceedings to be
remitted for that purpose to the county court or to the judge
thereof." 9
5 Rev. Laws 1910, § 6516.
8 Rev. Laws 1910, § 6517.
7 Rev. Laws 1910, § 6518.
(50)
8 Rev. Laws 1910, § 5277.
• Rev. Laws 1910, § 6519.
Art.l) COURTS AND JUDGES §§ 79~81
§ 79. Executor's bond stands in place of appeal bond
"When an executor or administrator who has given an official
bond appeals from a judgment, decree or order of the county court
or judge, made in the proceedings had upon the estate of which he
is administrator or executor, his said bond stands in the place of an
appeal bond, and the sureties therein are liable as on such appeal
bond." 10
§ 80. Reversal for error not to affect lawful acts
"When the order or decree appointing an executor, or administra-
tor, or guardiarf, is reversed on appeal for error, and not for want of
jurisdiction of the court, all lawful acts in administration upon the
estate, performed by such executor, or administrator or guardian, if
he have qualified, are as valid as if such order or decree had been
affirmed." X1
§ 81. Rules of district court
The district courts have authority to make necessary and rea-
sonable rules governing the transaction of business therein, and a
rule requiring that parties who desire that the court shall state in
writing its findings of fact separately from its conclusions of law
shall request the same at the commencement of the trial has been
held not unreasonable or illegal in Kansas.12
Where a rule of the district court provides that demurrers and
motions shall only be heard on certain days, the court, without
agreement of counsel, cannot disregard the rule and hear a demur-
rer prior to the day it would regularly come on for hearing.13 But
the rules prescribed must not be unreasonable.1*
10 Rev. Laws 1910, § 6520.
11 Rev. Laws 1910, § 6521.
12 Sehuler v. Collins, 65 P. 662, 63 Kan. 372.
13Holbert v. Patrick (Okl.) 176 P. 903.
14 The district court of the territory of Oklahoma could not impose a rule
requiring a party appealing a case from the probate court to the district
court to deposit with the clerk of the district court a specified sum for
clerk's costs conditioned that on the failure to do so the court should dis-
miss the appeal. Goodwin v. Bickford, 93 P. 548. 20 Okl. 91, 129 Am. St. Rep.
729 : Nelson v. Lollar, 94 P. 176, 20 Okl. 291 ; Stone v. Clogston, 105 P. 642,
25 Okl. 162.
(51)
§§ 82-83 COURTS AND COURT OFFICERS (Ch. 1
DIVISION IV. — SUPERIOR COURTS AND JUDGES
§ 82. Superior courts in general
There is created and established by statute in certain counties of
this state, a court of civil and criminal jurisdiction coextensive with
the county to be known as the superior court of such county, which
shall be a court of record and shall be held in the largest city of
such county.15
Many of the superior courts heretofore established have been
abolished.18
§ 83. Qualifications of judges — Term of office
"The said court shall be presided over by a judge whose quali-
fications shall be the same as are required for district judges and
who shall be a resident of the county for which he shall have been
elected or appointed. The regular term of such judge shall be four
years and he shall within the county, have and exercise all the
powers of a district judge and all the powers of a county judge,
limited to the jurisdiction herein conferred." ir
« Sess. Laws 1915, c. 20, § 1; Sess. Laws 1917, c. 135, §§ 1-21.
Sess. Laws 1909, c- 14, art. 7, under which the superior court of Pottawa-
tomie county was organized, held constitutional. Parker v. Hamilton, 49 Okl.
693, 154 P. 65.
Sess. Laws 1917, c. 135, § 14, transferring all causes from district court
to superior court of Okfuskee county, created by act and prescribing proce-
dure, held unconstitutional. Diehl v. Crump (Okl.) 179 P. 4, 5 A. L. R.
1272.
Section 6 of Act March 22, 1913, entitled "An act amending section 1 of
article 7 of chapter 14 of Session Laws 1909, etc." (Laws 1913, c. 77), applies
to superior courts continued by said act until January, 1915, as well as to
those continued indefinitely by the act. State v. Superior Court of Oklahoma
County, 136 P. 424, 40 Okl. 120.
Special provision has been made by statute for the superior court of Ok-
mulgee county and for the jurisdiction, judge, and terms of court thereof,
and other matters pertaining thereto (Sess. Laws 1917, c. 131, §§ 1-15), as
is also true of Creek county (Sess. Laws 1917, c. 138, §§ 1-15).
16 Sess. Laws 1919, c. 116.
The superior court in all counties having a population in excess of 100,000
according to the last federal census is abolished, and all causes of which the
district court has jurisdiction are transferred thereto by the statute. Like-
wise all causes of which the county court has exclusive original jurisdiction
are transferred to such court. Sess. Laws 1921, c. 2 (S. B. No. 16) §§ 1-3.
« Sess. Laws 1915, c. 20, § 3.
(52)
Art. 1) COURTS AND JUDGES §§ 83~86
The term of an appointee continues until his successor can be
elected.18
§ 84. Election
At the general election of county officers every fourth year after
the year 1918, "the qualified electors of such county wherein a
superior court has been established, * * * .shall elect a judge
of said court for such county to serve from the second Monday of
the following January until the second Monday of January four
years thereafter and until his successor shall be elected and quali-
fied." 19
§ 85. Procedure — Juries — Appeals
"The procedure in said court shall follow the procedure that is
or may be provided for the district court. The juries for said court
shall be selected in the same manner as juries for the district court,
and the jury commissioners of all counties in which a superior court
is created by operation of this act, whenever they meet to make
jury lists for the district court shall make an additional certified
list of jurors of the same number as for the district court and mark
the same 'Jury List No. 3, for the Superior Court/ and shall de-
liver the same to the court clerk, and said clerk and the sheriff of
the county shall select from said list the jurors for the superior
court in the same manner as for the district court, juries in said
court shall be composed of the same number of men of the same
qualifications as in the district court, and all laws relative to juries
and jurors for district courts shall be, and are hereby made ap-
plicable to the said superior courts. Appeals from said court shall
be taken to the Supreme Court of the state and to the Criminal
Court of Appeals of the state, in the same manner as is now or
may hereafter be provided by law for taking appeals from the dis-
trict court to said appellate courts." 20
§ 86. Court stenographer
"The judge of said court shall appoint a stenographer whose
fees and compensation shall be the same as provided by law for
like services rendered by the stenographer for the district court, and
he shall be paid by the county in which the court is located, and
18 State v. Breckinridge, 126 P. 806, 34 Okl. 649.
« Sess. Laws 1915, c. 20, 8 5. 20 Sess. Laws 1915, c. 20, § 6.
(53)
gg 87-89 COURTS %AND COURT OFFICERS (Ch. I
the court clerk shall tax the same fee for stenographers as is pro-
vided by law for the payment of stenographers in district courts." 21
§ 87. Sheriffs — County attorneys
"The county attorney and sheriff of every county wherein such
a court shall be established shall appear in said court and therein
perform all services for the state and county in the same manner,
and exercise the same powers as provided by law in relation to the
district court and processes issued therefrom." 22
§ 88. Judge's salary
"The judge of the superior court of each county shall receive as
full compensation the following salary ; in counties having a popu-
lation of not to exceed fifty thousand, the sum of two thousand eight
hundred dollars per annum ; and in counties in excess of fifty thou-
sand in population, the sum of three thousand dollars per annum.
The salary of such superior judge shall be paid out of the court
fund of the county in which said superior court is located." 23
§ 89. Transfer of causes
"The district court or judge thereof in any county wherein a
superior court exists may, in his discretion, at any time transfer
any cause pending and undetermined therein to the superior court
of said county. The superior court or judge thereof may, at any
time, in his discretion, transfer to the district court of said county
any cause pending and undetermined therein which may be within
the jurisdiction of the district court. The county court or judge
thereof, may at any time, in his discretion, transfer any cause pend-
ing therein, except probate matters, to the superior court. Upon
such transfer being made, such cause shall stand for trial in the
court to which it has been so transferred as if it had been original-
ly filed therein, and in such cases the court clerk shall transfer the
original files to the court to which said cause has been so transfer-
red." 2*
21 Sess. Laws 1915, c. 20, § 8.
. 22 Sess. Laws 1915, c. 20, § 9.
23 Sess. Laws 1915, c. 20, § 10.
2* Sess. Laws *921, c. 250 (H. B. No. 22) § 1, amending Sess. Laws 1915,
c. 20, § lii.
Laws 1915,- c. 20, validating all proceedings of district courts in causes
transferred thereto under Laws 1913, c. 77, validated transfer of a cause from
superior court to district court having concurrent jurisdiction and swbso
(54)
Art. 1) COURTS AND JUDGES §§ 90~91
DIVISION V. — COUNTY COURTS AND JUDGES
§ 90. Procedure— Seal
"For the trial of all civil and criminal cases in the county court
the pleadings, practice and procedure, both before and after judg-
ment, shall be the same as that of the district court, except where
special statutory proceedings are prescribed." 25
The seal of the probate court, in the absence of legislation, be-
came the official seal of the county court.26
§ 91. Terms of court
"In each county, commencing on the first Mondays of January,
April, July and October of each year, except as otherwise herein
provided, county court shall convene at the county seat and con-
tinue in session so long as business may require : Provided, that
said courts shall always be open and in session for the transaction
of all probate business in their respective counties." 27
"In counties where it may be provided by law for such court to
be held at a place or places other than the county seat, such court
shall convene on the first Mondays of January, April, July and Oc-
tober of each year, at the county seat, and remain in session for a
period of three weeks, find may then, by proper order of said
court, be adjourned to such time as the judge thereof may deem
proper: Provided, that the same shall not conflict with the term
of said court provided for at any other place in said county; and
provided, further, that said term of court cannot be adjourned to
resume at a later date than eight weeks from the date of entering
the order of such adjournment." 28
"If there is only one place other than the county seat at which
it is provided by law for holding terms of the county court, th^
quent proceedings therein. Chicago, R. I. & P. Ry. Co. v. Austin, 63 Okl.
169, 163 P. 517, L. R. A. 1917D, 666.
A party to a civil action pending in the superior court who seeks to re-
move the cause to the district court under section 6 of the act of March 22,
1913 (Laws 1913, c. 77), must, under Act March 22, 1911 (Laws 1910-11, c.
121), amending Laws 1909, c. 14, art. 7, § 10, file his motion for such trans-
fer before the cause is set for trial -in the superior court. State v. Superior
Court of Oklahoma County, 136 P. 424, 40 Okl. 120.
25 Rev. Laws 1910, § 1821.
26 Stewart v. State, 105 P. 374, 3 Okl. Cr. 618.
27 Rev. Laws 1910, § 1823. 28Rev. Laws 1910, § 1824.
(55)
§ 91 COURTS AND COURT OFFICERS (Ch. 1
terms of said court at such place shall commence on the first Mon-
days of February, May, August and November of each year, and
continue in session for the period of three weeks, if the public busi-
ness requires it." 29
"If there are two places in the county other than the county seat
at which it is provided by law for holding terms of the county
court in addition to the county seat, the terms of court shall be
held at said place nearer the county seat as aforesaid, to wit : On
the first Mondays in February, May, August and November of each
year and continue in session as aforesaid. At the other place in said
county where said county court is to be held other than at the coun-
ty seat, terms of courts shall be held commencing on the first
Mondays of March, June, September and December of each year,
and continue in session for the period of three weeks each time, or
so long as the public business may require." 30
The statute merely commits to the sound discretion of the county
court the power to adjourn the sessions of that court from time to
time as business may require, and gives no power to prolong the
term. An adjournment of the regular term at the county seat
may be had to a day later than an intervening term provided for
by law at some other place.31
Adjournment of the regular term without fixing in the order of
adjournment any time at which the court shall reconvene pre-
cludes the court from again convening until the time fixed by law
for the next regular session.32
Where terms of court are fixed by law, and the court fails to
29 Rev. Laws 1910, § 1825.
30 Rev. Laws 1910, § 1826.
Act of the Legislature of 1909, House Bill No. 460 (Laws 1909, c. 14, art.
20), providing for holding the county court at Prague, in Lincoln county,
uses the words "term" and "session" interchangeably. Rakowski v. Wagoner,
103 P. 632, 24 Okl. 282.
Comp. Laws 1909, §§ 2008-2011 (Rev. Laws 1910, §§ 1824-1826), inclusive,
fixing the terms of the county courts in the several counties of the state, em-
braces all the law on the subject and provides uniformity in the terms of
such court in the several counties, and repeals Act March 12, 1909 (Laws
1909, c. 14, art. 13), fixing the terms of county court of Wagoner county at
Coweta. In re James, 111 P. 947, 4 Okl. Cr. 94 ; In re Williams, 111 P. 950,.
4 Okl. Cr. 101 ; In re Nichols, 111 P. 950, 4 Okl. Cr. 102.
81 Tucker v. State, 139 P. 998, 10 Okl. Cr. 565.
82 Baker v. Newton, 112 P. 1034, 27 Okl. 436.
(56)
Art. 1) COURTS AND JUDGES §§ 91-93
convene at the time, the parties cannot, by agreement, confer ju-
risdiction to render a judgment at another time.83
Where proper officers assemble at the proper place, but at a time
not authorized by law, they are not a court, and any judicial pro-
ceedings then had which can be had only in term time are void.34
The county courts are always in session for the. transaction of
probate business, and the part of the statute providing for terms
of county courts has no application to probate jurisdiction of the
courts.35
Where the general term of the county court has been once regu-
larly convened on the day fixed by law, it continues until the time
fixed by law for the next succeeding term, unless previously ad-
journed sine die.36
A general term of court, when regularly convened, can expire
only by operation of law or by adjournment sine die. It will not
expire by law until tKe first day of the next general term.37 Failure
of the judge to appear and hold a session on that day does not re-
sult in lapse of the term.38
§ 92. Proceedings in vacation — Out of court
A judgment in a civil action at a time when the court is not le-
gally in session, is void for want of jurisdiction.39
"A judge of the county court, as contradistinguished from the
county court, may exercise out of court all the powers expressly
conferred upon him as judge." 40
§ 93. Calendar
"The county judge shall on the first day of each term prepare a
calendar of the cases standing for trial at said term, placing the
causes on said calendar in the order in which the same are number-
ed on the docket and setting the cases for trial in such order upon
convenient days during said term ; and the provisions of the chap-
33 American Fire Ins. Co. v. Pappe, 43 P. 1085, 4 Okl. 110.
3* In re James, 111 P. 947, 4 Okl. Or. 94 ; In re Williams, 111 P. 950, 4 Okl.
Cr. 101 ; In re Nichols, 111 P. 950, 4 Okl. Or. 102/
35 Southern Surety Co. v. Chambers (Okl.) 180 P. 711.
36 Tucker v. State, 139 P. 998, 10 Okl. Cr. 565.
37 Brown v. State, 11 Okl. Cr. 498, 148 P. 181.
38 St. Louis & S. F. R. Co. v. James, 128 P. 279, 36 Okl. 196.
39 American Fire Ins. Co. v. Pappe, 4 Okl. 110, 43 P. 1085.
*° Rev. Laws 1910, § 6192.
(57)
§§ 94-98 COURTS AND COURT OFFICERS (Gl. 1
ter on civil procedure relative to the docket in district courts shall
so far as they are applicable apply to said calendar." 41
§ 94. Stenographer
"The judge of the county court may appoint, in writing, when-
ever in his judgment it will expedite public business, a shorthand
reporter, to be known as 'County Stenographer,' who shall be ex
officio deputy clerk of the county court, and who shall possess the
same qualifications in the art of stenography as is required of such
officer in the district court." 42
§ 95. Duties
"It shall be the duty of the county stenographer, under the
direction of the county judge, to take down in shorthand the oral
testimony of witnesses, the rulings of the court, the objections made,
and the exceptions taken during the trial of all civil and criminal
cases, and also such other matters as the court shall order." *3
§ 96. Oath and tenure of office
"County stenographers shall hold their offices at the pleasure of
the county judge appointing them, and their official oath shall be
filed in the office of the county court and be recorded in the journal
of said court." 4*
§ 97. Fees for making transcripts
"The judge of the county court may, upon the application of ei-
ther party, under the same terms and conditions as prescribed by
law in the district court, direct such reporter to make out and file
with the clerk of said court a transcript of his shorthand notes.
The party ordering the transcript shall pay for the same at the same
price and under the same terms and conditions as for like services
in the district court, but all such fees shall be paid into the county
treasury to the credit of the court fund." 45
§ 98. Ex officio court clerk
"The county stenographer shall occupy and maintain his office in
the office of the judge of the county court, and when such stenog-
41 Rev. Laws 1910, § 1827.
42 Rev. Laws 1910, § 1833.
Stenographer as deputy clerk, see Sess. Laws 19}5, p. 41, § l.
43 Rev. Laws 1910, § 1834. <s Rev Laws 1910 '§ 1836
14 Rev. Laws 1910, § 1835.
(58)
Art. 1) COURTS AND JUDGES §§ 99-103
rapher is not engaged in reporting cases or making transcript, it
shall be his duty, under the direction of the judge, to perform the
the duties of a clerk in the county qourt." 46
§ 99. Compensation
County court stenographers shall receive a salary to be paid
by the county of not less than $100 nor more than $125 per month,
to be fixed by the county board of commissioners.47
§ 100. Fees — Record
"The judge of the county court shall keep an account of all
fees for services rendered by him, in a book provided for that pur-
pose, showing the title or style of the case or proceedings in which
such services were rendered, or the name of the person for whom
rendered, the amount charged, and the amount received, from whom
and for what purpose, and the date thereof. The footings for each
quarter, at the close thereof, shall be legibly and correctly entered
in such records, showing the amount received and the amount
charged." 48
§ 101. Report of
"The judge of the county court shall, on the first Mondays of
January, April, July and October of each year, make out and pre-
sent to the board of county commissioners a detailed statement of
all fees received by him during the preceding quarter, together with
the amount of fees earned, which remain unpaid, which report shall
be made under oath and filed with the county clerk." 40
§ 102. Fees paid to treasurer
"The judges of the county courts of the several counties shall, at
the time of making their quarterly reports, pay into the county
treasury all moneys received by them as fees during the three
months immediately preceding the date of filing said report." 50
§ 103. Special court towns
Special court towns are provided for by statute, where terms
of county court shall be held in various counties in addition to the
4 6 Rev. Laws 1910, § 1837.
47 Sess. Laws 1921, c. 25 (S. B. No. 87), § 3; Rev. Laws 1910, § 1838, re-
pealed.
48 Rev. Laws 1910, § 1842. »<> Rev. Laws 1910, § 1844.
*9 Rev. Laws 1910, § 1843.
(59)
§§ 104-105 COURTS AND COURT OFFICERS (Ch. 1
county seat, and in such counties the jurisdiction of the county
courts in the different towns is fixed and provision made for sep-
arate jury lists.51
§ 104. Judge — Term of office — Qualification
"There is hereby established in each county in this state a county
court, which shall be a court of record ; and, at the election to rati-
fy this Constitution, there shall be elected in each county a county
judge, who shall hold his office until the close of the day next pre-
ceding ' the second Monday in January, nineteen hundred and
eleven; and thereafter the term of office of the county judge shall
be two years, and he shall be elected at each biennial general elec-
tion. The county judge shall be a qualified voter and a resident
of the county at the time of his election, and a lawyer licensed to
practice in any court of record of the state. The County judge shall
be judge of the county court." 5a
§ 105. To give bond
"The county judge, before entering upon the duties of his office,
shall enter into a bond to the state of Oklahoma for the use and
benefit of the county, in a sum to be fixed by the board of county
commissioners, which shall not be less than three thousand dol-
lars nor more than ten thousand dollars, to be approved by the
board of county commissioners, conditioned that he will faithfully
discharge all the duties required of him by this chapter, and for
the payment into the county treasury of all moneys that may come
into his hands by virtue of his office as such county judge." 53
"Rev. Laws 1910, c. 21, art. 2, §§ 1845-2050; Sess. Laws 1910-11, p. 57,
§§ 1-5, p. 58, §§ 6-8, p. 59, §§ 1, 2, p. 60, §§ 3, 4, p. 61, §§ 5-7, p. 62, §§ 8, 9,
p. 63, §§ 1-3, p. 64, §§ 4-7, p. 67, §§ 1, 2, p. 68, §§ 3-6, p. 69, § 7, p. 137, §§ 1-4,
p. 138, §§ 5-7, p. 141, p. 239, §§ 1-4, p. 240, §§ 5-7, p. 241, §§8, 9 ; Sess, Laws
1913, p. 18, §§ 1, 2, p. 69, g 1, p. 70, §§ 2-3, 5, p. 71, §§ 6-8, p. 72, § 9, p. 134,
§§ 1-3, p. 135, §§ 4, 5, p. 136, §§ 6, 7, p. 180, §§ 1-3, p. 181, §§ 4-6, p. 390, §§ 1, 2,
p. 392, §§ 1, 2 ; Sess. Laws 1915, p. 15, § 1, p. 16, § 2, p. 62, §§ 1, 2, p. 63, §§ 4-7,
p. 64, m 8, 9, p. 70, § 1, p. 71, §§ 2-4, p. 72, §§ 5-7, p. 109, §§ 1, 2, p. 153, §§ 1-3,
p. 164, § 1, p. 165, §§ 2, 3, p. 166, §§ 4-6, p. 408, §§ 1-3, p. 433, §§ 1-3, p. 570, § 1,
p. 571, §§ 1-5, p. 572, §§ 6-9, p. 573, §§ 10, 11, p. 626,. § 1 ; Sess. Laws 1917, p.
187, § 1, p. 188, §§ 1, 2, p. 189, §§ 1-3, p. 215, § 1, p. 216, S§ 2-5, p. 217, § 6,
p. 222, § 1, p. 223, §§ 2-6, p. 224, §§ 7-9.
<*2 Const. Okl. art. 7, § 11.
"a Rev. Laws 1910, § 1822.
(60)
Art. 1) COURTS AND JUDGES §§ 106-110
§ 106. Office and records
"The judge of the county court shall keep his office at the county
seat, in such rooms as the county may provide, and his office shall
be kept open at reasonable hour's. He shall safely keep all the
papers, books and records of his office or relating to any case of
business of the county court or before him as judge thereof, and
receive and pay out, according to law, any money which by law
may be payable to him. The county shall provide for such tables,
desks, cases for books of record and other property or furniture re-
quired for his office." 54
§ 107. Practice prohibited
"A judge of the county court shall not be counsel or attorney in
any civil action for or against any executor, administrator, guar-
dian, trustee, minor or other person over whom or whose accounts
he has or by law would have jurisdiction, whether such action re-
late to the business of the estate or not." 5*
§ 108. Temporary county judge
"Whenever the county judge of any county is unable to* perform
the duties of his office because of illness, absence from the county,
or other disqualification, a temporary judge may be chosen by the
bar of the county and such temporary judge so chosen shall have
the same authority and the same power as the regular judge." 56
This statute and the Constitution provide for a judge pro tempore
in a special proceeding.57
§ 109. How elected
"The clerk of the county court shall fix the time for the election
of such temporary county judge, and shall serve a written notice on
each member of the bar of the county at least forty-eight hours
prior to such election. Such election shall be by ballot and shall
be under the general direction of said clerk of the county court." 5S
§ 110. Fee when affidavit of bias made
"Whenever a temporary judge is chosen to sit as a trial judge
in any case on account of bias or prejudice of the regular judge, the
B* Rev. Laws 1910, § 1828.
65 Rev. Laws 1910, § 1829.
66 Rev. Laws 1910, § 1830.
67 Hengst v. Burnett, 40 Okl. 42, 135 P. 1062.
68 Rev. Laws 1910, § 1831.
(61)
§§ 110-111 COURTS AND COURT OFFICERS (Ch. 1
party making the affidavit under the law shall be charged a fee of
twenty-five dollars, to be taxed as costs in the case; and in no
event shall the county be liable for more than one-half of such
costs." 59
Courts should use reasonable discretion in giving time to pay
such costs, or file a bond for the same.60
§ 111. County judge — County attorney — Salary
The statute providing that "the county judge and county attor-
ney of each county shall receive as full compensation the follow-
ing salaries in counties having a population of not exceeding 7,000,
the sum of $1,350.00 each per annum ; in counties having a popula-
tion of over 7,000 and not exceeding 10,000, the sum of $1,500.00
each per annum; and in addition to the foregoing, in all counties
in excess of 10,000 inhabitants and not exceeding 20,000 inhabitants,
the sum of $50.00 for each additional 1,000; in addition to the fore-
going, in counties in excess of 20,000 and not to exceed 30,000 in-
habitants, the sum of $25.00 for each additional 1,000; in addition
to the foregoing, in counties of 30,000 inhabitants and not exceed-
ing 40,000 inhabitants the sum of $15.00 for each additional 1,000;
in addition to the foregoing, in counties of 40,000 inhabitants and
not exceeding 50,000 inhabitants the sum of $10.00 for each ad-
ditional 1,000; and in all counties in excess of 50,000 inhabitants
the sum of $3,000.00 per annum," 61 is qualified by a statute re-
cently enacted providing that "in all counties in this state having a
population not less than 37,499 and not more than 37,750 as shown
by the last Federal census, the county attorneys of any such coun-
ties on and .after January 4th, 1923, shall be paid an annual salary
of three thousand five hundred ($3,500.00) dollars, and the county
89 Rev. Laws 1910, § 1832.
A county is not liable for the fee of a pro tempore county judge; there
being no statute imposing such liability. Board of Com'rs of Oklahoma
County v. Twyford, 39 Okl. 230, 134 P. 968. The provision of Rev. Laws 1910,
§ 1832, that "in no event shall the county be liable for more than one-half
of such cost," is not enough, standing alone, to make a county liable for the
fee of a pro tempore county judge. Id.
60 Deninger v. Gossom, 46 Okl. 596, 149 P. 220.
61 Sess. Laws 1910-11, p. 152, § 1, amending Rev. Laws 1910, § 1839.
The compensation of judges of the county courts in counties with a popu-
lation of less than 20,000, under Const: Schedule, § 18 (Buim's Ed. § 467), is,
as provided by Sess. Laws Okl. 1903, p. 161, c. 14, § 1, the sum of $1,600, to
(62)
Art 1) COURTS AND JUDGES §§ 112-114
judges in such counties on and after January 4th, 1923, shall be
paid an annual salary of three thousand ($3,000.00) dollars." 62
§ 112.- Court reporters
The statute providing for appointment of a county stenographer
by county clerk on approval of county court confirmed by county
commissioners, is mandatory, and proper administration of jus-*
tice demands prompt compliance therewith by public officers.63
In counties having a population of 80,000 or less,64 a county
stenographer cannot retain fees for making transcripts of proceed-
ings in the couifty court, but compensation for such services is
limited to salary.65
§ 113. Rules for county court
The statute authorizes the Supreme Court to make rules relating
to probate procedure 66 and binding on county courts.67
The county court cannot promulgate a rule requiring that a party
appealing from a justice's court shall make a deposit with the clerk
of the county court on costs accruing therein.68
DIVISION VI. — SUPREME COURT AND JUDGES
§ 114. Membership — Quorum — Eligibility — Term of office — Va-
cancies— Jurisdiction
The constitution provides "the Supreme Court shall consist of
five Justices until the number shall be changed by law. The state
shall be divided into five Supreme Court judicial districts Until
the Legislature shall change the number of members of the court,
at which time the Legislature shall redistrict the state to conform
to the number of Justices of the Supreme Court. From each of
said districts, candidates for Justice of the Supreme Court shall be
nominated by political parties, or by petitioners of the respective
be retained out of the fee received by him as judge. State v. Frear, 96 P.
628, 21 Okl. 397.
62 Sess. Laws 1921, c. 64, § 1 (S. B. 281).
«3 Sess. Laws 1913, c. 161, § 2 ; Wiswell v. State, 14 Okl. Cr. 517, 173 P. 662.
64 Sess. Laws 1919, p. 244.
65 Board of Com'rs of Oklahoma County v. De Armond, 55 Okl. *618, 155 P.
592 : Waide v. Atchison, T. & S. F. Ry. Co., 56 Okl. 38, 155 P. 884.
66 Rev. Laws 1910, § 5347.
67 State v. Eight, 49 Okl. 202. 152 P. 362.
68 St. Louis & S. F. R. Co. v. McAllister, 56 Okl. 244, 155 P. 1123.
(63)
§§ 114-115 COURTS AND COURT OFFICERS (Ch. 1
districts, in the manner provided by law, and such candidates shall
be voted for by the qualified voters of the state at large, and no
elector at such election shall vote for more than one candidate from
each district. The candidate from each district receiving the high-
est number of votes cast in the state at said election shall be de-
clared the Justice-elect in said district. A majority of the members
of the Supreme Court shall constitute a quorum, and the concur-
rence of the majority of said court shall be necessary to decide
any question. No person shall be eligible to the office of Justice of
the Supreme Court unless he shall be at the time of his election
a citizen of the United States and shall have been a resident of
the territory embraced within the state for a period of two years,
and of the territory comprising the district from which he is elect-
ed for a period of one year; and unless he shall have attained the
age of thirty years and shall have been a lawyer licensed by some
court of record, or shall have been a judge of some court of record,
or such judge and lawyer together at least five years.
"The term of office of the Justices of the Supreme Court shall
be six years, except as herein provided. Each member of such court
shall be a conservator of the peace throughout the state ; and in case
of a vacancy in the membership of said court, the Governor shall, by
appointment from the district, fill such vacancy until the next
general election for State officers, and at such general election the
vacancy for the unexpired term shall be filled by election by the
qualified voters of the state." 69
§ 115. Justices — Judicial districts — Election — Law clerks
"The Supreme Court shall consist of nine Justices." 70
Provision is made by law for the division of the state into nine
Supreme Court judicial districts,71 and for the election of a Justice
from each Supreme Court judicial district, and their terms of office
fixed.72
Each Justice may appoint a law clerk, who shall be a competent
stenographer and typist, at a salary of $1,200 per year, to assist
such Justice in his clerical work and perform other duties.73
69 Const. Okl. art. 7, § 3. *2 Sess. Laws 1917, p. 232, § 3.
70 Sess. Laws 1917, p. 282. § 1. TS Sess. Laws 1917, p. 233, § 5.
" Sess. Laws 1917, p. 232, i 2.
(64)
Art. 1) COURTS AND JUDGES §§ 116-120
§ 116. Referees and first law clerk
Provision has been made by statute for two Supreme Court
referees and one first law clerk as an assistant to the Chief Jus-
tice, and for their salary, appointment and qualifications.7*
§ 117. Chief Justice— Election
"The Chief Justice of the Supreme Court shall be elected by
members of the Supreme Court on the second Monday in January
of each odd-numbered year. If for any reason the election of Chief
Justice should not occur on the day mentioned, the court shall
by order fix some day for such election. The Chief Justice when
so elected shall hold office for two years, or until his successor is
elected and qualified." 7B
§ 118. Vice Chief Justice— Election
"The members of the Supreme Court shall, at the time fixed by
law for the election of a Chief Justice, or at such other time as may
be necessary, elect one of their number as Vice Chief Justice, who
shall perform the duties of the Chief Justice in his absence, sickness
or inability to serve. The term of office of such Vice Chief Justice
shall be concurrent with the Chief Justice presiding at the time of
his election." 7e
§ 119. Justices — Not to be candidate for other office
"No Justice of the Supreme Court shall become during the term
for which he may be elected or appointed, a candidate for any office
other than a judicial position." 77
§ 120. Commencement of term
"The term of office of the Justices of the Supreme Court shall
commence on the second Monday of January following their elec-
tion: Provided, however, that the term of office of the Justices
elected at the first election under this Constitution shall commence
upon the admission of the state into the Union, and shall continue
as hereinafter provided. Those appointed or elected to fill vacan-
cies shall enter upon the discharge of their duties as soon as they
qualify." 78
T* Sess. Laws 1919, c. 127, § 2. *7 Sess. Laws 1917, p. 233, § 7.
™ Rev. Laws 1910, § 1750. 78 Const. Okl. art. 7, § 4.
7io Rev. Laws 1910, § 1751.
HON.PI-.& PRAC.— 5 (65)
§§ 121-123 COURTS AND COURT OFFICERS (Ch. 1
§ 121. Sessions — Opinions
"The sessions of the Supreme Court shall be held at the seat
of Government, and the sessions and duration thereof shall be
fixed by rule of said court, until fixed by the Legislature ; but the
first term of the Supreme Court shall be held within ninety days
after the admission of the state. The Supreme Court shall ren-
der a written opinion in each case within six months after said
case shall have been submitted for decision." 7*
§ 122. Chief Justice — Expiration of terms — Election
"At the first session of the Supreme Court the Justices thereof
shall elect one of their number Chief Justice, who shall serve as
Chief Justice until the expiratiorj of his term of office; thereafter
the Chief Justice shall be elected in the manner provided by law.
Of the Justices elected at the first election, the term of two of them
shall expire at the close of the day next preceding the second Mon-
day in January, nineteen hundred and nine; and the term of two
of the others shall expire at the close of the day next preceding
the second Monday in January, nineteen hundred and eleven, and
the term of the other Justice shall expire at the close of the day
next preceding the second Monday in January, nineteen hundred
and thirteen. The Supreme Court shall, by order duly entered in
its minutes, provide the means of determining by lot the expira-
tion of the terms of each of the Justices as hereinbefore provided,
and shall determine in accordance therewith, and enter in the
minutes of the court its order showing the expiration of the term of
each of such Justices. After the first election, Justices £>f the Su-
preme Court shall be elected at the general biennial election next
preceding the beginning of their respective terms." 80
§ 123. Clerk
"There shall be elected by the qualified electors of the state at
each election for Governor, a clerk of the Supreme Court, who
shall be at least twenty-five years of age and a qualified elector of
the state, and whose term shall be the same as that of the Govern-
79 Const. Okl. art. 7, § 5.
As to divisions, opinions, jurisdiction, referees, and law clerks of the Su-
preme Court, see Sess. Laws 1919, p. 181, §§ 1-4.
80 Const. Okl. art. 7, § 6.
(66)
Art 1) COURTS AND JUDGES §§ 124-127
or, and he shall give bond for faithful performance of his duty as
may be prescribed by law." 81
§ 124. Law governing
"The appellate and the original jurisdiction of the Supreme Court
shall be invoked in the manner now prescribed by the laws of the
territory of Oklahoma until the Legislature shall otherwise pro-
vide." 82
§ 125. Salaries of Justices
"The salary of each Justice of the Supreme Court and each
Judge of the Criminal Court of Appeals shall be six thousand dol-
lars ($6,000.00) per annum, payable monthly, as provided by law." 83
i
§ 126. Effect of invalidity
Provision is made by statute that if the preceding clause fixing
the, salaries of Justices "shall be held by the Supreme Court of this
State to be invalid as to Justices of the Supreme Court and Judges
of the Criminal Court of Appeals now in office or any of them, such
decision shall not affect the validity of said section one of this
act as to Justices of the Supreme Court and Judges of the Crimi-
nal Court of Appeals hereafter elected or appointed; and it is here-
by declared the intention of the Legislature that the salary of each
Justice of the Supreme Court and each Judge of the Criminal Court
of Appeals hereafter to be elected or appointed shall be six thou-
sand dollars ($6,000.00) per annum, payable monthly as provided
by law, whether this act as to the Justices of the Supreme Court
and Judges of the Criminal Court of Appeals now in office or any
of them shall be held invalid or otherwise." 8*
§ 127. Jurisdiction — Divisions
"The Supreme Court may by rules provide for two divisions of
said court, each division to be constituted of any four Justices sit-
ting with the Chief Justice, Vice Chief Justice, or any Justice desig-
nated by the Chief Justice or the Vice Chief Justice. Each of the
divisions may sit, hear, consider, and determine causes and all
questions which may arise therein, subject to the provisions herein
contained as to hearings before the whole court. A concurrence of
81 Const. Okl. art. 7, § 7. 83 Sess. Laws 1919, c. 204. § 1.
82 Const. Okl. art. 7, § S. 8* Sess. Laws 1919, c. 204, § 2.
(67)
§§ 127-129 COURTS AND COURT OFFICERS (Ch. 1
a majority of the Justices of the whole court in the determina-
tion of any cause shall be necessary, and in case of a dissent in a
division in the termination of any cause such cause shall thereup-
on be determined by the whole court. Causes involving the con-
stitutionality of a statute shall be assigned for oral argument or
submission before the whole court, and no former adjudication of
the court shall be overruled or materially modified except upon con-
ference of the whole court. Nothing in this section shall be con-
strued as limiting the authority of the "court to submit other causes
to the whole court : Provided, that when any rule of the Supreme
Court is in conflict with any law of this state, said rule shall have
no effect." 8B
A statute has just been enacted conferring upon the Supreme
Court an original jurisdiction in suits to enjoin the collection of
illegal taxes for any state purpose and prescribing the procedure
therein.88
§ 128. Appeals from county court
"Appeals and proceedings in error shall be taken from the judg-
ments of county courts direct to the Supreme Court * * * in
all cases appealed from justices of the peace, * * * and in all
civil cases originally brought in the county court, in the same man-
ner and by like proceedings as appeals are taken to the Supreme
Court from judgments of the district court." 87
§ 129. Appeals from Corporation Commission
Appellate jurisdiction is conferred upon the Supreme Court in
this state to review the action of the Corporation Commission in
making any order, or orders, in cases arising under the laws relating
to the production and sale of crude oil or petroleum. "Such ap-
peal may be taken by any person, firm or corporation, shown by
the record to be interested therein, in the same manner and time
as appeals are allowed by law from other orders of the Corporation
Commission. Said orders so appealed from shall not be supersed-
ed by the mere fact of such appeal being taken, but shall be and re-
85 Sess. Laws 1919, c. 127, § 1.
As to divisions, opinions, jurisdiction, referees, and law clerks of the Su-
preme Court, see Sess. Laws 1919, p. 181, §§ 1-4.
86 Sess. Laws 1921, c. 31 (S. B. No. 134) §§ 1-9.
87 Rev. Laws 1910, § 1819.
(68)
Art. 1) COURTS AND JUDGES §§ 129-130
main in full force and effect until legally suspended or set aside
by the Supreme Court." 88
Appellate jurisdiction is conferred upon the Supreme Court
of this state to review the order of said commission made un-
der the laws relative to production and transportation of natural
gas. "Such appeal may be taken by any person, firm or corpora-
tion shown by the record to be interested therein, in the same man-
ner and time as appeals are allowed by law from other orders of
the Corporation Commission. Said orders so appealed from, may
be superseded by the commission or by the Supreme Court upon
such terms and conditions as may be just and equitable." 89
§ 130. Appeals from State Labor Commission
In all cases before the State Labor Commission arising under
the Workmen's Compensation Law, "the award or decision of the
commission shall be final and conclusive upon all questions within
its jurisdiction between the parties, unless within thirty days aft-
er a copy of such award or decision has been sent by said com-
mission to the parties affected, an action is commenced in the
Supreme Court of the state to review such award or decision. Said
Supreme Court shall have original jurisdiction of such action, and
is authorized to prescribe rules for the commencement and trial
of the same. Such action shall be commenced by filing with the
clerk of the Supreme Court a certified copy of the award or de-
cision of the commission attached to the petition by the com-
plainant wherein the complainant or petitioner shall make his as-
signments or specifications as to wherein, said award or decision
is erroneous andx illegal. Said proceeding shall be heard in a sum-
mary manner and have precedence over all other civil cases in such
court, except preferred Corporation Commission appeals. The
commission shall be deemed a party to such proceeding and the
Attorney General, without extra compensation, shall represent the
commission therein. Such action shall be subject to the law and
practice applicable to other civil actions cognizable in said court.
Upon the final determination of said action in which the award or
88 Sess. Laws 1915, p. 38, § 7. An appeal may be taken to the Supreme
Court from a ruling of the State Corporation Commission. St. Louis-San
Francisco Ry. Co. v. Teel (Okl.) 198 P. 78.
89 Sess. Laws 1915, p. 401, § 7.
(69)
§P 131-133 COURTS AND COURT OFFICERS (Ch. 1
decision of the commission is sought to be reviewed, the commis-
sion shall make an order or decision in accordance with the judg-
ment of said court. The commission shall not be liable for any
costs apart from said proceeding, but otherwise the costs shall be
taxed as in other cases." 90
§ 131. Formation of new counties
Exclusive original jurisdiction is conferred upon the Supreme
Court of Oklahoma over all controversies that may arise under the
provisions of law for the formation of new counties and selec-
tion of county seats, "and any person affected by such election
shall have a right to a hearing before the Supreme Court upon
application filed and presented within thirty days after any such
election shall be held." 9]
§ 132. Speedy hearing
"If any application for a hearing, upon any question arising after
such election has been held, is filed with the Supreme Court, it shall
be the duty of said court to make said matter special and give it
precedence over the other business of said court, and consider and
pass upon the same as speedily as is consistent with the business
of said court." 92
§ 133. Original jurisdiction — Division of assets and liabilities
among counties
Original and exclusive jurisdiction is conferred by law upon the
Supreme Court in all actions brought for the purpose of equitably
dividing and distributing the property, assets and liabilities, de-
rived through the process of taxation, bonds, warrants or other evi-
dences of indebtedness, of any county formerly existing in the
territory of Oklahoma, between such county and any. new county
or counties, and in all actions involving the custody of, or right to
transcribe the tax rolls or other records of any such county, and the
ownership and distribution of taxes assessed and collectable there-
in, and providing for the appointment of a special master in chan-
cery in such cases.83
80 Sess. Laws 1915, p. 586, art. 2, § 13.
91 Sess. Laws 1910-11, p. 81, § 13; Rev. Laws 1910, § 1533.
92 Sess. Laws 1910-11, p. 81, § 14; Rev. Laws 1910, § 1534.
93 Sess. Laws 1917, p. 226, g 1, amending Rev. Laws 1910, § 1512.
(70)
Art. 1) COURTS AND JUDGES §§134-136
§ 134. Parties — Proceedings
Any additional necessary party may be brought in on proper ap-
plication and showing after expiration of the thirty days. The pro-
ceeding under this statute is a summary proceeding to contest
county seat elections, exclusive jurisdiction being conferred upon
the Supreme Court, and any city, town, or place, being a candidate
for county seat at an election, has a right of hearing before the
Supreme Court on application filed within thirty days after the
election is held. The requirement that the petition be filed within
thirty days is jurisdictional. There is no requirement of the statute
that the county be a party to the proceeding.94
§ 135. Constitution
Section 6 of article 17 of the Constitution of Oklahoma provid-
ing for the relocation or removal of county seats of the different
counties of the state, is self-executing, and it was not necessary to
enact statutes in order that same might be enforced. The statute
provides additional precautions and supplements the procedure.95
§ 136. Jurisdiction — Removal of state capital and normal schools
"Exclusive original jurisdiction is hereby conferred upon the
Supreme Court of the state of Oklahoma, to hear and determine any
action that may be brought involving the legality of the removal or
location, or any attempt to remove or locate, the state capital or any
normal school or other educational or charitable institution of the
state, and in any such action the Supreme Court shall have the same
power and jurisdiction, including the power to appoint a referee,
which it now has under "the laws of this state in contests over the
location of county seats, and all such actions shall be governed by
the same procedure which now prevails in county seat contests :
Provided, that any resident taxpayer of this state, shall have a
right to a hearing before the Suprerne Court upon the execution
of a good and sufficient bond for cost, to be approved by the clerk
of the court. And, provided further that any and all actions brought
under the provisions of this act shall be commenced within ten days
after the passage of any act for the removal or location of the state
94 Incorporated Town of Westville v. Incorporated Town of Stillwell, 24
Okl. 892, 105 P. 664.
95 Incorporated Town of Westville v. Incorporated Town of Stillwell, 24
Okl. 892, 105 P. 664.
(71)
§§ 137-140 COURTS AND COURT OFFICERS (Ch. 1
capital or any normal school or other educational or charitable in-
stitution of the state." 9<J
§ 137. Jury trial, when
"In any cause in the Supreme Court wherein said court is exer-
cising its original jurisdiction in which an issue of fact is presented
properly triable by a jury, and either party to said cause demands
a jury trial, or in cases of indirect contempts, if the accused demands
a jury trial, said court shall not dismiss such cause for the reason
that a jury is required, but shall proceed in the manner hereinafter
prescribed." 97
§ 138. Trial
"The Supreme Court may try said issue of fact in bane or may
designate one of its members to preside at such trial; and a jury
shall be secured as provided in the following section. The court
or the justice trying the same shall conduct said trial, and the ver-
dict therein shall be rendered in the same manner as the trial of
issues of fact in civil causes in district courts." 98
§ 139. Jury — How selected
"The Supreme Court, or the member thereof designated to try
said issue of fact, shall by order direct the clerk of said court to is-
sue an open venire for twenty-four persons having the qualification
of jurors in the district court, to be drawn from the body of the
state, which venire shall state the time and place said jurors shall
appear. The venire shall be issued to and served and returned by
the marshal of said court. If any of said jurors shall be disquali-
fied to serve, the court may summon other jurors, in the manner
provided by law, to complete said panel. Challenges shall be al-
lowed to such jurors as in civil causes before the district court." "
§ 140. Costs— Witness fees
"The party demanding a jury shall deposit with the clerk of the
Supreme Court a sum sufficient to pay the expenses of summoning
the jury and the jurors' fees. The clerk, marshal, jurors and wit-
nesses shall be entitled to the same fees and mileage as are allowed
in the district court for like services. Witnesses may be notified by
86 Sess. Laws 1910-11, p. 1, § 1. »« Rev. Laws 1910, § 1756.
97 Rev. Laws 1910, § 1755. •• Rev. Laws 1910, § 1757.
(72)
Art. 1) COURTS AND JUDGES §§ 141-142
the clerk by mail and shall be required to attend from any county in
the state, if required by the party requesting such witness. The en-
tire costs in the cause shall be adjudged against the losing party,
or apportioned in such manner as the court may, in its discretion, di-
rect. The court may require deposits from either party as the
cause proceeds, to secure costs." x
§ 141. Reports
"The decisions and opinions of the Supreme Court shall be pub-
lished in volumes and known as the 'Oklahoma Reports.' Each
volume shall be labeled on the back, as follows: On a label near
the top, the words 'Oklahoma Reports' ; stamped in the center, the
consecutive figure designating the number of the volume; and on
a label near the bottom, the consecutive figure designating the
number of the volume, the consecutive number designating the
numerical order of the volume since statehood together with the
word 'State,' the name of the reporter preparing the volume for
publication, and the year or years in which the decisions and opin-
ions contained in the volume were rendered." 2
§ 142. Supreme Court rules
"The Justices of the Supreme Court shall meet every two years
during the month of June, at the capital of the state, and re-
vise their general rules, and make such amendments thereto as may
be required to carry into effect the provisions of this code, and
shall make such further rules consistent therewith as they may
deem proper. The rules so made shall apply to the supreme court,
the district courts, the superior courts, the county courts, and all
other courts of record." 8
1 Kev. Laws 1910, § 1758. * Rev. Laws 1910, § 5347.
2 Rev. Laws 1910, § 8159.
(73)
COURTS AXD COURT OFFICERS (Ch, 1
ARTICLE II
OTHER COURT OFFICERS
DIVISION I.— IN GENERAL
Sections
143. Compensation.
144. Deputies — Duties.
145. Bailiffs.
DIVISION II. — COURT CLERKS
146. Office — Selection — Eligibility.
147. Official bond — Form.
148. Powers and duties — Contestants.
149. Liabilities.
150. Deputies.
151. Vacancies.
152. Fees and salaries.
153. Books to be kept.
154. Appearance docket.
155. Indorsements.
156. Execution docket.
157. Judgment docket.
158. Journal.
159. Files.
160. Cases — Court records.
161. Application of statute.
162. Journal entry — Order of sale — Homestead — Insane spouse.
DIVISION III.— SHERIFFS AND OTHER PEACE OFFICERS
163. Sheriffs and deputies.
164. Service of writs and process — Amercement.
165. Substitute for sheriff.
166. Fees and salaries.
167. Power and duty.
168. Liability — Amercement.
169. Official bonds.
170. Acts of deputy.
171. Wrongful attachment.
172. Indemnity bonds.
.
DIVISION IV. — ATTORNEYS
173. Who permitted to practice — Examinations for admission.
174. Applicants to conform to rules — Fees for admission.
175. Examination — Commission.
176. Qualifications.
177. Persons not permitted to practice.
178. Attorneys from other states — How admitted.
179. Oath upon admission.
Art. 2) OTHER COURT OFFICERS §§ 143~145
Sections
180. Foreign attorneys.
181. Duties.
182. Power, duty, and liability.
183. Implied authority — Tender — Compromise— Notice.
184. May receive money for client.
185. Proof of authority to appear.
186. Purchasing property.
187. Lien for services — Extent — Notice.
188. Fees.
189. Enforcement — Compromise without notice.
190. Amount which may be recovered.
191. May not become surety in action in which employed.
192. Lien — Release by giving bond.
193. Suspension of license — Disbarment.
194. Causes.
195. Defenses — Limitations.
196. Proceedings — How commenced.
197. Trial — Judgment.
198. Attorney and client in general.
DIVISION I. — IN GENERAL
§ 143. Compensation
Special provisions have been made at various times for the s'al-
aries and compensation of county officers, deputies, and assistants in
particular counties,4 and also for assistants to state officers.5
§ 144. Deputies — Duties
"Any duty enjoined by this code upon a ministerial officer, and
any act permitted to be done by him, may be performed by his
lawful deputy." 6
§ 145. Bailiffs
A bailiff of a court of record is entitled only to a sum not ex-
ceeding that fixed by statute, and cannot claim additional compen-
sation because his duties require him to remain in attendance dur-
ing the nighttime.7
* Sess. Laws 1919, cc. 85, 86, 87, 90, 109, 114, 117, 132, 133, 136, 137, 140,
164, 165, 187, 213, 249, 250, 266, 271, 275, 294, 301.
5 Sess. Laws 1919, c. 215.
6 Rev. Laws 1910, § 5339.
T Board of Com'rs of Mclntosh County v. Whitaker, 59 Okl. 232, 158 P.
1136.
(75)
§§ 146-147 COURTS AND COURT OFFICERS (Ch. 1
DIVISION II. — COURT CLERKS
§ 146. Office— Selection— Eligibility
The office of court clerk is a county office,8 created by law, and
provision is made for his salary and for the appointment of deputy
court clerks and their salaries.9
In certain counties the court clerk is ex officio register of deeds.10
The judge of the court has no authority to fill the office by appoint-
ment.11
A woman, otherwise qualified, is eligible to hold the office.12
§ 147. Official bond— Form
"Before entering upon the duties of his office the clerk of the
district court shall give bond to the state of Oklahoma, in the sum
of not less than two thousand dollars, nor more than ten thousand
dollars to be fixed and approved by the board of county commis-
sioners, conditioned for the faithful performance of his official du-
ties, and for the accounting and paying over of all moneys by him
received as such officer." 18
Where a bond, voluntarily given by a clerk for a valid considera-
tion, prior to the passage of the act requiring official bonds to
be given by district clerks, named the state of Oklahoma as obligee,
and was conditioned for the faithful performance of his official acts
and for the accounting and paying over of moneys received by him
as such officer, it was a valid and binding obligation, though not re-
quired by statute.1*
OFFICIAL BOND
State of Oklahoma,
County of .
Know all men by these presents : That we, , as principal,
and , , and , are held and firmly bound unto (1)
8 Sexsmith v. Chappell, 130 P. 282, 35 Okl. 503 ; Beaty v. State, 130 P. 956,
35 Okl. 677.
8 Sess. Laws 1915, pp. 5-7, §§ 1-4, amending Sess. Laws 1913, pp. 330-334,
§§ 1, 5, 8, 9; Sess. Laws 1913, pp. 331, 332, §§ 2-4.
10 Sess. Laws 1913, pp. 406, 407, §§ 1-3.
"Matney v. King, 93 P. 737, 20 Okl. 22; Ramsey v. Same, 93 P. 754, 20
Okl. 67.
12 Gilliland v. Whittle, 127 P. 698, 33 Okl. 708.
« Rev. Laws 1910, § 5321.
"Ahsmuhs v. Bowyer, 39 Okl. 376, 135 P. 413, 50 L. R. A. (N. S.) 1060.
(76)
Art. 2) OTHER COURT OFFICERS §§ 147-148
>, in the sum of (2) dollars, for the payment of which
we hereby bind ourselves, our heirs, executors and administrators,
jointly and severally, by these presents.
Whereas, the above bounden was duly (3) to
the office of : — of the county of , in the state of Oklaho-
ma, on the day of , 19 — :
Now, therefore, the condition of this obligation is such, that if
the said • — shall (4) , then this obligation shall be void ;
otherwise, to remain in full force and effect.
In testimony whereof, witness our hands, this day of
, 19-.
(Qualification of sureties.)
(1) At least three sureties required.
(2) Fill in statutory amount required for the office specified.
(3) Elected or appointed.
(4) Specify the bounden obligation.
§ 148. Powers and duties — Contestants
"The clerk of each of the courts shall exercise the powers and
perform the duties conferred and imposed upon him by the stat-
utes of this state, and by the common law. In the performance of
his duties, he shall be under the direction of his court." 15
"Justices of the peace and other judicial tribunals having no
clerk, and the clerks of every court of record, shall, upon request,
and bein'g paid the lawful fees therefor, furnish an authenticated
transcript of the proceedings containing the judgment or final or-
der in said court, or of a case-made, to either of the parties to the
same, or to any person interested in procuring such transcript." 16
The clerk's duty in respect to recording proceedings, orders, judg-
ments, and decrees is ministerial, and he acts under the exclusive
jurisdiction and direction of his court.17 He is the officer of the
court, and in order to properly perform the duties devolving on him
15 Rev. Laws 1910, § 5335.
16 Rev. Laws 1910, § 5250.
17 Hirsh v. Twyford, 139 P. 313, 40 Okl. 220.
(77)
§§ 148-149 COURTS AND COURT OFFICERS (Ch. 1
by law it is the duty of the judge of the court to recognize him as
such.18
An order of a district court, directing the clerk to pay certain
money to a person named is a final order, and erroneous, where
the record shows that the fund never came into the hands of the
clerk, but into those of her predecessor, and was paid out by him
under order of the court.19
The judge should recognize as clerk the person holding the prima
facie title to the office.20
Where two persons claiming title to the office of clerk present
their credentials to the judge of the district court, and each request
the judge to recognize him as such clerk, it is the duty ol the
judge to examine such credentials to determine which one of the
claimants holds the prima facie title to the office, and such examina-
tion does not constitute passing on the title to public office.21
§ 149. Liabilities
A clerk receiving moneys by virtue of his office holds the same
in trust.22 His bond is liable for all moneys coming into his hands
as such clerk under the law and by virtue of his office and unac-
counted for by him.23
Deposits made in court cases to secure costs which, as earned,
belong to the county, are sums coming into the clerk's hands by vir-
tue of his office, as are also sheriff's and stenographer's fees coming
into the hands of a clerk of court and belonging to the county are
received by virtue of his office, and hence his bond is liable for the
failure to pay over same.24
Under the statute authorising actions on official bonds,25 the
drawer of a certified check deposited in lieu of bail, can sue on the
official bond of a district clerk who has cashed such check and em-
18Matney v. King, 93 P. 737, 20 Okl. 22; Ramsey v. Same, 93 P. 754, 20
Okl. 67.
19 Sanderson v. Sanderson, 186 P. 791, 91 Kan. 98.
20 Sanderson v. Sanderson, 136 P. 791, 91 Kan. 98.
21 Sanderson v. Sanderson, 136 P. 791, 91 Kan. 98.
•2 Fidelity & Deposit Co. of Maryland v. Rankin, 124 P. 71, 33 Okl. 7.
23 Hughes v. Board of Com'rs of Oklahoma County, 50 Okl. 410, 150 P.
1029; Southwestern Surety Ins. Co. v. Neal (Okl.) 197 P. 439.
-* Hughes v. Board of Com'rs of Oklahoma County, 50 Okl. 410, 150 P. 1029.
25 Rev. Laws 1910, § 5349.
(78)
Art. 2) OTHER COURT OFFICERS §§ 149-152
bezzled the proceeds, though the clerk's bond was executed to the
state of Oklahoma as obligee.28 That the statute does not authorize
the clerk to accept a certified check in lieu of a cash deposit men-
tioned in an order admitting to bail constitutes no defense in such
action.27
No action will lie against a clerk in charge of the records of
mechanics' and other liens, for a false certificate furnished a pur-
chaser that there were no liens against the property purchased,
where the only lien is one for materials furnished the grantor, which
was filed against the land after it had been conveyed to the pur-
chaser with warranty, for he cannot be injured by such certificate.28
§ 150. Deputies
A deputy clerk may perform the purely ministerial duties of the
clerk in recording the list of jurors on the journal of the court and
certifying to the correctness thereof.29
§ 151. Vacancies
Where the clerk is suspended under the statute authorizing
same,30 the county commissioners may fill the temporary vacancy,
and the appointee, after qualifying, may perform duties of office
during suspension.31
§ 152. Fees and salaries
The federal fee bill was not continued in force after statehood,
and hence clerks of courts of the state were not entitled^to receive
a fee of $5 per day for attending court.32
The court clerk receives the same salary as did the district court
clerk.33
-'6 Ahsmuhs v. Bowyer, 39 Okl. 376, 135 P. 413, 50 L. R. A. (N. S.) 1060.
27 Id.
28 United States Wind Engine & Pump Co. v. Linville, 23 P. 597, 43 Kan.
455.
29 Tegeler v. State, 9 Okl. Cr. 138, 130 P. 1164.
30 Rev. Laws 1910, §§ 5605, 5606.
31 Smith v. State, 13 Okl. Cr. 619, 166 P. 463.
32 Hughes v. Board of Com'rs of Oklahoma County, 50 Okl. 410, 150 P.
1029; Board of Com'rs of Grant County v. Ernest, 45 Okl. 725, 147 P. 322;
Hughes v. Board of Com'rs of Oklahoma County, 50 Okl. 410, 150 P. 1029.
An allowance by the board of county commissioners of $5 per day to the
83 Board of Com'rs of Oklahoma County v. Beaty, 53 Okl. 393, 156 P. 1181 ;
In re Laing, 143 P. 665, 43 Okl. 598.
(79)
§§ 152-156 COURTS AND COURT OFFICERS (Ch. 1
The clerk cannot recover for making a transcript different from
that ordered.34
Where the county commissioners paid a district court clerk a per
diem fee for attending sessions for which there was no statutory
authority, such payments may be recovered from the clerk.86
§ 153. Books to be kept
"The clerk of the district court shall keep an appearance docket,
a trial docket, a journal, a judgment docket, an execution docket,
and such other books as may be ordered by the court or required
by law." 8<s
§ 154. Appearance docket
"On the appearance docket he shall enter all actions in the order
in which they are brought, the date of the summons, the time of
the return thereof by the officer, and his return thereon, the time
of riling the petition, and all subsequent pleadings and papers, and
an abstract of all judgments and orders of the court." S7
§ 155. Indorsements
"He shall indorse upon every paper filed with him, the day of
filing it; and upon every order for a provisional remedy, and upon
every undertaking given under the same, the day of its return to
his office." 38
§ 156. Execution docket v
"In the execution docket the clerk shall enter all executions as
they are issued by him. The entry shall contain the names of the
parties, the date and amount of the judgment and costs, the date
of the execution, and the name of the county to which it is issued.
The clerk shall also record in full the return of the sheriff to each
execution ; and such record shall be evidence of such return, if the
original be mislaid or lost." 39
district clerk for attending court held void. Board of Com'rs of Grant Coun-
ty v. Ernest, 45 Okl. 725, 147 P. 322.
s* Lawson v. Guthrie, 137 P. 1186, 40 Okl. 598.
35 Harper v. Board of Com'rs of Oklahoma County, 54 Okl. 545, 149 P.
1102.
a6 Rev. Laws 1910, § 5322. «« Rev. Laws 1910, § 5331.
»7Rev. Laws 1910, § 5323. «9Rev. Laws 1910, § 5326.
(80)
Art. 2) OTHER COURT OFFICERS §§ 157~162
§ 157. Judgment docket
"The judgment docket shall be kept in the form of an index in
which the name of each person against whom judgment is rendered
shall appear in alphabetical order, and it shall be the duty of the
clerk immediately after the rendition of a judgment to enter on
said judgment docket a statement containing the names of the par-
ties, the amount and nature of the judgment and costs, and the
date of its rendition, and the date on which said judgment is entered
on said judgment docket; and if the judgment be rendered against
several persons, the entry shall be repeated under the name of
each person against whom the judgment is rendered in alphabet-
ical order." 40
§ 158. Journal
"On the journal shall be entered the proceedings of the court
of each day, and all orders of the judge in vacation or at chambers,
and also all judgments entered on confession or default." 41
§ 159. Files
"It is the duty of the clerk of each of the courts to file together,
and carefully preserve in his office, all papers delivered to him for
that purpose, in every action or special proceeding." 42
§ 160. Cases — Court records
"He shall keep the papers in each case, separate, carefully en-
veloped in a wrapper, labeled with the title and number of the
case." 43
"He shall keep the records and books and papers appertaining
to the court, and record its proceedings." 44
§ 161. Application of statute
"The provisions of this article shall as far as they are applicable,
apply to the clerk of all courts of record." 45
§ 162. Journal entry — Order of sale — Homestead — Insane spouse
If the court shall make an order authorizing the sale of the
homestead where one spouse is insane, such order "shall be entered
upon the minutes of the court, and thereafter the sale, conveyance
40 Rev. Laws 1910, § 5325. 43 Rev. Laws 1910, § 5330.
41 Rev. Laws 1910, § 5324. 44 Rev. Laws 1910, § 5333.
42 Rev. Laws 1910, § 5329. 45 Rev. Laws 1910, § 5334.
HON.PL.& PRAC.— 6 (81)
§§ 163-165 COURTS AND COURT OFFICERS (Ch. 1
or mortgage made in pursuance of such order shall be as valid and
effectual as if the property affected thereby was the absolute prop-
erty in fee simple of the person making such sale, conveyance or
mortgage." 46
DIVISION III. — SHERIFFS AND OTHER PEACE OFFICERS
§ 163. Sheriffs and deputies
The duties and salary of sheriffs and their deputies are prescribed
by statute.47
§ 164. Service of writs and process — Amercement
"The sheriff in person, or by his undersheriff or deputy, shall
serve and execute, according to law, all process, writs, precepts
and orders issued or made by lawful authorities, and to him directed,
and shall attend upon the several courts of record held in his coun-
ty." 48
"He shall execute every summons, order or other process, and
return the same as required by law ; and if he fail to do so, unless
he make it appear to the satisfaction of the court that he was pre-
vented by inevitable accident from so doing, he shall be amerced
by the court in a sum not exceeding one thousand dollars, upon
motion and ten days' notice, and shall be liable to the action of any
person aggrieved by such failure." 49
, . /
§ 165. Substitute for sheriff
"The court or judge, or any clerk, in the absence of the judge
from the county, for good cause, may appoint a person to serve
a particular process or order, who shall have the same power to
execute it which the sheriff has. The person may be appointed
on the application of the party obtaining the process or order, and
the return must be verified by affidavit. He shall be entitled to
the same fees allowed to the sheriff for similar services." 50
4(3 Rev. Laws 1910, § 1149.
*7 Rev. Laws 1910, §g 3198-3202 ; Sess. Laws 1910-11, pp. 27-29, §§ 1-4 ;
Sess. Laws 1921, p. 82.
48 Rev. Laws 1910, 8 1699.
49 Rev. Laws 1910, § 5337.
50 Rev. Laws 1910, § 5320.
Where a sheriff is in his office ready to serve process issued by the probate
judge, and the sheriff's office is in the same building, the probate judge is
(82)
Art. 2) OTHER COURT OFFICERS §§ 165-166
A requirement that the appointment of a deputy sheriff shall be
filed with the county clerk, is directory, and failure to file the ap-
pointment actually made will not invalidate it nor the official acts of
the deputy.61
The appointment of a person by the sheriff to serve a summons
must be in writing.52
§ 166. Fees and salaries
The fees and salaries of sheriffs, constables, jailers, and deputies
have been recently fixed by statute.53
A county is not liable to a deputy sheriff for $3 per day for serv-
ices as guard while carrying persons adjudged insane to the state
hospital for the insane.54
Where a sheriff takes charge of property under an order of re-
plevin, he can only be allowed for caring for the same while he is
in possession thereof, and his return on an order of replevin is con-
clusive as to him as to the length of time such property was in
his possession.55
A sheriff is not entitled to a commission in connection with a
foreclosure sale, where the mortgagee is the purchaser, and the
entire amount of the purchase price is applied as a credit upon the
judgment.58
There is no provision of law requiring the payment of fees in
advance to an officer for serving subpoena in a criminal case.57
without authority to appoint a special sheriff to serve the process. Skinner
v. Board of Com'rs of Cowley County, 66 P. 635, 63 Kan. 557.
An appointment of a special officer to serve process in attachment, made
by the clerk of the district court, upon an application which did not show
that the court was not in session in the county, or that the judge was ab-
sent therefrom, and which failed to show that the sheriff and his deputies
were interested in the proceeding, out of the county, or in any way disquali-
fied to act, but contained as an only reason that the plaintiffs' attorney had
looked with diligence for the sheriff or his deputy, but in vain, and that it
was important that papers should be served at once, is unauthorized, and a
levy thereunder invalid. Dolan v. Topping, 32 P. 1120, 51 Kan. 321.
51 Orchard v. Peake, 77 P. 281, 69 Kan. 510.
52 Baxter v. Yeagley, 8 Kan. App. 657, 56 P. 509. See Rev. Laws 1910, §§
1695, 1696.
53 Sess. Laws 1921.
54 Board of Com'rs of Garfield County v. Bebb, 52 Okl. 18, 152 P. 595.
55 Allen Dudley & Co. v. Clevenger, 19 Okl. 208, 91 P. 908.
se Berry v. Kiefer, 38 Okl. 377, 133 P. 1126.
57 Thompson v. State, 118 P. 614, 6 Okl. Cr. 334.
(83)
§§ 166-168 COURTS AND COURT OFFICERS (Ch. 1
A county is liable to a deputy sheriff for only 60 per cent, of the
mileage earned by him in serving or attempting to serve criminal
process.68
§ 167. Power and duty
The right of a sheriff who has sold property at judicial sale to
sue the purchaser for the amount of the bid, after paying the
amount to which the judgment creditor was entitled out of the pro-
ceeds of the sale, is not defeated by the expiration of his term of
office.69
The sheriff of a county in which judgment was entered, and
from a portion of which a new county was formed, had no author-
ity to levy on and sell real estate in the new county; and a deed
executed by him under an order of sale was void.60
'A sheriff in whose hands an attachment order is placed, and to
whom personal property is pointed out by the creditor as belong-
ing to the debtor, and to whom a bond is tendered indemnifying
him against the consequences of a levy on such property, is not, by
reason of such facts, required to make the levy, if in good faith
he believes it would be wrongful. He may refuse to make it, and
in justification of his refusal may prove the existence of valid liens
on the property to an amount exceeding its value.61
§ 168. Liability — Amercement
An "amercement" is a money penalty in the nature of a fine
imposed on an officer for some misconduct or neglect of duty, and
is a statutory proceeding, and the statutes relating thereto must be
strictly construed.62 Before an officer can be amerced, it must ap-
pear that a valid judgment has been entered, that it has not been
satisfied, that the creditor or some one acting for him has filed a
praecipe for execution, that an execution lias been delivered to the
officer, and he has failed to serve or return it.63
58 Board of Com'rs of Grady County v. Castleman (Okl.) 166 P. 891.
59 Trustees', Executors' & Securities' Ins. Corp. v. Bowling, 44 P. 42, 2 Kan.
App. 770.
60 Farmers' State Bank of Ingersoll v. Wilson, 127 P. 395, 34 Okl. 755.
61 Phelps, Dodge & Palmer Co. v. Skinner, 65 P. 667, 63 Kan. 364.
«2 Stein v. Scanlan, 34 Okl. 801, 127 P. 483, 42 L. R. A. (N. S.) 895.
83 Id.
Where a' judgment was entered for $211, and no costs, and the execution
showed the judgment to be for $211 and $184 costs, and no effort was made
(84)
Art. 2) OTHER COURT OFFICERS § 168
Where property is struck off to a bidder who refuses to pay the
amount of his bid, and the sheriff, instead of rescinding the con-
tract and reselling the property, treats the sale as consummated, and
to supply the omission, there was such a variance as would prevent the court
from entering a judgment in amercement for the full amount. Stein v. Scan-
Ian, 34 Okl. 801, 127 P. 483, 42 L. R. A. (N. S.) 895. Where a judgment
recites that it was rendered May 11, 1909, and execution shows that it was
rendered May 13, 1909, the court will not render judgment of amercement
against the sheriff for failure to return the execution. Id.
Where an execution shows that the judgment on which it purports to have
been issued is for an amount greater than the actual judgment in the case,
the officer to whom it is issued is not liable for neglecting to return it until
after its return day. Fisher v. Franklin, 16 P. 341, 38 Kan. 251.
Where* by mistake of the clerk, certain costs are erroneously taxed and
indorsed on an execution, the sheriff, after selling land under it, cannot be
amerced at the instance of the execution creditor for retaining the amount
of such costs. Kothman v. Prest, 8 P. 228, 34 Kan. 179.
Under a judgment entered October 14, 1885, the sheriff is not liable to
amercement for failing to serve and return, in 60 days, an execution recit-
ing the judgment as rendered on October 14, 1886. Bittman v. Mize, 25 P.
S75, 45 Kan. 450.
Where a plaintiff is seeking to amerce a sheriff for his neglect or failure in
returning an execution, the execution, to sustain such a proceeding, must
conform strictly to the judgment rendered. Fuller v. Wells, Fargo & Co., 22
P. 561, 42 Kan. 551 ; Gleason v. Itten, 34 P. 892, 52 Kan. 218.
On a motion to amerce a sheriff for failure to serve an execution, where it
appears that the judgment on which the execution was based had been in
fact satisfied, and where it further appears that at the time of the hearing
of the motion to amerce, a judgment had been duly entered canceling the
judgment on which the execution issued, the trial court did not err in over-
ruling the motion. Union Stove & Mach. Works v. Caswell, 32 P. 362, 50 Kan.
787.
Where the execution commands the sheriff to collect a sum in excess of
that named in the judgment, the sheriff cannot be amerced for failure to
return the same within the time allowed. Reese v. Rice, 41 P. 218, 1 Kan.
App. 311. In proceedings to amerce a sheriff for failure to return an execu-
tion within 60 days, an affidavit of the clerk of court, who received the execu-
tion by mail, that it arrived June 12th, and the fact that the postmark on
the envelope in which the execution was returned showed that it was mailed
June llth, do not overcome the indorsement on the writ that it was returned
June 4th, and the indorsement of the return by the clerk of the court, with
which it was filed before being mailed that it was filed on that day, and the
affidavit of the sheriff that it was mailed on the day on which it was re-
turned. Id.
Where the successful bidder at a sheriff's sale repudiated the sale on ac-
count of an omission in the advertisement, and the sheriff duly returned the
order of sale, with a certificate of the facts thereon, and afterwards another
order of sale was issued, the fact that the property sold for a much less sum
than at the first sale did not constitute a failure on the part of the sheriff to
(85)
§ 168 COURTS AND COURT OFFICERS (Ch. 1
surrenders possession of the property to the purchaser, he thereby
makes himself liable for the amount of the bid.64
When a sheriff fails to make return of a writ of execution, as re-
quired by statute, the court must amerce him whether his omission
results from willful wrong or mere neglect, and whether it has re-
sulted in actual injury or not.65
Where a special execution commands the sheriff to pay all taxes
on the land, and a purchaser agrees with the judgment creditor,
before confirmation of the sale, to pay all delinquent taxes, and, in
pursuance thereof, buys the outstanding tax certificates, the sheriff
having no authority, after confirmation of the sale, to pay the taxes,
if he does so, with knowledge of all the facts, and against the ob-
jections of the party interested, he may be amerced.66
Where on demand for the return of property levied on, which
property exceeds the amount exempt, there is no effort to make
a selection the judgment debtor cannot recover damages in a sub-
sequent replevin action against the officer.07
Where a judgment is rendered in one county, and an execution
is issued thereon to the sheriff of another county, and such sher-
iff fails to return the execution, as required by law, proceedings
to amerce such sheriff can be maintained only in the court out of
which the execution was issued.68
In proceedings against a sheriff for removal for corruptly refusing
to collect a tax warrant, it was not necessary to show that the tax
warrant was in all respects legal, if it was regular on its face and is-
sued by a competent officer in discharge of his duty.69
Where the court has jurisdiction over the subject-matter, and
the process is regular on its face, it affords complete protection to
the officer executing it.70
execute the first order, so as to subject him to the amercement. Moore v.
Burdge, 52 P. 912, 7 Kan. App. 80.
64 Walker v. Braden, 9 P. 613, 34 Kan. 660.
65 Henderson-Sturges Piano Co. v. Smith, 33 Okl. 335, 125 P. 454, citing
Rev. Laws 1910, § 5180.
66 Kothman v. Prest, 8 P. 228, 34 Kan. 179.
67 Parsons v. Evans, 44 Okl. 751, 145 P. 1122, L. R. A. 1915D, 381.
68 Fisher v. Franklin, 16 P. 341, 38 Kan. 251; Reynolds v. Nelson, 19 P.
353, 40 Kan. 41.
09 Rutter v. Territory, 68 P. 507, 11 Okl. 454.
70 Holdredge v. McCombs, 56 P. 536, 8 Kan. App. 663.
It is the duty of a ministerial officer to whom a search warrant is directed
(86)
Art. 2) OTHER COURT OFFICERS §§ 168-169
However, where a constable illegally exercises authority under
a legal writ of replevin, so as to warrant the conclusion that he
intended from the first to use the authority as a cover for illegal
conduct, he is liable as a trespasser ab initio.71
§ 169. Official bonds
Sureties on the official bond of a sheriff are only answerable for
acts of their principal while engaged in performance of some duty
imposed on him by law, or for an omission to perform such duty.
That an officer, in doing an act claimed to be a breach of his bond,
claimed to act in an official capacity, is not sufficient to show color
of office, without proof that he was armed with a writ, or, if the
writ was void, that there was a statute authorizing the act to be
done without process.72
A sale was made and duly returned, but before the confirmation
thereof the term of office of the sheriff expired, and he was re-elected
to the office. Afterwards such sale was confirmed and the property
•conveyed to the purchaser. The court held that the bondsmen on
the sheriff's bond for his. second term are not liable for the money
the sheriff ought to have received, but did not receive, during his
first term of office.73
to execute the writ as demanded, if the same is issued by an officer having
authority, and is regular on its face, and in such a case the writ is a protec-
tion to the officer. Kniseley v. Ham, 136 P. 427, 39 Okl. 623, 49 L. R. A.
(N. S.) 770.
Where a search warrant was void because wrongfully issued, it could af-
ford no justification to any officer in making a search. Duncan v. State, 11
Okl. Cr. 217, 144 P. 629. An attempt to make a second search on a warrant
once served, makes a trespasser of the officer attempting the search, though
the warrant was originally valid. Id.
71 Wurmser v. Stone, 40 P. 993, 1 Kan. App. 131.
72 Jordan v. Neer, 125 P. 1117, 34 Okl. 400.
Coiistables. — Sureties on the bond of a constable are answerable only for
his acts while engaged in some duty imposed by law, or from omission to
perform such duty. Inman v. Sherrill, 116 P. 426, 29 Okl. 100.
Constables and sureties are liable for misapplication of funds from check
seized under attachment, where constable serves copy of attachment and
takes possession of property, though he fails to properly complete levy and
return. Williams v. Arends, 57 Okl. 556, 157 P. 313.
A redelivery bond taken by a constable, who did not levy the writ and who
has no possession thereunder, is not taken by him in his official capacity, and
his approval imposes no liability on his official bond. Burton v. Doyle (Okl.)
165 P. 169.
73 Studebaker v. Johnson, 21 P. 271, 41 Kan. 326, 13 Am. St. Rep. 2S7.
(87)
§§ 170-171 COURTS AND COURT OFFICERS (Ct). 1
§ 170. — — Acts of deputy
Where a deputy sheriff makes a levy on property not authorized
by the writ of execution, the sheriff is also responsible with him
for damages.74
That a deputy sheriff becomes angered in the discharge of his
duty does not deprive his subsequent acts of their official char-
acter. Nor does the fact that he momentarily abandons his efforts
to arrest a person without a warrant render the resumption of
this duty any the less an official act. Where a deputy sheriff, in
attempting to make an arrest without a warrant, kills a person
guilty of a misdemeanor, to prevent him from escaping, the sheriff
and his bondsmen are liable.75
Where a person is illegally shot by deputy sheriffs, the sheriff
may be made liable by proof that he was also present, aiding, abet-
ting, and encouraging the act of the deputies.76
§ 171. Wrongful attachment
Where a sheriff levies an attachment on part of a stock of goods,
and holds possession of the entire stock, the fact that other levies
were subsequently made by him on the other portions of the same
stock did not affect the right of action of the owners for the wrong-
ful possession first taken, which was never surrendered. Where
he has stated that he will assume all responsibility, a right of action
for conversion arises in favor of the owners.77
Where a writ of attachment is issued to a county other than the
one in which the action was brought, and the officer executes it as
provided by law, he is not liable in damages because the land was,
after the levy, fold by an owner to an innocent purchaser, whereby
plaintiff lost his security.78
An officer who has levied a wrongful attachment on a stock of
merchandise, and excluded the owner from the store, is respon-
sible for whatever articles lie allows others to take therefrom,
though he has not levied on them, and they be taken under process
against another person.79
74 Frankhouser v. Cannon, 32 P. 379, 50 Kan. 621.
7 5 Meek v. Tilghman, 55 Okl. 208, 154 P. 1190.
70 Jordan v. Neer, 125 P. 1117, 34 Okl. 400.
77 Burdge v. Kelchner, 72 P. 232, 66 Kan. 642.
78 Mount v. Trammel (Okl.) 175 P. 232, citing Rev. Laws 1910, § 4819.
79 Simpson v. Voss, 1 P. 601, 31 Kan. 227.
(88)
Art. 2) OTHER COURT OFFICERS §§ 171-172
An officer who wrongfully levies attachment on and sells the sep-
arate property of a wife in an action against her husband is guilty
of conversion and liable in damages.80
A writ of attachment directed against the former owner of certain
grain afforded no justification to the sheriff for its seizure in the
hands of a subsequent purchaser.81
A sheriff, being in possession of a stock of goods by virtue of a
levy made in pursuance of writs of attachment in his hands, is not
responsible to a subsequent chattel mortgagee for conversion, when
a receiver, duly appointed by the court from which the orders of
attachment issued, takes exclusive control and possession of the
goods, sells the same, and receives the proceeds.82
The fact that a small amount was due from the mortgagor to the
holder of a prior mortgage, who was in possession of the property,
did not affect the right of a subsequent mortgagee to recover for
a conversion of the property by a sheriff, under a writ of attach-
ment.83
§ 172. Indemnity bonds
An execution creditor, who has indemnified the sheriff, must give
instructions when asked for, and when he fails to give such in-
structions the sheriff may proceed according to his best judgment,
and the indemnitor will be liable for damage sustained by the
sheriff.84
It is a defense to an action on an indemnity bond given an officer
by an attachment creditor that through gross laches the officer
failed to notify the creditor of a suit by a third person to recover
the goods attached, and permitted such person to take judgment
by default, pursuant to an agreement between the two that the
officer should recover the amount of the judgment from the cred-
itor.85
The obligee in an indemnity bond conditioned to save him harm-
less from any damages cannot sue thereon until he has, by the
payment of the judgment against him, been damaged, but payment
80 Sale v. Shipp, 58 Okl. 598, 160 P. 502.
81 Cook v. Higgins, 71 P. 259, 66 Kan. 762.
82 Smith-Frazer Boot & Shoe Co. v. Ware, 28 P. 159, 47 Kan. 483.
83 Johnson v. Anderson, 57 P. 513, 60 Kan. 578.
84 Ireland v. Linn County Bank, 103 Kan. 618, 176 P. 103, 2 A. L. R. 184.
85 Armour Packing Co. v. Orrick, 46 P. 573, 4 Okl. 661.
(89)
§§ 172-174 COURTS AND COURT OFFICERS (Ch. 1
may be made in the note of the obligee, if accepted as actual pay-
ment and satisfaction of the judgment.86
A sheriff, indemnified for enforcement of execution, can recover
attorney's fees in protecting his interests in the personalty levied
on, and in resisting actions against him, and his mileage fees and
fees paid for publication of notice of sale and expenses in caring
for property.87
When final judgment was rendered against the sheriff for con-
version in making a wrongful levy, the plaintiff's right of action
accrued against the surety on a bond taken by the sheriff to indem-
nify him in making the levy.88
DIVISION IV. — ATTORNEYS
§ 173. Who permitted to practice — Examinations for admission
"No person shall be permitted to practice as an attorney and
counselor at law, or to commence, conduct, or defend any action
or proceeding, in which he is not a party concerned, either by using
or subscribing his own name, or the name of any other person,
unless he has been previously admitted to the bar by order of the
Supreme Court, and the court shall fix the time when examina-
tions shall take place, which may be either in term or vacation,
and shall fix the examination and admission fees, and prescribe and
publish rules to govern such examinations." 89
§ 174. Applicants to conform to rules — Fees for admission
"Persons making application for license to practice law in the
courts of this state shall conform to the rules established by the
Supreme Court and those applicants who are required to be ex-
amined shall at the time of making application for license to prac-
tice law pay to the clerk of the Supreme Court, in addition to any
86 Gardner v. Cooper, 58 P. 230, 9 Kan. App. 587, judgment affirmed 60 P.
540, 9 Kan. App. 587.
>7 Ireland v. Linn County Bank, 103 Kan. 618, 176 P. 103, 2 A. L. R. 184.
88 Gardner v. Cooper, 60 P. 540, 9 Kan. App. 587, affirming judgment 58
P. 230, 9 Kan. App. 587.
S9Rev. Laws 1910, § 234.
Unqualified persons are prohibited from practicing law. Sess. Laws 1919,
p. 248, §§ 1-3.
An attorney admitted to practice in the Indian Territory United States
Court was eligible to admission to practice in the Oklahoma Supreme Court.
Martindale v. Shaha, 51 Okl. 670, 151 P. 1019.
(90)
Art. 2) OTHER COURT OFFICERS -§§ 175-177
fee that may be required by law for the issuance of the license,
the sum of twelve dollars. All other applicants shall pay to the
clerk of the Supreme Court at the time of filing their application in
addition to the fee that is or may be required by law, for the issu-
ance of license, the sum of five dollars." °°
§ 175. Examination — Commission
"When a person applies to said court for admission to the bar,
he shall be examined by the court, or by a commission appointed
by the court, and under such rules and regulations as the court
may provide, touching his fitness and qualifications ; and if, on
such examination, the court is satisfied that he is of good moral
character, and has a competent knowledge of the law, and suffi-
cient general learning, an oath of office shall be administered to
him, and an order shall be made on the journal that the applicant
be admitted to practice as an attorney and counselor at law in all
courts of record of this state: Provided, that said court may ap-
point, to serve for one or more years, a commission composed of
not less than five persons learned in the law to assist in such ex-
amination. The clerk of the Supreme Court shall be ex officio sec-
retary of any commission appointed by the Supreme Court to assist
in the examination of applicants." 91
§ 176. Qualifications
"No person shall be admitted to such examination unless he is
twenty-one years of age, and is a citizen of the United States, or
has declared his intention of becoming a citizen thereof; nor until
he has produced from some attorney at law a certificate setting
forth that the applicant is of good moral character, and that he has •
regularly and attentively studied law during the period of two years
previous to his application, and that he believes him to be a person
of sufficient legal knowledge and ability to discharge the duties of
an attorney and counselor at law." 92
§ 177. Persons not permitted to practice
"No person shall practice as an attorney and counselor at law in
any court of this state who is not a citizen of the United States, or
po Rev. Laws 1910, § 235. »2 Rev. Laws 1910, 8 239.
91 Rev. Laws 1910, § 237.
(91)
§§ 178-179 COURTS AND COURT OFFICERS (Ch. 1
who holds a commission as judge of any court of record, or who is
a sheriff, coroner, or deputy sheriff; nor shall the clerk of the
Supreme Court, or the clerk of the district court, or probate court,
or the deputy of either, practice in the particular court of which he
is clerk or deputy clerk; but nothing herein contained shall prevent
any judge of any of the courts of this state from finishing any busi-
ness by him undertaken in the district, circuit or Supreme Court
of the United States, prior to his election or appointment as judge ;
and an alien who has declared his intention to become a citizen of
the United States may practice as if he were a citizen." 93
§ 178. Attorneys from other states — How admitted
"Any person residing in the state or coming into the state for
the purpose of making it his permanent residence, upon producing
satisfactory evidence that he has been regularly admitted as an at-
torney and counselor at law in another state or territory, where
an examination in the highest appellate court of the state is required,
may be admitted to practice law in this state under such rules,
regulations and conditions as the Supreme Court may make and
publish, upon producing satisfactory evidence that he is a person
of good moral character, and that he has never been disbarred." 94
V
§ 179. Oath upon admission
"Upon being permitted to practice as attorneys and counselors
at law, they shall, in open court, take the following oath: 'You
do solemnly swear that you will support, protect and defend the
Constitution of the United States, and the Constitution of the
state of Oklahoma ; that you will do no falsehood or consent that
any be done in court, and if you know of any you will give knowl-
edge thereof to the judges of the court, or some one of them, that
it may be reformed ; you will not wittingly, willingly or knowingly
promote, sue, or procure to be sued, any false or unlawful suit, or
give aid or consent to the same; you will delay no man for lucre
or malice, but will act in the office of attorney in this court accord-
ing to your best learning and discretion, with all good fidelity as
well to the court as to your client. So help you God.' " 96
93 Rev. Laws 1910, § 240. »» Rev. Laws 1910, § 242.
9 * Rev. Laws 1910, § 241.
(92)
Art. 2) OTHER COURT OFFICERS §§ 180-182
§ 180. Foreign attorneys.
"Any practicing attorney of another state or territory, having
professional business in the courts of this state, may be admitted to
practice therein upon taking the oath aforesaid." 9a
§ 181. Duties
"It is the duty of an attorney and counselor:
"First. To maintain, while in the presence of the courts of
justice, or in the presence of judicial officers engaged in the dis-
charge of judicial duties, the respect due to the said courts and
judicial officers, and at all times to obey all lawful orders and
writs of the court.
"Second. To counsel and maintain no actions, proceedings or
defenses except those which appear to him legal and just, except
the defense of a person charged with a public offense.
"Third. To employ for the purpose of maintaining the causes
confided to him such means only as are consistent with truth, and
never to seek to mislead the judges by any artifice or false state-
ments of facts or law.
"Fourth. To maintain inviolate the confidence, and, at any peril
to himself, to preserve the secrets of his client.
"Fifth. To abstain from all offensive personalities, and to ad-
vance no fact prejudicial to the honor or reputation of a party or
witness unless required by the justice of the cause with which he
is charged.
"Sixth. Not to encourage either the commencement or contin-
uance of an action or proceeding from any motive of passion or
interest.
"Seventh. Never to reject for any consideration personal to him-
self the cause of the defenseless or the oppressed." 9I
§ 182. Power, duty, and liability
The court should treat all persons having business therein with
absolute fairness, and such persons, and especially attorneys, should
treat the court in the same manner, and unfairness of attorneys,
and any attempt to impose upon the confidence of the court, can-
not be too strongly condemned. The proper administration of jus-
»6 Rev. Laws 1910, § 243.
87 Rev. Laws 1910, § 244.
(93)
§§ 182-183 COURTS AND COURT OFFICERS (Ch. 1
tice requires that attorneys- should be fair and honorable with op-
posing counsel, the court, and their clients.98
Attorneys are not liable, if their acts are in good faith and perti-
nent to the matter in question."
An attorney undertaking to conduct a case impliedly agrees
to carry it to its termination, and cannot abandon it without cause
or reasonable notice.1
Ratification of the act of an attorney is equivalent to an original
grant of authority.2
§ 183. Implied authority — Tender — Compromise — Notice
An attorney, employed to institute and prosecute a suit, has no
implied authority to receive a tender,3 or to make a compromise or
settlement.4
98 Caples v. State, 104 P. 493, 3 Okl. Cr. 72. 26 L. R. A. (N. S.) 1033.
Attorneys must treat each other and the trial courts with fairness and
good faith. Simmons v. State, 114 P. 752, 4 Okl. Cr. 490, denying rehearing
112 P. 35, 4 Okl. Cr. 489.
While it is an attorney's duty to do everything that is fair and legal to
protect the substantial rights of his client, it is also his duty to the court to
try the case on its actual merits, and not to present questions, not jurisdic-
tional, which are purely technical, and do not involve the actual merits. Os-
tendorf v. State, 128 P. 143, 8 Okl. Cr. 360.
Defendant, an attorney employed to protest confirmation of a guardian's
sale of client's land, who, after his protest, failed, and on information to and
approval by client raised the bid and purchased land and, after offering it
to client for amount of bid, sold it at a small profit, held, on the evidence, to
have acted in utmost good faith and fairness to client. Watts v. Jackson, 75
Okl. 123, 182 P. 508.
99 Waugh v. Dibbens, 61 Okl. 221, 160 P. 589, L. R. A. 1917B, 360.
iMcLaughlin v. Nettleton, 47 Okl. 407, 148 P. 987. He is authorized by
his employment to do in behalf of his client all acts necessary or incidental
to prosecution and management of suit which affect the remedy as distin-
guished from the cause of action. He has the right to waive a jury and
consent to try his client's case on a date before the action regularly stands
for trial. Neil v. Union Nat. Bank of Chandler (Okl.) 178 P. 659.
On an issue as to the sufficiency of a notice to vacate certain railroad de-
pot grounds, signed in the name of the railroad company . by F. and A., "its
attorneys," the word "attorneys" should be construed to mean attorneys at
law. Nolan v. St. Louis & S. F. R. Co., 91 P. 1128, 19 Okl. 51. A duly au-
thorized attorney, after employment, may give any notice affecting the sub-
stantial rights of his client that the client might himself have given, and
those affected by the notice must take notice thereof. Id.
2 St. Louis & S. F. R. Co. v. Leger Mill Co., 53 Okl. 127, 155 P. 599.
3 Massachusetts Bonding & Ins. Co. v. Vance (Okl.) 180 P. 693.
4 Massachusetts Bonding & Ins. Co. v. Vance (Okl.) 180 P. 693; First
(94)
Art. 2) OTHER COURT OFFICERS §§ 183~186
Where an attorney compromises a pending action and his au-
thority to do so is put in issue, the burden is on the party assert-
ing the compromise to .show authority therefor or ratification
thereof.5 But in an action to enforce a compromise and settlement
of a damage case, it will not be presumed that the attorney mak-
ing the settlement for defendant was without lawful authority, and
slight evidence will be deemed sufficient to take the case to the
jury on that question.6
Prior to judgment, an attorney has no interest in the cause of
action enabling him to prevent any bona fide settlement by the
client.7
§ 184. May receive money for client
"An attorney and counselor has power to receive money claim-
ed by his client in an action or proceeding during the pendency
thereof, or afterwards, unless he has been previously discharged
by his client, and, upon payment thereof, and not otherwise, to dis-
charge the claim or .acknowledge satisfaction of the judgment." 8
§ 185. Proof of authority to appear
"The court may, on motion of either party, and on the showing
of reasonable grounds therefor, require the attorney for the adverse
party, or for any one of the several adverse parties, to produce or
prove by his oath, or otherwise, the authority under which he ap-
pears, and, until he does so, may stay proceedings by him on behalf
of the parties for whom he assumes to appear." '
§ 186. Purchasing property
An attorney is not under an absolute disability to purchase his
client's property; but where he does purchase, he assumes burden
of proving his utmost good faith, his payment of an adequate con-
sideration, and that he fully informed client of all material facts and
State Bank of Indiahoma v. Carr (Okl.) 180 P. 856; Turner v. Fleming, 13O
P. 551, 37 Okl. 75, 45 L. R. A. (N. S.) 265, Ann. Gas. 1915B, 831.
5 Scott v. Moore, 52 Okl. 200, 152 P. 823 ; Hamberger v. White, 54 Okl.
736, 154 P. 576.
6 St. Louis & S. F. R. Co. v. Leger Mill Co., 53 Okl. 127, 155 P. 599.
7 Wells Fargo & Co. v. Moore, 31 Okl. 135, 120 P. 612.
8 Rev. Laws 1910, § 245.
9 Rev. Laws 1910, § 246.
(95)
§§ 186-187 COURTS AND COURT OFFICERS (Ch. 1
gave the same disinterested advice he would have given on a sale
to a stranger.10
Where an attorney buys land from a vendee at foreclosure sale,
the fact that he had been an attorney for the mortgagor does not
prevent the attorney from purchasing the land in his own right, in
the absence of fraud, and where he had no duty to perform incon-
sistent with the purchase.11
Where the sale of a judgment to an attorney is beneficial to his
client, and for an adequate price, and made pursuant to the desire
of the client, the attorney is not, by reason of his relation to the
judgment creditor, precluded from relief under the judgment.12
§ 187. Lien for services — Extent — Notice
"From the commencement of an action, or from the filing of an
answer containing a counterclaim, the attorney who represents the
party in whose behalf such pleading is filed shall, to the extent here-
inafter specified, have a lien upon his client's cause of action or
counterclaim, and same shall attach to any -verdict, report, deci-
sion, finding or judgment in his client's favor, and the proceeds
thereof, wherever found, shall be subject to such lien, and no set-
tlement between the parties without the approval of the attorney
shall affect or destroy such lien, provided such attorney serves no-
tice upon the defendant or defendants, or proposed defendant or
defendants, in which he shall set forth the nature of the lien he
claims and the extent thereof; and said lien shall take effect from
and after the service of such notice, but such notice shall not be
necessary provided such attorney has filed such pleading in a
court of record, and indorsed thereon his name, together with the
words 'Lien claimed.' " 18
An attorney has a lien only upon his client's affirmative cause of
action which cannot be extended to services merely protecting an
existing right or title in client's property.1*
Where an attorney's contract to bring action for land in the ad-
verse possession of another gives him a percentage of the land in
10 Watts v. Jackson, 75 Okl. 123, 182 P. 508.
11 Harrison v. Murphey, 39 Okl. 548, 49 L. R. A. (N. S.) 1059, 135 P. 1137,
12 Holmes v. Culver, 133 P. 164, 89 Kan. 698.
18 Rev. Laws 1910, § 247.
i* Elliott v. Orton (Okl.) 171 P. 1110, L. R. A. 1918E, 103.
(96)
Art. 2) OTHER COURT OFFICERS § 188
event of recovery or compromise, such lien is prior to an oil and
gas lease executed by the client pending suit; and, where on com-
promise part of fend is conveyed to the attorney to satisfy lien,
it is not subject to the lease.15
§ 188. Fees
"It shall be lawful for an attorney to contract for a percentage or
portion of the proceeds of 'a client's cause of action or claim not to
exceed fifty per centum of the net amount of such judgment as may
be recovered, or such compromise as may be made, whether the
same arises ex contractu or ex delicto, and no compromise or set-
tlement entered into by a client without such attorney's consent
shall affect or abrogate the lien provided for in this chapter." 18
A contract for attorney's fees and note and mortgage therefor,
after inception of litigation, will not be set aside, in absence of al-
legation or proof of fraud, mistake, or imposition.17
A valid covenant in an attorney's contract, for contingent fees,
based on a legal consideration, is enforceable, though a separable
covenant for the same consideration is void as against public pol-
icy.18
In an action to recover attorney's fees under contract making the
amount contingent on success, counsel's skill, diligence, and legal
knowledge should be measured largely by the result, and not by
number or length of pleadings, number of appearances in court, or
time consumed in oral argument.19 A client, who has contracted
to pay an attorney a percentage of proceeds of cause of action, can-
not compromise his cause of action, so as to affect the attorney's
fee or abrogate his lien.20
Where a defense in an action was based on the alleged want of
authority of plaintiff's attorney to give a certain notice, the burden
was on defendant to prove such want of authority.21 Where a
18 Gust v. Van Court (Okl.) 178 P. 683.
16 Rev. Laws 1910, c. 5, § 248.
17 Spaulding v. Beidleman, 61 Okl. 183, 160 P. 1120.
18 Allen v. Shepherd (Okl.) 169 P. 1115; Culver v. Diamond (Okl.) 167
P. 223, 64 Okl. 271.
19 Cornelius v. Smith (Okl.) 175 P. 754, 9 A. L. R. 233.
20 Allen v. Shepherd (Okl.) 169 P. 1115; Herman Const. Co. v. Wood, 128
P. 309, 35 Okl. 103.
21 Nolan v. St. Louis & S- F. R. Co., 91 P. 1128, 19 Okl. 51.
HON.PL.& PRAC.— 7 (97)
§ 189 COURTS AXD COURT OFFICERS (Ch. 1
client contracts to pay a contingent fee, and compromised with ad-
verse party, without attorney's consent, the attorney might sue
adverse party for the amount due under the contract. In such a
case he must show client's meritorious cause of action, and what
client would have been entitled to receive.22
§ 189. Enforcement — Compromise without notice
"Should the party to any action or proposed action, whose in-
terest is adverse to the client contracting with an attorney settle or
compromise the cause of action or claim wherein is involved any
lien, as mentioned in the preceding section thereof, such adverse
party shall thereupon become liable to such attorney for the fee
due him or to become due him under his contract of employment.
After judgment in any court of record, the attorney's lien, provided
for herein may also be effective against the judgment debtor, by en-
tering same in the judgment docket opposite the entry of the judg-
ment, and such attorney may enforce any lien provided for by this
act in any court of competent jurisdiction by action filed within
one year after he becomes aware of such compromise, or judgment
may be rendered on his motion in the case in the court in which
the suit was brought." 23
Under a former statute it was held that, where an attorney files a
lien claim and the case is compromised by his client without his con-
sent, he may recover his fee from the party settling with his client
if his client should have prevailed, but not otherwise.24 In an ac-
22 Allen v. Shepherd (Okl.) 169 P. 1115.
23 Sess. Laws 1919; e. 22. § 1, amending Rev. Laws 1910, § 249.
Where parties to a judgment in trial court settle their controversy after
appeal to Supreme Court, the appeal will be dismissed, notwithstanding the
attorneys for defendants have a contract for a contingent fee and the settle-
ment was without their consent. Ingrain v. Johnson (Okl.) 176 P. 241.
Where attorney was employed to bring suit, and it was compromised with-
out notice to him, and he sues the adverse party for compensation for serv-
ices, he need not show merits of his client's cause, but merely employment,
a suit, compliance with statute, a compromise by adverse litigant without
notice, and value of services. Oklahoma Coal Co. v. Hays (Okl.) 176 P. 931.
In attorney's suit to recover a fee against an adverse litigant, the attorney's
client, whose action has been compromised and settled, is not a necessary
party. Id.
Where the client with whom an attorney has contracted pursuant to Laws
1909, c. 4, compromises the case without the attorney's consent, the attorney
*4 Crump v. Guyer, 60 Okl. 222, 157 P. 321, 9 A. L. R. 331.
(08)
Art. 2) OTHER COURT OFFICERS §§ 189-190
tion to recover an attorney fee from an adverse litigant, plaintiff
must show that the litigation was compromised without notice or
opportunity to him to be present and establish his client's rights.25
Where an attorney under the terms of his general employment de-
bars himself from employment by others whose interests are an-
tagonistic to those of his client, such service is a proper item of
charge in a suit for services rendered under the general employ-
ment.20
An attorney has a general possessory or retaining lien on proper-
ty or money of his client in his hands for his fees, etc., which lien
is not lost while the money is still under control of attorney's
agent.27
That an Indian Territory attorney eligible to admission to prac-
tice in the Oklahoma Supreme Court had not been enrolled when he
contracted with a client, did not preclude him from recovering from
his associate counsel his share of a fee collected by such counsel.28
§ 190. Amount which may be recovered
"Should the amount of the attorney's fees be agreed upon in the
contract of employment, then such attorney's lien and cause of
may recover as his fee from the adverse litigant the amount he would have
received on final judgment for his client. Gulf, C. & S. F. Ry. Co. v. Wil-
liams, 49 Okl. 126, 152 P. 395. In an attorney's action to recover a percentage
fee from the adverse litigant with whom his client has compromised, the
attorney may establish the merits of the client's cause of action. Id. Where
the plaintiff attorney had contracted with his client for 50 per cent, of the
amount recovered, the measure of his recovery from the adverse litigant was
50 per cent, of what would have been recovered by suit, with interest, and
not merely that which would constitute "a reasonable attorney's fee." Id.
25 Whitehead v. Spriggs, 58 Okl. 42, 158 P. 439.
Where a contract for contingent fee has been made and a compromise had
between the client and the adverse litigant, without consent of the attorney,
the latter may sue the adverse litigant for the amount due him under his con-
tract, and show the amount his client would have been entitled to if the suit
had been prosecuted to judgment. Herman Const. Co. v. Wood, 128 P. 309,
35 Okl. 103.
26 Mellon v. Fulton, 98 P. 911, 22 Okl. 636, 19 L. R. A. (N. S-) 960.
In an action by an attorney to recover against defendant for collusive set-
tlement with a client of plaintiff to defraud him of his fees, evidence held
insufficient to establish the charge of fraud with the certainty required.
Wells Fargo & Co. v. Moore, 31 Okl. 135, 120 P. 612.
27 American Nat. Bank' of Stigler v. Funk (Okl.) 172 P. 1078, L. R. A.
1918F, 1137.
28Martindale v. Shaha, 51 Okl. 670, 151 P. 1019.
(99)
§§ 190-191 COURTS AND COURT OFFICERS (Ch. 1
action against such adverse party shall be for the amount or por-
tion of the property so agreed upon. If the fee be not fixed by
contract the lien and cause of action, as aforesaid, shall be for a rea-
sonable amount for not only the services actually rendered by
such attorney, but for a sum, which it might be reasonably sup-
posed, would have been earned by him, had he been permitted to
complete his contract, and been successful in the action, and such
attorney in order to recover need not establish that his client, if
the case had gone to trial, would have been successful in the action,
but the fact of settlement shall be sufficient without other proof
to establish that the party making the settlement was liable in
the action. Should the contract be for a contingent fee and specify
the amount for which action is to be filed, then the lien and cause
of action, as aforesaid shall be for the amount contracted for if
fixed at a definite sum of money or for the percentage of the
amount or property sued for as mentioned in said contract where
the fee is fixed on a percentage basis, not exceeding thirty-three
and one-third per cent, of the amount sued on where the settlement
is before a verdict or judgment and if made after verdict or judg-
ment then the full contract price." 29
A sum certain provided for in a mortgage as an attorney's fee
will be deemed reasonable, unless extravagantly large or extor-
tionate.30
Where an attorney's services are performed under entire con-
tract which has not been completely performed, he may sue upon a
quantum meruit and recover the reasonable value of the services
rendered, subject to set-off for breach of contract.31
§ 191. May not become surety in action in which employed
"Licensed attorneys of this state are prohibited from signing
any bonds as surety in any civil or criminal action in which they
may be employed as counselors, pending or about to be com-
menced in any of the courts of this state, or before any justice of
29 Sess. Laws 1919, c. 22, § 2.
80 A provision for a fee of $300 on foreclosure of a mortgage for $3,000
held not excessive as a matter of law. Gourley v. Williams, 46 Okl. 629, 149
P. 229.
si Hamilton v. Blakeney (Okl.) 165 P. 141.
(100)
Art. 2) OTHER COURT OFFICERS §§ 192-193
the peace. All such bonds shall be absolutely void, and no penalty
can be recovered of the attorney signing the same." 32
§ 192. Lien — Release by giving bond
"Any person interested may release said lien by executing a bond
in the sum double the amount claimed, or in such sum as may be
fixed by a judge of the court in which the action or judgment is or
has been pending, payable to the attorney, with security to be ap-
proved by the clerk of the court, conditioned to pay the amount
finally due the attorney for his services, which amount may be
ascertained by suit on the bond." 33
§ 193. Suspension of license — Disbarment
"The Supreme Court may revoke or suspend the license of an
attorney or counselor at law, but not until a copy of the charges
against him shall have been delivered to him by the clerk of the
court in which the proceedings shall have been commenced and
an opportunity shall have been given him to be heard in his de-
fense." 3*
A lawyer must conduct himself with fidelity and stern integrity,
and there is no place at the bar for the unscrupulous. Disbarment,
meaning professional excommunication and death, should be re-
sorted to only when it is apparent that the interest of the commu-
nity, the integrity of courts, or the honor of the profession imper-
atively demand it.35
A disbarment proceeding is a civil proceeding.36 It is an "ac-
tion," as that word is employed in its broadest sense of including all
of the various proceedings ordinarily allowed in courts of jus-
tice.37
Disbarment is not a criminal or punitive proceeding, but the
direct question therein is whether the respondent's character and
32 Rev. Laws 1910, § 256.
An appeal bond signed by a licensed attorney employed in the trial is void.
Schaffer v. Troutwein, 129 P. 696, 36 Okl. 653.
33 Rev. Laws 1910, § 250.
s* Rev. Laws 1910, § 251.
35 In re Sitton (Okl.) 177 P. 555.
38 In re Biggers, 104 P. 1083, 24 Okl. 842, 25 L. R. A. (N. S-) 622; Disbar-
ment of Connell, 79-Okl. 212, 192 P. 564.
37 In re Wilcox, 135 P. 995, 90 Kan. 646.
(101)
§ 194 COURTS AXD COURT OFFICERS (Cll. 1
conduct are such that the Supreme Court should protect the public
and courts of justice against him.33
§ 194. Causes
"The following are sufficient causes for suspension or revoca-
tion:
"First. When he has been convicted of a felony under the stat-
utes of Oklahoma, or a misdemeanor involving moral turpitude, in
either of which cases the record of conviction is conclusive evi-
dence.
"Second. When he is guilty of a willful disobedience or viola-
tion of any order of the court requiring him to do or forbear any
act connected with or in the line of his profession.
"Third. For the willful violation of any of the duties of an attor-
ney or counselor." 39
*8In re Sitton (Okl.) 177 P. 555.
as Rev. Laws 1910, § 252.
An attorney's willful violation of any of his duties is sufficient ground for
disbarment. In re Warren, 49 Okl. 87, 151 P. 619.
A county1 attorney accepting a bribe not to prosecute may be disbarred.
In re Simpson, 79 Okl. 305, 192 P. 1097. Court may disbar for official mis-
conduct. In re Simpson, 79 Okl. 305, 192 P. 1097.
Attorney's conviction of felony is ground for revocation of his license to
practice law in the state. In re Horine, 64 Okl. 315, 167 P. 1148. Attorney's
conviction of misdemeanor involving moral turpitude under statutes of Okla-
homa is ground for revocation of his license to practice law in state. In re
Williams, 64 Okl. 316, 167 P. 1149. "Moral turpitude" is anything contrary
to justice, honesty, modesty, or good morals. Id.
The printing and publication of a pamphlet falsely and maliciously attack-
ing the integrity of the courts and the judges thereof, designed to willfully,
purposely, and maliciously misrepresent and bring them into disrepute, held
ground for disbarment of an attorney. State Bar Commission v. Sullivan,
131 P. 703, 35 Okl. 745, L. R. A. 1915D, 1218.
In disbarment proceedings, respondent, who while a county attorney col-
lected moneys on forfeited bonds, etc., and instead of turning it over, after
deducting his commission, withheld it on a claim of county's indebtedness to
him, exposed himself to charge of professional misconduct subject to repri-
mand. In re Sittou (Okl.) 177 P. 555.
An attorney who collected the money belonging to a client and failed to ac-
count for it, giving no excuse, is guilty of a breach of duty warranting his
disbarment. In re Warren, 49 Okl. 87, 151 P. 619.
Upon referee's finding, supported by evidence, that attorney at law was con-
victed of embezzlement, he will be disbarred. In re Horine, 64 Okl. 315, 167
P. 1148.
Where evidence in record fully supported referee's findings of fact and
conclusions of law that respondent had willfully violated his duties' as an
(102)
Art. 2) OTHER COURT OFFICERS § 194
The Supreme Court is not limited in its disciplinary power over
attorneys to the grounds and remedies indicated by statute, but the
statutory provisions are merely cumulative.40
While an attorney cannot be disbarred for filing a pleading, a pe-
tition with pamphlet attached which falsely and maliciously at-
tacks the courts and judges may be considered as evidence of the
attorney's unfitness to practice law.41
\
attorney and counselor at law, and was guilty of unethical and unprofession-
al conduct, for which his license to practice law should be revoked, the re-
port would be approved, and the license revoked. State v. Curd, 75 Okl. 15,
181 P. 484.
Evidence in support of count of information or petition showing that re-
spondent was attorney for a third party, and appeared in court as attorney
for an Indian, and procured orders for benefit of third party, who had pur-
chased from the Indian soon after he became of age all his claims against
his former guardian at a price seeming to be inadequate, held not sufficient
to disbar. In re Huddleston, 75 Okl. 48, 181 P. 711.
A member of a firm of attorneys who received a claim for collection, and
who, in the absence of his partner, collected it and deposited it to his 'own
credit and checked it out for his personal use, would be suspended for six
months. State v. Breslin (Okl.) 169 P. 897. A member of a firm of attor-
neys receiving a claim for collection who was absent when his partner col-
lected it and misappropriated the proceeds, and who upon knowledge thereof
forwarded the amount in settlement of the claim, was not subject to disbar-
ment or suspension. Id.
Schedule to the Constitution, § 33 (Buim's Ed. § 482), providing that all
attorneys licensed to practice in any court of Oklahoma Territory, or in the
United States courts for Indian Territory, or in any court of the Five Civi-
lized Tribes, shall be eligible to practice in any court of the state without
examination, does not preclude an inquiry by the Supreme Court into any
act or conduct of an attorney preceding the adoption of the Constitution
and his disbarment therefor. In re Mosher- 102 P. 705, 24 Okl. 61, 24 L. R. A.
(N. S.) 530, 20 Ann. Cas. 209.
A complaint alleging that an attorney who had been disbarred in Indiana
practiced a fraud upon the court by securing his admission to practice here
on a certificate issued by an Indiana court, prior to judgment disbarring him,
states facts sufficient to disbar an attorney. Dean v. Stone, 35 P. 578, 2
Okl. 13.
One who sought admission to practice, and had himself enrolled without
disclosing previous disbarment in another jurisdiction, was guilty of such a
fraud on the court as required disbarment. In re Mosher, 102 P. 705, 24 Okl.
61, 24 L. R. A. (N. S.) 530, 20 Ann. Cas. 209.
40 State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A.
1915D, 1218; State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L.
R. A. 1915D, 1218.
41 State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A. 1915D,
]218.
§§ 195-196 COURTS AND COURT OFFICERS (Ch. 1
§ 195. Defenses — Limitations
; An attorney is exonerated from charges of unprofessional con-
duct, in applying for a continuance because of absence of material
witnesses, who were actually present, where, though they were
present, he did not know it and presented the application in good
faith believing they were in fact absent.42
In action by an administratrix of attorney to recover on his con-
tract for services in advising client in securing location of a depot
by order of the state corporation commission, the fact that plaintiff,
to have the depot so located, had to pay part of purchase price of
the lot was no defense.43
In a proceeding for disbarment upon charges of the publication
of a pamphlet disrespectful to the court, the statute of limitations
is not available as a defense, especially where the pamphlet remains
in circulation until a time within what would be the limitation pe-
riod if the statute of limitations be construed to apply.44
§ 196. > Proceedings — How commenced
:"The proceedings to suspend or remove an attorney may be
commenced by the direction of the court or on motion of any indi-
vidual. In the former case, the court must direct some attorney to
draw up the accusation ; in the latter case, the accusation must be
drawn up and sworn to by the person making it." 45
The sufficiency of the verification of the charges in disbarment
proceedings must be determined by an inspection of the verifi-
cation, and the evidence of affiant cannot be received to show that
he had no personal knowledge as to the charges. No verification
of the charges is necessary in disbarment proceedings brought by
the state bar commission by order of the Supreme Court.46
A defendant in a disbarment proceeding is not entitled to the 20
days' time allowed to answer an ordinary summons, but may be
cited to appear within aay time that gives him a reasonable oppor-
tunity to be heard.47
42 In re Champion, 103 P. 600, 24 Okl. 154.
43 Campbell v. House (Okl.) 176 P. 913.
44 State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A. 1915D,
1218.
45 Rev. Laws 1910, § 253.
46 State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A.
1915D, 1218.
47 In re Brown, 39 P. 469, 2 Okl. 590.
(104)
Art. 2) OTHER COURT OFFICERS §§ 197-198
§ 197. Trial — Judgment
"To the accusation he may plead or demur, and the issues joined,
thereon shall in all cases be tried by the court, all the evidence
being reduced to writing, filed and preserved." 48
"If the accused plead guilty or fail to answer, the court shall pro-
ceed to render such judgment as the case requires." *9
In a disbarment proceeding the attorney is presumed to be inno-
cent of the charges preferred, and to have performed his duty as an
officer of the court iinaccordance with his oath.50 The evidence in
support of the charges must satisfy the court to a reasonable cer-.
tainty that the charges are true.51
A referee in a disbarment proceeding is an officer of the court,
and the court has full authority to supervise and control his report
by setting it aside, or confirming or modifying it as the facts and
the law require.52 '
§ 198. Attorney and client in general
In construing a contract between a lawyer and one depending
on him for advice, every presumption is rendered against the law-
yer,63 and he has the burden of showing fairness.5* If he receives
^s Rev. Laws 1910, § 254.
*9 Rev. Laws 1910, § 255.
so in re McNabb, 76 Okl. 253, 185 P. 431.
51 Transcript of evidence in a disbarment proceeding based on charge that
defendant employed) to represent a guardian in a proceeding to sell lands
of his minor children and wards received and kept purchase price without
an order of court and made a conveyance to minors of certain land owned
by him in lieu of money received, made false statements in preparing guard-
ian's report, kept other moneys belonging to petitioner, and had been convict-
ed of a misdemeanor involving moral turpitude, etc-, examined, and held to
support findings of referee which with his conclusions of law would be cpn-
firmed and the proceeding dismissed. In re McNabb, 76 Okl. 253, 185 P. 431.
Guilt must be shown by more than a preponderance of the evidence. In fe
Simpson, 79 Okl. 305, 192 P. 1097.
52 The report of a referee appointed to take evidence and report his find-
ings of fact and conclusions of law in a disbarment proceeding is not con-
clusive as to either the findings or conclusions, but is accorded every reason-
able presumption of correctness, and the burden is on party attacking it;
but it is to be freely set aside by the court if found to be incorrect. In re
McNabb, 76 Okl. 253, 185 P. 431.
53 Barker v. Wiseman, 51 Okl. 645, 151 P. 1047.
54 Board of Com'rs of Okfuskee County v. Hazlewood, 79 Okl. 185, 192 P.
217, 11 A. L. B. 709.
(105)
§ 198 COURTS AND COURT OFFICERS (Ch. 1
benefits under the contract, he is presumed to exert undue influ-
ence.55
An attorney's knowledge that the case in which he is employed
has been set for trial, and that a judgment has been rendered there-
in, is imputed to the client, in the absence of fraud.56
Where the purchaser of land from purchasers at a guardian's
sale intrusted approval of title to an attorney for loan companies,
who performed such services without additional charge, the rela-
tion of attorney and client existed between such attorney and the
purchaser, and he was bound by such notice as was acquired by the
attorney in passing upon the title.57
An attorney is bound to act with entire good faith toward his
client, and the latter is entitled to act on the attorney's informa-
tion and advice as against information received from others.
Where an attorney induced his client to assign her claim against
the estate of her guardian to a business associate of the attorney
for less than its value by false representations, that the client may
have had information from other sources that her claim would be
paid in full did not relieve the attorney from the consequences of
his fraud, nor is the fact that in the client's original statement of
the claim she asked that it be preferred notice to her that it would
be paid in full, so as to relieve the attorney from the consequences
of a letter fraudulently written thereafter to induce her to assign
the claim for less than its value.58
The rights and remedies of attorneys existing before the Re-
vised Laws of 1910 became effective were not affected by its adop-
tion.59
55 Hunter v. Battiest, 79 Okl. 248, 192 P. 575.
5« Bigsby v. Eppstein, 39 Okl. 466, 135 P. 934.
Where attorney acting for indorsee of note had actual knowledge of in-
firmity, such knowledge will be imputed to indorsee. Lambert v. Smith, 53
Okl. 606, 157 P. 909.
"Pyeatt v. Estus (Okl.) 179 P. 42, 4 A. L. R. 1570.
58 Mohr v. Sands, 44 Okl. 330, 133 P. 238.
59 Culver v. Diamond, 64 Okl. 271, 167 P. 223; Allen v. Shepherd (Okl.)
169 P. 1115.
(106)
Ch. 2) ARBITRATION, COMPROMISE, AND SETTLEMENT § 1991
CHAPTER II
ARBITRATION, COMPROMISE, AND SETTLEMENT
Sections
199-200. Article I.— Arbitration.
201-202. Article II. — Compromise and settlement.
ARTICLE I
ARBITRATION
Sections
199. In general.
200. Forms.
§ 199. In general
'/Arbitration" is the submission of some disputed matter to se-
lected persons and the substitution of their decision for a judgment
of court. It is recognized at common law, which, in the absence
of statute, controls.1 The settlement of disputes by arbitration te
favored by the courts. Submission to arbitration may be by parol,
where an oral agreement with respect to the matter submitted
would be enforceable.2
An award, though made upon a mere common-law arbitration,
is prima facie conclusive between the parties as to all matters sub-
mitted to the arbitrators ; and such award is generally a bar to
an action on the original claim, and this notwithstanding defend-
ant has failed to comply with its requirements. Arbitrations ought
to be encouraged, and an award of arbitrators, if unimpeached for
fraud or mistake, should be sustained.3
Anxaward has the same force as a judgment of a court of com-
petent jurisdiction, and a controversy thus adjusted cannot be re-
tried, unless the pleadings state facts sufficient to avoid the award.*
1 Deal v. Thompson, 51 Okl. 256, 151 P. 856.
2 Deal v. Thompson, 51 Okl. 256, 151 P. 856. Unless an agreement to sub-
mit to arbitration otherwise provides, the award may be by parol. Id.
s Groat v. Pracht, 3 P. 274, 31 Kan. 656. Controversies respecting any estate
in lands may be made the subject of arbitration. Finley v. Funk, 12 P. 15,
35 Kan. 668.
4 Scrivner v. McClelland (Okl.) 168 P. 415.
Where the plaintiff's claim is for money due for materials and labor, and
the matters were submitted to arbitrators, who made an award that defend-
(107)
§ 199 ARBITRATION, COMPROMISE, AND SETTLEMENT (Ch. 2
Where the parties agree that no oaths shall be administered to
arbitrators, and that the testimony of witnesses unsworn shall be
received, neither of them can make the omission to administer
oaths a ground of objection to the award.5
Irregularities of arbitrators, to whom is submitted a contro-
versy, and who act in good faith, which are not prejudicial to the
complaining party, will not avoid an award.6
An award of arbitrators will not be set aside because the arbi-
trators have drawn incorrect conclusions from the facts before
them.7 But an award is not binding when it is the result of a
misapprehension on their part of the language used in denning
the matter submitted to their decision.8
Where an agreement is made to submit a controversy to two ar-
bitrators, they to select a third, to act if they cannot agree, an
award made by "the third arbitrator and one of the others is bind-
ing.9
A party to an arbitration who, before an award, knew of the in-
eompetency of one of the arbitrators, cannot set the award aside
on that ground.10
An arbitrator is the agent of both parties concerned, and, where
he proceeds as if he was the special agent of one, his decision is
not binding, however honest his motives.11
ant give a check for a certain amount, surrender a certain note, and receipt
two accounts, one against the plaintiff and one against his father-in-law, such
award is a bar to an action on the original claim. Groat v. Pracht, 3 P. 274,
31 Kan. 656.
While the statutes of Oklahoma do not provide for arbitration, an arbitra-
tion may1 be had under the common law. Burke Grain Co. v. Stinchcomb
(Okl.) 173 P. 204.
o Russell v. Seery, 35 P. 812, 52 Kan. 736.
s Anderson v. Burchett, 29 P. 315, 48 Kan. 153.
7 Russell v. Seery, 35 P. 812, 52 Kan. 736.
s Swisher v. Dunn, 131 P. 571, 89 Kan. 412, 45 L. R. A. (N. S.) 810, rehear-
ing denied 132 P. 832, 89 Kan. 787, 45 L. R. A. (N. S.) 813.
» Fish v. Vermillion, 78 P. 811, 70 Kan. 348.
10 Anderson v. Burchett, 29 P. 315, 48 Kan. 153.
11 Lantry Contracting Co. v. Atchison, T. & S. F. Ry. Co., 172 P. 527, 102
Kan. 799.
(108)
Art. 1) ARBITRATION § 200
§ 200. Forms
AGREEMENT TO SUBMIT TO ARBITRATION
(Caption)
Whereas, there are certain matters in dispute between A. B., C.
D., and E. F. ; and whereas it is the desire to settle said differ-
ences :
Now, therefore, witnesseth :
That we, A. B., C. D., and E. F. have agreed, and by these pres-
ents do hereby agree, to arbitrate all matters of dispute between
us, and for that purpose have selected W. X. and Y. Z. as arbitra-
tors, and we hereby agree to abide by the decision of said arbi-
trators ;
And it is further agreed, that if said arbitrators cannot agree,
they are to select a third person, whose decision shall be final in
the premises, subject to all lawful and legal objections;
And it is further agreed, that the award of such arbitrators be
made a rule of the district court of county, Oklahoma ; said
arbitration to be according to the laws of the state of Oklahoma,
and to be held at , in county, Oklahoma, on the
day of , 19 — , or at such time and place as said ar-
bitrators shall agree upon.
Witness our hands, this day of , 19 — .12
(Signatures.)
OATH OF ARBITRATORS
(Caption)
We, W. X. and Y. Z., do solemnly swear that we will, to the
best of our ability, hear and determine all matters of dispute be-
tween A. B., C. D., and E. F., and a true award make according
to our best knowledge and ability.
(Signatures.)
Subscribed and sworn to before me this day of ,
19—.
My commission expires .
(Signature,)
12 Weir v. West, 27 Kan. 650.
is Weir v. West, 27 Kan. 650.
Notary Public.13
(109)
§§ 200-201 ARBITRATION, COMPROMISE, AND SETTLEMENT (Ch. 2
AWARD OF ARBITRATORS
(Caption)
We, the undersigned, the duly appointed arbitrators of the mat-
ter in controversy between A. B., C. D., and E. F., as appears
more fully in the agreement hereto attached, having taken the
oath also hereto attached, do hereby certify that we notified each
of said parties in writing of bur first meeting, and that in pursu-
ance to such notice we met at , in county, Oklahoma,
on the day of — — , 19 — (include and set out adjourn-
ments, if any), and proceeded to hear the allegations, evidence,
proofs, and arguments of the said parties, and, after due delibera-
tion, do hereby find, adjudge, award, determine, and order as
follows: (Set forth conclusion of arbitrators.)
Witness our hands this day of , 19 — .
(Signatures.)
ARTICLE II
COMPROMISE AND SETTLEMENT
Sections
201. In general.
202. Construction.
§ 201. In general
A "compromise" is an agreement between two or more persons,
who, to avoid a lawsuit, amicably settle their difficulties on such
terms as they may agree upon.14
"Settlement" of a debt is the same as "payment." 15
The law encourages the compromise and settlement of contro-
versies in order to discourage litigation.16
A settlement agreement, impossible of performance, is not bind-
ing.17
Where the amount of the claim is in good faith disputed a com-
n City of Anadarko v. Argo, 128 P. 500, 35 Okl. 115.
is Roniger v. Mclntosh, 137 P. 792, 91 Kan. 368.
10 Pacific Mut. Life Ins. Co. of California v. Coley, 62 Okl. 161, 162 P. 713;
St. Louis & S. F. R. Co. v. Chester, 138 P. 150, 41 Okl. 369.
IT A stipulation for settlement conditioned on all parties in interest agree-
ing to its terms within 60 days, held void, where it was not binding on minor
defendants and was impossible of performance. Whiteley v. Watson, 145 P.
568, 93 Kan. 671.
(110)
Art. 2) COMPROMISE AND SETTLEMENT § 201
promise agreement by parties is sufficient consideration to uphold
settlement, and bars further recovery,18 though the demand was
unfounded,10 or one of the parties made an error in calculation,20
or the amount agreed to be paid may be much less than is actu-
ally due,21 and though the final issue be different from that an-
ticipated and other than what the court would have decreed,-2
providing the settlement is not procured by fraud, misrepresen-
tation,23 or duress.24
is Jarecki Mfg. Co. v. Cimarron River Oil & Gas Co. (Okl.) 170 P. 252; Mar-
sant v. Marsant, 57 P. 958, 60 Kan. 859 ; Finley v. Funk, 12 P. 15, 35 Kan. 668.
Acceptance of part of claim against county, which commissioners in good
faith claimed to have been barred by limitations, in consideration of release
in full, held to prevent recovery of remainder. Nolan v. Board of County
Com'rs of Ellis County (Kan.) 168 P. 326.
Bona fide dispute between heir and school and church, whether the latter
had acquired interest in property by will, constituted sufficient consideration
for compromise in good faith. Shellberg v. McMahon, 157 P. 268, 98 Kan. 46.
Agreement to give a credit upon note, made in good faith without mistake,
undue influence, or fraud, based on settlement of a disputed claim, is valid
and enforceable. Hollister v. Smith, 62 Okl. 191, 162 P. 706.
A compromise of a disputed claim on sufficient consideration, with knowl-
edge of the facts on which an alleged defense is based, is a surrender of such
defense, when the adverse party has executed the terms of settlement on his
part. Logsdon v. Hudson, 112 P. 118, 83 Kan. 500.
Where defendant, in settlement of existing liability, contracted to pay plain-
tiff $3,000 if well proposed to be drilled on land leased to defendant was a
paying well, and sold the lease to a purchaser, who developed a paying well,
defendant was liable to plaintiff for payment of $3,000. Gem Oil Co. v. Cal-
lendar (Okl.) 173 P. 820.
.Where two parties in the settlement of a controversy agree on the amount
due, and the debtor executes a note therefor, the compromise is binding upon
the parties. Kiler v. Wohletz, 101 P. 474, 79 Kan. 716, L. R. A. 1915B, 11.
Where there has been a valid agreement to compromise, it is not admissible
to go back of the settlement to determine who was right in the original con-
tention. Id.
i» Lewis v. Gove County Telephone Co., 147 P. 1122, 95^ Kan. 136, Ann. Cas.
1916B, 1035.
20 Brooks v. Hall, 14 P. 236, 36 Kan. 697.
21 Minor v. Fike, 93 P. 264; 77 Kan. 806.
Receipt of a sum less than that claimed will, where the claim is unliqui-
dated or disputed, be treated as a satisfaction. Sherman v. Pacific Coast
Pipe Co., 60 Okl. 103, 159 P. 333, L. R. A. 1917A, 716.
22 Sango v. Parks, 44 Okl. 223, 143 P. 1158.
23 The law favors compromise and settlement of disputes, and when par-
ties without fraud enter into an agreement settling and adjusting a dispute,
24 See note 24 on following page.
(Ill)
§§ 201-202 ARBITRATION, COMPROMISE, AND SETTLEMENT (Ch. 2
A defendant in an action without merit may compromise the
litigation without making himself liable in any way to any third
party.25
§ 202. Construction
A settlement agreement will be given a reasonable construction
to carry out the intentions of the parties,26 and the usual rules of
evidence apply.21
neither is permitted afterward to deny it. Lewis v. Kimball, 173 P. 279, 103
Kan. 173. Agreement based on a good consideration, settling amount to which
plaintiff was entitled for services in finding a purchaser for defendant's land,
made without fraud or concealment, is binding, regardless of the merits of
controversy. Id.
If there is a bona fide controversy, and a compromise thereof, such settle-
ment, in the absence of fraud or mistake, is binding upon the parties there-
to, as an original contract. Schmidt v. Demple, 52 P. 906, 7 Kan. App. 811.
A railroad employe who made a settlement under misrepresentations by the
company's physicians as to the extent of his injuries held entitled to relief,
whether they were innocently or intentionally false. Chicago, R. I. & P. Ry.
Co. v. Roger's, 60 Okl. 249, 159 P. 1132.
In an action to set aside a settlement as obtained by fraud, it was found
by the referee that the settlement should be set aside and opened as to three
particular! items, and that the rest should stand, and this finding was ap-
proved by the court, and there was evidence tending to support it. Held, that
the findings as to the three particular items, and as to the balance of the set-
tlement, not being contradictory, the district court was authorized to correct
the particular wrong and leave the settlement otherwise undisturbed. Reid
v. Beyle, 18 P. 614, 39 Kan. 559.
2-t The fact that a creditor insisted that a larger amount was due than the
creditor admitted, and that he threatened to enforce his claim by a civil ac-
tion, does not constitute duress. Kiler v. Wohletz, 101 P. 474, 79 Kan. 716, L.
R. A. 1915B, 11. The fact that a creditor insisted that a larger amount was
due, and that he threatened a civil suit, does not constitute fraud. Id.
25 Avery v. Howell, 172 P. 995, 103 Kan. 31.
26 A written contract, settling all items of indebtedness existing between
parties thereto on the day it is signed, includes existing debts, but not those
thereafter arising. Ryan v. Myers, 101 Kan. 261, 167 P. 1043.
An agreement between an officer and stockholder of a corporation and a pur-
chaser of his stock that such officer is "to be given his salary including to
day. If it is overdrawn he to pay back. On sale he is to have no claim on
anything, credits, supplies or other assets of Co. & the differences are then
considered adjusted," held, not an adjustment of the officer's salary, so as to
27 in an action on a note given in consideration of a contract of settlement
between joint owners of property, evidence as to matters settled by the agree-
ment held properly excluded. Harn v. Hare, 48 Okl. 3, 151 P. 615.
(112)
Art. 2) COMPROMISE AND SETTLEMENT § 202
preclude him from claiming the full salary due him. Keating v. Mutual Laun-
dry Co., 133 P. 152, 90 Kan. 24.
Where the parties made a contract of settlement concerning their dispute
about the title to certain land, and executed the same, and, to carry the same
into effect, delivered their respective deeds for portions of the land, they were
bound by such agreement of settlement, notwithstanding the deeds did not
sufficiently describe the land to' convey the legal title. Anderson v. Canter,
63 P. 285, 10 Kan. App. 167.
Plaintiff made a written offer to compromise his claim if paid within 10
days. Defendant's letter accepting the offer, and inclosing a check, did not
reach plaintiff until twelve days thereafter. The plaintiff cashed the check,
and retained the proceeds, but sent no receipt as requested, and later sued
for a balance. Held, that, although time was of the essence of the proposi-
tion made, the plaintiff, by retaining the part payment, produced the same
effect as if defendant's letter had been an original offer of compromise which
the plaintiff accepted, and which was fully complied with by the payment of
the stipulated amount. Hutchinson & S. R. Co. v. Wallace, 52 P. 458, 7 Kan.
App. 612.
Defendant, in an action for damages for wrongfully withholding possession
of land, conveyed his interest in the land to another, and entered into an
agreement with plaintiffs pursuant to which he paid to them a sum of money
in settlement of all claims for the detention of the land up to the time of the
conveyance, and the suit was consequently dismissed. This agreement pro-
vided that it should not cover any claim against defendant's grantee for tak-
ing possession of the land, nor any right which plaintiff might have against
such grantee. A contemporaneous agreement was entered into between plain-
tiffs, defendant, and defendant's grantee, which provided for the substitution
of the grantee in lieu of defendant in the action which was then pending
against defendant and in all subsequent proceedings relating thereto. Held,
that the compromise between defendant and plaintiffs did not operate as a
satisfaction of plaintiffs' claim against defendant's grantee, nor preclude the
maintenance of an action by plaintiffs against defendant's grantee for dam-
ages for the wrongful withholding of the possession of the land from the
date of the conveyance. Meriwether v. Howe, 82 P. 723, 72 Kan. 645.
Where, on a creditors' bill being brought to assert title to land conveyed to
the debtor's wife, a settlement is made, and the action is dismissed on the
debtor giving his note, the land conveyed to the wife cannot be attached in
a subsequent action on the note. Lanphear v. Ketcham, 37 P. 119, 53 Kan.
799. .
HON.PL.& PBAC.— 8 (113)
203 JURISDICTION (Ch. 3
JURISDICTION
Sections
203-216. Article I. — Nature, scope, elements, and exercise.
217-247. Article II. — Original, concurrent, and appellate jurisdiction.
ARTICLE I
NATURE, SCOPE, ELEMENTS, AND EXERCISE
Sections
203. Jurisdiction defined.
204. Basis and elements.
205. Original jurisdiction.
206. Scope, extent, and place of exercise.
207. Territorial extent.
208. Where parties reside or may be found.
209. Jurisdiction of subject-matter.
210. Trusts.
211. Consent and waiver.
212. Ancillary jurisdiction.
213. Rule of comity.
214. Shown by record.
215. Determination of jurisdiction.
216. Objections.
§ 203. Jurisdiction defined
Jurisdiction is the power to hear and determine the subject-mat-
ter in controversy between parties to a suit, to adjudicate or ex-
ercise any judicial power over them, and if the law confers pow-
er to render a judgment or decree the court has jurisdiction.1 It
does not relate to rights of parties, but to the power of the court. -
1 Welch v. Focht (Okl.) 171 P. 730, L. R. A. 1918D, 1163 ; National Surety
Co. v. S. H. Hanson Builders' Supply Co., 64 Okl. 59, 165 P. 1136; Antene v.
Jensen, 47 Okl. 352, 148 P. 727; Model Clothing Co. v. First Nat. Bank of
Gushing, 61 Okl. 88, 160 P. 450. It is the power of courts and judicial officers
to take cognizance of and determine the subject-matter in controversy be-
tween parties to a pending proceeding, and to exercise judicial power. Apache
State Bank v. Voight, 61 Okl. 253, 161 P. 214.
Jurisdiction is the authority by which courts and judicial officers take cog-
nizance of and decide cases, so that, if a court has jurisdiction of the per-
sons to the action, and the cause is the kind of a cause triable in such court,
2 Parmenter v. Ray, 58 Okl. 27, 158 P. 1183 ; Dickson v. Lowe (Okl.) 163 P.
523.
(114)
Art. 1) NATURE, SCOPE, ELEMENTS, AND EXERCISE §§ 203~206
A court of competent jurisdiction is one having" power and au-
thority of law at time of acting to do the particular act.3
§ 204. Basis and elements
The jurisdiction of the several courts of this state and of the
judges thereof is regulated by the Constitution and laws of the
state.4
The elements of jurisdiction are a court created by law, author-
ity to hear and determine causes, the power to render judgment,
authority over parties and the thing adjudicated, and authority
to decide the question involved.5
In the absence of seizure of property or debt of a nonresident
defendant on which judgment is to operate, power to render judg-
ment is lacking, and the fact that there is property within the ju-
risdiction does not give the court jurisdiction.6
§ 205. Original jurisdiction
The phrase "original jurisdiction" means the power to entertain
cases in the first instance as distinguished from appellate juris-
diction, and does not mean exclusive jurisdiction. A court of
original jurisdiction is one in which an action has its origin.7
§ 206. Scope, extent, and place of exercise
Where the court has jurisdiction over the persons to the action
by legal service or voluntary appearance, and the cause is of a
kind triable in such court, it has jurisdiction to render any right-
ful judgment therein.8
Courts possess inherent power to prevent any abuse of their
process,9 and to correct errors in their own proceedings.10 The
it has jurisdiction of the subject of the action, and has the power to render
any rightful judgment therein. Parker v. Lynch, 56 P. 1082, 7 Okl. 631 ; Bock-
finger v. Foster, 62 P. 799, 10 Okl. 488, judgment affirmed 23 S. Ct. 836, 190
U. S. 116, 47 L. Ed. 975.
s Ex parte Adair, 115 P. 277, 5 Okl. Or. 374 ; Ex parte Justus, 104 P. 933. 3
Okl. Cr. Ill, 25 L. R. A. (N. S.) 483 ; In re Wilkins, 7 Okl. Cr. 422, 115 P. 1118.
* In re Jewett, 77 P. 567, 69 Kan. 830.
s Roth v. Union Nat. Bank of Bartlesville, 58 Okl. 604, 160 P. 505.
e .Waldock v. Atkins, 60 Okl. 38, 158 P. 587.
" Burks v. Walker, 109 P. 544, 25 Okl. 353.
s Crutcher v. Block, 91 P. 895, 19 Okl. 246, 14 Ann. Gas. 1029.
9 Patterson v. Imperial Window Glass Co., 137 P. 955, 91 Kan. 201.
10 Todd v. Orr, 44 Okl. 459, 145 P. 393.
(115)
§§ 206-208 JURISDICTION (Ch. 3
"district court" is a tribunal established to exercise definite ju-
dicial powers at a designated time and place. The district judge
constitutes the court only when performing the functions of the
same at the time and place fixed by law, and the district judge,
as contradistinguished from the court, cannot determine motions
to vacate judgments or orders.11
A judge cannot perform any judicial act while beyond the state.12
§ 207. Territorial extent
The jurisdiction of the several district courts and of the judges
thereof in civil matters is confined to their respective districts.13
Not every action growing out of transactions concerning real
property is local, and where the decree sought is to operate on the
person, and not upon the real property, the location of the proper-
ty indirectly affected is not material.14
A surety on a guardian's bond executed in Arkansas may, on
his removal to Oklahoma, be sued here for breach of the bond.15
§ 208. Where parties reside or may be found
An action to set aside a conveyance for fraud may be brought
in any jurisdiction where the guilty parties may be found, and the
court will have authority, not only to declare the conveyance void,
but to compel defendant to do the things necessary, according to
the lex loci rei sitae, which they could voluntarily do, to give effect
to the decree.16
A city of another state which is operating a water plant in this
state cannot be sued in this state for injuries sustained in that city
through its negligence.17
11 Eichoff v. Caldwell, 51 Okl. 217, 151 P. 860, L. R. A. 1917E, 359.
izDunlap v. Humph, 43 Okl. 491, 143 P. 329.
The parties to a proceeding in error cannot by agreement dispense with the
necessity of the case-made being approved and signed by the judge while
within the state. Dunlap v. Rumph, 143 P. 329, 43 Okl. 491.
is In re Jewett, 77 P. 567, 69 Kan. 830.
i* Continental Gin Co. v. Arnold (Okl.) 167 P. 613, L. R. A. 1918B, 511.
Where a mere trespasser entered on land in Missouri, and removed sand
therefrom to Kansas, where he converted it to his own use, the owner of the
land could maintain an action 'in Kansas for the value of the sand, as such
an action is transitory. McGonigle v. Atchison, 7 P. 550, 33 Kan. 726.
is Hays v. King, 44 Okl. 180, 143 P. 1142.
i« Fuller v. Homer, 77 P. 88, 69 Kan. 467.
IT Marshall v. Kansas City, 148 P. 637, 95 Kan. 548, L,. R. A. 1915F, 1025.
(116)
Art. 1) NATURE, SCOPE, ELEMENTS, AND EXERCISE §§ 208-210
That defendants, with one exception, are nonresidents, and no
personal judgment can be rendered against them, does not de-
prive the court of jurisdiction, in an action to declare a deed a
mortgage.18
§ 209. Jurisdiction, of subject-matter
Jurisdiction of the subject-matter is the power to deal with the
general subject involved in the action.19
It is to be determined from the allegations of the petition, and,
if the petition fails to disclose such facts as will authorize a court
of equity to hear and determine the matter complained of, such
court is without jurisdiction.20
Where the necessary parties are before a court of equity, it is
immaterial that the res of the controversy is beyond the territorial
jurisdiction of the court, and it has the power to compel defendant
to do all things necessary, according to the lex loci rei sitse, which
he could do voluntarily, to give full effect to the decree against
him.21
A district court having jurisdiction of the holder of a title to land
has jurisdiction to render a judgment requiring him to make a
conveyance of it and to enforce such decree by process against
him, where the land is situated in another state.22
§ 210. Trusts
The power to establish and enforce a constructive trust is a
matter properly cognizable in a court of equity.23 The rule which
limits the jurisdiction of equity to cases where there is no ade-
quate remedy at law does not apply.24
Where court of general jurisdiction has secured jurisdiction of
parties holding legal titles to land in another state, it may impress
trust as to such land and order trustees to execute conveyance.25
is Clark v. Shoesmith, 139 P. 426, 91 Kan. 797.
19 Glacken v. Andrew (Okl.) 169 P. 1096.
20 Myers v. Berry, 41 P. 580, 3 Okl. 612.
21 Gordon v. Munn, 106 P. 286, 81 Kan. 537, 25 L. R. A. (N. S.) 917.
22 People's State Bank v. T'Miller, 116 P. 884, 85 Kan. 272.
asGoldrick v. Roxana Petroleum Co. (Okl.) 176 P. 932; McCoy v. McCoy,
121 P. 176, 30 Okl. 379, Ann. Cas. 1913C, 146.
24 Goldrick v. Roxana Petroleum Co. (Okl.) 176 P. 932.
25 Meador v. Manlove, 156 P. 731, 97 Kan. 706.
When a district court has jurisdiction of the parties, it has jurisdiction to
(117)
§§ 210-211 JURISDICTION (Ch. 3
The district court has jurisdiction of the subject-matter of an
action to declare a resulting trust, where it has acquired jurisdic-
tion of the parties thereto.20
Equity will not permit a trust to fail for want of a trustee.27
§ 211. Consent and waiver
Jurisdiction of the person may be conferred by consent, or the
want thereof waived by voluntary appearance,28 but parties cannot
by consent or stipulation invest a court with jurisdiction not giv-
en by law, and this rule applies to causes involving the necessary
jurisdictional amount.28
enforce trusts, although in so doing the title to land which does not lie with-
in its territorial limits is incidentally affected. Manley v. Carter, 52 P. 915.
7 Kan. App. 86.
26 Boekfinger v. Foster, 62 P. 799, 10 Old. 488, judgment affirmed 23 S. Ct.
836, 190 U. S. 116, 47 L. Ed. 975.
27 Hill v. Hill, 49 Okl. 424, 152 P. 1122.
as Hobbs v. German- American Doctors, 78 P. 356, 14 Okl. 236.
Where the district court had original jurisdiction of the subject-matter,
and the case comes into that court improperly by appeal, and both parties
appear and go to trial without objection, the question of jurisdiction as to
the manner of getting in court is waived. School Dist. No. 94, Grant Coun-
ty, v. Gautier, 73 P. 954, 13 Okl. 194.
Where a trustee under a chattel mortgage brings an action to enforce his
trust, he thereby confers on the court in which the action is brought jurisdic-
tion over him in regard to the settlement of a counterclaim interposed by de-
fendant concerning the same transaction, though such jurisdiction does not
otherwise exist, under Code Civ. Proc. § 55, providing that actions, with cer-
tain exceptions mentioned, must be brought in the county where the defend-
ants or some of them reside or may be summoned. Wyman v. Herard, 59 P.
1009, 9 Okl. 35.
Where receivers of a railroad contest matters at issue in proceedings to en-
force a lien against railroad property, they cannot be heard for the first time
after an adverse decision to complain that the court was without jurisdiction,
even though they were appointed by another court. Trocon v. Scott City
Northern R. Co., 139 P. 357, 91 Kan. 887.
Where jurisdiction of the person is lost by irregularities, it may be restored
by the appearance or waiver of the defendants or failure to duly object.
Hobbs v. German-American Doctors, 78 P. 356, 14 Okl. 236.
Where local and nonresident defendants were jointly sued and nonresident
defendant appeared generally without raising question of jurisdiction, his de-
murrer to evidence and his motion to dismiss for want of jurisdiction were
properly overruled. Makemson v. Edwards, 101 Kan. 269, 166 P. 508.
As to appearance, see post, §§ 506-511.
29 Model Clothing Co. v. First Nat. Bank of Gushing, 61 Okl. 88, 160 P. 450.
The question of jurisdiction of the subject matter cannot be waived by the
parties, and the court should, on its own motion, though the question be not
(118)
Art. 1) NATURE, SCOPE, ELEMENTS, AND EXERCISE §§ 211~213
Filing a Demurrer to a petition and moving to make it more
definite is not a request for affirmative relief, such as will waive
defendant's objection to jurisdiction over his person. Where de-
fendant's objection to the court's jurisdiction of his person has
been overruled, he may defend 'without waiving his objection ;
but where he asks affirmative relief after his objection to jurisdic-
tion over his person has been overruled, he waives such objection.30
§ 212. Ancillary jurisdiction
A court having possession of property may determine all ques-
tions relative to title, possession, and control of same.31
§ 213. Rule of comity
Where actions are properly brought and are pending in differ-
ent jurisdictions, the rule of comity does not influence the proceed-
ings of the court to which jurisdiction first attaches.32
The laws of another state will not be given force in this state
as a matter of comity, where it would be, in effect, to overturn the
policy of this state with respect to such cases, or be in violation
of our express statute.83
Comity does not require that the courts of Oklahoma uphold
foreign contracts violative of the penal statutes or public policy
of Oklahoma, regardless of the validity of such contracts in the
state where they were made.34 But t,he rule that a penal statute
will not be enforced outside the territorial jurisdiction of the Leg-
raised" by the parties, inquire into its jurisdiction. Apache State Bank v.
Voight (Okl.) 161 P. 214.
Where the statute confers on the road viewers and the board of county
r-ommissioners power to determine whether or not a proposed public road is
of public utility, the parties to proceedings for laying out a road cannot by
agreement confer on the court the power to determine such question on ap-
peal from an award of damages made by the commissioners after determining
the question in the affirmative. Van Bentham v. Osage County Com'rs, 30 P.
Ill, 49 Kan. 30.
so Commonwealth Cotton Oil Co. v. Hudson, 62 Okl. 23, 161 P. 535.
si Darrough v. First Nat. Bank of Claremore, 56 Okl. 647, 156 P. 191.
The ancillary jurisdiction of a court to determine all questions as to rights
in property of which it has taken possession, may be exercised by federal
courts, though not authorized by statute. Id.
32 Missouri, K. & T. Ry. Co. v. Bradshaw, 132 P. 327, 37 Okl. 317.
ss Mackey v. Pettijohn. 49 P. 636, 6 Kan. App. 57.
a* Coffe & Carkeuer v. Wilhite, 56 Okl. 394, 156 P. 169.
(119)
§ 214 JURISDICTION (Ch. 3
islature enacting it applies only to statutes entirely penal, and not
to those which are in part compensatory.35
§ 214. Shown by record
The county court, while of limited jurisdiction, is a court of
record, and not an inferior court in the sense that its judgment
may be disregarded because jurisdictional facts do not appear on
the face of .its proceedings.36
The general rule that the silence of the record of an inferior
tribunal on a jurisdictional point is fatal applies in cases of col-
ss Great Western Machinery Co. v. Smith, 124 P. 414, 87 Kan. 331, 41 L. R.
A. (N. S.) 379, Ann. Cas. 1913E, 243.
•Rev. St. Mo. 1909, § 3151, making railroads responsible for loss by fire, be-
ing compensatory and remedial, may be enforced in an action in Kansas.
Hollinger v. Missouri, K. & T. Ry. Co., 146 P. 1034, 94 Kan. 316, Ann. Cas.
1916D, 802.
A contract of purchase made in Missouri contrary to Rev. St. 1899, §§ 8965,
8966 (Ann. St. 1906, pp. 4150, 4152), relating to pools, trusts, and monopolies,
subject to be defeated when sought to be enforced in that state by section 8970
(page 4153), providing that such purchasers shall not be liable for the price,
but may treat the violation of the statute as a defense, when sought to be
enforced in Oklahoma, is subject to the same defense under the laws of com-
ity between different states ; the provisions of section 8970 not being contrary
to the public policy of the state. Wagner v. Minnie Harvester Co., 106 P.
969, 25 Okl. 558.
A cause of action accrued in Kansas under Laws Kan. 1907, c. 281, § 1, mak-
ing every railroad liable for damages to any employ^ in consequence of negli-
gence of its agents, or by any mismanagement of its engineers or other em-
ployes. Const. Okl. art. 9, § 36, concurs in holding that the act complained of
under the Kansas statute gives a right of action. Held, that the Kansas stat-
ute 4s not against the public policy of Oklahoma, and, although the right of
action exists by statute, and not by the common law, it may be enforced in
the courts of Oklahoma. Chicago, R. I. & P. Ry. Co. v. Mclntire, 119 P. 1008,
29 Okl. 797.
A Nebraska statute, providing that an attorney who was guilty of fraud and
deceit shall forfeit treble damages, imposes a penalty, and is not enforceable
in Oklahoma. Mohr v. Sands, 44 Okl. 330, 133 P. 238.
so Rogers v. Duncan, 57 Okl. 20, 156 P. 678.
County courts are entitled to the sarae presumption of jurisdiction as dis-
trict courts. Ex parte Brown, 105 P. 577, 3 Okl. Cr. 329.
In proceedings properly before the probate court and within its jurisdiction,
it is not necessary that its judgment should contain a recitation of the facts
on which the jurisdiction of the court depends. Greer v. McNeal, 69 P. 891,
11 Okl. 519, judgment affirmed 69 P. 893, 11 Okl. 526; Cooper v. Newcomb
(Okl.) 174 P. 1029 ; Holmes v. Holmes, 111 P. 220, 27 Okl. 140, 30 L. R. A. (N.
K.) 920.
(120)
Art. 1) NATURE, SCOPE, ELEMENTS, AND EXERCISE §§ 215-216
lateral attack to those jurisdictional facts only which the law di-
rects the tribunal to enter on its record.37
§ 215. Determination of jurisdiction
Courts have inherent power to inquire into their jurisdiction.38
Where the jurisdiction of the court depends on a fact which it is
required to ascertain and decide, its judgment determining that fact
does exist is conclusive evidence of jurisdiction until set aside or
reversed by direct proceedings.39
While superior, courts will construe the proceedings of inferior
tribunals with regard to mere irregularities with great liberality, so
as to uphold such proceedings, yet they will also rule strictly with
regard to matters of jurisdiction, for the purpose of keeping such
inferipr tribunals strictly within the limits of their jurisdiction.40
§ 216. Objections
When the court has no jurisdiction of the subject-matter, either
party to the suit may avail himself of the objection at any stage,
and the court on its own motion will refuse to proceed further, and
dismiss the case when its attention is called to the fact.41
37 Gehlenberg v. Hartley, 165 P. 286, 100 Kan. 487.
Presumptions. — An action was commenced in the district court to reform
a real estate mortgage and to foreclose the same. Service of summons was
obtained by publication. From the affidavit for service it appeared that de-
fendant had removed from the county and resided in the region of the coun-
try known as Pike's Peak, and that service of summons could not be made on
defendant. The date of the filing of the affidavit was not shown. Held that,
in the absence of any showing to the contrary, it would § be presumed that the
district court had jurisdiction to render a judgment reforming and foreclosing
the mortgage. Carey v. Reeves, 5 P. 22, 32 Kan. 718.
Where judgment is rendered by the district court under Laws 1877, c. 39,
relating to the collection of delinquent taxes on land bid in by counties at tax
sales, etc., and a sheriff's deed founded thereon, and an admission of the par-
ties that the files of the court are lost and cannot be found, are in evidence,
they are sufficient, aided by the presumption that jurisdiction was rightfully
assumed, to show jurisdiction to render the judgment, if nothing to the con-
trary is shown. English v. Woodman, 21 P. 283, 40 Kan. 752:
Circuit courts in Ohio are presumed to be courts of general jurisdiction.
Poll v. Hicks, 72 P. 847, 67 Kan. 191.
ss Adair v. Montgomery (Okl.) 176 P. 911 ; Washburn v. Delaney, 30 Okl. 789,
120 P. 620.
39 In re Wallace, 89 P. 687, 75 Kan. 432.
40 State v. Horn, 9 P. 208, 34 Kan. 556.
41 Myers v. Berry, 41 P. 580, 3 Okl. 612.
(121)
§ 217 JURISDICTION (Ch.
ARTICLE II
ORIGINAL, CONCURRENT, AND APPELLATE JURISDICTION
Sections
217. Concurrent jurisdiction.
218. Personal injuries.
219. Appeals — From police judges and justices of the peace.
220. From town jiistice court.
221. From county commissioners.
222. How taken.
223. State and federal courts.
224. Transfer of causes.
225. Transfer to state courts.
226. County courts — Jurisdiction — Judge pro tempore.
227- Amount involved.
228. Probate jurisdiction — Sessions.
229. Title involved.
230. Bastardy proceedings.
231. Appellate jurisdiction.
232. District courts.
233. Special cases.
234. Amount involved.
235. Appeals from county court.
236. Appeals in probate cases.
237. Indians and Indian lands.
238. Indian lands.
239. Misconduct in office.
240. Taxes and assessments.
241. Public lands.
242. Vested when — Exemption from taxation.
243. Equity.
244. Foreclosure.
245. Superior courts.
246. Supreme Court.
247. Appeals from county court.
§ 217. Concurrent jurisdiction
Concurrent jurisdiction means the jurisdiction of several different
tribunals, each authorized to deal with the same subject-matter.4-
Where proceedings are commenced relative to the same subject--
matter in two courts having equal concurrent jurisdiction, the court
which first issued its process will be deemed to have been the first
to take jurisdiction of the subject-matter, and hence entitled to
retain possession of the proceedings to the exclusion of the other
42 Oklahoma Fire Ins. Co. v. Phillip, 111 P. 334, 27 Okl. 234.
(122)
Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 217-219
court, though the process of the latter was served before that of the
former.43
Between courts of equal authority, that one which first obtains
jurisdiction will be permitted to pursue it to the end U> the exclu-
sion of all others, and will not permit its jurisdiction to be subvert-
ed by resort to some other tribunal.44
The rule that possession of property of which one court has taken
jurisdiction cannot be interfered with by a court of concurrent
jurisdiction merely protects the immediate possession of the first
court, and does not deprive another court of jurisdiction to deter-
mine controversies over the same property. Thus a state court's
jurisdiction to cancel a deed conveying a right of way to a rail-
road company is not ousted by the pendency of a former suit in
federal court to foreclose a mortgage given by the railroad company
on its right of way.45
§ 218. Personal injuries
"The right of action to recover damages for personal injuries not
resulting in death arising and occurring in hazardous employments,
* * * except the right of action reserved to the State Industrial
Commission for the benefit of an injured employee, * * * is
* * * abrogated, and all jurisdiction of the courts of this state
over such causes, except as to the causes reserved to the State In-
dustrial Commission for the benefit of injured employees, * * *
is * * * abolished." 4G
§ 219. Appeals — From police judges and justices of the peace
"In addition to the jurisdiction and powers conferred upon dis-
43 Chicago, K. & W. R. Co. v. Harris, 21 P. 1071, 42 Kan. 223.
44 Ewing v. Mallison, 70 P. 369, 65 Kan. 484, 93 Am. St. Rep. 299.
As between courts of concurrent jurisdiction, that court first acquiring ju-
risdiction may draw to itself all the pertinent issues between the parties, and
enjoin other courts from interfering. Juhlin v. Hutchings, 135 P. 598, 90 Kan.
£18, judgment affirmed on rehearing 136 P. 942, 90 Kan. 865.
As a general rule, a court which first acquires the custody and control of
property and assets by the appointment of a receiver will retain such con-
trol until the end of the litigation, to the exclusion of interference by other
courts of concurrent jurisdiction. Missouri Pac. Ry. Co. v. Love, 59 P. 1072.
61 Kan. 433 ; Martin v. Harnage, 110 P. 781, 26 Okl. 790, 38 L. R. A. (X. S.)
228 ; Lanyon v. Braden, 48 Okl. 689, 150 P. 677.
45 Brown v. Stuart, 133 P. 725, 90 Kan. 302.
4<s Sess. Laws 1915, p. 603, art. 6, § 2.
(123)
§§ 220-221 JURISDICTION (Ch. 3
r
tricts courts by the Constitution and other statutes, the said dis-
trict courts, concurrent with the county and superior courts, shall
have jurisdiction of appeals from police judges and from justices
of the peace in civil and criminal cases; but in all such appeals
there shall be a trial de novo on questions of both law and fact." 47
§ 220. From town justice court
In all cases before a justice of the peace of any town, "an appeal
may be taken by the defendant to the county superior or district
court of the county in which such town is situated ; but no appeal
shall be allowed unless such defendant shall within ten days enter
into recognizance with sufficient securities, to be approved by such
justice of the peace, conditioned for the payment of the fine and
costs and costs of appeal, and that he will render himself in execu-
tion thereof if it shoulti be determined against the appellant." 48
§ 221. From county commissioners
"From all decisions of the board of commissioners, upon matters
properly before them, there shall be allowed an appeal to the dis-
trict court by any persons aggrieved, including the county by its
county attorney, upon filing a bond with sufficient penalty, and one
or more sureties to be approved by the county clerk, conditioned
that the appellant will prosecute his or her appeal without delay,
and pay all cost that he or she may be adjudged to pay in the said
district court; said bond shall be executed to the county, and
may be sued in the name of the county upon breach of any condi-
tion therein : Provided, that the county attorney, upon the written
demand of at least fifteen (15) freeholders of the county, shall take
an appeal from any action of the board of county commissioners
when said action relates to the interests or affairs of the county at
large or any portion thereof, in the name of the county, when he
deems it to the interest of the county so to do ; and in such case no
bond shall be required or given and upon serving the notice pro-
vided for in the next section the county clerk shall proceed the same
as if a bond had been filed." 49
47 Rev. Laws 1910, § 1778.
48 Rev. Laws 1910, § 734.
49 Sess. Laws 1915, p-. 205, § 1, amending Rev. Laws 1910, | 1640.
Where a petition was presented to the board of county commissioners, re-
questing the laying out of a highway, under St. 1893, p. 1067, c. 72, and the
(124)
Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 221—222
On appeal from county commissioners pursuant to the statute,
the district court takes appellate jurisdiction only, and cannot con-
vert the action into one in equity, so as to enlarge its jurisdiction
beyond that of the similar tribunal.60
"All appeals thus taken to the district court shall be docketed as
other causes pending therein, and the same shall be heard and de-
termined de novo." 51
§ 222. How taken
"Said appeal shall be taken within twenty days after the decision
of said board, by serving a written notice on one of the hoard of
county commissioners, and the clerk shall, upon the riling of the
bond as hereinbefore provided, make out a complete transcript of
the proceedings of said board relating to the matter of their decision
board granted the petition and appointed viewers, who established a line
ancL reported the proceedings to the county commissioners, which report was
approved and the road ordered opened, an owner of land over which the road
was established, without asking for any damages, could not appeal from the
decision of the board to the district court. Cummings v. Board of Com'rs of
Noble County, 73 P. 288, 13 Okl. 21.
An appeal lies, under St. 1893, c. 22, art. 9, § 37, from a decision of the coun-
ty commissioners that an election on a proposition to permit cattle free mime
is a resubmission of that proposition to the voters, under chapter 2, art. 2
(Herd Law) § 4. Board of Com'rs of Washita County v. Haines, 46 P. 561, 4
Okl. 701.
Where c«unty commissioners overruled a protest against the location of a
bridge and proceeded to let the contract therefor, held, that such action was
not a decision "on a matter properly before it" from which an appeal would
lie to the district court under Rev. Laws 1910, § 1640. Parker v. Board of
Com'rs of Tillman County, 139 P. 981, 41 Okl. 723.
The decision of county commissioners as to location of a county courthouse
and jail is a "decision" from which appeal will lie to district court pursuant
to Rev. Laws 1910, § 1640, as amended by Laws 1915, c. 117, In re Court-
house of Okmulgee County, 58 Okl. 683, 161 P. 200. In contest before county
commissioners between owners of property offered* as donation for courthouse
site, on appeal from action of the board under Rev. Laws 1910, § 1640, as
amended by Laws 1915, c. 117, and section 1641, notice need not be served on
the owners of the site selected. Id.
so Parker v. Board of Com'rs of Tillman County, 139 P. 981, 41 Okl. 723.
Jurisdiction of district court, on appeal from county commissioners in pro-
ceeding to recover taxes erroneously assessed, cannot be enlarged into an
equitable action to recover same beyond commissioners' jurisdiction. Smith
v. Board of Com'rs of Garvin County, 62 Okl. 120, 162 P. 463.
si Rev. Laws 1910, § 1643.
(125)
.§§ 222-223 JURISDICTION (Ch. 3
thereon, and shall deliver the same to the clerk of the district
court." 52
An appeal from the action of the county commissioners is a
statutory method by which the district court may obtain jurisdic-
tion of the cause and of the parties and make judicial determina-
tion, and does not preclude one, whose claim has been disallowed,
from beginning an action by filing a petition and causing issuance
and service of summons.53
"Said appeal shall be filed by the first day of the district court
next after such appeal and. said cause shall stand for trial at such
term." 54
§ 223. State and federal courts
A suit against a national bank for penalty for usury is cogni-
zable in a state court having general jurisdiction of suits to recover
usury, and such court is not divested of jurisdiction in the absence
of demand for the return of the usury by the fact that the state
statute requires a demand in actions thereunder.55
The state courts have jurisdiction of actions against an initial
carrier for damages for delay in the transportation of a shipment,
though defendant's liability is created by the Carmack Amendment
(U. S. Comp. St. §§ 8604a, 8604aa), making the initial carrier liable
for damages from delay.56
The enforcement of the Act of Congress regulating the liability
of interstate railway carriers for injury to employees while- engaged
in interstate commerce is not restricted to the federal courts, in
view of the Judiciary Act recognizing concurrent jurisdiction in the
state courts.57
A United States District Court, having taken jurisdiction of a
suit to avoid an allotment and patent, and having appointed a re-
52 Rev. Laws 1910, § 1641.
ss Board of Com'rs of Atoka County v. Cypert (Old.) 166 P. 195.
s* Rev. Laws 1910, § 1642.
ss Commercial Nat. Bank of Checotah v. Phillips, 61 Okl. 179, 160 P. 920.
Actions against a national bank for knowingly charging a usurious rate of
interest in violation of Rev. St. U. S. §§ 5197, 5198 (U. S. Comp. St. §§ 9758,
9759), may be maintained in any state court having jurisdiction in similar
cases where the bank is located. Farmers' Nat. Bank of Wewoka v. McCoy,
141 P. 791, 42 Okl. 420, Ann. Gas. 1916D, 1243.
56 Ft. Smith & W. R. Co. v. Awbrey & Semple, 39 Okl. 270, 134 P. 1117.
-•- Missouri, K. & T. Ry. Co. v. Lenahan, 39 Okl. 283, 135 P. 383.
(126)
Aft. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 223~224
ceiver to make oil and gas leases, etc., can retain control of the
property until it fully effectuates its judgment, free from interfer-
ence of any other court, and an intervener in such suit, therein as-
signing certain oil rights to prope'rty in receivership, pending the
case in such court, cannot litigate his claim to royalty by virtue of
an assignment in a state court.58
A defendant charged With violating a state law and out on bail
may be arrested by federal authorities without violating the comity
existing between the two jurisdictions.59
Where plaintiff asserted only one right to recover for death of
a railroad employe from defendant's negligence, whether the right
of action arose under the federal act or under the state law it was
equally cognizable in state court.60
§ 224. Transfer of causes
An order transferring a will contest from the superior to the
listrict court on motion of contestants, is valid,61 as is also a trans-
fer to the superior court from the district court.62
After a cause has been legally transferred from a superior to a
district court, jurisdiction of the superior court is lost, and any
further proceeding is a nullity, and this is true as to its order revok-
ing the order transferring the cause from the superior to the dis-
trict court.63 Irregularities in the transfer of a case from a district
court to a superior court may be waived by the parties, and, when
so waived, any judgment rendered by the superior court within its
jurisdiction will be valid.64
A required notice of desire to transfer a cause is waived where
the opposite party is present at the time the motion for removal is
58 Black Panther Oil & Gas Co. v. Swift (Okl.) 170 P. 238.
59 Metcalf v. State, 57 Okl. 64, 156 P. 305, L. R. A. 1916E, 595.
eo Lusk v. Phelps (Okl.) 175 P. 756.
ei In re Nichols' Will, 64 Okl. 241, 166 P. 1087.
ez Parker v. Hamilton, 49 Okl. 693, 154 P. 65; State v. Superior Court of
Pottawatomie County, 38 Okl. 366, 132 P. 1077.
es In re Nichols' Will, 64 Okl. 241, 166 P. 1087.
«'* Price v. Peeples (Okl.) 168 P. 191 ; Parker v. Hamilton. 49 Okl. 693, 154
P. 65.
A case pending on appeal in the county court from a justice of the peace
court may be transferred on motion of plaintiff to a superior court. Yarbor-
ough v. Richardson. 38 Okl. 11, 131 P. 680; Oklahoma Fire Ins. Co. v. Phil*
lip, 111 P. 334, 27 Okl. 234.
(127)
§§ 225-226 JURISDICTION (Ch. 3
made and participates in the hearing without objection based on
want of notice.65
§ 225. Transfer to state courts
Courts of original jurisdiction, after statehood, are deemed suc-
cessors of all courts of original jurisdiction in the territories, and
take custody of all records and files of such territorial courts.86
The district court of the state is the successor to the territorial
district court for the purpose of correcting the record of a judg-
ment rendered by the territorial court.67
The right to have a case transferred to the federal court is waived
by failure to object to its transfer to the Oklahoma Supreme
Court.68
§ 226. County courts — Jurisdiction — Judge pro tempore
"The county court, coextensive with the county, shall have
original jurisdiction in all probate matters, and until otherwise pro-
vided by law, shall have concurrent jurisdiction with the district
court in civil cases in any amount not exceeding one thousand dol-
lars, exclusive of interest : Provided, that the county court shall not
have jurisdiction in any action for malicious prosecution, or in any
action for divorce or alimony, or in any action against officers for
misconduct in office, or in actions for slander or libel, or in actions
for the specific performance of contracts for the sale of real estate,
or in any matter wherein the title or boundaries of land may be
in dispute or called in question; nor to order or decree the partition
or sale of real estate, not arising under its probate jurisdiction.
es Rauh v. Morris, 137 P. 1174, 40 Okl. 288.
ee Where a proceeding to probate a will, instituted in the United States
Court at Wewoka, was transferred after statehood to the district court of
Seminole county, pursuant to Const. Schedule, § 27, and transferred, pur-
suant to section 23, to the county coiirt of that county, which transferred it
to the county court of Hughes county, wherein it was pending when a peti-
tion to set aside a probate of the will was filed, held, that it was proper to
file the petition in the court last mentioned. Scott v. McGirth, 139 P. 519,
41 Okl. 520; Eaves v. Mullen, 107 P. 433, 25 Okl. 679; Burdett v. Burdett, 109
P. 922, 26 Okl. 416, 35 L. R. A. (N. S.) 964 ; MaHarry v. Eatman, 116 P. 935,
29 Okl. 46 ; Harris v. Lynch, 116 P. 942, 29 Okl. 349 ; Reeves v. Territory, 101
P. 1039, 2 Okl. Cr. 351 ; Crump v. Pitchford, 104 P. 911, 24 Okl. 808 ; South-
ern Surety Co. v. State, 127 P. 409, 34 Okl. 781.
67 Ex parte Rowland, 104 P. 927, 3 Okl. Cr. 142, Ann. Gas. 1912A, 840.
68 Cnoctaw, O. & G. R. Co. v. Sittel, 97 P. 362, 21 Okl. 679.
(128)
Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE § 226
"It shall have such appellate jurisdiction of the judgments of
justices of the peace in civil and criminaj cases as may be provided
by law, or in this Constitution, The county court shall have jur-
isdiction concurrent with justices of the peace in misdemeanor cases,
and exclusive jurisdiction in all misdemeanor cases of which jus-
tices of the peace have not jurisdiction. In the absence of the
judge of the district court from the county, or in case of his dis-
qualification for any reason, the county court, or judge thereof,
shall have power to issue writs of injunction in matters about to be
brought or pending in the district court; and to issue writs of
injunction, mandamus, and all writs necessary to enforce the juris-
diction of the county courts; and issue writs of habeas corpus
in cases where the offense charged is within the jurisdiction of
the county court or any other court or tribunal inferior to said
court."
"When the county judge is disqualified in any case pending in the
county court, a judge pro tempore may be selected in the manner
provided for the selection of judges pro tempore in the District
Court." 69
"County courts, in their respective counties, in addition to such
jurisdiction and powers as are conferred by the state Constitution."
coextensive with the county, shall have original jurisdiction in all
probate matters and bastardy proceedings, and shall have concur-
rent jurisdiction with the district court in civil cases in any amount
not exceeding one thousand ($1,000.00) dollars, exclusive of inter-
est: Provided, that the county court shall not have jurisdiction in
any action for malicious prosecution, or in any action for divorce
or alimony, or in any action against officers for misconduct in
office, or in actions for slander or libel, or in actions for the specific
performance of contracts for the sale of real estate, or in any mat-
ter wherein the title or boundaries of land may be in dispute or call-
ed in question; nor to order or decree the partition or sale of
real estate, or in any matter wherein the title or boundaries of land
may ,be in dispute or called in question ; nor to order or decree
the partition or sale of real estate, not arising under its probate jur-
isdiction ; and, provided, further, that in any civil action in the coun-
ty court where the title or boundaries of land may be called in ques-
69 Const. Okl. art. 7, § 12.
HON.PL.& PRAC.— 9 (129)
§§ 226-227 JURISDICTION (Ch. 3
tion, said action shall be transferred to the district court in the same
manner and upon the sam^ grounds, and be proceeded with therein,
as provided for similar actions before justices of the peace." 70
The county court has exclusive jurisdiction of proceedings to sus-
pend an officer in a prosecution for a misdemeanor.71
County courts have only such jurisdiction as is granted by the
Constitution and statutes enacted in harmony therewith,72 but
the inclusion of a prayer for additional relief beyond the county
court's jurisdiction will not deprive such court of jurisdiction or
prevent it from granting such relief within its jurisdiction as would
be consistent with the pleadings and evidence.73
§ 227. Amount involved
Under the act of 1917, county courts have jurisdiction of civil
cases involving $200 or less,74 and decisions that the county court
had no such jurisdiction are now inapplicable.75
70 Sess. Laws 1917, p. 184, § 1, amending Rev. Laws 1910, § 1816.
71 State ex rel. Ikard v. Russell, 33 Okl. 141, 124 P. 1092.
Wilson's Rev. & Ann. St. 1903, § 2630, conferring on district courts jurisdic-
tion of actions under section 2628, and that portion of section 2631 confer-
ring on district courts in actions under section 2628 authority to suspend from
office certain officers pending such action, was not continued in force on the
admission of the state in so far as they are repugnant to Const, art. 7, § 12,
conferring jurisdiction on the county court. State v. Shea, 115 P. 862, 28
Okl. 821.
72 Ozark Oil Co. v. Berryhill, 43 Okl. 523, 143 P. 173; Const, art. 7, § 12;
Crump v. Pitchford, 24 Okl. 808, 104 P. 911 ; In re Johnson (Okl.) 179 P. 605.
Statutes in harmony. — Const, art. 7, § 14 (Bunn's Ed. § 186), providing that
the county court shall have jurisdiction of all cases on appeals from justices
of the peace, does not preclude the conferring of appellate jurisdiction on the
county court in a proceeding for the assessment and collection of taxes on
omitted property. Anderson v. Ritterbusch, 98 P. 1002, 22 Okl. 761.
73 Antene v. Jensen, 47 Okl. 352, 148 P. 727.
7*Moline Plow Co. v. Adair, 76 Okl. 4, 183 Pac. 499.
All cases heretofore filed in the county courts for amounts of less than two
hundred (.$200.00) dollars, shall be deemed to have been validly filed on the
day the petition and praecipe for summons were filed and the action shall be
deemed to have been legally commenced on said day, and all proceedings had
in the county courts in cases brought for less than two hundred ($200.00) dol-
75 Inapplicable decisions. — Musser v. Baker, 53 Okl. 782, 158 P. 442; Barry
v. Easter Drug Co., 53 Okl. 799, 158 P. 443 ; First National Bank of Poteau v.
School District No. 49 of Hughes County, 61 Okl. 45, 160 P. 68 ; Underwood
Typewriter Co. v. March, 61 Okl. 129, 160 P. 594; Ashbaugh v. Rousch, 62 Okl.
96, 162 P. 205.
(130)
Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 227~228
Where th§ amount claimed exceeds the maximum statutory ju-
risdictional limit of the court, it is without power to proceed with
a hearing.76
The prayer of the pleading determines the jurisdiction of the
court and fixes the amount of controversy.77
Interest should be excluded in determining the jurisdictional
amount involved.78
§ 228. Probate jurisdiction — Sessions
"The county court shall have the general jurisdiction of a pro-
bate court. It shall probate wills, appoint guardians of minors,
idiots, lunatics, persons non compos mentis, and common drunk-
ards ; grant letters testamentary and of administration, settle
accounts of executors, administrators, and guardians; transact
all business appertaining to the estates of deceased persons, mi-
nors, idiots, lunatics, persons non compos mentis, and common
drunkards, including the sale, settlement, partition, and distribu-
tion of the estates thereof. The county court shall be held at the
county seat, but the Legislature may provide for holding sessions
of the county court at not more than two additional places in the
county : Provided, that alternate sessions of county court in Le
Flore county shall be held at Talihina." 79
lars, shall be deemed legal and valid and any such case which has been dis-
missed on the ground of want of jurisdiction may be reinstated on motion, a
copy of which motion shall be served by the applying party upon the oppo-
site party or his attorney of record the same as before the adoption of the
Revised Laws of 1910. Sess. Laws 1917, p. 184, § 2.
The original jurisdiction of county courts in civil cases conferred by Const.
art. 7, § 12, was not changed by Comp. Laws 1909, §§ 1977, 1978, so as to de-
prive them of jurisdiction where the amount involved does not exceed $200.
Miller v. Mills, 122 P. 671, 32 Old. 388 ; First Nat. Bank v. Langston, 124 P.
308, 32 Okl. 795 ; State Bank of Paden v. Lanam, 126 P. 220, 34 Okl. 485 ; First
Nat. Bank v. Latham, 132 P. 891, 37 Okl. 286 ; First Nat. Bank v. Ingle, 132
P. 895, 37 Okl. 276 ; Cooper v. Austin, 30 Okl. 297, 119 P. 206.
76 St. Louis & S. F. By. Co. v. Egbert, 111 P. 202, 27 Okl. 168.
T T Oliver v. White (Okl.) 176 P. 946.
78 St. Louis & S. F. R. Co. v. Wynn, 54 Okl. 482, 153 P. 1156.
Under Const, art. 7, § 12, giving county court concurrent jurisdiction with
district court in civil cases, and in view of Rev. Laws 1910, § 2848, where
amount does not exceed $1,000, exclusive of interest, interest on damages
from negligent delay in shipment of live stock by shrinkage and declining
market should be excluded, in determining maximum jurisdictional amount
7 9 Const. Okl. art. 7, § 13.
(131)
§ 228 JURISDICTION (Ch. 3
The county court of the state, as to all causes, jurisdiction of
which is conferred upon it by the Constitution, and which there-
tofore had been in the probate court of the territory, is a successor
of such probate court, and the statute subscribing the procedure
in the trial and disposition of cases in the probate court governs in
the county court so far as not in conflict with the Constitution or
inapplicable.80
A county court, coextensive with the county, is a court of origi-
nal jurisdiction in all probate matters,81 and may at any time be-
fore his majority modify or vacate any order or judgment regard-
ing the estate of a minor.82
An action in the county court to vacate an order made in the
exercise of the court's probate jurisdiction, distributing an estate,
is an action under that court's probate jurisdiction,83 as is a peti-
tion for withdrawal of a successful bid at a sale under order of the
county court, by a guardian of oil royalties, for fraud of the guard-
ian in stating the quantity of royalty and for a refund of a depos-
it.84 But county courts have no jurisdiction where an oil and gas
lease has been approved and a bonus of $1,600 paid to the guardian,
to order him to repay said sum, on the ground that the approval
for which action may be brought in county court. St. Louis & S. F. R. Co. v.
Ladd (Okl.) 178 P. 125.
so Baker v. Newton, 112 P. 1034, 27 Okl. 436. The enabling act (Act June
16, 1906, c. 3335, 34 Stat. 277) and the schedule to the Constitution give to the
county Court jurisdiction of cases which had theretofore been in the probate
court of the territory, and put in force in the state the statutes in force in the
territory prescribing procedure applicable to cases in the probate court. Held,
that Wilson's Rev. & Ann. St. 1903, § 1880, providing that the probate court
shall be open at all times for the trial of cases under the justice procedure,
being inapplicable to the trial of civil cases in the county courts of the state,
is to that extent not extended in force in the state upon its admission. Id-
si Scott v. McGirth, 139 P. 519, 41 Okl. 520.
The trial of the question of whether one petitioning for revocation of pro-
bate of a will is interested, and so entitled, under Code Civ. Proc. § 1327, to
contest the will, or whether he lost all by a conveyance of his expectant es-
tate, is within the jurisdiction of the probate court. In re Wickersham's Es-
tate, 96 P. 311, 153 Cal. 603.
szBarnett v. Blackstone Coal & Mining Co., 60 Okl. 41, 158 P. 588; In re
Johnson (Okl.) 179 P. 605.
ss Southwestern Surety Ins. Co. v. King (Okl.) 174 P. 264.
s* In re Southern Oil Corp.. (Okl.) 168 P. 826.
(132)
Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 228~229
of the lease was secured by fraudulent representations as to breach
of conditions of a former lease by the lessee therein.85
A county court's attempted decree, partitioning restricted In-
dian lands, is void.86
§ 229. Title involved
The county court has no jurisdiction, where the title to land is
involved.87
ss In re Johnson (Okl.) 179 P. 605.
A proceeding in which a minor seeks a modification and cancellation of an
oil lease made by order of court is not a probate proceeding. Ozark Oil Co.
v. Berryhill, 143 P. 173, 43 Okl. 523.
se Lewis v. Gillard (Okl.) 173 P. 1136.
ST Title involved. — Issues in a real estate broker's action for commission
held not to involve title to the land so as to deprive the county court of ju-
risdiction. Everett v. Combs, 140 P. 152, 40 Okl. 645.
A petition in the county court alleging that defendants falsely represented
to plaintiff that they had the right of possession of land for the succeeding
year and induced plaintiff to lease the land from them and to pay a valuable
consideration therefor, and that the title to said land was not in defendants
or in the person under whom defendants claimed, and that defendants had
no valid lease therefor, brought the title to land into question so that the
county court, under Const, art. 7, § 12, had no jurisdiction. Couch v. Mc-
Koon, 122 P. 542, 31 Okl. 584.
The county court by reason of Const, art. 7, § 12, providing that the county
court cannot have jurisdiction in any matter wherein the title to land may
be in dispute, has no jurisdiction in a probate proceeding by a guardian for
an order of sale of his ward's real estate to determine a claim of a third per-
son to the real estate adverse to the ward. Jefferson v. Winkler, 110 P. 755,
26 Okl. 653.
Title not involved. — Title to land is not in dispute in an action on a gran-
tor's covenant against taxes, and a probate court of the territory of Okla-
homa or a county court of the state has jurisdiction. Loeb v. Loeb, 103 P.
570, 24 Okl. 384.
A motion to dismiss an action of forcible entry and detainer because the
title to real estate was involved was improperly sustained ; this being a pos-
sessory action in which title cannot be involved except incidentally. Cahill v.
Pine Creek Oil Co., 38 Okl. 568, 134 P. 64.
In an action in the county court on a note, an answer, alleging that the
note is for the balance of the price of real estate, title to which was defec-
tive, did not present a question as to the title to real estate ousting the ju-
risdiction. Taylor v. Cox, 136 P. 576, 39 Okl. 582. A mere statement of a
conclusion in a pleading that the title to real estate was involved was insuffi-
cient to oust the jurisdiction of the county court. Id.
Under Const, art. 7, § 12, depriving the county court of jurisdiction where
title is involved, etc., the county court has jurisdiction in a suit to recover
(133)
§§ 229-231 JURISDICTION (Ch. 3
The district courts, and not the county courts, have jurisdic-
tion of actions in ejectment and to remove cloud from title, since
they call into question title to real estate.88
In an action by the grantee of a landlord for rent, where the
tenant's answer denies the title of the plaintiff, but no evidence is
introduced to show want of title, the county court is not ousted
of jurisdiction; 89 but it is otherwise where the real issue is as to
who owns the land and is entitled to the rent.90
§ 230. Bastardy proceedings
The county court is vested with the exclusive original juris-
diction in bastardy proceedings,91 regardless of the amount in-
volved.92
§ 231. Appellate jurisdiction
"Until otherwise provided by law, the county court shall have
jurisdiction of all cases on appeals from judgments of the justices
of the peace in civil and criminarcases ; and in all cases, civil and
criminal, appealed from justices of the peace to such county court,
there shall be a trial de novo on questions of both law and fact." 93
"The county court shall have, concurrent with the district court,
appellate jurisdiction of judgments of justices of the peace, and
of judgments of police judges, in all civil and criminal causes
* * * and in all cases, civil and criminal, appealed from the
justices of the peace and police judges, there shall be a trial de
novo on questions of both law and fact." °4
an alleged balance of the price of a town lot though defendant denies he ever
bought the lot or owes anything. Waters v. Dore, 50 Okl. 183, 150 P. 885.
In actions founded on fraud and deceit the probate court has jurisdiction
where the amount sought to be recovered is $1,000 or less, though the fraud
induced the plaintiffs to purchase certain land, the action not being concern-
ing any matter wherein the title or boundaries of land were in "dispute, or on
a contract for the sale of real estate, of which action the probate court has
no jurisdiction, under St. 1893, § 1562. Newell v. Long-Bell Lumber Co., 78
P. 104, 14 Okl. 185.
88 Austin v. Chambers, 124 P. 310, 33 Okl. 40.
89 Sevy v. Stewart, 122 P. 544, 31 Okl. 589.
90 Marshall v. Burden, 106 P. 846, 25 Okl. 554.
91 Cummins v. State, 46 Okl. 51, 148 P. 137.
92 Wilson v. State (Okl.) 175 P. 829, overruling Cummins v. State, 46 Okl.
51, 148 P. 137.
os Const. Okl. art. 7, § 14.
9* Rev. Laws 1910, § 1817.
(134)
Aft. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 232~233
§ 232. District courts
"The district courts shall have original jurisdiction in all cases,
civil and criminal, except where exclusive jurisdiction is by this
Constitution, or by law, conferred on some other court, and such
appellate jurisdiction as may be provided in this Constitution, or
by law. The district courts, or any judge thereof, shall have pow-
er to issue writs of habeas corpus, mandamus, injunction, quo war-
ranto, certiorari, prohibition, and other writs, remedial or other-
wise, necessary or proper to carry into effect their orders, judg-
ments, or decrees. The district courts shall also have the power
of naturalization in accordance with the laws of the United
States."95
This constitutional provision does not prevent the Legislature
from conferring jurisdiction on county and superior courts, to the
exclusion of the district court.96
§ 233. Special cases
Under specified circumstances the district court may change the
limits of a town or city,97 and may alter or vacate the whole or
part of a town.98 It has jurisdiction of actions by a ward against
the estate of his former guardian and the surety on the guardian's
bond, although the guardian had not accounted to the county court
prior to his death.99 It also has equitable jurisdiction in an action
to set aside orders of the county court approving a guardian's final
settlement, where such settlement and orders were procured by
undue influence on wards and fraudulent representations to the
court.1
95 Const Okl. art. 7, § 10.
Where a donor offered $10,000 to construct a library provided the city
would donate the site and maintain the library which proposition the city ac-
cepted, the city's title to the property was that of trustee for the public, and
the court had jurisdiction in a taxpayer's action to prevent the city's officers
from using the building for city offices. Perry Public Library Ass'n v. Lob-
sitz, 130 P. 919, 35 Okl. 576, 45 L. R. A. (N. S.) 368.
96 Poos v. Shawnee Fire Ins. Co., 37 Okl. 251, 130 P. 153.
97 Rev. Laws 1910, § 504.
98 Rev. Laws 1910, § 518.
99 Morey v. Christian (Okl.) 169 P. 887.
In action in district court by ward against personal representative of guard-
ian's sureties, the court had jurisdiction to adjust account of deceased guard-
i Francis v. Sperry, 176 P. 732.
(135)
§ 233 JURISDICTION (Ch. 3
"Any person who has been aggrieved by any act, rule or regu-
lation of any of said boards of health, shall have his right of action
to have such issue tried in the district court of the county in
which some member of the board shall reside/' 2
Upon the filing of the report of each survey made by the county
surveyor for the establishment of the corners and boundaries of
lands, "any person served with the notice of the survey as herein
provided, and being aggrieved by such survey, or the costs there-
of, may at any time within thirty days after the filing of such re-
port, appeal to the district court of the county by filing with the
county surveyor a notice of his intention to appeal, in which no-
tice he shall state in what particulars the survey as shown by such
report is erroneous or fails to do him justice, or, if he appeals
from the apportionment of costs alone, then in what particulars
the costs stated in the cost bill are unauthorized or excessive, and
by giving a bond with two sureties to be approved by and filed
with the clerk of the district court, running to the said clerk and
conditioned for the payment of the costs of the appeal if the re-
port of the county surveyor shall be affirmed- by the court. Upon
the filing of such notice and bond, the county surveyor shall cer-
tify such appeal to the clerk of the district court, by filing with
such clerk a certified copy of the report if the survey be appealed
from, and the original notice of the appeal, but if the appeal be
from his apportionment and assessment of costs, then by filing
with such clerk a certified copy of his cost bill and the original no-
tice of appeal." 3
"The court shall hear and determine said appeal and enter an
order or judgment approving or rejecting said report, or modifying
or amending the same, or may refer the same back to the survey-
or to correct his survey and report in conformity with the decree
of the court, or may, for good cause shown, set aside the report
and appoint one or more surveyors who shall proceed, at the time
mentioned in the order of the court, to survey and determine the
corners and boundaries of the land in question, and shall report
the same to the court for further action." 4
ian and allow and determine balance due by guardian and render judgment
therefor. Asher v. Stull, 61 Okl. 320, 161 P. 808.
2 Rev. Laws 1910, § 6819. * Rev. Laws 1910, § 1722.
* Rev. Laws 1910, § 1721.
(136)
Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 234-236
§ 234. Amount involved
The jurisdiction depends on the allegations of the petition and
not the amount of the outstanding indebtedness as finally decided.5
Interest forms no part of the amount in controversy as affecting
jurisdiction, when the statute defining the court's jurisdiction ex-
cludes it from computation, and a claim for attorney's fee, not pro-
vided for in the contract and not recoverable under the statutes,
cannot be added to the amount in controversy, so as to give the
district court jurisdiction.8
§ 235. Appeals from county court
"Until otherwise provided by law, in all cases arising under the
probate jurisdiction of the county court, appeals may be taken
from the judgments of the county court to the district court of
the county in the same manner as is now provided by the laws of
the territory of Oklahoma for appeals from the probate court to
the district court, and in all cases appealed from the county court
to the district court, the cause shall be tried de novo in the district
court upon questions of both law and fact." 7
§ 236. Appeals in probate cases
"In all cases arising under the probate jurisdiction of the coun-
ty court, appeals may be taken from the judgments of the coun-
ty courts to the district court of the county, in the manner pro-
vided by law, and in all cases appealed from county court to the
district court, the cause shall be tried de novo in the district court
upon questions of both law and fact." 8
/
e Farmers' & Merchants' Nat. Bank of Hobart V. School Dist. No. 56, 105
P. 641, 25 Okl. 284.
e St. Paul Fire & Marine Ins. Co. v. Peck, 130 P. 805, 37 Okl. 85 ; Humphrey
v. Coquillard Wagon Works, 132 P. 899, 37 Okl. 714, 49 L. R. A. (N. S.) 600.
7 Const. Okl. art. 7, § 16.
s Rev. Laws 1910, § 1820.
All appeals from the probate court, when exercising its jurisdiction in pro-
bate matters, must be to the district court, under St. 1893, c. 18, art. 13, § 14,
whether the appeal is on questions of law or fact. Carpenter v. Russell, 73
P. 930, 13 Okl. 277.
When appeal lies. — In action in county court under Rev. Laws 1910, §§ 5267,
5269, to vacate an order made in the exercise of its probate jurisdiction in
distributing an estate, an appeal lies to the district court under Const, art. 7,
§ 16. Southwestern Surety Ins. Co. v. King (Okl.) 174 P. 264.
From action of a county court in a probate matter, on a petition to with-
(137)
§ 236 JURISDICTION (Ch. 3
Such appeals must be taken in strict compliance with the stat-
ute.9 They cannot be taken direct to the Supreme Court.10
Where notice is given and bond executed and approved for an
appeal in a probate matter, the district court cannot dismiss the
appeal until the transcript has been transmitted to the district
court for filing.11 In probate matters, where an appeal is taken
from the county court to the district court, on questions of fact,
or on questions of both law and fact, the trial in the district court
must be de novo, and be conducted as if the case,had lawfully orig-
inated in that court. The district court, in such cases, has gen-
eral power to decide the questions of fact which the county court
had, and in its discretion may order a jury trial of any or all mate-
draw a successful bid made at the sale under its order for an oil royalty, and
to recover a deposit, an appeal lies to district court. In re Southern Oil Corp.
(Old.) 168 P. 826.
Under Rev. Laws 1910, § 1820, and Laws 1907-08, c. 27r art. 1, § 6, an ap-
peal lies to the district court from the county court in probate matters. In re
Theimer, 137 P. 358, 40 Okl. 235 ; Smith v. J. I. Case Threshing Mach. Co., 142
P. 1032, 43 Okl. 346.
In an action in the county court under Rev. Laws 1910, §§ 5267, 5269, to va-
cate an order in a probate matter, held that an appeal lies to the district
court under Const, art. 7, § 16. Gray v. McKnight, 50 Okl. 73, 150 P. 1046.
The term "civil cases," as used in section 15, art. 7, of the Constitution,
* * * does not include any case arising under the probate jurisdiction of
the county court. Id.
Under Const, art. 7, § 16, and Schedule, § 2, appeal held to lie to district
court from county court in probate matters in cases in which appeal was al-
lowed by Wilson's Rev. & Ann. St. 1903, § 1793 (Snyder's Comp. Laws 1909, §
5451). Apache State Bank v. Daniels, 121 P. 237, 32 Okl. 121, 40 L. R. A. (N.
S.) 901, Ann. Gas. 1914A, 520.
» The right of an appeal from the county court to district court in a pro-
bate proceeding, being merely statutory, must be exercised in strict compli-
ance with Rev. Laws 1910, §§ 6504, 6505, governing such right of appeal.
Adair v. Montgomery (Okl.) 176 P. 911.
Under Rev. Laws 1910, § 6503, an affidavit by an applicant for appeal from
the county court's order held a prerequisite to the granting of an appeal, and
to conferring jurisdiction thereof on the district court. Baker v. Cureton, 49
Okl. 15, 150 P. 1090.
10 An appeal from a judgment, decree, or order of the county court in pro-
bate cases will not lie direct from such court to the Supreme Court. Lucas
v. Lucas, 125 P. 481, 34 Okl. 282. Under Const, art. 7, § 16, and Schedule, § 2.
an appeal lies to the district court in probate matters in those cases in which
an appeal was allowed by Wilson's Rev. & Ann. St. 1903, § 1793 (Comp. Laws
1909, § 5451). Id.
11 In re Folsom's Estate, 57 Okl. 79, 159 P. 751.
(138)
Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 236-238
•
rial questions of fact, which order must plainly and distinctly state
the question to be tried.12
Where a petition to set aside an order authorizing the guardian
of a minor to lease lands of his ward is denied, an appeal will lie
therefrom to district court; the proceeding being a probate one.13
§ 237. Indians and Indian lands
Act Cong. June 7, 1897, fixes the territorial jurisdiction of the
district court at Pawhuska in civil actions in which a member of
the Osage and Kansas Tribes of Indians is a defendant as coex-
tensive with the limits pf the Osage reservation, and does not re-
quire that the defendant must reside upon lands, the Indian title
to which has not been extinguished. The district court at Paw-
huska, under Act Cong. June 7, 1897, has jurisdiction of a civil a'c-
tion, the defendant in which is a member of the Osage Tribe of
Indians residing in the town of Pawhuska on a lot, the Indian ti-
tle to which has been extinguished. Act Cong. March 3, 1901,
affords to Indian traders at the Osage agency a cumulative reme-
dy for the collection of their accounts against the Osage Indians,
and does not oust the district court at Pawhuska of jurisdiction
of an action on a note executed by an Osage Indian to an Indian
trader, instituted March 6, 1907, where the note had not been pre-
sented to the Secretary of the Interior for adjustment under such
act.14
§ 238. — • — Indian lands
Where a contest between Indians is pending before the Commis-
sioner as to allotment of lands, the state district court is without
jurisdiction, and without power to enjoin contesting parties.15
A court of equity has power to grant relief in a case where the
12 Tilinan v; Tilman (Okl.) 177 P. 558.
is Barnett v. Blackstone Coal & Mining Co., 60 Okl. 41, 158 P. 588.
i'* De Noya v. Hill Inv. Co., 127 P. 444, 33 Okl. 663.
On January 19, 1906, the district court of Choctaw Nation did not have ju-
risdiction to decree divorce between Indians. Colbert v. Fulton (Okl.) 157 P.
1151.
is Bowen v. Ledbetter, 122 P. 131, 32 Okl. 513.
Ejectment will not lie against adverse claimant of town lot in Cherokee Na-
tion in action by person claiming possession under deed from Cherokee Na-
tion, while a contest as to the title before townsite commission having exclu-
sive jurisdiction was undetermined. Tynon v. Hall, 98 P. 895, 22 Okl. 684.
(139)
§ 238 JURISDICTION (Ch. 3
Dawes Commission or the Secretary of the Interior were induced
to cause to be issued a patent to land to the wrong person, where
the issuance of such patent was occasioned by an erroneous view
or construction of the law applicable, or to a gross or fraudulent
mistake of facts; and in such a case the patent may be canceled,
and the allottee held to be the trustee of the legal estate of such
land, for the use and benefit of the one entitled thereto, and in such
case the courts of this state have jurisdiction.16 State courts have
jurisdiction over controversies as to possession between the owner
of an Indian allotment and a sublessee of the land for oil and gas
mining purposes, although the oil and gas did not pass by the al-
lotment, and though the original lease required that royalties be
paid to the tribe, and although it may be necessary for such courts
to construe acts of Congress, Indian treaties, and departmental
leases and conveyances.17
The district court has jurisdiction of an action in ejectment or to
remove cloud from title by heirs against the beneficiary of a will of
a deceased Indian, probated before the admission of the state into
the Union, affecting allotted lands of the Indian, where the heirs
contend that the will did not devise the land, and that, if it attempt-
ed to do so, it was invalid.18
A full-blood Indian, being a citizen of the United States and
of the state, has a right to sue in the state courts, and may have
his rights growing out of treaties and acts of Congress relating to
his land adjudicated, and such rights as may be protected at suit
of the executive department of the* federal government may also be
enforced in state courts by an action by the Indian.19
District courts have jurisdiction of a partition suit of a tract al-
lotted to a citizen of the Five Civilized Tribes, where such land
descended to the heirs free of restrictions.20 The district court
cannot decree a judgment a lien against rents and profits accruing
from the allotment of a minor Creek freedman,21 nor has it jurisdic-
tion of a suit by full-blood Indian heirs of a deceased Pawnee in-
ie Robinson v. Owen, 30 Okl. 484, 119 P. 995.
IT Kohlmeyer v. Wolverine Oil Co., 132 P. 497, 37 Okl. 477.
is Austin v. Chambers, 124 P. 310, 33 Okl. 40.
i» Brown v. Anderson, 61 Okl. 136, 160 P. 724.
20 Griffin v. Gulp (Okl.) 174 P. 495.
21 Tiger v. Read, 60 Okl. 106, 159 P. 499.
I Art. 2) - ORIGINAL, CONCURRENT, OR APPELLATE §§ 239-241
volving lands allotted to a decedent under General Allotment Act
Feb. 8, 1887, as amended by Act Cong. Feb. 28, 1891, and the deter-
mination of title, and, incidentally, the rights to possession, of the
allotment while held in trust by the United States.22
§ 239. Misconduct in office
Jurisdiction in all actions against officers for misconduct in office
is in the district court.23 The district court has jurisdiction of
actions against township officers for misconduct in office.24
§ 240. Taxes and assessments
Proceedings for refund of taxes erroneously assessed and paid,
have been held void ; the sole method by which erroneous assess.-
ments involved might be corrected being by proceeding before the
board of equalization and appeal.25
§ 241. Public lands
Exclusive jurisdiction in and over any lands in this State acquir-
ed "by the United States shall be, and the same is hereby ceded to
the United States for all purposes except the service upon such sites
of all civil and criminal process of the courts of this, state ; but the
jurisdiction so ceded shall continue no longer than the United States
shall own such lands." 26
The courts cannot review the action of the interior department
in its disposition of the public domain until after title has passed
from the government.27
Courts of equity have power to inquire into and correct both
judicial and executive action founded in fraud, mistake, or other
special ground in equity, when private rights are invaded, and in
the exercise of such jurisdiction may review the determination of
the Land Office of the United States.28 In other words, in a pro-
ceeding before the Land Department where fraud or imposition
has been practiced on the party interested, or the officers of the
22 Caesar v. Krow (Okl.) 176 P. 927.
23 State v. Russell, 124 P. 1092, 33 Okl. 141.
24 McGuire v. Skelton, 129 P. 739, 36 Okl. 500.
25 Atoka County v. Oklahoma State Bank, 62 Okl. 57, 161 P. 1087.
26 Rev. Laws 1910, § 3191.
27 Fitzgerald v. Keith, 48 P. 110, 5 Okl. 260.
28 Estes v. Timmons, 73 P. 303, 12 Okl. 537, judgment affirmed (1905) 26 S.
Ct. 85, 199 U. S. 391, 50 L. Ed. 241.
(141)
§ 241 JURISDICTION - (Ch. 3
department, or where the latter have clearly mistaken the law ap-
plicable to the facts, equity may grant relief; but it is not author-
ized to re-examine into a mere question of fact, dependent on con-
flicting evidence, and to review the weight which the officers at-
tached to such evidence.29
A court of equity will interfere with a decision of the officers
of the Land Department only to prevent injustice by a misapplica-
tion of the law, or on account of fraud or imposition.30
A notice of the final decision of the Land Office on a motion
to review is not an absolutely necessary condition precedent to the
29 Thornton v. Peery, 54 P. 649, 7 Okl. 441: (1896) Paine v. Foster, 53
P. 109, 9 Okl. 213. judgment affirmed (1899) 59 P. 252, 9 Okl. 257 ; Id. (1900)
60 P. 24, 9 Okl. 259; Brown v. Donnelly, 59 P. 975, 9 Okl. 32; Oalhoun v.
Violet, 47 P. 479, 4 Okl. 321, judgment affirmed (1899) 19 S. Ct. 324, 173 U.
S. 60, 43 L. Ed. 614 ; Wilbourne v. Baldwin, 47 P. 1045, 5 Okl. 265 ; McDonald
v. Brady, 60 P. 509, 9 Okl. 660 ; Hammer v. Hermann, 65 P. 943, 11 Okl. 127 ;
Hartwell v. Havighorst, 66 P. &37, 11 Okl. 189, judgment affirmed (1906) 25
S. Ct. 793, 196 U. S. 635, 49 L. Ed. 629 ; Jordan v. Smith, 73 P. 308, 12 Okl.
703 ; Parryman v. Cunningham, 82 P. 822, 16 Okl. 94 ; Greenameyer v. Coate.
88 P. 1054, 18 Okl. 160, judgment affirmed (1909) 29 S. Ct. 345, 212 U. S. 434,
53 L. Ed. 587 ; Gourley v. Countryman, 90 P. 427, 18 Okl. 220 ; Ross v. Stew-
art, 106 P. 870, 25- Okl. 611; Cox v. Garrett, 54 P. 546, 7 Okl. 375; Acers v.
Snyder, 58 P. 780, 8 Okl. 659; (1896) Paine v. Foster, 53 P. 109, 9 Okl. 213,
judgment affirmed (1899) 59 P. 252, 9 Okl. 257; Bertwell v. Haines, 63 P.
702, 10 Okl. 469 ; Cope v. Braden, 67 P. 475, 11 Okl. 291 ; Forney v. Dow, 73 P.
1101, 13 Okl. 258; McCalla v. Acker, 78 P. 223, 15 Okl. 52, judgment affirmed
(1906) 26 S. Ct. 754, 200 U- S. 613, 50 L. Ed. 620; Best v. Frazier, 85 P. 1119,
16 Okl. 523 ; Reynolds v. Hill, 143 P. 1155, 43 Okl. 749 ; Greenameyer v. Coate,
88 P. 1054, 18 Okl. 160, judgment affirmed (1909) 29 S. Ct. 345, 212 U. S. 434,
53 L. Ed. 587 ; Howe v. Parker, 90 P. 15, 18 Okl. 282.
so King v. Thompson, 39 P. 466, 3 Okl. 644.
The United States Land Department's action in disposing of public domain
will not be inquired into by courts, unless material error of law clearly ap-
pears or there has been fraud practiced upon or by the officer. Jones v. Fear-
now, 53 Okl. 822, 156 P. 309, judgment affirmed Doepel v. Jones, 37 S. Ct. 645,
244 U. S. 305, 61 L. Ed. 1158.
The action of a town-site commission of the Creek Nation in granting the
claim of one rival claimant, resulting in the issuance of a patent, and reject-
ing the claim of the other, will not be inquired into in the courts where it does
not clearly appear that the commissioners committed some material error of
law, or that misrepresentation and fraud were practiced upon them, or that
they were chargeable with fraudulent practices. Fast v. Walcott, 38 Okl. 715,
134 P. 848.
In matters passed on by the land office, and which are open for review by
the courts, the findings of fact made in the land department are final, and
will not be reviewed in the courts, in the absence of fraud, imposition, or mis-
take. Cook v. McCord, 60 P. 497, 9 Okl. 200.
(142) .
Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 242~243
bringing of an action by the successful party to recover the posses-
sion of real estate.31
§ 242. Vested when — Exemption from taxation
"The jurisdiction ceded shall not vest until the United States
shall have acquired the title of said lands by purchase, condemna-
tion or otherwise ; and so long as the said lands shall remain the
property of the United States, when acquired as aforesaid, and no
longer, the same shall be and continue exempt and exonerated
from all state, county and municipal taxation, assessment or other
charges which may be levied or imposed under the authority of
this state." 32
§ 243. Equity
Equity, having once obtained jurisdiction, will retain it to ad-
minister complete relief, and to do so may determine purely legal
rights;38 but it need not render judgment on the claim by one
si Kirtley v. Dykes, 62 P. 808, 10 Okl. 16.
32 Rev. Laws 1910, § 3192.
33 Murray v. Speed, 54 Okl. 31, 153 P. 181.
Where equity has obtained jurisdiction, it will administer complete relief
to avoid multiplicity of suits. Success Realty Co. v. Trowbridge, 50 Okl. 402,
150 P. 898 ; Ball v. White, 50 Okl. 429, 150 P. 901 ; Kansas City N. W. R. Co.
v. Caton, 60 P. 544, 9 Kan. App. 272 ; Mathews v. Sniggs, 75 Okl. 108, 182 P.
703; Holmes v. Holt, 136 P. 246, 90 Kan. 774, judgment affirmed on rehear-
ing 139 P. 1030, 92 Kan. 254, and affirmed on second rehearing 142 P. 369, 93
Kan. 7 ; Cook v. Warner, 140 P. 424, 41 Okl. 781.
The jurisdiction of equity having attached on a petition by the holder of
warrants which had been merged into a funding proceeding to have set aside
such proceeding, and to cancel such bonds on the ground that the town had
failed to dispose of any of the bonds and retained all of them, refusing to re-
fund the same as required by law, the court, having all the parties before it,
will adjudicate on the rights of the parties connected with the subject-matter
of the proceeding without remitting them to maintain a separate action at
law upon the warrants merged in such funding proceeding. De Roberts v.
Town of Cross, 101 P. 1114, 23 Okl. 888.
In an action by a vendor to recover the price of land sold under a contract
providing that he should make a sufficient deed and furnish an abstract show-
ing perfect title, the answer and cross-petition admitted possession under the
contract, and also that plaintiff had failed to tender a sufficient deed, and the
abstract showed an outstanding claim the holder of which had threatened to
eject defendant, and had sued him in ejectment, also, the refusal of plaintiff
to correct the defects in the title, and averred a willingness to pay the bal-
ance when the title was perfected and asked relief. Held, that a demurrer to
the answer and cross-bill should be overruled, and cause retained, until the
(143)
§§ 243-245 JURISDICTION (Ch. 3
of the parties, where no sufficient evidence has been introduced to
determine the amount thereof.34
While one general partner could not maintain his action at law
against his copartner, yet where such copartner sought equitable
aid to obtain settlement of partnership affairs, and court by consent
treated case as proceeding in equity, it had jurisdiction and should
have ordered settlement.35
A court of equity of one state, having personal jurisdiction of a
defendant, may compel performance of contracts to convey land in
another state, or grant other relief arising out of contract, fraud, or
trust. But an action may not be maintained in this state involving
merely the title and possession to land in another state.36
A court of chancery has jurisdiction to construe a will, even
though the doubt arising is a speculative one.37
§ 244. Foreclosure
Where in a proceeding to foreclose a mechanic's lien on school
land, the title to which was in the government, no interest of {he
United States was sought to be taken, but only such interest as the
person entitled to possession had in the land, the district court had
jurisdiction.38
§ 245. Superior courts
Every superior "court shall have and exercise concurrent .juris-
diction with the district court in all proceedings, causes or matters,
and concurrent jurisdiction with the county court in all civil and
criminal matters, except matters of probate. Provided, that in mat-
ters of probate appeals may 'be taken from the county court to
either the district or superior court." 39
This statute is valid.40 It confers on superior courts jurisdiction
rights of the parties could be determined. Brown v. McCrie, 94 P. 144, 77
Kan. 230.
34 Galbreath Gas Co. v. Lindsey, 62 Okl. 84, 161 P. 826.
ss Baughman v. Hebard (Okl.) 166 P. 88.
36 Caldwell v. Newton, 163 P. 163, 99 Kan. 846.
37 Williams v. Williams, 14 P. 394, 73 Cal. 99.
ss Jarrell v. Block, 92 P. 167, 19 Okl. 467.
so Sess. Laws 1915, p. 21, § 2.
40 Sess. Laws 1909, c. 14, art. 7, creating a county superior court for each
county, is not in violation of Const, art. 7, §§ 1, 10, relating to the jurisdic-
tion of district courts, in that it confers on superior courts jurisdiction to con-
(144)
Art. 2) ORIGINAL, CONCURRENT, OR APPELLATE §§ 245~247
of appeal from judgment of county court in probate proceeding in-
stituted to contest probate of will.41
The superior courts are not "county courts," as the term is used
in section 19 of the Bill of Rights, even where exercising jurisdic-
tion concurrent with county courts.42
§ 246. Supreme Court
"The appellate jurisdiction of the Supreme Court shall be coex-
tensive with the state, and shall extend to all civil cases at law
and in equity, and to all criminal cases until a Criminal Court of
Appeals with exclusive appellate jurisdiction in criminal cases shall
be established by law. The original jurisdiction of the Supreme
Court shall extend to a general superintending control over all in-
ferior courts and all commissions and boards created by law. The
Supreme Court shall have power to issue writs of habeas corpus,
mandamus, quo warranto, certiorari, prohibition, and such other
remedial writs, as may be provided by law, and to hear and de-
termine the same ; and the Supreme Court may exercise such other
and further jurisdiction as may be conferred upon it by law. Each
of the justices shall have power to issue writs of habeas corpus to
any part of the state upon petition by or on behalf of any person
held in actual custody, and make such writs returnable before him-
self, or before the Supreme Court, or before any district court, or
judge thereof, in the state." 48
This section of the Constitution, which grants to the Supreme
Court general supervising control over inferior courts and all com-
missions and boards created by law, refers to inferior courts when
exercising judicial functions, and when hearing and determining
matters before said courts from which an appeal may be taken or
to which writs of certiorari or other like writs may lie.44
§ 247. Appeals from county court
"Appeals and proceedings in error shall be taken from the judg-
ments of county courts direct to the Supreme Court, in all cases
fer exclusive rights conferred by such statute on district courts. Burks v.
Walker, 109 P. 544, 25 Okl. 353.
4<i In re Nichols' Will, 64 Okl. 241, 166 P. 1087.
42 Antonelli v. State, 117 P. 654, 6 Okl. Or. 157.
^s Const. Okl. art. 7, § 2.
4* Haddock v. Johnson, 80 Okl. 250, 194 P. 1077.
HON.PL.& PRAC.— 10 (145)
§ 247 JURISDICTION (Ch. 3
appealed from justices of the peace, and in all criminal cases of
which the county court is vested with jurisdiction, and in all civil
cases originally brought in the county court, in the same manner
and by like proceedings as appeals are taken to the Supreme Court
from the judgments of the district court." 45
45 Const. Okl. art. 7, § 15.
(146)
Ch.4) VENUE § 248
CHAPTER IV
VENUE
Sections
248-264. Article I. — Where actions brought
265-273. Article II.— Change of venue.
ARTICLE I
WHERE ACTIONS BROUGHT
Sections
248. Where subject located.
249. Subject-matter.
250. Relating to real estate.
251. Land located in more than one county — Specific performance.
252. Where cause arose.
253. Residence of parties.
254. Domestic corporation — Insurance company.
255. Foreign corporations and nonresidents.
256. Process — Foreign corporations.
257. When charter revoked.
258. Actions against guaranty companies.
259. Actions against transportation or transmission companies.
260. Actions against turnpike companies.
261. Action against board of county commissioners.
262. Divorce and annulment.
263. Other actions.
264. Waiver of right.
§ 248. Where subject located
"Actions for the following causes must be brought in the county
in which the subject of the action is situated, except as provided
in the next section :
''First. For the recovery of real property, or of any estate, or in-
terest therein, or the determination in any form of any such right or,
interest.
"Second. For the partition of real property.
"Third. For the sale of real property under a mortgage, lien, or
other incumbrance or charge.
"Fourth. To quiet title, to establish a trust in, remove a cloud
on, set aside a conveyance of, or to enforce or set aside an agree-
ment to convey real property." x
i Rev. Laws 1910, § 4671.
(147)
§§ 249-250 VENUE (Ch. 4
§ 249. Subject-matter
In an action for damages by an alleged conspiracy of defendants
to deny plaintiff's right to use certain pasture, where no relief is
asked as to the real estate, the damages are only to personal proper-
ty, and the action is transitory.2
Payment of usury and demand for its return creates right of
action for its recovery which may be maintained in the county in
which payment was made.3
Where a liability accrues on a supersedeas bond given in a
cause tried in one county, action on the bond may be maintained
in another county, though the company and its sureties reside and
are summoned in other counties.4
An act of injunction to prevent the closing of an undergrade
crossing of a railroad operates in personam, and is not one of those
which must be brought in the county in which the subject of the
action is situated.5 \
Where a party is a resident of the state, and owns property in
some other county than that of his residence, and the action is a
personal one, suit to reach his property can only be brought in the
county where he resides, or where he may be summoned.6
§ 250. Relating to real estate
An action for the price of land and to enforce a vendor's lien
must be brought in the county where the land lies,7 as must an
action to remove cloud from title,8 and an action for partition ; 9 but
2 Dunn & Gilliam v. District Court of Carter County, 128 P. 114, 35 Okl. 38.
s Thome v. Milliken, 57 Okl. 735, 157 P. 914.
* Oklahoma Fire Ins. Co. v. Kimple, 57 Okl. 398, 156 P. 300.
5 Chicago, R. I. & P. Ry. Co. v. Wynkoop, 85 P. 595, 73 Kan. 590.
s Barton v. Hanauer, 44 P. 1007, 4 Kan. App. 531.
7 Ames v. Milam, 53 Okl. 739, 157 P. 941 ; Newcomer v. Sheppard, 51 Okl.
335, 152 P. 66 ; Whitehead v. Jefferson, 51 Okl. 42, 151 P. 681.
8 A petition construed and held that the object of the action was to destroy
a pretended exchange and restore plaintiff and his land to that freedom from
cloud existing before the transaction, and that hence, under Code Civ. Proc.
9 In an action to determine the interest of the parties in several tracts and
for partition, the court is without jurisdiction, so far as the action affects
land in another county, of infant defendants having no interest in the land
in the county in which suit is brought, and not residing therein ; and no con-
sent of theirs could give jurisdiction. Martin v. Battey, 125 P. 88, 87 Kan.
582, Ann. Cas. 1914A, 440.
(148).
Art. 1) WHERE ACTIONS BROUGHT §§ 250-251
the real estate clause of the statute does not apply to actions by
which defendant's conduct is sought to be controlled, though title
may be affected thereby,10 nor does it apply to an action for dam-
ages to real estate.11
An action by legal representative of an insane person's estate to
reclaim trust fund diverted by a former guardian and invested in
land, and to establish trust against land, is properly brought in
county where land is situated.12
An action to foreclose a mortgage, where plaintiff alleged that
the note and mortgage were wrongfully in possession of another,
is a local action, though plaintiff prays in his petition that such
wrongful holder may be required to bring such note and mortgage
into court.18
Where an action, brought in a county other than that in which
the land is located, to enforce a vendor's lien, is treated as a personal
action and a judgment in personam only is rendered, it is too late
thereafter to urge that the action was one in rem, and that the court
had no jurisdiction.14
§ 251. Land located in more than one county — Specific
performance
"If real property, the subject of an action, be an entire tract, arul
situated in two or more counties, or if it consist of separate tracts,
situated in two or more counties, the action may be brought in any
county in which any tract, or part thereof, is situated, unless it be
an action to recover possession thereof, and if the property be
§ 48 (Gen. St. 1909, § 5641), the action was properly brought where the land
was situated. Randall v. Ross, 147 P. 72, 94 Kan. 708.
Plaintiff sued in A. county to quiet title to land in that county against cer-
tain defendants claiming interests in that land, and also to lands in B. county
against defendants claiming no interest in' the A. county laud. Held, that
the court had no jurisdiction over the controversy as to the land in B. coun-
ty, under Code Civ. Proc. § 46 (Gen. St. 1901, § 4476). Jones v. Redemption &
Investment Co., 99 P. 1129, 79 Kan. 477.
10 Zane v. Vawter, 172 P. 37, 102 Kan. 887.
n An action to recover damages to realty, improvements, and crops from
fire held not an action concerning real property, the venue of which is fixed
by Code Civ. Proc. § 48 (Gen. St. 1909, § 5641), in the county where the prop-
erty is situated. Hill v. Missouri Pac. Ry. Co., 146 P. 351, 94 Kan. 254.
12 Clingman v. Hill, 104 Kan. 145, 178 P. 243.
is Mack v. Austin, 72 P. 551, 67 Kan. 36.
i* Newcomer v. Sheppard, 51 Okl. 335, 152 P. 66.
(149)
§§ 251-253 VENUE (Ch. 4
an entire tract, situated in two or more counties, an action to re-
cover possession thereof may be brought in either of such coun-
ties ; but if it consists of separate tracts, in different counties, the
possession of such tracts must be recovered by separate actions
brought in the counties where such tracts are situated. An ac-
tion to compel the specific performance of a contract to sell real
estate may be 'brought in the county where the land lies or where
the defendants or any of them reside or may be summoned." 15
An action to compel defendant to reconvey land claimed by him
under a deed alleged to have been procured through his fraud
is transitory and not local, and may be brought in any county where
personal service can be had upon him.16
§ 252. Where cause arose
"Actions for the following causes must be brought in the county
where the cause, or some part thereof, arose :
"First. An action for the recovery of a fine, forfeiture or penalty
imposed by statute, except when imposed for an offense committed
on a river or other stream of water, road or other place which is
the boundary of two or more counties, the cause of action shall be
deemed to have arisen in each of said counties, and may be brought
in. any county bordering on such river, water-course, road or other
place, and opposite to the place where the offense was committed.
"Second. An action against a public officer for an act done by
him in virtue, or under color of his office, or for neglect of his offi-
cial duties.
"Third. An actio'n on the official bond or undertaking of a public
officer." 17
§ 253. Residence of parties
A civil action seeking to subject the property of a resident to the
payment of a debt must be commenced in the county where de-
is Rev. Laws 1910, § 4672.
Where in Code Civ. Proc. § 51 (Gen. St. 1909, § 5644), relating to venue, it
is provided that certain actions "must" and others "may" be brought in cer-
tain counties, and that all others must be brought in the county of defend-
ant's residence or where he may be summoned, actions in relation to which
the term "may" is used are not thereby rendered local and may be brought in
any county in which defendant is summoned. Henry v. Missouri, K. & T.
Ry. Co., 142 P. 972, 92 Kan. 1017 ; Id., 142 P. 973, 92 Kan. 1020.
16 Zane v. Vawter, 172 P. 37, 102 Kan. 887.
IT Rev. Laws 1910, § 4673.
(150)
Art. 1) WHERE ACTIONS BROUGHT § 254
fendants or one of them resides or may be summoned;18 but a
cause of action must exist against the local defendant.10
§ 254. Domestic corporation — Insurance company
"An action, other than one of those mentioned in the first three
sections of this article, against a corporation created by the laws
of this state, may be brought in the county in which it is situated,
or has its principal office or place of business, or in which any of
is Friedman v. First Nat. Bank, 39 Okl. 486, 135 P. 1069, 49 L. R. A. (N.
S.) 548 ; Rullman v. Hulse, 7 P. 210, 33 Kan. 670.
Where the maker of a nonnegotiable note is sued in a county in which the
indorser resides, but in which the maker does not reside, and where the in-
dorser makes no defense, but permits .judgment by default, it is not error to
overrule motion by the maker to set aside the service on him, because he is
not a resident of the county, and was not served therein. Steele v. Hudson,
30 Okl. 518, 120 P. 616.
isMakemson v. Edwards, 101 Kan. 269, 166 P. 508.
A defendant, served in a county other than the one in which the action is
brought, will not be held bound thereby, if the resident defendant was joined
to obtain jurisdiction over such nonresident defendant, and not in good faith
to recover a judgment against the resident defendant. Hawkins v. Brown,
97 P. 479, 78 Kan. 284. The rule that a defendant, served in a county other
than the one in which the action is brought, will not be bound thereby, if the
resident defendant was joined to obtain jurisdiction of such nonresident de-
fendant, and not in good faith to recover a judgment against the resident
defendant, will not be applied against an innocent party, who in good faith,
and in the honest belief that his cause is just, and that he has a right to
recover against the resident defendant, is defeated by him, after a full trial,
by a plea of the statute of limitations. Id.
In action for money deposited by plaintiff to secure his performance of a
contract, brought on ground of its conversion by defendant bank and a pro-
moter, the latter, who had joined the bank in the scheme to turn over money
to another, though he had no interest in money, was a proper party defend-
ant, so that suit was properly brought in county of his residence. Oklahoma
State Bank of Gushing v. Buzzard (Okl.) 175 P. 750.
Where an action was brought against nonresidents and their property
attached, and also against a resident of another county, and there was no
evidence to sustain a cause of action against the nonresidents, the court had
no jurisdiction over the resident. Hembrow v. Winsor, 145 P. 837, 94 Kan. 1.
A. and B., joint makers of a promissory note, were sued on the same
before it was due in the county of A.'s residence, and a summons issued to
B.'s county, and his property there attached on the ground of anticipated
fraudulent transfer, but no attachment was issued against A., and no ground
therefor existed. Held that, as the action was wrongfully begun against A.,
it could not be begun against B. in A.'s county, and therefore B. was entitled
to have the attachment dissolved. Rullman v. Hulse, 5 P. 176, 32 Kan. 598,
rehearing denied 7 P. 210, 33 Kan. 670.
In an action against one party on a lease and on a separate writing where-
(151)
§§ 254-255 VENUE (Ch. 4
the principal officers thereof may reside, or be summoned, or in the
county where the cause of action or some part thereof arose." 20
A special appearance motion of a corporation defendant, going
to the jurisdiction of the district court of one county, after service
on a proper individual defendant of another county, and a service
on the corporation in the county of its domicile, was properly over-
ruled.21
The provision that an action against a domestic company may be
brought in the county where the cause of action or some part there-
of arose applies to all kinds of actions.22
§ 255. Foreign corporations and nonresidents
"In addition to the other counties in which an action may be
brought against a nonresident of this state, or a foreign corpora-
tion, such action may be brought in any county in which there may
be property of, or debts owing to, such defendant, or where such de-
fendant may be found; if such defendant be a foreign insurance
company, the action may be brought in any county where such
cause of action, or any part thereof, arose, or where the plaintiff
resides, or where such company has an agent." 23
"Any foreign corporation, doing business in the state of Okla-
homa, and any person now or hereafter having any cause of action
against such corporation, arising on contract, tort, or otherwise,
may file suit in any county in the state of Oklahoma where the
plaintiff resides or where said corporation has its principal place
of business, or has property, or in any county where said corpo-
ration has an agent appointed upon whom service of summons or
other process may be had." 24
in another guaranties the rent, the service of summons upon one defendant in
the county where the action was brought does not authorize service of sum-
mons upon the other defendant in another countv. Marshall v. Saline River
Land & Mineral Co., 89 P. 905, 75 Kan. 445.
20 Rev. Laws 1910, § 4674, as amended by Sess. Laws 1913, p. 133, § 1.
21 Oklahoma State Bank of Gushing v. Buzzard (Okl.) 175 P. 750.
22 Oklahoma Fire Ins. Co. v. Kimple, 57 Okl. 398, 156 P. 300.
23 Rev. Laws 1910, § 4677.
An action against a nonresident insurance company is properly brought
in the county of the plaintiff's residence. Haynes v. City Nat. Bank of Law-
ton, 121 P. 182, 30 Okl. 614.
24 Sess. Laws 1910-11, p. 46, § 1.
Statute is valid. Prairie Oil & Gas Co. v. District Court of Grady Coun-
ty (Okl.) 174 P. 1056.
(152)
Art. 1) WHERE ACTIONS BROUGHT §§ 256~257
§ 256. Process — Foreign corporations
"Any foreign corporation, doing business in the state of Okla-
homa, having failed either to appoint an agent upon whom serv-
ice of summons or other process may be had, or failed to file in the
office of the secretary of state a duly authenticated copy of its ar-
ticles of incorporation or charter, or having failed to pay the license
fee as required by law, then in the event of said foreign corpora-
tion having failed to comply with any of the provisions of the law
as above referred to, any person now or hereafter having any
cause of action against any foreign corporation may file suit against
said foreign corporation in any county in the state and service of
summons or any process upon the secretary of state shall be suffi-
cient to give jurisdiction of the person to any court in this state
having jurisdiction of the subject-matter." 25
§ 257. When charter revoked
"Any foreign corporation having complied with the law by ap-
pointing an agent upon whom service of summons or other process
may be had, or by filing an authenticated copy of its article of
incorporation or charter with the secretary of state, or having paid
the license fee as required by law, and heretofore the charter of said
corporation having been revoked by the secretary of state or other
proper officer, or if the charter of any foreign corporation should
hereafter be revoked by the secretary of state or other proper offi-
cer, then any person having now or hereafter any cause of action
against such foreign corporation, may file suit against said for-
eign corporation in any county in the state of Oklahoma and serv-
ice of summons or other process upon the secretary of state shall
be sufficient to give jurisdiction of the person to any court in this
state having jurisdiction of the subject-matter, and under provi-
sions of this act jurisdiction is hereby conferred upon any court
having jurisdiction of the subject-matteY, sitting in any county
in this state, whether it be in the county where the secretary of
state is served or resides, or elsewhere in said state." 2e
25 Sess. Laws 1910-11, p. 47, § 2.
A corporation having its principal place of business in Tejtas, but an office
» in Roff, Okl., where it did some business, held not entitled to have the case
transferred from Ada to Roff under Sess. Laws 1910-11, c. 32, § 2. Roff Oil
& Cotton Co. v. King, 46 Okl. 31, 148 P. 90.
26 Sess. Laws 1910-11, p. 47, § 3.
(153)
§§ 258-259 VENUE (Ch. 4
§ 258. Actions against guaranty companies
Any surety company doing business under the provisions of ar-
ticle 10, c. 15, Rev. Laws 1910, "may be sued in respect thereof in
any court of the United States or the state of Oklahoma which has
jurisdiction of actions or suits upon which such recognizances, stip-
ulations, bond or undertaking was made or guaranteed. And for
the purpose of this article such recognizance, stipulation, bond or
undertaking shall be treated as made or guaranteed in the county
in which the office is located to which it is returnable, or in which
it is filed, or in the county in which the principal of such recogni-
zance, stipulation, bond or undertaking resided when it was made
or guaranteed." *7
§ 259. Actions against transportation or transmission companies
"Actions may be commenced against any transportation or trans-
mission company in the county where any person resides upon
whom service of summons is authorized to be made, irrespective
of the order in which such persons are named in this chapter, and
irrespective of the residence of any superior officer or authorized
person upon whom service of summons may be had; or in the
county where the cause of action, or some part thereof, may have
accrued ; or, in any county through which or into which the lines
of road or any part of the structure of such company may be, or
passes ; and the plaintiff may elect in which county he will bring
the action." 28
Where corporations in adjoining states operate a continuous
line of railroad jointly by the same officers and employes, an in-
jured employe may sue in the courts of either state.29
2 7 Rev. Laws 1910, § 1348.
28 Rev. Laws 1910, § 4675.
Under Const, art. 9, § 43, suit may be brought against a foreign corpora-
tion operating a railway in the state in the county where the plaintiff re-
sides, though the cause of action did not arise there, and defendant has no
agent there and no part of its line of railway. Atchison, T. & S. F. Ry. Co.
v. Lambert, 123 P. 428, 32 Okl. 665. Const, art. 9, § 43, as to venue of actions
against foreign corporations, relates to public service corporations as well as
private corporations. Id. Comp. Laws, § 5584, providing the venue of ac-
tions against transportation companies, does not limit the right of a plain- »
tiff to sue such a company, when a foreign corporation in the county of his
residence, pursuant to Const, art. 9, § 43. Id.
2» Wichita Falls & N. W. Ry. Co. v. Puckett, 53 Okl. 463, 157 P. 112.
(154)
Art. 1) WHERE ACTIONS BROUGHT §§ 260-264
§ 260. Actions against turnpike companies
"An action, other than one of those mentioned in the first three
sections of this article, against a turnpike road company, may be
brought in any county in which any part of such turnpike road
or roads lie." 30
s
§ 261. Action against board of county commissioners
"Any person who has been aggrieved by any act, rule or regula-
tion of said board shall have his right of action to have such issue
tried in the district court of the county in which some member of
the board shall reside." 31
§ 262. Divorce and annulment
"An action for divorce or annulment of marriage may be brought
in the county of which the plaintiff is an actual resident at the time
of filing the petition." 32
§ 263. Other actions
"Every other action must be brought in the county in which the
defendant or some one of the defendants resides or may be sum-
moned ; except actions against makers of notes, claims or other
indebtedness which have been assigne*d, sold or transferred by or
from the original payee or obligee, which actions against such
original maker of such notes, claims or indebtedness can only be
brought in the county in which the said maker of such note, claim
or indebtedness or some one of the original makers of such note,
claim or indebtedness resides : Provided, however, this section shall
not in any way change or limit section 4671 of the Revised Laws
of Oklahoma, 1910." 33
§ 264. Waiver of right
Where defendant demurs to the petition without objecting to
the jurisdiction, he waives his right to have the case filed and tried
in the county of his residence.34
so Rev. Laws 1910, § 4676.
si Rev. Laws 1910, § 6913.
32 Rev. Laws 1910, § 4678, as amended by Sess. Laws 1915, p. 199, § 1.
ss Rev. Laws 1910, § 4679, as amended by Sess. Laws 1915, p. 104, § 1.
s* Lindley v. Kelly, 47 Okl. 328, 147 P. 1015.
Objection that an action should have been brought in the county where the
cause of action arose is waived by filing demurrers presenting other grounds,
together with the objection to the venue. Hume v. Cragin, 61 Okl. 219, 160 P.
•621.
(155)
§§ 265-267 VENUE (Ch. <t
ARTICLE II
CHANGE OF VENUE
Sections .
265. Change of venue.
266. Discretion.
267. Grounds — Disqualification of judge.
268. Local prejudice.
269. Application.
270. Hearing and order.
271. Waiver.
272. Proceedings after change.
273. Form.
§ 265. Change of venue
"In all cases in which it is made to appear to the court that a
fair and impartial trial cannot be had in the county where the suit
is pending-, the court may, on application of either party, change
the place of trial to some county where such objections do not
exist." 85
§ 266. Discretion
The statute is not mandatory, and does not require grant of a
change on any showing, but the court is vested with a sound dis-
cretion,36 and a conclusion or judgment of the court regarding an
application for a change of venue that is clearly against the logic
and effect of the facts and circumstances presented in support of
the application, or against the reasonable, probable, and natural
deductions to be drawn from the facts and circumstances is an abuse
of the discretion of the court.37
§ 267. Grounds — Disqualification of judge
The statutes relative to a change of venue because of the bias or
prejudice of the judge, are not mandatory and do not require a
change upon any showing, but the court is vested with a judicial
discretion in granting or refusing the same.38
as Rev. Laws 1910, § 4680.
seHorton v. Haines, 102 P. 121, 23 Okl. 878; Hanson v. Hanson, 122 P.
100, 86 Kan. 622.
37 Richardson v. Augustine, 49 P. 930, 5 Okl. 667.
Under Comp. Laws 1909, §§ 542-544, the court has discretion to transfer
a civil action from one county to another. Simpkins v. Parsons, 50 Okl. 786,
151 P. 588.
ss state v. Brown, 103 P. 762, 24 Okl. 433.
(156)
Art. 2) CHANGE OP VENUE §§ 267-268
An apprehension of a party that a judge is prejudiced against
him is not enough to require a change of venue, but it must satis-
factorily appear that prejudice in fact exists.89
An affidavit alleging prejudice in the county, that the judge was
biased, and that the applicant had a suit pending against the judge,
was insufficient to compel a change of venue.40
Where it appears that the judge is interested in the subject-mat-
ter or is otherwise disqualified, a change of venue is not a matter
of discretion of the court, but a right in the party applying there-
for.41
It is error not to grant a change of a cause, in which, on a former
trial, the presiding judge had been a material witness,42 or of coun-
sel in the matter.48
§ 268. Local prejudice
A change of venue should be granted, where it appears that de-
fendant cannot have a fair trial by reason of local prejudice.44
A party in a civil suit, not triable by a jury, is not entitled to a
change of venue on account of local prejifdice of the citizens.45
89 In re Smith, 85 P. 584, 73 Kan. 743.
A showing that a judge is a particular friend of the plaintiff, and might be
unconsciously prejudiced against the defendant, is not sufficient to author-
ize a change of venue. Isenhart v. Hazen, 63 P. 451, 10 Kan. App. 577.
40 Hanson v. Kendt, 146 P. 1190, 94 Kan. 310.
41 Jones v. American Cent. Ins. Co., 109 P. 1077, 83 Kan. 44.
42 Burlington Ins. Ob. v. McLeod, 19 P. 354, 40 Kan. 54.
It is proper to grant a change of venue upon proof, by affidavit, undisput-
ed, that the judge is a material witness for the party moving for such change,
and that his evidence is material. Spencer v. Iowa Mortg. Co., 50 P. 1094,
6 Kan. App. 378.
43 City, of Leavenworth v. Green River Asphalt Co., 165 P. 824, 101 Kan. 82.
4* By the showing made by defendants in support of an application for a
change of venue, it appeared that the action was one of 30 brought to charge
defendants with liability to depositors of a bank located in the county, by
failure of which some 200 depositors had suffered loss; that 11 of the ac-
tions had been tried in the county in which some 100 persons had been called
as jurors and a large number as. witnesses ; that the failure created great
excitement throughout the county, and had been investigated by two grand
juries ; and that defendants were then under indictment, charged with crim-
inal conduct in connection therewith. Held, that a denial of the motion was
an abuse of discretion. Richardson v. Augustine, 49 P. 930, 5 Okl. 667.
45 Dean v. Stone, 35 P. 578, 2 Okl. 13.
(157)
§ 269 VENUE (Ch. 4
§ 269. Application
An application for change of venue may be presented at any time
before trial.46
Where issues of fact have not been made up, an application for a
change of venue on the sole ground that the district judge will
necessarily be a material witness for plaintiff, is properly overruled,
as premature.47
The application must state the facts on which it is based, and not
conclusions.48
Where a party to a civil suit applies for a change of venue, and
the affidavit alleges that the judge is a material witness in his be-
half, that he intends to procure his presence as such if a change is
granted, the granting a change by the judge, based on such affidavit
and his own personal knowledge, is not error.49
An affidavit containing a naked declaration and conclusion that
the judge is prejudiced is insufficient.50
46 Maharry v. Maharry, 47 P. 1051, 5 Old. 371.
The regular judge of the district court having been of counsel in several
cases, and therefore disqualified to sit in the trial thereof, on motion of a
member of the bar a pro tern, judge was elected. Neither counsel nor client
in this case appear by the record to have participated in such election, or to
have been present or consented thereto. Held, that an application for a'
change of the place of trial to another district was not too late when made at
the time the case was called for trial by the pro tern, judge. Hegwer v. Kiff,
3 P. 303, 31 Kan. 636.
Where the judge of the district court has been of counsel in a case, a party
has the right to demand a change to another district at any time before the
trial, if the issues have already been made up, and up to the time of judg-
ment where no issues have been made up ; and in such case he may demand
a change to have the issues made up, and get a trial thereon. Commission-
ers of Sumner County v. Wellington Tp., 17 P. 787, 39 Kan. 137.
47 Carver v. Greason, 101 Kan. 639, 168 P. 869.
* s Maharry v. Maharry, 47 P. 1051, 5 Okl. 371; Horton v. Haines, 102 P.
121, 23 Okl. 878.
The facts and circumstances by which it shall be made to appear to the
court that a fair and impartial trial cannot be had must be shown in the
affidavits in support of the application. Richardson v. Augustine, 49 P. 930,
5 Okl. 667.
4» Gray v. Crockett, 12 P. 129, 35 Kan. 686, denying rehearing, 10 P. 452,
35 Kan. 66.
so Griggs v. Corson, 81 P. 471, 71 Kan. 884.
(158)
Art. 2) CHANGE OF VENUE §§ 269-270
When based solely on the affidavit of defendant's agent that it
was his belief that defendant could not have a fair and impartial
trial, it is properly denied.51
§ 270. Hearing and order
A motion for change of venue on the ground that the judge is
prejudiced is to be determined by the judge, in view of his own
knowledge.52
It is not error for the trial court to postpone its determination of
an application for a change of venue until after the jury have been
impaneled for the trial of the causes, but in determining whether a
fair trial can be had the court cannot take into consideration the tes-
timony of the jurors upon their voir dire examination.53
After allowing an application for a change of venue, the court
may, at the same term, and before the papers or any transcript of
them are transmitted, vacate the order for the purpose of allowing
the case to be tried before a judge pro tern.54
It is not sufficient ground for refusal of an application for a
change of venue in a suit for divorce that^the applicant has failed
to comply with an order of the court to pay alimony pending the
suit.55
si McCormick Harvesting Mach. Co. v. Hayes, 53 P. 70, 7 Kan. App. 141.
When an affidavit for a change of venue is general in its terms, and the
judge has personal knowledge that he is disqualified to sit, a change of
venue ordered by him upon the affidavit, and his own personal knowledge
that he is so disqualified, is not erroneous. Gray v. Crockett, 10 P. 452, 35
Kan. 66, rehearing denied, 12 P. 129, 35 Kan. 686. Where a party makes an
application for a change of venue, and files an affidavit in support thereof,
upon the ground that he is advised by his attorney that the judge is a ma-
terial witness in his behalf, that he believes such advice to be true, and de-
sires the evidence of the judge at the trial, and intends to procure the same
if a change of venue is granted, and the court upon such application, affida-
vit, and its own personal knowledge, transfers the case to another district
for trial, the order is not erroneous ; but if the court, upon such affidavit, so
general in its terms, had overruled the application, the Supreme Court would
not disturb the ruling. Id.
52 Miller v. Kerr, 146 P. 1159, 94 Kan. 545.
ss Richardson v. Augustine, 49 P. 930, 5 Okl. 667.
5* Mudge v. Hull, 43 P. 242, 56 Kan. 314.
An order transferring a civil action from one county to another, may be
vacated during the term at which it was made, if the court to which the
cause is transferred has not acquired jurisdiction. Simpkins v. Parsons, 50
Okl. 786, 151 P. 588. If a court vacates an order transferring the cause to
55 Maharry v. Maharry, 47 P. 1051, 5 Okl. 371.
(159)
§§ 271-272 VENUE (Ch.4
§ 271. Waiver
Where a party consents to a case being sent to a referee after his
motion for a change of venue has been overruled, he waives the er-
ror in the ruling on the motion.56
Where an application for change of venue for disqualification of
the district judge is erroneously overruled, applicant does not waive
the error by neglecting to object to going to trial when the case is
reached at the next succeeding term of court, nor does a stipulation
that a case shall be submitted to the court and jury that tried a
companion case upon the same evidence and instructions, verdict
to be returned and judgment rendered the same as if all the steps
of a trial had been taken, waive an error previously committed in
denying a change of venue for disqualification of the judge.57 The
right to a change of venue may be waived by failure to claim and
urge same.58
§ 272. Proceedings after change
Where a cause is transferred on change of venue, the court does
not acquire jurisdiction until the papers and records are received
and entered upon its docket;59 but the court may proceed to the
another court at the same term before the papers are transferred and dock-
eted, it retains jurisdiction to render judgment. Id.
se Isenhart v. Hazen, 63 P. 451, 10 Kan. App. 577.
5T Jones v. Williamsburg City Fire Ins. Co., 112 P. 826, 83 Kan. 682, judg-
ment affirmed on rehearing 116 P. 484, 85 Kan. 235.
ss On an application for a change of venue, the files of the case were trans-
mitted to the district court of another county, where both parties appeared
and proceeded to trial without objection. After judgment had been rendered,
and the same reversed on a proceeding in error, objection to the jurisdiction
was made because no formal order changing "the venue had been made and
entered. Held, that any irregularity in transferring the case had been waiv-
ed. City of Garden City v. Heller, 60 P. 1060, 61 Kan. 767.
A motion made by defendant for a change of venue on the grounds of the
disqualification of the regular judge and local prejudice was overruled as to
the latter ground. The judge of another district was called in, who presided
at a trial, resulting in a disagreement of the jury. Thereafter a pro tern,
judge was chosen, and a second trial had. There was no objection from the
defendant at either trial to the jurisdiction of the court, or the authority of
the judge to sit. Held, that the claim of right to a. "change of venue was
waived. Missouri Pac. Ry. Co. v. Preston, 63 P. 444, judgment affirmed 66
P. 1050, 63 Kan. 819.
5» Simpkins v. Parsons, 50 Okl. 786, 151 P. 588,
(160)
- } ss-
Art. 2) CHANGE OP VENUE §§ 272-273
trial of the cause on a true transcript of the proceedings, and with-
out the original files.60
A court to which the cause is transferred acquires jurisdiction co-
extensive with that of the court from which the venue was re-
moved, and can render any judgment which might have been ren-
dered by the other court.61 It has jurisdiction to determine the
validity of the costs taxed in both counties,62 and on proper show-
ing may correct the records transferred.63
§ 273. Form
AFFIDAVIT FOR CHANGS OF VENUS
(Caption.)
State of Oklahoma,
County of -
A. B., of lawful age, being first duly sworn, upon oath, says:
That he is the defendant above named; that he is a resident of
said county ; that he believes that he cannot have a fair and
impartial trial of his said cause in said county of , for the
reason that there exists so great a prejudice* against him therein (or
state other reasons which exist) ; that the belief as to such preju-
dice is based upon the following facts and circumstances, to wit:
(Setting same forth fully.)
Wherefore said defendant prays that he may be granted a change
of venue of this cause to county, or to some other county
where such prejudice does not exist.
, Attorneys for Defendant.
«o Wichita & W. R. Co. v. Kuhn, 16 P. 75, 38 Kan. 104, judgment reversed
on rehearing 17 P. 322, 38 Kan. 675.
ei Hazen v. Webb, 68 P. 1096, 65 Kan. 38, 93 Am. St. Rep. 276.
62 Asbell v. Aldrich, 147 P. 1126, 95 Kan. 313.
63 Where an execution on a judgment of the district court is enjoined in
the same action, and, pending a motion to dissolve, all the proceedings are
transferred by change of venue to the district court of another county, the
court to which the cause is transferred can on satisfactory proof direct that
a clerical omission in the entry of judgment be corrected. United Zinc &
Chemical Co. v. Morrison, 92 P. 1114, 76 Kan. 799. A clerical error in the
entry of a judgment may be corrected by certified copy of the journal entry
of the trial, certified copies of judgment docket showing an abstract of the
judgment entered by the clerk, and copies of the memoranda of the trial
from the judge's trial docket. Id.
HON.PL.& PEAC.— 11 (161)
.
§§ 274-275 REMEDIES AND BIGHTS (Ch. 5
CHAPTER V
REMEDIES AND RIGHTS
Sections
274-295. Article I. — In general.
296-298- Article II. — Election of remedies.
ARTICLE I
IN GENERAL
Sections
274. Remedies.
275. Cumulative remedy.
276. Actions and special proceedings.
277. Distinctions abolished.
278. Determination of character.
279- Common-law actions.
280. Tort and contract.
281. Illegal transactions.
282. Injury without liability.
283. Tenders.
284. Right of action — Warrantee — Costs and expenses.
285. .Action on surveyor's bond.
286. Surety against principal.
287. Money received.
288. Conditions precedent — Warranty.
289. Death pending action.
290. Claim against estate.
291. Usury.
292. Claim against municipality.
293. Offer — Demand — Notice.
294. Taxes.
295. Insurance.
§ 274. Remedies
"Remedies in the courts of justice are divided into: First. Ac-
tions. Second. Special proceedings." 1
§ 275. Cumulative remedy
A cumulative remedy is one created by statute in addition to
one which still remains in force, and when a statute gives a new
remedy, and contains no negative, express or implied, of the old
Rev. Laws 1910, § 4643.
(162)
Art. 1) IN GENERAL §§ 276-277
remedy, the new one provided is cumulative and the party may
elect between the two.2
§ 276. Actions and special proceedings
"An action is an ordinary proceeding in a court of justice by
which a party prosecutes another party for the enforcement or pro-
tection of a right, the redress or prevention of a wrong, or the pun-
ishment of a public offense." 3
"Every other remedy is a special proceeding." 4
"Actions are of two kinds : First, civil ; second, criminal." B
"A criminal action is one prosecuted by the State as a party,
against a person charged with a public offense, for the punishment
thereof." 6
"Every other is a civil action." 7
"Where the violation of a right admits of both a civil and crimi-
nal remedy, the right to prosecute the one is not merged in the
other." 8
§ 277. Distinctions abolished *•
"The distinction between actions at law and suits in equity, and
the forms of all such actions and suits heretofore existing, are abol-
ished; and in their place there shall be, hereafter, but one form
of action, which shall be called a civil action." 9
However, the essential and inherent principles of legal and equi-
table rights and remedies remain as before ; the statute not being in-
tended to alter or directly affect the primary rights and liabilities
created or recognized eitheHn law or equity.10
2 Bowles v. Neely, 115 P. 344, 28 Okl. 556.
s Rev. Laws 1910, § 4644.
* Rev. Laws 1910, § 4645.
s Rev. Laws 1910, § 4646.
e Rev. Laws 1910, § 4647.
7 Rev. Laws 1910, § 4648.
s Rev. Laws 1910, § 4649.
Only three kinds of actions may be had In Oklahoma, namely, a civil ac-
tion, criminal action, and special proceeding ; the distinction between chan-
cery and law jurisdiction never having obtained. State v. Huston, 113 P. 190,
27 Okl. 606, 34 L. R. A. (N. S.) 380.
a Rev. Laws 1910, § 4650.
10 Mathews v. Sniggs, 75 Okl. 108, 182 P. 703.
Though the Legislature has abolished the distinction between actions at
law and suits in equity, yet it was not thereby intended to change the nature
(163)
§§ 277-279 REMEDIES AND RIGHTS (Ch. 5
The common-law rules of pleading, and all distinctions in form
between actions at law and suits in equity, are abolished, leaving
only a civil action, consisting of a statement of the facts, in plain
language, the redress sought, and the party liable.11 It is error to
compe-1 plaintiff to elect whether he will proceed in equity or at
law.12
§ 278. Determination of character
The character of an action is to be determined by the nature- of
issue made by the pleadings and the rights and remedies of the
parties, and not alone by the form in which the action was brought
or by the prayer for relief, which, in that respect, is no material
part of the pleading. Strictly speaking, "remedy" given is no part
of the action, but is the result thereof, the object for which the ac-
tion is presented, the end to which all the litigation is directed.13
§ 279. Common-law actions
Causes of action that existed under the common-law forms, which
have not been expressly abolished, still exist under the name of
"civil actions"; and a plaintiff, under the statute, must allege and
prove every fact that he was required .to allege and prove at com-
mon law.14
"Real actions," included in common-law actions, were those
brought for the specific recovery of lands; some being. founded on
the seizure or possession, and some on the property or right. "Per-
sonal actions," included in common-law actions, were those begun
of the remedies generally obtaining where courts of law and chancery are
separated. Olson v. Thompson, 48 P. 184, 6 Okl. 74.
While the distinction between law and equity is abplished, equitable relief
may be awarded under proper allegations by means of an equitable defense
to defeat plaintiff's legal cause of action. Farmers' & Merchants' Nat. Bank
v. Hoyt, 120 P. 264, 29 Okl. 772.
Notwithstanding the provisions of the Civil Code abolishing all distinc-
tions between actions at law and suits in equity, and the common-law forms
of actions and suits, the rules of law which control the manner of enforcing
a cause of action depend on the nature of the cause sought to be enforced,
and until such nature is determined the rules of law governing the case are
impossible of ascertainment. Carbondale Inv. Co. v. Burdick, 72 P. 781, 67
Kan. 329. >
11 St. Louis & S. F. B. Co. v. Yount, 30 Okl. 371, 120 P. 627.
12 Brawley v. Smith, 54 P. 804, 8 Kan. App. 411.
is Mathews v. Sniggs, 75 Okl. 108, 182 P. 703.
i* Phelps, Dodge & Palmer Co. v. Halsell, 65 P. 340, 11 Okl. i.
(164)
Art. 1) IN GENERAL §§ 279-280
for the specific recovery of goods and chattels, or for damages or
other redress for breach of contract or other injury of whatever
description; the specific recovery of lands only excepted. "Mixed
actions," included in common-law actions,, were such as appertain-
ed in some degree to both real and personal actions, and therefore
reducible to neither of them; being brought both for the specific
recovery of lands, and for damages for injuries to such property.15
Where a cause of action which does not exist at common law
is created by the statute of another state or territory, such cause
of action, when presented to the courts, will be held to consist, not
merely of the right given, but also of all the conditions and limita-
tions attached thereto by the statute of the place where it was
created.18
§ 280. Tort and contract
The statute does not abolish the distinction between an action for
tort and an action on contract.17 Whether an action is ex contractu
or ex delicto is to be determined by the pleadings.18
»
is Ma thews v. Sniggs, 75 Okl. 108, 182 P. 703.
IB Swisher v. Atchison, T. & S. F. Ry. Co., 90 P. 812, 76 Kan. 97.
IT Robinson v. Oklahoma Fire Ins. Co., 55 Okl. 52, 155 P. 202.
is Union Pac. Ry. Co. v. Shook, 44 P. 685, 3 Kan. App. 710; Atchison, T.
& S. F. R. Co. v. Long, 47 P. 993, 5 Kan. App. 644.
Actions ex delicto. — Petition claiming title to purchase money for land sold
by plaintiff's agent and deposited in defendant's bank held to show that ac-
tion was for relief on ground of fraud. Fix v. Rose, 64 Old. 113, 166 P. 145.
A passenger's action for injuries from collision with a switch engine held
an action sounding in tort. Martin v. Chicago, R. I. & P. Ry. Co., 46 Okl.
169, 148 P. 711.
Where the effects of a passenger which are damaged by the negligence of
the carrier are accepted and retained by the passenger, an action for the
damages should be in tort, and not on account. Atchison, T. & S. F. R. Co.
v. Wilkinson, 39 P. 1043, 55 Kan. 83.
Action to recover a part of the consideration of a contract alleged to have
been paid by reason of the fraudulent representations of defendants as to
the amount due thereon is an action for relief on the ground of fraud, and
not an action on the contract Ottawa Condensing Co. v. Dawkins, 120 P.
356, 86 Kan. 312.
A petition alleging that defendant railroad company, by its agents and
servants, after having sold plaintiff a ticket, refused to allow him to remain
on the train without payment of additional fare, and wrongfully, forcibly,
and unlawfully ejected him, to his damage in a certain sum, declares on .a
cause of action ex delicto. Atchison, T. & S. F. R. Co. v. Long, 47 P. 993,
5 Kan. App. 644.
Actions ex contractu. — An action by a grand lodge against a bank to recov-
(165)
§ 280 REMEDIES AND RIGHTS (Ch. 5
Where the relation between the parties to an action has been
established by contract, express or implied, if the law imposes cer-
tain duties because of the existence of the relation, a violation of the
contract obligations may be waived and an action in tort brought
for any violation of such duties.19
Where one person wrongs another for his own benefit, the la\V(
may imply a contract by the wrongdoer to pay to the party injured
the full value of the benefits resulting.20
A person injured from a neglected duty imposed by law, by rea-
er the amount of an overdraft by a defaulting treasurer of the grand lodge is
an action on implied contract and not in tort for relief on the ground of
fraud. Washbou v. Linscott State Bank, 125 P. 17, 87 Kan. 698.
A petition stating a contract of carriage and charging a violation of duty,
in an action against a carrier, states a cause of action in tort rather than
contract. Ft. Smith & W. R. Co. v. Ford, 126 P. 745, 34 Okl. 575, 41 L. R. A.
(N. S.) 745. Where an action against a carrier for damages sounds in tort,
the allegation of a contract of carriage is a mere inducement to show the
right to sue as a passenger. Id. Where a passenger is entitled to damages
for breach of the carrier's duty, the remedy is in tort. Id. In a suit against
a common carrier for breach of duty in carrying passenger beyond his sta-
tion, the action is one in tort, unless a special contract clearly appears. Id.
It was agreed that an agent should receive a stated commission for the
sale of machinery ; that commissions should be paid on cash payments only ;
and that no commission was to be paid or retained on sales made to irre-
sponsible parties, nor where the debts for which the machinery was sold
were uncollectible. The agent under this contract sold machinery which was
to be paid for at a future time, and represented that the notes taken were
good, and would be paid at maturity. The principal, relying on these state-
ments, paid the commission in full, and afterwards it was found that the
purchasers who gave the notes were insolvent, and only a small part of the
purchase price was paid. Held, that an action brought by the principal to
recover the difference between the commission which was paid and the
amount actually earned by the agent under the terms of the contract was an
action arising on contract, and was not barred by the two-years statute of
limitations. Frick & Co. v. Lamed, 32 P. 383, 50 Kan. 776.
Where a mortgagee sends through a bank part of the money loaned to a
contractor, to be paid by the receiving bank to a creditor having a claim
against the property mortgaged, and the receiving bank applies it to a debt
owing it by the contractor, an action for such misapplication is an action on
an implied contract, and not in tort. Winfleld Nat. Bank v. Railroad Loan
& Savings Ass'n, 81 P. 202, 71 Kan. 584.
i» Hobbs v. Smith, 115 P. 347, 27 Okl. 830, 34 L. R. A. (N. S.) 697.
In action for alleged wrongful taking of valuable fossil from plaintiff's land
and converting it, petition held to show waiver of tort and reliance on im-
plied promise to pay value of property. Garrity v. State Board of Adminis-
tration of Educational Institutions, 162 P. 1167, 99 Kan. 695.
20 Weems v. Melton, 47 Okl. "706, 150 P. 720.
An owner whose property has been converted to the use of another may
(166)
Art. 1) IN GENERAL §§ 280-281
son of a relation created by contract, may either sue on the con-
tract or bring an action ex delicto.21
In an action of tort by a passenger for a wrongful expulsion
from a train before he reached the station for which he had pur-
chased a ticket, he cannot recover as for a breach of contract to
convey him to the station ; 22 but where he has complied with the
rules of procedure as to the form of action and his pleading, he
cannot be precluded from recovering for humiliation because of a
doubt as to whether his suit was ex contractu or ex delicto.23
§ 281. Illegal transactions
One cannot maintain an action based on his own turpitude, 24 or
to aid in effecting a wrong or fraud upon the defendant.25
As a general rule, an action which grows out of and is founded
waive the tort, and bring his action on implied contract for the value of the
property. Altman v. Phillips County Bank, 122 P. 874, 86 Kan. 930.
Where a person takes and sells the property of another, the owner may
elect to waive the tort and sue upon the implied contract for the value of the
same ; and whether he has so elected, and the nature of the action, are to
be determined by the court from the pleadings. Smith v. McCarthy, 18 P. 204,
39 Kan. 308.
Where a bank clerk appropriates the money of a bank, it may waive the
tort and sue on an implied contract that the clerk would be honest and faith-
ful. Lipscomb v. Citizens' Bank of Galena, 71 P. 583, 66 Kan. 243.
Where a commission merchant receives mortgaged cattle for sale without
the knowledge or consent of the mortgagee and in violation of the terms of
the mortgage, and pays the proceeds, less his commission, to the consignor,
without notice of the mortgage, he does not derive such a benefit from the
transaction as to authorize the mortgagee to waive the tort and recover on
an implied contract. Greer v. Newland, 78 P. 835, 70 Kan. 315, 70 L. R. A.
554, 109 Am. St. Rep. 424, judgment, 77 P. 98, 70 Kan. 310, 70 L. R. A. 554,
109 Am. St. Rep. 424, reversed on rehearing.
21 Chicago, R. I. & P. Ry. Co. v. Harrington, 44 Okl. 41, 143 P. 325.
22 Noble v. Atchison, T. & S. F. R. Co., 46 P. 483, 4 Okl. 534.
23 St. Louis & S. F, R. Co. v. Yount, 30 Okl. 371, 120 P. 627.
2* A litigant cannot found his action on his own violation of the law.
Friedman & Co. v. State, 131 P. 529, 37 Okl. 164.
Where the owner of land deeded it to R. who did not record his deed, and
afterwards the holder of a void tax deed quieted his title against a defendant
of the same name as the grantee, and such title was purchased for $800 by
defendant, who improved the land, and where by deceit C. then procured
from the original owner a deed for $15, the maxim that "one cannot maintain
2s The bringing of an action to recover personalty, by one having no inter-
est therein within Code Civ. Proc. § 25 (Gen. St. 1909, § 5618), or the excep-
tions thereto, at the instance of an outsider to aid him in effecting the wrong,
is a fraud on defendant. Burdett v. Surdez, 146 P. 1025, 94 Kan. 494.
(167)
§§ 282-285 REMEDIES AND EIGHTS (Ch. 5
upon an illegal transaction, where the plaintiff and defendant are
in equal guilt, cannot be maintained.26
§ 282. Injury without liability
A railway company operating within the scope of its power
has the right to the use of its property and the lawful enjoyment
thereof ; and if, in the enjoyment of this right, a loss occurs to an-
other, it is a wrong for which there is no liability.27
§ 283. Tenders
"When a tender of money is alleged in any pleading, it shall not
be necessary to deposit the money in court when the pleading is
filed, but it shall be sufficient if the money is deposited in court at
trial, or when ordered by the court." 28
§ 284. Right of action — Warrantee — Costs and expenses
"If a warrantor or other person bound by a warranty shall fail
to appear and defend after due notice" as provided by law, "the
warrantee may defend the action and recover in a separate suit all
sums expended the same as he might do in the same suit." 29
§ 285. Action on surveyor's bond
"Any person who may think himself injured by the neglect or
misconduct of any county surveyor, or any of his deputies, may
institute suit on the bond executed by such county surveyor and
his sureties, and in case the party for whose benefit such suit may
be brought shall obtain a judgment for any damage or loss by him
sustained, he may sue out an execution on such judgment as in
an action based on his own turpitude" barred C. from recovering in an ac-
tion to eject defendant. Chandler v. Austin, 132 P. 1004, 90 Kan. 62.
A contention that a note against decedent should not be allowed against
his estate because it had not been returned for taxation is not meritorious,
since, in order to obtain judgment on the note, plaintiff did not have to claim
under any unlawful act, nor was the court required to pass on any violation
or attempt to -evade the law on plaintiffs part. Brewster v. Light, 65 P. 248,
63 Kan. 882.
26 Hinnen v. Newman, 12 P. 144, 35 Kan. 709.
Whenever it appears during the trial that the cause of action on which
plaintiff relies arose out of an unlawful conspiracy, the court should imme-
diately refuse aid to either party. Patterson v. Imperial Window Glass Co.,
137 P. 955, 91 Kan. 201.
27 st. Louis & S. F. R. Co. v. Burrous, 118 P. 143, 29 Okl. 378.
2 s Rev. Laws 1910, § 4782.
2» Rev. Laws 1910, § 1168.
(168)
Art. 1) IN GENERAL §§ 286~289
other cases and the bond may be sued on in like manner by each
and every person aggrieved." 80
§ 286. Surety against principal
"A surety may maintain an action against his principal, to com-
pel him to discharge the debt or liability for which the surety is
bound, after the same has become due.
"A surety may maintain an action against his principal, to ob-
tain indemnity against the debt or liability for which he is bound,
before it is due, whenever any of the grounds exist, upon whicli,
by the provisions of this Code, an order may be made for arrest
and bail, or for an attachment.
"In such action the surety may obtain any of the provisional
remedies mentioned in articles 8, 9 and 10, upon the grounds and
in the manner therein prescribed." 31
§ 287. Money received
Where one has money of another which he in good conscience
has no right to retain, an action will lie to recover it.82
§ 288. Conditions precedent — Warranty
"In all cases where an action is brought against a grantee to
recover real estate conveyed to him by warranty deed, he must
notify the grantor or person bound by the warranty that such
suit has been brought, at least twenty days before the day of trial,
which notice shall be in writing and shall request such grantor or
other person to defend against such action; and in case of fail-
ure to give such notice there sjiall be no further liability upon such
warranty, except when it is clearly shown that it was impossible
to make service of such notice." 33
§ 289. Death pending action
"If an action is pending against the decedent at time of his
death, the plaintiff must in like manner present his claim to the
executor or administrator, for allowance or rejection, authenti-
so Rev. Laws 1910, § 1727.
31 Rev. Laws 1910, §§ 5307, 5308, 5309.
32 Helm v. Mickleson (Okl.) 170 P. 704; Allsman v. Oklahoma City, 95 P,
468, 21 Okl. 142, 16 L. R. A. (N. S.) 511, 17 Ann. Gas. 184.
as Rev. Laws 1910, | 1166.
(169)
§§ 290-293 REMEDIES AND RIGHTS (Ch. 5
cated as required in other cases; and no recovery shall be had in
the action unless proof be made of the presentation required." 3*
§ 290. Claim against estate
"No holder of any claim against an estate shall maintain any
action thereon, unless the claim is first presented to the executor
or administrator." 35
A claim for a fund wrongfully misappropriated by a guardian
need not be presented to the administrator of the guardian's sure-
ty, before action therefor.36
§ 291. Usury
Before any suit can be brought to recover usurious interest, the
party bringing such suit must make written demand for return
of such usury.37
§ 292. Claim against municipality
That a claim against a city for unliquidated damages arising
out of a tort is not itemized, verified, and filed does not prevent a
suit being maintained thereon, but merely precludes the plaintiff
from recovering costs.38
Where a party having sustained a personal injury for which he
claims that a city is liable, presents his bill therefor to the city
council for allowance, which is by such council disallowed, he may
thereafter sue for and recover all the damages sustained, though
such damages exceeded the amount claimed in the bill.39
§ 293. Offer — Demand — Notice
No failure to make an offer of performance can be insisted on
as a bar to an action, where that offer would have been rejected.40
An offer to restore or do equity is necessary only when the court
s* Rev. Laws 1910, § 6348.
35 Rev. Laws 1910, § 6346.
se Asher v. Stull, 61 Okl. 320, 161 P. 808 ; Donnell v. Dansby, 58 Okl. 165,
159 P. 317. •
87 Rev. Laws 1910, § 1005.
s s Town of Sallisaw v. Hitter, 142 P. 391, 42 Okl. 626, Rev. Laws 1910,
§603.
39 City of Oklahoma City v. Welsh, 41 P. 598, 3 Okl. 288.
40 St. Louis & S. F. R. Co. v. Richards, 102 P. 92, 23 Okl. 256, 23 L. R. A.
(N. S.) 1032.
(170)
Art. 1) IN GENERAL § 293
would otherwise be powerless to give defendant whatever relief
he may be entitled to against plaintiff.41
No demand is ordinarily necessary before commencing suit for
*iA minor Creek on attaining her majority may sue to cancel a void deed
executed during her minority, without offering to restore the consideration,
where it never reached her hands, or was immediately paid over to one with
whom she was illegally cohabiting, and was never returned to her. Blake-
more v. Johnson, 103 P. 554, 24 Okl. 544.
In a suit in equity by a minor Creek freedman to cancel a deed executed
by her during minority, it is unnecessary to formally allege an offer to do
equity by returning the consideration received by her during minority. Ste-
vens v. Elliott, 30 Okl. 41, 118 P. 407.
In a suit in equity to cancel a void deed, made by a minor Creek freedman
during minority, the court has full power to impose as a condition to the can-
cellation of such deed the return of the consideration received, or such part
thereof as the minor may have in his or her possession upon attaining ma-
jority, and an offer to do equity or return such consideration is an unnec-
essary pleading. Stevens v. Elliott, 30 Okl. 41, 118 P. 407.
In a minor Creek freedman allottee's action to set aside a void deed, plain-
tiff need not plead formal tender to restore consideration. McKeever v.
Carter, 53 Okl. 360, 157 P. 56.
A return of the consideration held not a necessary prerequisite to the can-
cellation of a deed executed to Indian lands in violation of section 16 of
the Supplemental Creek Agreement of June 30, 1902. Oates v. Freeman, 57
Okl. 449, 157 P. 74.
In action to set aside void conveyance of lands of Indian minor allottee, it
is not necessary for plaintiff to plead formal tender and offer to return con-
sideration as condition precedent to action. Bell v. Fitzpatrick, 53 Okl. 574,
157 P. 334. That minor Indian allottee in her own name brought suit to set
aside void conveyance of allotted lands, executed after May 27, 1908, and
permitted suit to be dismissed with prejudice, did not bar subsequent suit on
attaining majority to cancel deed and have it removed as cloud on title. Id.
Guardian of Indian minor allottee cannot, by commencing action and enter-
ing into compromise and settlement, divest title of minor to lands or create
estoppel against allottee thereafter asserting invalidity of conveyance. Id.
Insured seeking to rescind contract substituting life insurance policies and
accompanying loan agreement held not required to offer compensation for
time he had protection of policy issued under contract induced by insurer's
fraud. Myler v. Fidelity Mut. Life Ins. Co. of Philadelphia, 64 Okl. 293, 167
P. 601.
In suit to declare deed a mortgage and to enforce lien, plaintiff's failure
to tender reconveyance of land did not defeat relief, as court of equity, to
do justice between the parties, might compel plaintiff to do equity before
granting him any relief. Huff v. Lynde-Bowman-Darby Co. (Okl.) 175 P. 250.
Where under invalid proceedings in probate court lands of minor citizen of
Choctaw Nation were disposed of, held that minor was not bound to return
consideration received in absence of showing that she had in her possession
any of such consideration. Bridges v. Rea, 64 Okl. 115, 166 P. 416.
Where minor citizen of Choctaw Nation sues to set aside void guardian-
ship sale of his land and alleges that he has received no part of considera-
(171)
§ 294 REMEDIES AND RIGHTS (Ch. 5
conversion,42 nor is it always necessary that notice be given to
sureties on an employe's bond of the employe's default.43
§ 294. Taxes
Where a tax levy is void, tender of a portion thereof is not a con-
dition precedent to a taxpayer's right to enjoin the collection of
same.44
tion, he need not tender or pay back such consideration as a prerequisite to
maintenance of suit. Winters v. Oklahoma Portland Cement Co. (Okl.) 164
P. 965.
An action to recover entire purchase money when due held not maintain-
able, unless plaintiff should offer to convey or tender a deed on full payment.
Dubois v. Andrews, 57 Okl. 227, 152 P. 440.
Where it appears from contract to sell land that it was intention of par-
ties that payment of price should precede delivery of deed, or time for
payment was fixed, and no time for conveyance, offer to convey is not re-
quired before action for price. Sooter v. Janes, 57 Okl. 368, 157 P. 282.
Where the vendor took notes for the deferred payments, and the purchaser
took possession, and the contract provided that, on the purchaser's default
the vendor should keep any payments as liquidated damages, the vendor was
not compelled to resort to specific performance before enforcing the notes.
Shelton v. Wallace, 137 P. 694, 41 Okl. 325.
Tender of deed is not condition precedent to action to enforce vendor's
lien. Ames v. Milam, 53 Okl. 739, 157 P. 941. Notice by vendor of intention
to declare future payments due was not essential prerequisite to action to
foreclose vendor's lien. Id.
42 In a mortgagee's action for conversion, against the purchaser of mort-
gaged chattels, demand and refusal need not be proven, where the purchaser
knew of the mortgagee's rights or convert?': the property to his own use.
Bank of Commerce of Ralston v. Gaskill, 44 Okl. 728, 145 P. 1131. An ab-
solute sale by the chattel mortgagor, to the exclusion of the mortgagee,
works a conversion of the chattels for which the mortgagee may sue with-
out previous demand. Id.
In a suit for conversion of a ring pledged as collateral to secure a no^e,
no demand of pledgee for return of the property is necessary where the same
has been sold by him pending the right to redeem. Clinton Nat. Bank v.
McKennon, 110 P. 649, 26 Okl. 835.
Where a sheriff, under a writ of attachment, seized and converted property
to the possession of which a mortgagee had a prior right, no demand of the
sheriff for the return of the property was necessary. Johnson v. Anderson,
57 P. 513, 60 Kan. 578.
In action for conversion of a wagon shipped by defendant carrier, a formal
demand and specific tender of the amount of freight held unnecessary. Atchi-
son, T. & S. F. Ky. Co. v. Etherton, 45 Okl. 260, 145 P. 779.
43 Where an agent for the delivery of pictures and collection of the price
makes reports as required by the contract of agency, in which reports his
shortage appears, and where his conduct is not inconsistent with honesty,
4* Eakin v. Chapman, 44 Okl. 51, 143 P. 21.
(172)
Art. 1) IN GENERAL §§ 294-295
A party seeking equitable relief against an assessment must him-
self offer to do equity, and pay the amount of taxes which the facts
show would have properly been charged against him under proper
assessment.45
§ 295. Insurance
The conditions precedent to suit, prescribed in a policy of insur-
ance, must be complied with,46 unless they be waived,47 or become
his employer is not required to notify the sureties upon his bond to the em-
ployer, conditioned to account for pictures and frames shipped to him for
delivery, of his default, as a condition precedent to its recovery upon the
bond for either the first reported shortage, or shortage subsequent to the
first. Chicago Crayon Co. v. Rogers, 30 Okl. 299, 119 P. 630.
*5 Rogers v. Bass & Harbour Co. (Okl.) 168 P. 212.
46 Examination. — Refusal to comply with a requirement that insured sub-
mit before action to an examination under oath, will preclude recovery on
the policy. Connecticut Fire Ins. Co. of Hartford, Conn., v. George, 52 Okl.
432, 153 P. 116. Where, during the examination provided for in a fire insur-
ance policy, insured refused to answer material questions, he could not re-
cover on the policy, though at the close of his testimony at such examination
he stated that he would not refuse to answer any reasonable question. Id.
That the examination was not conducted in good faith, held not to excuse
plaintiffs failure to answer material questions. Id. While in an examina-
tion of insured the insurer cannot inquire into a proposition having no legiti-
mate bearing on the question at issue, the examination should be liberal in
scope to reach the end intended. Id. Where insured refused to state on
•-his examination whether he had executed certain mortgages on the insured
property in excess of the amount stated in his application, he was thereby
precluded from recovering on the policy. Id.
Proof of loss. — Where a fire insurance policy provides that in case of loss
the insured shall give notice of loss and within 60 days make verified proof
of loss in writing and that a compliance with this provision is a condition
precedent to an action, the right of action does not mature till the provision
has been complied with or waived. Commercial Union Assur. Co., Limited,
of London, England, v. Shults, 130 P. 572, 37 Okl. 95.
A policy provided for proof of loss in writing within 60 days after a fire,
and that no action on the policy should be sustained until compliance with
such requirement. Held, that an action brought before proof of loss ren-
dered was prematurely brought. Nance v. Oklahoma Fire Ins. Co., 31 Okl.
208, 120 P. 948, 38 L. R. A. (N. S.) 426.
47 Where a policy provides for an appraisement, and such appraisement is
a condition precedent to an action where no appraisement is requested by
either party, and the company denies liability, the insured is not precluded
from recovering for failure to demand an appraisement. Oklahoma Fire Ins.
Co. v. Mundel, 141 P. 415, 42 Okl. 270.
Failure of fraternal association to comply with by-laws as to disapproval
of death claims excuses beneficiary from compliance with provision requiring
claims to be submitted to proper tribunals within order before suit on certifi-
cate. Haskew v. Knights of Modern Maccabees, 58 Okl. 294, 159 P. 493.
§ 296 REMEDIES AND RIGHTS (Ch. 5
wholly unnecessary or futile,48 or be contrary to law or public
policy.49
ARTICLE II
ELECTION OF REMEDIES
Sections
296. Necessity.
297. Effect.
298. What constitutes.
§ 296. Necessity
A party is not bound in all cases to make an election. The holder
of a note held as collateral cannot be compelled to elect whether he
will enforce the principal or the collateral obligation. After the
debt falls due, he has the option to make the debt out of the proper-
ty pledged, or to pursue his remedies against the pledger as though
the pledge had not been made.50
In an action for damages for wrongful attachment, plaintiff's
right to treat such attachment as a conversion and to recover full
value of the property depends on his timely election to do so.51
^s it is not necessary to tender amount received in settlement of cash sur-
render value of policy over a loan before suit on the policy, where it is cer-
tain that tender will be refused. Jones v. New York Life Ins. Co., 122 P.
702, 32 Okl. 339.
Appraisement. — Where there was a total loss under a policy, no appraise-
ment was necessary, though made by the policy a condition precedent to suit.
Springfield Fire & Marine Ins. Co. v. Homewood, 122 P. 196, 32 Okl. 521,
39 L. R. A. (N. S.) 1182.
Provisions of a policy for appraisal on disagreement as to amount of loss,
and making loss payable 60 days after its ascertainment, including an award
by appraisers, when appraisal has been required, do not make appraisal a
condition precedent to an action on the policy. American Ins. Co. of New-
ark, N. J., v. Rodenhouse, 128 P. 502, 36 Okl. 211.
Under a provision for an appraisement, it is as much the duty of the in-
surer as the insured to demand an appraisement; and such demand by the
insured is not a condition precedent to an action on a policy. Rochester
German Ins. Co. of Rochester, N. Y., v. Rodenhouse, 128 P. 508, 36 Okl. 378.
« Const, art. 23, | 9, prevents the abridging of the time within which rights
under the law may be enforced and the requiring of any notice as condition
precedent to maintaining of an action for breach of the duty imposed by
law, but does not relate to acts that must be performed by the parties to an
insurance policy as a part of the contract. Gray v. Reliable Ins. Co., 110 P.
728, 26 Okl. 592.
so Ricks v. Johnson, 62 Okl. 125, 162 P. 476.
si Wade v. Ray (Okl.) 168 P. 447, L. R. A. 1918B, 796.
(174)
Art. 2) . ELECTION OP REMEDIES §§ 297~298
§ 297. Effect
Where the law gives several means of redress based on conflict-
ing- theories, election of one and prosecution to final judgment is
bar to adoption of any other.52
However, the commencement of an action in ignorance of the
facts does not necessarily constitute an election. Thus an action
to rescind a contract for exchange of land will not prevent the
recovery of damages on the ground of election of remedies, where
when the action was brought the plaintiff did not know that the
defendant had deeded the land conveyed to him to an innocent
purchaser.53
§ 298. What constitutes
Where the plaintiff sues one defendant, and by an amended pe-
tition seeks additional relief against other defendants, to which he
is not entitled as against the original defendant, the filing of the
original petition was not an election of remedies estopping relief
as against other defendants; no elements of estoppel being plead-
ed or shown.54
52 First Trust & Savings Bank of Chicago, 111., v. Bloodworth (Okl.) 174 P.
545. Where application for loan was forwarded by agent of applicant and
amount of mortgage loan was paid by mortgagee to it, action by mortgagor
to recover amount of loan from his agent held an election of remedies bar-
ring defense to mortgage that consideration was not received. Id.
53 Speed v. McMurray (Okl.) 176 P. 506.
s* Marks v. Baum Bldg. Co. (Okl.) 175 P. 818.
(175)
§§ 299-300 ABATEMENT, SURVIVAL AND REVIVOB (Ch. 6
CHAPTER VI
ABATEMENT, SURVIVAL AND REVIVOR
Sections
299-310. Article I. — Survival and abatement.
311-328. Article II.— Revivor.
ARTICLE I
SURVIVAL AND ABATEMENT
Sections
299. What actions survive.
300. Death or assignment. 9
301. Death of plaintiff.
302. Death of defendant.
303. Personal injuries.
304. Action for wrongful death.
305. Who may sue — Amount of recovery.
306. Party in representative capacity — Change.
307. Receiver.
308. Transfer of interest.
309. Where action does not survive.
310. Abatement — Pendency of another action.
§ 299. What actions survive
"In addition to the causes of action which survive at common
law, causes of action for mesne profits, or for an injury to the per-
son, or to real or personal estate, or for any deceit or fraud, shall
also survive; and the action may be brought, notwithstanding
the death of the person entitled or liable to the same." x
The death of either party pending an appeal from a judgment
denying a divorce abates the action, and where the record shows
no property rights involved, the appeal will be dismissed.2
§ 300. Death or assignment
"An action does not abate by the death or other disability of a
party, or by the transfer of any interest therein, during its penden-
cy, if the cause of action survive or continue. In case of the death
or other disability of the party, the court may allow the action to
continue by or against his representatives or successors in inter-
1 Rev. Laws 1910, § 5279.
2 Bunger v. Bunger, 160 P. 976, 99 Kan. 22.
(176)
Art. 1) SURVIVAL AND ABATEMENT §§ 301-302
est, upon such terms and in such time as may be just under the
circumstances presented. In case of any other transfer of inter-
ests, the action may be continued in the name of the original par-
ty, or the court may allow the person to whom the transfer is made
to be substituted in the action." 3
§ 301. Death of plaintiff
A cause of action for recovery of money on an appeal bond pass-
es to the personal representatives of a deceased plaintiff.4
An action for injuries caused by negligence does not abate on
plaintiff's death.5
Where the execution of a mortgage is procured by duress, the
cause^of action therefor is not personal to the mortgagor, and his
heirs may set up duress in an action to foreclose, or they may
maintain an action for cancellation on such ground.6
§ 302. Death of defendant
"No action pending in any court- shall abate by the death of ei-
ther or both the parties thereto, except an action for libel, slander,
malicious prosecution, for a nuisance, or against a justice of the
peace for misconduct in office, which shall abate by the death of
the defendant." 7
An action for malicious prosecution abates on the death of the
defendant, and the cause of action dies with him.8
Death of defendant pending appeal in an action for libel abates
the action, and the appeal will be dismissed.9
When, in an action on a joint and several note, it is shown that
one of the defendants has died since the action was filed and serv-
ice had, the action abates only as to the deceased defendant, and
on verdict returned against all the defendants the court may ren-
der judgment against the surviving defendants.10
Where a case is commenced against receivers, and the receivers
a Rev. Laws 1910, § 4695.
* Zahn v. Obert, 60 Okl. 118, 159 P. 298.
5 Missouri Pac. Ry. Co. v. Bennett's Estate, 47 P. 183, 5 Kan. App. 231,
judgment affirmed 49 P. 606, 58 Kan. 499.
e Drake v. High (Okl.) 172 P. 53.
7 Rev. Laws 1910, § 5280.
s Loeser v. Loeser, 50 Okl. 249, 150 P. 1045.
» Loekett v. Tucker, 56 Okl. 552, 156 P. 323.
10 Gillespie v. First Nat. Bank, 95 P. 220, 20 Okl. 768.
HON.PL.& PRAC.— 12 (177)
§§ 302-304 ABATEMENT, SURVIVAL AND BEVIVOR (Ch. 6
die, and a receiver de bonis non is appointed, and no attempt is
made to revive the action for more than a year, a motion to abate
the action will be sustained.11
An action by a wife for alienation of her husband's affections
does not abate by her death while the action is pending in the Su-
preme Court.12
§ 303. Personal injuries
An action for personal injuries not resulting in death survives
to the personal representatives.13
The representative is entitled to have included in the verdict
the same allowance for pain and suffering of the deceased as de-
ceased would have had had he lived.14
An action may be maintained by an injured person against the
administrator of the wrongdoer's estate.15
§ 304. Action for wroingful death
"When the death of one is caused by the wrongful act or omis-
sion of another, the personal representatives of the former may
maintain an action therefor against the latter, if the former might
have maintained an action had he lived, against the latter for an
injury for the same act or omission. The action must be com-
menced within two years. The damages must inure to the exclu-
sive benefit of the widow and children, if any, or next of kin, to
be distributed in the same manner as personal property of the de-
ceased." 16
11 Hutchings v. Eddy, 50 P. 944, 6 Kan. App. 490.
12 Powers v. Sumbler, 110 P. 97, 83 Kan. 1.
is Martin v. Missouri Pac. Ry. Co., 49 P. 605, 58 Kan. 475.
The common-law right of action, which survives the death of the Injured
person, is independent of the right of action given for the recovery of dam-
ages for the benefit of the widow and next of kin. St. Louis & S. F. R. Co.
v. Goode, 142 P. 1185, 42 Okl. 784, L. R. A. 1915E, 1141. The common-law
right of action for personal injuries survives the death of the injured person
and vests in his personal representative, though the death resulted from such
Injuries. Id.
i* Atchison, T. & S. F. R. Oo. v. Rowe, 43 P. 683, 56 Kan. 411.
IB Casteel v. Brooks, 46 Okl. 189, 148 P. 158.
i« Rev. Laws 1910, § 5281.
A cause of action arising under St. 1893, § 4313 (Rev. Laws 1910, § 5281),
for wrongful death, will survive the death of the beneficiary named therein,
and may be revived and prosecuted by his administratrix. City of Shawnee
v. Cheek, 137 P. 724, 41 Okl. 227, 51 L. R. A. (N. S.) 672, Ann. Cas. 1915C, 290.
St. 1893, § 4313 (Re-,\ Laws 1910, § 5281), authorizing recovery for wrong-
(178)
Art. 1) SURVIVAL AND ABATEMENT §§ 304-305
In the absence of a statutory or constitutional provision an ac-
tion cannot be maintained for the wrongful death of another;17
for at common law the death of a human being, though clearly in-
volving pecuniary loss, was not a ground of an action for dam-
ages.18
The provision of the Constitution that the right of action to re-
cover damages for injuries resulting in death shall never be ab-
rogated, and the amount recoverable shall not be subject to any
statutory limitation, does not change the method of procedure in
such cases.19 '
§ 305. Who may sue — Amount of recovery
"In all cases where the residence of the party whose death has
been caused as set forth in the preceding section, is at the time of
his death in any other state or territory, or when, being a resident
of this state, no personal representative is or has been appointed,
the action provided in the said section may be brought by the wid-
ow, or where there is no widow, by the next of kin of such de-
ceased." 20
In an action under the statute for the wrongful death of a spouse,
ful death, confers upon the beneficiary thereof a property right in the pecun-
iary value to him of the decedent's life, and gives him a new cause of action
for the pecuniary loss which he has sustained from such death. City of
Shawnee v. Cheek, 137 P. 724, 41 Okl. 227, 51 L. R. A. (N. S.) 672, Ann. Cas.
1915C, 290.
Comp. Laws 1909, §§ 2881, 2882, held not to give a right of action for
wrongful death; such right being conferred alone by Wilson's Rev. & Ann.
St. 1903, §§ 4611, 4612. Shawnee Gas & Electric Co. v. Mbtesenbocker, 138
P. 790, 41 OKI. 454.
Civ. Code, § 422, does not change a pending action for injuries brought by
the deceased in his lifetime into an action for wrongful death. Missouri Pac.
Ry. Co. v. Bennett's Estate, 47 P. 183, 5 Kan. App. 231, judgment affirmed
49 P. 606, 58 Kan. 499.
Laws 1889, c. 131, supplementing Civ. Code, § 422, giving an action for
wrongful death, does not, by providing that a cause of action given by sec-
tion 422 shall not be lost because of nonresidence of the deceased or non-
appointment of a representative, create a new cause of action, or impose any
limitation on an existing one. Atchison, T. & S. F. R. Co. v. Napole, 40 P.
669, 55 Kan. 401.
IT City of Eureka v. Merrifield, 37 P. 113, 53 Kan. 794.
is Missouri, K. & T. Ry. Co. v. Lenahan, 135 P. 383, 39 Okl. 283.
i» Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454.
v. Laws 1910, § 5282.
(179)
§ 305 ABATEMENT, SURVIVAL AND REVIVOB (Ch. 6
parent, or child, the plaintiff is limited in damages to the pecuniary
loss sustained by the wrongful death.21
21 Blunt v. Chicago, R. I. & P. R. Co. (Okl.) 173 P. 656 ; Missouri, K. & T.
Ry. Co. v. West, 38 Okl. 581, 134 P. 655.
In an action for the wrongful killing of plaintiff's child, unless the evi-
dence shows a reasonable expectation that the child would have contributed
to the support of his parents after majority, the damages are limited to the
amount which will compensate for loss of the child's services to his major-
ity. Muskogee Electric Traction Co. v. Hairel, 46 Okl. 409, 148 P. 1005.
In an action for the benefit of dependent children, the measure of damages,
under federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), is such
an amount as deceased would reasonably be expected to have contributed to
their support and education. Kansas City, M.I & O. Ry. Co. v. Roe, 50 Okl.
105, 150 P. 1035.
The measure of damages for the wrongful death of the husband and father
was the pecuniary loss suffered by the widow and minor children by being
deprived of his care and support, as determined by his age, physical condi-
tion, occupation, earning capacity, and the use made by him of his earnings.
Big Jack Mining Co. v. Parkinson, 137 P. 678, 41 Okl. 125.
In action for wrongful death of son, where there is evidence of parent's
dependency and a reasonable expectation of ^ntribution from son, the meas-
ure of damages is the amount compensating parent for loss sustained by
son's death. Lusk v. Phelps (Okl.) 175 P. 756.
In action for wrongful death of their son, dependent parents may recover
damages on account of contributions he would probably have made. We-
leetka Cotton Oil Oo. v. Brookshire (Okl.) 166 P. 408.
In an action by the administrator of a deceased minor, it is within the
province of the jury to estimate the damages with reference to the pecun-
iary injury, present or prospective, resulting to next of kin, from the facts
proved, in connection with their own knowledge and common experience, and
it is not necessary that any witness should have expressed an opinion of the
amount of such loss. Union Pac. Ry. Co. v. Dunden, 14 P. 501, 37 Kan. 1.
In an action to recover damages for the services of a minor son killed by
the alleged negligence of defendant, and to recover the benefits which plain-
tiffs expected to receive from him by way of support after he reached his
majority, plaintiffs' right to recover for such expected benefits is limited to
their lives, and is not the amount they might have expected to receive from
the son after he reached majority and during the time he had continued to
live. Fidelity Land & Improvement Co. v. Buzzard, 76 P. 832, 69 Kan. 330.
An action under Civ. Code, § 422, providing for the recovery of damages
for wrongfully causing a death, is for pecuniary loss to those entitled to the
recovery, and, when brought in behalf of the next of kin to whose support
the deceased was under no legal obligation to contribute, it can be main-
tained for substantial damages only by proof that he was in the habit of
contributing to their support or education, and might be reasonably expected
to continue such habit, or by proof of declarations, acts, conduct, or relevant
circumstances reasonably tending to show an intention on his part to make
such contributions of support or education ; and hence where a case lacks
such proof a verdict for $5,000 damages for the death cannot be sustained,
Atchison, T. & S. F. Ry. Co. v. Ryan, 64 P. 603, 62 Kan. 682.
In an action by nonresident alien partent to recover for the death of their
(180)
Art. 1) SURVIVAL AND ABATEMENT § 305
Thus, loss of society and protection,22 the mental anguish and
suffering of the deceased,23 and the mental anguish and suffering
of the widow are not proper items of damage in such action.2*
minor son, proof as to the value of actual services rendered or which might
have been rendered by the minor son is not indispensable, but there must
be evidence to justify a reasonable expectation of pecuniary benefit to his
parents in the continuance of his life. Atchison, T. & S. F. Ry. Co. v. Fa-
jardo, 86 P. 301, 74 Kan. 314, 6 L. R. A. (N. S.) 681.
In a suit to recover damages for the death of a minor, under Civ. Code, §
422, the fact that the parents had released to such minor his time and serv-
ices during his minority may be considered in determining the amount of
recovery- St. Joseph & W. R. Co. v. Wheeler, 10 P. 461, 35 Kan. 185.
In an action for death, it appeared: That decedent was 21 years old, un-
married, of normal physique, and in good health ; that he was industrious,
steady, and without bad habits ; that his relations with his parents were
most pleasant ; that he had been away from home since he was 19, and dur-
ing that time his parents had made no claim to his earnings ; that, though
they were neither old nor indigent, he contributed to their support, the last
occasion being shortly before he was killed ; that altogether he had sent
home $35, and at time of death was earning $1.75 a day ; that his motive for
leaving home was to see something of the world ; and that arrangements had
been made for him to go home and help his father run two farms, which would
have been mutually advantageous. Held, that the father and mother had the
right to expect to receive pecuniary benefits from his continued life and suf-
ficient data appeared from which damages sustained by his death could be
computed. Pittsburg Vitrified Pav. & Bldg. Brick Go. v. Fisher, 100 P. 507,
79 Kan. 576.
Amounts held not excessive. — See L. R. A. 1916C, 820.
A recovery of $15,000 for death of an employe who had earned as much as
$160 a month and was 30 years old, sober and healthy, and who left a wife
and small child, held not excessive in view of Const, art. 23, § 7 (Williams'
Const. § 356), providing that the damages for wrongful death shall not be
subject to any statutory limitation. St. Louis & S. F. R. Co. v. Long, 137
P. 1156, 41 Okl. 177, Ann. Cas. 1915C, 432.
The recovery of $15,000 for the death of the husband by his widow, suing
for herself and minor children, held not excessive. San Bois Coal Co. v.
Resetz, 143 P. 46, 43 Okl. 384.
A recovery of $15,000 for wrongful death of the husband and father held
not excessive, where he was 38 years of age, In good health, and earning
$83.33 per month at the time of his death, with a steadily increasing earning
capacity, and it appeared that such amount was just one-half of his cash
22 Missouri, O. & G. Ry. Co. v. Lee, 175 P. 367.
23 In an action by the \vidow and children of decedent under Rev. Laws
1910, § 5281, for wrongful death, plaintiffs cannot recover for his mental
anguish and suffering, any recovery therefor belonging to Ms estate. Smith
v. Chicago, R. I. & P. Ry. Co., 142 P. 398, 42 Okl. 577.
24 Missouri, O. & G. Ry. Co. v. Lee (Okl.) 175 P. 367.
(181)
§ 305 ABATEMENT, SURVIVAL AND REVIVOR (Ch. G
Nominal damages may be recovered, if it appears that the death
was caused by the wrongful act or omission of the defendant,
though no actual damages are shown.25
probable earnings during his life expectancy. Missouri, K. & T. Ry. Co. v.
West, 38 Okl. 581, 134 P. 655.
An award of $3,000 for causing the death of a man 24 years old, unmarried,
who had been in this country for two years, and was earning $30 a month
besides his board and lodging, the recovery being for the benefit of his par-
ents, aged 58 and 55, living in Russia, to whom he had sent money at dif-
ferent times in amounts varying from $25 to $60, was not excessive. Cox
v. Kansas City, 120 P. 553, 86 Kan. 298.
A verdict of $4,500 for the death of a brakeman 34 years of age, with a
life expectancy of 32 years, in favor of his mother, a widow 59 years of age,
was not excessive, where intestate was a single man, earning $60 to $75 per
month, and had resided with, and wholly supported, his mother for 10 years.
St. Louis & S. F. Ry. Co. v. French, 44 P. 12, 56 Kan. 584.
A verdict of $7,830 was not excessive for negligently causing the death of
a miner 40 years old, of sound body and good habits, and capable of earning
$42 per month. Atchison, T. & S. F. R. Co. v. Hughes, 40 P. 919, 55 Kan. 491.
A judgment for $3,000 for the wrongful death of a minor, who was 11
years and 8 months old, intelligent, healthy, and promising, and left surviv-
ing him a father, a poor man, working as an engineer, and having a wife
and three children, held not grossly excessive. Union Pac. Ry. Co. v. Dun-
den, 14 P. 501, 37 Kan. 1.
In mother's action for damages for wrongful death of son, a verdict for
$5,000 was not excessive, where deceased was 33 years of age, was in good
health, able to earn $1,000 a year, and was accumulating property. Berry v.
Dewey, 172 P. 27, 102 Kan. 593.
Verdict for $4,000 for widow, $5,250 for four year old child, and $5,750
for two year old child of deceased railroad employs killed in interstate com-
merce, who was 26 years of age, industrious, and had constant employment
at from $2.50 to $3.50 per day, was not excessive. Griffith v. Midland Valley
R. Co., 100 Kan. 500, 166 P. 467.
Allowance of $1,250 to widow of deceased railroad employe1 for estimated
pecuniary loss from his death held not large enough to justify interference,
although money sent to her by deceased during his absence of 13 years did
not exceed $110. Forbes v. Atchison, T. & S. F. Ry. Co., 101 Kan. 477, 168
P. 314.
An award of $12,000 for death of man 38 years old, with family, and
2 5 Atchison, T. & S. F. R. Co. v. Weber, 6 P. 877, 33 Kan. 543, 52 Am.
Rep. 543.
In an action for the benefit of the parents, to recover for the alleged negli-
gent killing of their son, who was grown up, of full age, and living apart
from them, but was unmarried, no proof was offered of the parents' financial
condition, or that they had ever received any actual pecuniary benefits from
the son during his lifetime ; nor was there any evidence showing a reason-
able probability of pecuniary advantage to them from the continuance of the
son's life. Held, that no more than nominal damages should have been re-
covered. Cherokee & P. Coal & Mining Co. v. Limb, 28 P. 181, 47 Kan. 469
(182)
Art. 1) SURVIVAL AND ABATEMENT §§ 305-306
Financial benefits to the sole heir of a person who has lost his
life by wrongful act of another cannot be deducted from damages
sustained, and the verdict and judgment reduced by such benefits.26
§ 306. Party in representative capacity — Change
Proceedings in revivor are not necessary in substituting a new
next friend for one who had previously acted in behalf of an in-
earning about $75 per month, held not excessive, where the action was
brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-
8665), and the accident arose from a violation of the Safety Appliance Act
as amended March 2, 1903 (U. S. Comp. St. §§ 8613-8615). Thornbro v. Kan-
sas City, M. & O. Ry. Co., 139 P. 410, 91 Kan. 684, Ann. Cas. 1915D, 314,
rehearing granted 139 P. 1199, and judgment affirmed on rehearing 142 P.
250, 92 Kan. 681.
A recovery of $8,000 for wrongful death of plaintiff's husband held not
excessive. Corley v. Atchison, T. & S. F. Ry. Co., 147 P. 842, 95 Kan. 124.
Amounts held excessive. — See L. R. A. 1916C, 820.
Verdict of $30,000 awarded widow of tool sharpener 35 years of age, em-
ployed in and about drilling of oil well, killed by an explosion of escaping
gas, who moved about following oil industry, and had once been a railroad
fireman, was excessive, and would be reduced to $20,000, or a new trial
granted. Slick Oil Co. v. Coffey (Okl.) 177 P. 915.
Where deceased at the time of his death was 66 years of age, unmarried,
a farmer living on leased land, who owned only a small amount of personal
property, and plaintiffs in an action for his wrongful death were his nephews
and nieces in comfortable circumstances and to whom he had made casual
gifts, a verdict of $7,000 was excessive. Missouri, K. & T. Ry. Co. v. Mc-
Laughlin, 84 P. 989, 73 Kan. 248.
In an action for the death of plaintiffs son 19 years old and earning from
$1.50 to $1.75 a day, a verdict of $10,000 will be reduced to $6,000. Aaron v.
Missouri & K. Telephone Co., 131 P. 582, 89 Kan. 186, 45 L. R. A. (N. S.) 309.
In an action for the death of plaintiffs' son, a railroad engineer, a verdict
for $6,000 held excessive and reduced to $4,000. Denver v. Atchison, T. & S.
F. R. Co., 150 P. 562, 96 Kan. 154, Ann. Cas. 1917A, 1007.
In an action for the death of one killed on a railroad, the evidence as to
the pecuniary value of the life of decedent was to the effect that she was 59
years old, the mother of five children ; that she was possessed of superior
intelligence, and was active, vigorous, and in good health ; and that one son,
21 years of age, lived with her. There was no evidence as to the ages of the
other children, whether they lived with decedent, or whether any of dece-
dent's children were dependent on her for support. Held, that a verdict of
$1,000 would be considered more than nominal damages, and, the evidence be-
ing insufficient to show actual damage, the verdict would be set aside as ex-
cessive. St. Louis & S. F. R. Co. v. Blinn, 62 P. 427, 10 Kan. App. 468.
26 Berry v. Dewey, 172 P. 27, 102 Kan. 593.
In an action for wrongful death of plaintiff's son, an instruction that in
considering damages the jury might consider the fact that plaintiff inherited
an allotment belonging to the son is erroneous. Missouri, K. & T. Ry. Co. v.
James, 61 Okl. 1, 159 P. 1109.
(183)
§§ 307-308 ABATEMENT, SURVIVAL, AND REVIVOR (Ch. 6
fant.27 Where a suit is brought by a guardian, and pending the ac-
tion the wards became of age, the suit does not abate, the guardian
is properly discharged, and revivor is neither necessary nor prop-
er.28
§ 307. Receiver
The rights and remedies of plaintiff to recover for wrongfully
seizing his store, under a chattel mortgage against the stock, did
not abate with the appointment of a receiver.29
Where it appears from the action of a federal court in discharg-
ing a receiver appointed by' it of an electric railway that the rail-
way was taken out of the hands of the receiver and restored to the
company, and that cases pending in the state courts against the
receiver were turned over to the company to defend, and the com-
pany ordered to save the receiver harmless from any judgment that
might be entered against him in such cases, and, in the event of
failure to do so, the property to be held responsible therefor, the
order evidently contemplated a continuance of the cases in the
name of the receiver, and it was not error to overrule a motion to
dismiss an action in a state court on the ground that the receiver
had been discharged by the federal court.30
§ 308. Transfer of interest
In case of a transfer of a claim sued on, the action may proceed
in the name of the original party,31 though assigned by him upon
certain conditions which afterwards fail,32 or the assignee may be
substituted.33
ZT Missouri Pac. Ry. Co. v. Moffatt, 55 P, 837, 60 Kan. 113, 72 Am. St.
Rep. 343.
28 Shattuck v. Wolf, 83 P. 1093, 72 Kan. 366.
20 Tootle v. Kent, 73 P. 310, 12 Okl. 674.
so Peterson v. Baker, 97 P. 373, 78 Kan. 337.
si Rev. Laws 1910, § 4695.
An action on an account does not abate because of a transfer of an inter-
est therein. Werner v. Hatton, 38 P. 279, 54 Kan. 250.
An averment in the answer that plaintiff had conveyed his interest in the
land since the commencement of the action, which was not denied under
oath, was not sufficient to bar a recovery by the plaintiff. Douglas v. Muse,
61 P. 413, 62 Kan. 865.
32 Crocker v. Ball, 59 P. 691, 10 Kan. App. 364.
33A right of action for unlawful and forcible detainer by one entitled to
possession, in case of a transfer of the interest of plaintiff, continues in his
(184) .
Art. 1) SURVIVAL AND ABATEMENT §§ 308-310
#A plaintiff in an action on a quantum meruit, who assigns dur-
ing its .pendency a part of his interest therein, may recover in his
own name the amount assigned.34
Where a lessee after suing for possession surrenders his lease, it
is proper to substitute the lessor as plaintiff.85
§ 309. Where action does not survive
"Where one of several plaintiffs or defendants dies, or his pow-
ers as a personal representative cease, if the cause of action do not
admit of survivorship, and the court is of opinion that the merits of
the controversy can be properly determined and the principles ap-
plicable to the case fully settled, it may proceed to try the same as
between the remaining parties; but the judgment shall not prej-
udice any who were not parties at the time of trial." 36
§ 310. Abatement — Pendency of another action •
Where an action is brought in Oklahoma and jurisdiction ac-
quired, and thereafter the action is brought in another state in
which plaintiff in Oklahoma is there made defendant, and defend-
ant in Oklahoma is served with a garnishment writ, the latter ac-
tion cannot be pleaded in bar or abatement of the former.37
Two creditors of an insolvent corporation may proceed concur-
rently, to enforce the stockholders' liability; the pendency of pro-
ceedings by one being no bar to proceedings by the other.38
The pendency of another suit between the same parties upon a
judgment rendered by a court in Illinois upon a written instrument
is a bar to the prosecution of another suit on the same instru-
ment.39
A pending action of forcible entry and detainer is no bar to an
action of ejectment by the same landlord against the same tenant
grantee. Leach v. Sargent, 55 Okl. 203, 154 P. 1143 ; Anderson v. Ferguson,
71 P. 225, 12 Okl. 307.
s* McKnight v. Bertram Heating & Plumbing Co., 70 P. 345, 65 Kan. 859.
as Leach v. Sargent, 55 Okl. 203, 154 P. ^143.
36 Rev. Laws 1910, § 5284.
37 Missouri, K. & T. Ry. Co. v. Bradshaw, 132 P. 327, 37 Okl. 317, L. R. A.
1917F, 1013.
SB Buist v. Citizens' Sav. Bank, 46 P. 718, 4 Kan. App. 700.
«» Wester velt v. Jones, 52 P. 194, 7 Kan. App. 70.
(185)
§ 310 ABATEMENT, SURVIVAL AND REVIVOB (Ch. 6
for the same land,40 nor is it any bar to an action for rent or use
and occupation.41
Where mandamus is pending in a state court to compel removal
of a railroad bridge obstructing a river and flooding the neighbor-
hood, a later proceeding in the federal court to. foreclose a mort-
gage on the property does not abate the action in the state court
nor oust its jurisdiction.42
A plea in abatement, alleging the pendency of a prior suit on the
same cause of action, was properly overruled where the prior ac-
tion was dismissed upon filing of the plea.48
An action which stands dismissed on motion of plaintiff is no
bar to an action by the successor in interest of defendant.44
The pendency of garnishment proceedings in another state to
subject the debt for which plaintiff sues constitutes no defense,
where it appears that the court in which such proceedings are
pending has no jurisdiction of the defendant.46
40 Buettinger v. Hurley, 9 P. 197, 34 Kan. 585.
41 Hart v. Ferguson (Okl.) 176 P. 396.
42 Kaw Valley Drainage Dist. of Wyandotte County v. Missouri Pac. Ry.
Co., 161 P. 937, 99 Kan. 188.
43 Warnock v. Moore, 137 P. 959, 91 Kan. 262.
An action brought by the person in possession of an office prior to the
commencement of the next regular term, for the purpose of enjoining a per-
son claiming to be his successor from taking possession of the office, does not
abate an action of quo warranto brought against such person after he has
taken possession of the office, and been officially recognized, where it appears
that such prior action has been dismissed before the trial of the quo warran-
to case. Snow v. Hudson, 43 P. 260, 56 Kan. 378.
44 jay v. Zeissness, 52 P. 928, 6 Okl. 591.
45 Chicago, R. I. & P. Ry. Co. v. Campbell, 49 P. 321, 5 Kan. App. 423.
(186)
Art. 2) REVIVOR §§ 311-312
REVIVOR
Sections
311. Where action survives upon death of party.
312. Proceedings.
313. Who may move.
314. Consent or notice.
315. Notice by publication.
316. Death of plaintiff.
317. Death of defendant.
318. Limitation.
819. Amendment to petition.
320. Time of order.
821. Delay to revive.
822. Vacation of order.
323. Objections and waiver.
324. Action dismissed, when.
325. At instance of defendant.
326. Trial.
327. Death after judgment.
328. Revivor of judgment — Forms.
§ 311. Where action survives upon death of party
"Where there are several plaintiffs or defendants in an action,
and one of them dies, or his powers, as personal representative
cease, if the right of action survive to or against the remaining
parties the action may proceed, the death of the party or the cessa-
tion of his powers being stated on the record." *6
"When one of the parties to an action dies, or his powers as a
personal representative cease before the judgment, if the right of
action survive in favor of or against his representatives or succes-
sors, the action may be revived and proceed in their names." 47
Where a number of tenants in common of lands join in an ac-
tion for the recovery thereof, and one of them dies during its pend-
ency, surviving plaintiffs may continue the action for the recov-
ery of their severable interests without a reviver.48
§ 312. Proceedings
"The revivor shall be by an order of the court, if made in term,
or by a judge thereof, if in vacation, that the action be revived in
the names of the representatives or successor of the party who
46 Rev. Laws 1910, § 5283.
47 Rev. Laws 1910, § 5285.
48 Crane v. Lowe, 54 P. 666, 59 Kan. 606.
(187)
,*•
§§ 312-314 ABATEMENT, SURVIVAL AND EEVIVOB (Ch. 6
died, or whose powers ceased, and proceed in, favor of or against
them." "
Under this statute an application within a year from defendant's
death to revive the action against his representative must be grant-
ed as a matter of right.50
§ 313. Who may move
"The order may be made on the motion of the adverse party, or
of the representatives or successor of the party who died, or whose
power ceased, suggesting his death or the cessation of his powers,
which, with the names and capacities of his representatives or suc-
cessor, shall be stated in the order." "
§ 314. Consent or notice <•
"If the order is made by the consent of the parties, the action
shall forthwith stand revived ; and, if not made by consent, notice
of the application for such order shall be served in the same man-
ner and returned at the same time as a summons, upon the party
adverse to the one making the motion; and if sufficient cause be
not shown against the revivor, the order shall be made." 82
Where a judgment was rendered for defendant, and before per-
fecting appeal plaintiff died, and the cause was revived in plain-
tiff's administrator's name, without consent and without notice,
the revivor below was illegal.53
No consent is necessary to revive action within one year from
time order might have been first made, and, if made with consent,
no notice is required. Where order to revive action is made within
year from time when it might first have been made, without con-
sent, notice and service required by Rev. Laws 1910, § 5288, be-
come jurisdictional and mandatory. An order of revivor, made by
trial court within a year, but without notice and without consent,
is absolutely void.54
Appearance waives notice of application to revive an action.55
49 Rev. Laws 1910, § 5286.
BoKilgore v. Yarnell, 103 P. 698, 24 Old. 525; Eoyes V. Masters, 114 P.
710, 28 Okl. 409, 33 L. R. A. (N. S.) 576.
ci Rev. Laws 1910, § 5287.
62 Rev. Laws 1910, § 5288.
es Olds v. Atchison, T. & S. F. Ry. Co. (Okl.) 175 P. 230,
54 Zahn v. Obert, 60 Okl. 118, 159 P. 298.
»6 Crites v. City of Miami, 80 Okl. 50, 193 P. 984, .
(188) •
Art. 2) REVIVOB §§ 315-316
§ 315. Notice by 'publication
"When the plaintiff, shall make an affidavit that the representa-
tives of the defendant, or any of them, in whose name it is desired
to have the action revived, are non-residents of the State, or have
left the same to avoid the service of the order or notice, or so con-
cealed themselves that the order or notice cannot be served upon
them, or that the names and residence of the heirs or devisees of
the person against whom the action may be ordered to be revived,
or some of them, are unknown to the affiant, a notice may be pub-
lished for three consecutive weeks, notifying them to appear on a
day therein named, not less than ten days after the publication is
complete, arid show cause why the action should not be revived
against them; and, if sufficient cause be not shown to the con-
trary, the order shall be made." 58
§ 316. Death of plaintiff
"Upon the death of the plaintiff in an action, it may be revived
in the names of his representatives, to whom his right has passed.
Where his right has passed to his personal representatives, the
revivor shall be in their names; where it has passed to his heirs
or devisees, who could support the action if brought anew, the
revivor may be in their names." "
Under this statute, an order of revivor of an action relating to
personal property in the names of heirs of deceased party is a
nullity.68
Where plaintiff in replevin dies intestate, the action must be re-
vived in the name of his administrator, and not of his heirs at
law.59
Where a judgment creditor dies pending appeal, the judgment
will not be revived on application of assignees of his judgment who
are strangers to record over objection of plaintiffs in error, who
seek revivor in name of administrator, when the latter would not
prejudice assignees or decedent's estate.60
ee Rev. Laws 1910, § 5289.
87 Rev. Laws 1910, § 5290.
es Zahn v. Obert, 60 Okl. 118, 159 P. 298.
eaRexroad v. Johnson, 45 P. 1008, 4 Kan. App. 333.
« Schuber v. HcDuft'ee, 59 Okl. 253, 158 P. 895,
(189)
§§ 317-318 ABATEMENT, SURVIVAL AND REVIVOR (Ch. 6
§ 317. Death of defendant
"Upon the death of a defendant in an action, wherein the right,
or any part thereof, survives against his personal representatives,
the revivor shall be against them ; and it may, also be against the
heirs and devisees of the defendant, or both, when the right of ac-
tion, or any part thereof, survives against them." 61
"Upon the death of a defendant in an action for the recovery of
real property only, or which concerns only his rights or claims to
such property, the action may be revived against his heirs or devi-
sees, or both, and an order therefor may be forthwith made, in
the manner directed in the preceding section of this article." 62
The court has discretionary power to revive, after death of de-
fendant, an action to foreclose a mechanic's lien, and to carry
same forward to final judgment.63
§ 318. Limitation
"An order to revive an action against the representatives or -suc-
cessor of a defendant shall not be made without the consent of
such representatives or successors, unless in one year from the
time it could have been first made, except as otherwise provided
by law." 64
An order to revive against representatives or successors of a
deceased defendant cannot, in the absence of exceptional circum-
stances or special statute, be made without consent, unless made
within one year after it could have first been made.65
The time within, which an action may be revived against the
representatives or successor of a deceased defendant, is a condi-
tion of the right to revive, and a party seeking to avail himself of
its benefits must strictly comply with its terms.66 It does not de-
prive the court of all discretion in the matter."
«i Rev. Laws 1910, § 5291.
«»2 Rev. Laws 1910, § 5292.
63 Glenn v. Payne, 48 Okl. 196, 149 P. 1151.
«* Rev. Laws 1910, § 5293.
es Adams v. Higgins, 47 Okl. 323, 147 P. 1011.
ee Steinbach v. Murphy, 78 P. 823, 70 Kan. 487.
67 Glenn v. Payne, 48 Okl. 196, 149 P. 1151.
Wilson's Rev. & Ann. St. 1903, § 4624, fixing one year as the time within
which an action may be revived in the names of the representatives or suc-
cessors of the plaintiff, is not a mere limitation, but conditions the right to
revive, and parties seeking to avail themselves of the benefits must comply
with these terms. Glazier v. Heneybuss, 91 P. 872, 19 Okl. 316S
(190)
Art. 2) REVIVOR §§ 318-320
The fact that a district court, eight months after the time when
an order reviving an action against the representatives or suc-
cessors of a deceased defendant first could have been made, erro-
neously decided that it had no jurisdiction, will not excuse a failure
to revive within one year, when no attempt was made to prosecute
an order of revivor before the jurisdiction given was determined.68
Where executors of a plaintiff filed a motion to revive an ac-
tion more than one year after the time when the order might have
been made, the filing of a brief in the action by defendant was not
a consent to a revivor.69
The period of limitation commences to run, in a case where an
administrator is the proper party to be substituted, not until an
administrator has been appointed.70
§ 319. Amendment to petition
When an action is revived in the name of the personal repre-
sentative of the deceased plaintiff, the petition originally filed
should be amended so as to allege, in an issuable form, his repre-
sentative capacity, and the appointment or authority under which
he proceeds ; and, failing in this, no right to maintain the action is
shown, and an objection to the introduction of any testimony un-
der the petition should be sustained.71
An action to recover possession of real estate cannot be main-
tained, after the death of defendant, without amending the petition
by substituting the widow and heirs of deceased as parties de-
fendant.72
§ 320. Time of order
"An order to revive an action, in the names of the representa-
tives or successor of a plaintiff, may be made forthwith, but shall
not be made without the consent of the defendant, after the expira-
tion of one year from the time the order might have been first
made; but where the defendant shall also have died, or his pow-
ers have ceased, in the meantime, the order of revivor, on both
sides, may be made in the period limited in the last section : Pro-
vided, that where the death of a party is not known or for other
«s Glazier v. Heneybuss, 91 P. 872, 19 Okl. 316.
6» Houghton v. Lannon, 40 P. 819, 1 Kan. App. 510.
TO Rexroad v. Johnson, 45 P. 1008, 4 Kan. App. 333.
11 Central Branch U. P. Ry. Co. v. Andrews, 9 P. 213, 34 Kan. 563.
72 Douglass v. Galend, 76 P. 395, 69 Kan. 846.
(191)
§§ 321-323 ABATEMENT, SURVIVAL AND EEVTVOB (Ch. 6
unavoidable reasons the 'court may permit the reviver within a
reasonable time thereafter." 78
§ 321. Delay to revive
Where a party to an action has been dead for a period so long
that the action cannot be revived without the consent of parties,
which is not given, the action abates.74
Where defendant in error dies, and no proceedings were had to
revive the case in the name of the administrators, and they refuse
to consent to a revivor, the proceedings will be dismissed.78
§ 322. Vacation of order
The setting aside of an order of revivor for irregularities in pro-
curing it was not a final determination of plaintiff administrator's
right to revive, and left his motion to revive still pending. Where
an administrator obtained an order of revivor, and defendant's mo-
tion to vacate such order was sustained, and motion for new trial
on motion to vacate was overruled, and plaintiff then served notice
of motion to revive action, the vacation of the order of revivor
was not a final determination of the right to revivor, and left the
motion to revive pending.76
§ 323. Objections and waiver
An objection that a case is not properly revived must be made
before an appearance to the merits; such appearance constituting
a waiver of any defect in the mode of revival.77
Where a corporation, pending a suit against it, was consolidated
with other corporations, and plaintiff filed a pleading against the
consolidated company designated as an "Amended Petition," but
in the form of an original petition, and process was issued and
served as in an original action, it was too late to object in the an-
swer for the first time that there had not been a formal revivor and
substitution; defendant having in the meantime demurred to the
T» Rev. Laws 1910, § 5294.
An order to revive action cannot, without consent, be made at all more
than one year from time it might first have been made. Zahn v. Obert, 60
Okl. 118, 159 P. 298.
7 * New Hampshire Banking Co. v. Ball, 48 P. 137, 57 Kan. 812.
78 Helfenstein v. Sage, 58 P. 243, 9 Kan. App. 889.
i« Chicago, R. I. & P. Ry. Co. v. Forrester (Okl.) 177 P. 593, 8 A. L. R. 163.
77 Pioneer Telegraph & Telephone Co. v. Davis, 116 P. 432, 28 Okl. 783.
(192)
Art. 2) REVIVOR §§ 324-327
new pleading, and moved to strike it from the files, because it was
for a new cause of action.78
§ 324. Action dismissed, when
"When it appears to the court, by affidavit, that either party to
an action has been dead for a period so long that the action can-
not be revived in the names of his representatives or successors
without the consent of both parties, or, when a party sues or is
sued as a personal representative, that his powers have ceased, the
court shall order the action to be dismissed at the costs of the
plaintiff." 7»
§ 325. At instance of defendant
"At any term of the court succeeding the death of the plaintiff,
while the action remains on the docket, the defendant having giv-
en the plaintiff's proper representatives, in whose name the action
might be revived, ten days' notice of the application therefor, may
have an order to strike the order from the docket, and for costs
against the estate of the plaintiff, unless the action is forthwith
revived." 80
§ 326. Trial
"When, by the provisions of the preceding sections, an action
is revived, the trial thereof shall not be postponed by reason of the
revivor, if the action would have stood for trial at the term the
revivor is complete, had no death or cessation of powers taken
place." 81
§ 327. Death after judgment
"If either or both parties die after judgment, and before satis-
faction thereof, their representatives, real or personal, or both, as
the case may require, may be made parties to the same, in the
same manner as prescribed for reviving actions before judgment;
and such judgment may be rendered, and execution awarded, as
might or ought to be given or awarded against the representatives,
real or personal, or both, of such deceased party." 8a
78 Curry v. Kansas & C. P. Ry. Co., 48 P. 579, 58 Kan. 6.
T» Rev. Laws 1910, § 5205.
so Rev. Laws 1910, § 5296.
«i Rev. Laws 1910, § 5297.
82 Rev. Laws 1910, § 5299.
HON.PL.& PRAC.— 13 (193)
§ 328 ABATEMENT, SURVIVAL AND BEVIVOB (Ch. 6
§ 328. Revivor of judgment — Forms
"If a judgment become dormant, it may be revived in the same
manner as is prescribed for reviving actions before judgment." 88
MOTION FOR REVIVOR OF JUDGMENT
(Caption.)
Comes now the plaintiff, A. B., and respectfully represents and
shows to the court that heretofore, to wit ; on the day of
, 19 — , the above-named plaintiff obtained judgment in this
court against the defendant, C. D., for the sum of dollars,
to bear interest at the rate of per cent, per annum from the
date of said judgment, and the costs of said action taxed at
dollars, which said judgment is cited and made a part hereof.
That said judgment remains due and wholly unpaid; that by
operation of law the said judgment has become dormant.
Wherefore plaintiff moves the court that said judgment be by
the order of this court revived against the defendant, and for all
other proper relief in the premises.
X. Y., Attorney for Plaintiff.
NOTICE OP MOTION FOR REVIVOR OF JUDGMENT
(Caption.)
To C. D., Defendant, and His Attorney of Record, G. H.t
You will take notice that the plaintiff has filed in the office of
the court clerk of the above named court his motion for a revivor
of a certain judgment therein referred to and cited, a copy of which
motion is hereto attached, and that the same will be called up for
hearing on said motion on the day of , 19 — , or as
soon thereafter as the court can hear the same.
X. Y., Attorney for Plaintiff.
ORDER REVIVING JUDGMENT
(Caption.)
Now on this day of , 19 — , this cause coming on
to be heard on the motion of A. B., plaintiff, to revive the judg-
ment heretofore entered herein, the plaintiff appearing by his at-
torney, X. Y., and the said defendant, C. D., though duly served
88 Rev. Laws 1910, § 53UQ.
(194)
Art. 2) REVIVOR § 328
with notice of the filing and hearing of said motion, came not but
wholly made default; and the court, having heard the evidence,
and being fully advised in the premises, finds:
That heretofore, to wit, on the day of , 19 — , the
above-named plaintiff obtained judgment in this court against the
defendant, C. D., for the sum of dollars, to bear interest at
the rate of per cent, per annum from the date of said judg-
ment, and the costs of said action taxed at dollars; that
said judgment is wholly unpaid, and that there is now due on said
judgment from defendant to plaintiff the sum of dollars;
that said judgment has become dormant by elapse of time, and
that more than five years has elapsed since the rendition of said
judgment, and that less than one year has elapsed since said judg-
ment became dormant.
It is therefore by the court ordered, adjudged, and decreed that
said judgment be and the same is hereby revived for the sum of
dollars, with interest at per cent, from : — , 19 — ,
and for the costs included in said judgment, $ , and for costs
herein.
, Judge.
(195)
§§ 329-330 LIMITATIONS (Ch. 7
CHAPTER VII
LIMITATIONS
Sections
329-342. Article I — Purpose, validity, and operation.
343-344. Article II. — Commencement of action.
345-360. Article III. — When statute begins to run.
361-378. Article IV — Limitation periods.
379-391. Article V. — Suspension and tolling of statute.
392-397. Article VI. — Extension and waiver.
398-400. Article VII— Contract limitations.
ARTICLE I
PURPOSE, 'VALIDITY, AND OPERATION
Sections
329. Purpose and validity of statutes.
330. What law governs — Foreign laws.
331. Construction and operation.
332. Retroactive operation.
333. Actions already barred.
334. As against state, municipality, or public officers.
335. Will contest.
336. As to defenses in general.
337. As to set-off or counterclaim.
338. Computation of time.
339. Bar absolute — Operation in general.
340. Debt of husband and wife.
341. Replevin.
342. Foreclosure.
§ 329. Purpose and validity of statutes »
Statutes of limitations are statutes of repose, the> object of which
is to prevent fraudulent and stale actions from springing up after a
great lapse of time.1
A statute operating to extend the time for suing on causes of
action which were not barred at its passage, is not for that reason
invalid.2
§ 330. What law governs — Foreign laws
"Where the cause of action has arisen in another state or coun-
try, between nonresidents of this state, and by the laws of the state
1 Adams v. Coon, 129 P. 851, 36 Okl. 644, 44 L. R. A. (N. S.) 624.
2 Schnell v. Jay, 46 P. 598, 4 Okl. 157.
(196)
Art. 1) PURPOSE, VALIDITY, AND OPERATION § 330
or country where the cause of action arose, an action cannot be
maintained thereon by reason of a lapse of time, no action can be
maintained thereon in this state; and no action can be maintained
in this state on any judgment or decree rendered in another state
or country against a resident of this state, where the cause of ac-
tion upon which such judgment or decree was rendered could not
have been maintained in this state at the time the action thereon
was commenced in such other state or country, by reason of lapse
of time." 3
This statute applies only where the cause of action arose be-
tween nonresidents of the state, which fact must be pleaded.4 The
words "when a cause of action has arisen" in a foreign state mean
when the plaintiff has a right to sue the defendant in the courts of
such foreign state, and have no reference to the origin of the trans-
action out of which the cause of action arose.5
3 Rev. Laws 1910, § 4661.
The limitations of the state apply unless the statute of another state or
country is pleaded. Perry v. Robertson, 150 P. 223, 93 Kan. 703.
An action to foreclose a mortgage given as security for the payment of notes
executed by nonresidents of Kansas, payable in another state, and not barred
by the five-year statute of limitations of Kansas will be controlled as to its
limitation by the statute of the state where the mortgage and notes were ex-
ecuted and are payable. Croocker v. Pearson, 21 P. 270, 41 Kan. 410.
Under Civ. Code, § 21 (Gen. St. 1909, § 5614), where a cause of action ac-
crues in another state between nonresidents of Kansas, and the obligor comes
to Kansas before the action has been barred by the statute of the other state,
the Kansas statute of limitations runs in his behalf, and unless interrupted
within five years creates a bar. Perry v. Robertson, 150 P. 223, 93 Kan. 703.
Indian Territory.— Where note was executed and payable in Indian Terri-
tory, limitations prescribed by Mansfield's Dig. Ark. § 4483, and not the laws
of Oklahoma Territory, extended over the state by Constitution, applied in an
action in the state of Oklahoma. Patterson v. Rousney, 58 Okl. 185, 159 P. 636.
Ten-year limitation prescribed by Mansf. Dig. Ark. § 4487, applies to actions
on judgment of United States court for Indian Territory. Davis v. Foley,
60 Okl. 87, 159 P. 646, L. R. A. 1917A, 187.
An action in the state court on a judgment rendered in a United States com-
missioner's court in the Indian Territory, is governed as to limitations by the
laws in force when the judgment was rendered. Maine v. Edmonds, 58 Okl.
645, 160 P. 483.
Where lessee claimed possession of lands under 99-year lease from an Indi-
an dated January, 1902, executed in Indian Territory, where defendant had
been in adverse possession March, 1907, lessee's action to recover possession
November, 1915, was barred by limitations, for Mansf. Dig. § 446, was in force
in the territory in 1907, and the admission of the state did not operate to sub-
stitute a different statute. Bilby v. Diamond (Okl.) 174 P. 758.
* Croan v. Baden, 85 P. 532, 73 Kan. 364.
5 Bruner v. Martin, 93 P. 165, 76 Kan. 862, 14 L. R. A. (N. S.) 775, 123 Am.
(197)
§§ 330-331 LIMITATIONS (Ch. 7
A cause of action on a contract made in Kansas barred by the
statutes of Nebraska while defendant resided there, is not barred
in Oklahoma, if not barred by the laws of Kansas or Oklahoma.6
The law of the forum ordinarily governs in respect to limitation
of actions.7
§ 331. Construction and operation
Statutes of limitation, being statutes of repose, should be so con-
strued as to advance the policy they are designed to promote.8
The enumeration by the Legislature of specific exceptions to a
statute of limitations excludes all others.9
In construing a statute of limitations, it must, so far as it affects
rights of action in existence when the statute is passed, be held, in
the absence of a contrary provision, to begin when the cause of ac-
tion is first subjected to its operation.10
Where a cause of action arose in another state, the statute of
limitations does not begin to run against it until the debtor becomes
a resident of Oklahoma.11
The right to sue to remove a cloud is a continuing one, to which
the statute of limitations is not applicable.12
St. Rep. 172, 14 Ann. Cas. 39. A cause of action on a note cannot be main-
tained in Kansas where both plaintiff and defendant were nonresidents of
Kansas when the cause of action accrued, and defendant resided in a foreign
state until the cause of action was barred by the laws of that state. Id.;
Keagy v. Wellington Nat. Bank, 69 P. 811, 12 Okl. 33 ; Stock Exch. Bank v.
Wykes, 129 P. 1131, 88 Kan. 750.
e Doughty v. Funk, 84 P. 484, 15 Okl. 643, 4 L. R. A. (N. S.) 1029.
7 Gaier & Stroh Millinery Co. v. Hilliker, 52 Okl. 74, 152 P. 410.
An action on contract is generally governed by statute of limitations of the
forum, and not by the lex loci contractus or the lex domicilii. Shaw v. Dick-
inson (Okl.) 164 P. 1150.
An action to enforce the individual liability of a stockholder in a national
bank is governed by the statute of limitations of the state in which the action
is brought. Rankin v. Barton, 77 P. 531, 69 Kan. 629, judgment reversed, 26
S. Ct. 29, 199 U. S. 228, 50 L. Ed. 163.
s Atchison, T. & S. F. R. Co. v. Burlingame Tp., 14 P. 271, 36 Kan. 628, 59
Am. Rep. 578.
» Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 75 P. 1051, 68 Kan. 585,
1 Ann. Cas. 639, modifying judgment 70 P. 933, on rehearing.
10 Huber v. Zimmerman, 58 P. 737, 8 Okl. 573.
11 Richardson v. Mackay, 46 P. 546, 4 Okl. 328.
The statute of limitations adopted from Nebraska for Oklahoma by the or-
ganic act did not begin to run, as against causes of action existing at its adop-
tion, until that event. Schnell v. Jay, 46 P. 598, 4 Okl. 157.
12 Cooper v. Rhea, 107 P. 799, 82 Kan. 109, 29 L. R. A. (N. S.) 930, 136 Am.
St. Rep. 100, 20 Ann. Cas. 42.
(198)
Art. 1) PURPOSE, VALIDITY, AND OPERATION §§ 331~332
A person cannot prevent the operation of the statute of limita-
tions by delay in taking action incumbent upon him.13
§ 332. Retroactive operation
Statutes of limitations are matters of procedure and not of sub-
stantive "right," within the protection of Constitution, Schedule,
§ 1, preserving existing rights.14
A statute of limitation must, so far as affecting rights of action
in existence when enacted, be held to begin when the right of
action is first subjected to its operation.15 Such statute is never
given a retroactive operation, unless it appears clearly that such
was the legislative intent.16
A repeal of the statute and the enactment of a new statute, have
the effect of renewing actions that have not expired before the new
statute takes effect.17 But a statute of limitations which repeals a
former statute on the same subject does not revive an action which
has been barred by the former statute, if it is apparent from a
reading of the later statute that such was not the legislative in-
tent.18
is Glazier v. Heneybuss, 91 P. 872, 19 Okl. 316.
i* Anderson v. Kennedy (Okl.) 152 P. 123. The two-year statute of limita-
tions (Rev. Laws 1910, § 4657), existing when an action for breach of warranty
and based on fraud was commenced, controlled, and not the three-year lim-
itation prescribed by the Indian Territory statute (Carter's St. 1899, § 2945),
which was in force when the cause of action accrued. Id.
IB In re Mosher, 102 P. 705, 24 Okl. 61, 24 L. R. A. (N. S.) 530, 20 Ann.
Gas. 209.
IB Sess. Laws 1905, p. 328, c. 28, § 3, art. 7, providing that set-off or counter-
claim shall not be barred by limitations until the claim of the plaintiff is so
barred, only affects set-off or counterclaim existing at the time of its passage,
and did not revive a set-off already barred by a former statute. Theis v.
Board of Beaver County Com'rs, 97 P. 973, 22 Okl. 333.
IT Huber v. Zimmerman, 58 P. 737, 8 Okl. 573.
St. 1893, c. 66, art. 3, § 18, providing for the time in which actions must be
brought, renews the causes of action which have hot expired under the 1890
statute of limitations, the legislature not having otherwise provided. South-
gate v. Frier, 57 P. 841, 8 Okl. 435.
is Fuller & Fuller Co: v. Johnson, 58 P. 745, 8 Okl. 601.
Omission of Comp. Laws 1909, § 267, fixing a limitation of one year for
commencement of proceedings for disbarment, from Revised Laws of 1910,
which became effective May 16, 1913, did not toll the statute of limitations as
to disbarment of attorney for acts committed from May to September, 1912,
since act approved March 3, 1911 (Laws 1911, c. 39), adopting Revised Laws
of 1910, provided that running of statute of limitations should not be affected
thereby. In re Huddleston, 75 Okl. 48, 181 P. 711.-
(199)
§§ 333-335 LIMITATIONS (Ch. 7
§ 333. Actions already barred
"Any right of action, which shall have been barred by any stat-
ute heretofore in force, shall not be deemed to be revived by the
provisions of this article, nor shall the prior statutes of limitation
be extended as to any cause of action which has accrued prior to
the time this article shall take effect." 19
§ 334. As against state, municipality, or public officers
Limitations do not run against the state unless expressly so pro-
vided by statute.20
Limitations do not run against the state where the state, though
not the real party to the record, is the real party in interest.21
The maxim, "nullum tempus occurrit regi," extends to public
rights, and applies to municipal corporations as trustees of the
rights of the public, and protects from invasion the property of the
municipality held for public use, no matter how lax the municipal
authorities have been in asserting the rights of the public.22
But a county's action for money illegally paid in excess of the
salary of its county attorney is subject to the statute of limita-
tions.23
§ 335. Will contest
If one is prevented from contesting will at the probate thereof,
IB Rev. Laws 1910, § 4653.
20 White v. State, 50 Okl. 97, 150 P. 716; White v. State, 50 Okl. 104, 150
P. 718 ; State v. Dixon, 135 P. 568, 90 Kan. 594, 47 L. R. A. (N. S.) 905 ; State
v. Moore, 136 P. 233, 90 Kan. 751; Board of Coin'rs of Douglas County v. Oity
of Lawrence, 171 P. 610, 102 Kan. 656; State v. School District, 8 P. 208, 34
Kan. 237.
21 Anderson v. Ritterbusch, 98 P. 1002, 22 Okl. 761.
22 Foote v. Town of Watonga, 130 P. 597, 37 Okl. 43.
The rule that statutes of limitations do not apply to actions by the state,
unless a legislative intent that they shall do so is shown by express language
or appears by the clearest implication, applies to subordinate political bodies,
including municipal corporations with respect to any litigation to enforce
governmental rights. City of Osawatomie v. Board of Coin'rs of Miami Coun-
ty, 96 P. 670, 78 Kan. 270, 130 Am. St. Rep. 369. Where a county diverts to
its own treasury a part of the money it has collected on taxes levied by city,
no limitations run against an action by the city to recover the amount so
wrongfully withheld. Id.
2 s Board of Com'rs of Woodward County v. Willett, 49 Okl. 254, 152 P.
365, L. R. A. 1916E, 92 ; Rev. L. § 4657.
(200)
Art. 1) PURPOSE, VALIDITY, AND OPERATION §§ 335-337
he may do so within one year after disability is removed, after
which time the right is lost.24
The statutes relieve an infant of the diligence required of adults
under the prior section to contest the probate of a will within one
year, or show that the evidence relied on was discovered since the
probate of the will.25
§ 336. As to defenses in general
Statutes of limitation are not applicable to mere defenses.28
§ 337. As to set-off or counterclaim
A counterclaim pleaded as a defense, or a set-off pleaded for the
purpose of liquidating the whole or a part of plaintiff's claim, is
not barred by the statutes of limitations until the claim or the de-
mand of the plaintiff is barred,27 unless defendant's claim «was
completely barred before the claim of plaintiff was created.28
24 Cooper v. Newcomb (Okl.) 174 P. 1029; Rev. Laws 1910, §§ 6219, 6225..
25 Scott v. McGirth, 139 P. 519, 41 Okl. 520.
1 26 Muckenthaler v. Noller (Kan.) 180 P. 453. Code Civ. Proc. § 24 (Gen. St.
1915, § 6914), providing that a barred right of action cannot be used as a de-
fense, applies to set-off or counterclaim or affirmative relief, and not to mat-
ters of pure defense. Id. An instrument or contract upon which an action
or right is based may be attacked for fraud after time prescribed by Code
Civ. Proc. § 17 (Gen. St. 1915, § 6907), if attacking party does so merely for
defense, and seeks no affirmative relief. Id. Where verified answer admitted
defendants' signature on note in suit to be genuine, and alleged that their sig-
natures were obtained by fraud and asked no affirmative relief, a reply plead-
ing statute (Code Civ. Proc. § 17 [Gen. St. 1915, § 6907]) limiting actions for
relief for fraud to two years after its discovery is bad as directing limitation
to a matter of pure defense. Id.
27 Stauffer v. Campbell, 30 Okl. 76, 118 P. 391; Rev. Laws 1910, § 4662;
Cooper v. Gibson (Okl.) 170 P. 220; Advance Thresher Co. v. Doak, 129 P.
736, 36 Okl. 532.
Code Civ. Proc. § 102 (Gen. St. 1909, § 5695), allowing cross-demands, not-
withstanding the statute of limitations, held not applicable to a set-off for
damages, where a special contract prescribed conditions precedent to a claim
for damages, and that a breach thereqf should bar recovery. Chicago, R. I.
& P. Ry. Co. v. Theis. 152 P. 619, 96 Kan. 494.
Under Civ. Code, § 102 (Gen. St. 1909, § 5695), held, that the statute of limita-
tions was not a bar to a cross-demand and counterclaim setting up, in a bank's
action on notes, false representations of plaintiff's cashier, false charges
against defendant, and failure to credit defendant with deposits. Drovers'
State Bank v. Elliott, 154 P. 255, 97 Kan. 64.
Under Code Civ. Proc. § 102 (Gen. St. 1909, § 5695), where a defendant wrong-
28 O'Neil v. Eppler, 162 P. 311, 99 Kan. 493.
§§ 337r339 LIMITATIONS (Ch. 7
While a set-off barred by limitations may be legally pleaded as
a set-off, an original action within one year after such set-off is
pleaded cannot be maintained on such set-off, although the set-off
is not disposed of upon its merits.29
§ 338. Computation of time
Except where a different intention is manifest, in computing
time from a certain date the first day is to be excluded and the last
included.30
A day, in legal consideration, is punctum temporis ; fractions of
a day being disregarded in computations which include more than
one day and involve no question of priority.31
§ 339. Bar absolute — operation in general
"When a right of action is barred by the provisions of any stat-
ute, it shall be unavailable either as a cause of action or ground of
defense, except as otherwise provided with reference to a counter-
claim or set-off." 32
The statute of limitations can be pleaded only as a defense, and
cannot be made the basis of a claim for affirmative relief.33
Where a cause of action is barred against an official, it is barred
against the sureties upon his official bond.34
Book accounts which are barred by the statute of limitations are
not legal, but moral, obligations.35
fully withholding land is allowed a claim for mortgages paid by him, plaintiff,
notwithstanding the statute of limitations, may set up a claim for the reason-
able rental value. New v. Smith, 155 P. 1080, 97 Kan. 580.
In action for shortage in land conveyed to plaintiff by defendant, wherein
defendant counterclaimed for shortage in stock of merchandise traded to him
for the land, Gen. St. 1915, § 6994, prevented application of statute of limita-
tions to counterclaim. McKenna v. Morgan, 102 Kan. 478, 170 P. 998.
2» Delzell v. Couch (Okl.) 173 P. 361.
so Baker v. Hammett, 100 P. 1114, 23 Okl. 480.
In computing the two-year period within which action to recover usurious
interest paid must be brought under United States Usury Statute (U. S. Oomp.
St. § 9759) the first day of the period is excluded and the last day included.
First Nat. Bank v. Drew (Okl.) 169 P. 1092.
si Franklin v. State, 9 Okl. Cr. 178, 131 P. 183.
32 Rev. Laws 1910, § 4664.
as Corlett v. Mutual Ben. Life Ins. Co., 55 P. 844, 60 Kan. 134; Burditt v.
Burditt, 64 P. 77, 62 Kan. 576 ; Johnson v. Wynne, 67 P. 549, 64 Kan. 138.
34 Allen v. State, 51 P. 572, 6 Kan. App. 915; Ryus v. Gruble, 3 P. 518, 31
Kan. 767.
ss Balmer v. Long, 104 Kan. 408, 179 P. 371.
Art. 1) PURPOSE, VALIDITY, AND OPERATION §§ 339-340
On a petition in an action for procuring money by fraudulent
representations respecting worthless patent-right territory pur-
chased by plaintiff, he could recover for the fraud, though the ques-
tion of value was barred by limitations.36
The vendee's title under a contract of purchase will not be quiet-
ed against the vendor where the consideration has not been paid,
though the vendor has failed to enforce payment within the period
of limitations.37
Though cause of action on a judgment is barred by limitations,
costs paid by the judgment creditor in the action within five years,
owing to the failure of the judgment debtor to pay the same, are not
barred.38
While an action to enforce an arbitration award between the
owner and the person holding realty as security for'a debt is barred
after five years, a suit to quiet title to the realty on the ground that
the debt has been paid is not barred.39
A cause of action against a corporation, which accrues on the sus-
pension of business by the corporation, and against which the stat-
ute of limitation will run within three years thereafter, will be-
come barred also as to a stockholder on his individual liability, not-
withstanding the creditor cannot commence an action against the
stockholder until after the expiration of one year from the time
the corporation suspended business.40
Where, in an action for reconveyance of property originally con-
veyed to indemnify defendant on a recognizance, an allegation in
the petition that six years had elapsed since judgment was obtained
on the recognizance is not pleading the statute of limitations as a
weapon of attack, but as limiting defendant's legal liability on the
judgment.41
§ 340. Debt of husband and wife
Where a mortgage on a homestead, the title to which is in the
wife, is executed by the husband and wife to secure their note,
se Berhenke v. Penfield, 94 Kan. 532, 146 P. 1187.
37 Berkley v. Idol, 136 P. 923, 91 Kan. 16.
ss City of Topeka v. Ritchie, 102 Kan. 384, 170 P. 1003.
s 9 Doty v. Shepard, 139 P. 1183, 92 Kan. 122, rehearing denied 141 P. 1013,
92 Kan. 1041.
40 Pacific Elevator Co. v. Whitbeck, 64 P. 984, 63 Kan. 102, 88 Am. St. Rep.
229.
41 Morris v. Hulme, 81 P. 169, 71 Kan. 628.
(203)
§§ 340-342 LIMITATIONS (Ch. 7
limitations will not bar foreclosure, so long as an action to recover
the debt may be maintained against the husband, though such an
action is barred against the wife.42
The refusal to foreclose a mortgage given to secure a note of a
husband and wife, for the reason that the title to the mortgaged
land was in her and that the debt as to her was barred, is error.43
In an action commenced against a husband on a tax deed for the
recovery of land, where, after the statute of limitations has run
on the deed, the wife on her own motion is made a party to the ac-
tion in order to resist the claim of plaintiff for a tax lien, she can
plead the statute in her behalf, although the action was brought
against her husband within the statutory time.44
§. 341. Replevin
Limitations are not a bar to a recovery in -replevin by a mortgagee
of the possession of the mortgaged property before the statute ran
on the note, though the case was not tried until after the right of
action had been barred on the note.45
§ 342. Foreclosure
In an action to foreclose, the same limitation applies to the note
as to the mortgage, and if an action is maintainable on the note,
it is maintainable on the mortgage.46
Where a grantee, who has assumed a mortgage debt, conveys the
land, an action to enforce the mortgage lien is not barred until ac-
tion against the debtor is barred.47
t A suit to foreclose a mortgage having been brought within five
years from maturity, the statute of limitations cannot be pleaded
against it by the holder of a tax title, who intervenes after the five
years have run, and asks that the title be quieted in him.48
*2 Investment Securities Co. v. Manwarren, 6S P. 68, 64 Kan. 636.
43 Cooper v. Hay thorn, 71 P. 277, 66 Kan. 91.
Where, on foreclosure to secure a joint and several note executed by hus-
band and wife, the court find that limitations have run against £he wife, but
as to the husband the note is in force, it is error to award judgment against
the husband alone, and refuse to foreclose the mortgage, because the property
is that of the wife. Cooper v. Haythorn (Kan.) 68 P. 1069.
44 Richards v. Tarr, 22 P. 557, 42 Kan. 547.
45 McDonald v. Hutchinson Wholesale Grocer Co., 68 P. 1083, 65 Kan. 17.
40 Kirk v. Andrew, 97 P. 797, 78 Kan. 612.
47 Hendricks v. Brooks, 101 P. 622, 80 Kan. 1, 133 Am. St. Rep. 186.
*s Ordway v. Cowles, 25 P. 862, 45 Kan. 447.
(204)
Art. 2) COMMENCEMENT OF ACTION §§ 342~343
The holder of a tax title against mortgaged property cannot in-
voke limitations as a defense to a suit to foreclose.49
Where a guarantor of payment of a note secured by mortgage
after purchase of the mortgaged premises at a tax sale thereof
assigned the tax sale certificate, its assignee was its successor in
relationship to the land, in privity with it, and could plead the de-
fense of statute of limitations the same as it might have done.50
Plaintiff, in an action to quiet title, may interpose the bar of limi-
tations against a defendant mortgagee seeking to foreclose a mort-
gage lien thereon.51
A mortgage securing a note must stand or fall with the note, and,
if the note cannot be legally collected, the mortgage cannot be en-
forced."
ARTICLE II
COMMENCEMENT OF ACTION
Sections
343. When action commenced.
344. Amendment.
§ 343. When action commenced
"An action shall be deemed commenced, within the meaning of
this article, as to each defendant, at the date of the summons which
is served on him, or on a co-defendant, who is a joint contractor or
otherwise united in interest with him. Where service by publica-
tion is proper, the action shall be deemed commenced at the date
of the first publication. An attempt to commence an action shall
be deemed equivalent to the commencement thereof, within the
meaning of this article, when the party faithfully, properly and dili-
gently endeavors to procure a service ; but such attempt must be
followed by the first publication or service of the summons within
sixty days." BS
4» Gibson v. Rea, 140 P. 893, 92 Kan. 262 ; Gibson v. Ast, 94 P. 801, 77
Kan. 458.
50 Cones v. Gibson, 94 P. 998, 77 Kan. 425, 16 L. R. A. (N. S.) 121.
si Hogaboom v. Flower, 72 P. 547, 67 Kan. 41.
52 Vanselous v. McClellan, 57 Okl. 742, 157 P. 923.
53 Rev. Laws 1910, § 4659 ; English v. T. H. Rogers Lumber Co. (Okl.) 173
P. 1046.
Under St. 1890, c. 70, art. 7, § 1, providing that a civil action shall be com-
(205)
§§ 343-344 LIMITATIONS (Ch. 7
Where the petition and affidavit for summons by publication and
affidavit for attachment are filed, and order of attachment is issued
and served immediately, though first publication was not made until
later, the action was commenced, provided summons by publication
was later duly completed.54
Where a petition is filed and summons issued thereon, though
service is not obtained, but an alias summons is issued and prop-
erly served within 60 days, the action will be deemed to have been
commenced when the petition was filed; 55 but where an alias sum-
mons was issued and served more than 60 days after confession of
a motion to set aside a summons, the action was not begun until the
date of the alias summons.56
Where certain defendants seek to enforce demands against a
codefendant, the action will be deemed commenced as to such de-
mands at the time the answers setting them up are filed.57
An action prematurely brought prevents the running of the stat-
ute of limitations.58
§ 344. Amendment
An amendment of the petition ordinarily relates back to the date
.of the commencement of the action,59 particularly if the amendment
menced by filing in the office of the proper clerk a complaint and causing a
summons to issue thereon, and the action shall be deemed commenced from the
time of issuing summons, where the statute of limitations was two years,
and the complaint was filed September 30, 1890, and summons issued April
5, 1892, and served the same day, the action was not barred by the two years'
limitation at the time it was commenced. Schnell v. Jay, 46 P. 598, 4 Okl.
157. Under the express provision of Comp. St. Neb. 1889, Code Civ. Proc. §
19, an action was deemed commenced at the date of the summons which was
served. Id. Under St. Okl. 1890, c. 70, art. 7, § 1, adopted from Indiana, a
civil action was deemed commenced from the time of issuing summons. Id.
Actions for forcible entry and detainer are not to be deemed commenced
until summons has issued, regardless of the date when the complaint was veri-
fied, under St. 1893, p. 891, c. 67, art. 2, § 9, providing that actions before jus-
tices are commenced by summons, or by appearance and agreement of the
parties without summons. Greenameyer v. Coate, 72 P. 377, 12 Okl. 452.
54 Richardson v. Carr (Okl.) 171 P. 476.
55 German Ins. Co. v. Wright, 49 P. 704, 6 Kan. App. 611.
se Brock v. Francis, 131 P. 1179, 89 Kan. 463, 45 L. R. A. (N. S.) 756.
67 German Fire Ins. Co. v. Bullene, 33 P. 467, 51 Kan. 764.
58 St. Louis & S. F. Ry. Co. v. Kinman, 58 P. 1037, 9 Kan. App. 633.
59 An amendment of a petition substituting one party for another as plain-
tiff relates to the institution of the action and suspends limitations as to the
(206)
Art. 2) COMMENCEMENT OP ACTION § 344
is formal and not substantial,60 though it involves the bringing in
of new parties,61 unless it sets up a new cause of action,62 in which
case, such new cause of action is barred.63
substituted plaintiff from the time the action was begun and not from the
date of the amendment. Harlan v. Loomis, 140 P. 845, 92 Kan. 398.
Where a petition has been filed within proper time, the cause of action was
not barred, though an amended petition not changing the cause of action
was not filed until after two years from the discovery of the fraudulent acts
complained of. Z. J. Fort Produce Co. v. Southwestern Grain & Produce
Co., 108 P. 386, 26 Okl. 13.
Where a cross-complaint filed within the period of limitations is not sign-
ed by the attorneys until after the filing of a trial amendment, such amend-
ment will relate back to the filing of the cross-complaint, and action is not
barred by limitations. Anthony Inv. Co. v. Arnett, 64 P. 1024, 63 Kan. 879.
A cause of action is not barred because an amendment of the petition was
filed after the statute had run against the action, if the original petition
was filed in time. Culp v. Steere, 28 P. 987, 47 Kan. 746.
Where, in an action on a note, the court substituted the real owner of the
note as plaintiff in place of the payee thereof, such substitution did not
change the cause of action; and, since the amendment related back to the
commencement thereof, the running of the statute of limitations was arrest-
so Defendant was legatee and executor of testator's will, and the testator's
sole heir at law filed a petition to set it aside within two years from the
probate thereof, to which a demurrer was sustained because defendant was
named as executor neither in the caption nor the body of the petition, al-
though it clearly appeared from the averments of the petition that the suit
was against him both in his own right and as executor; and over two years
after the probate of the will an amended petition was filed, in which de-
fendant was named as executor. Held, that the action was not barred by
the two-years statute of limitations, since the amendment was formal and
not substantial. Hoffman v. Steffey, 61 P. 822, 10 Kan. App. 574.
«i In an action to contest a will, a devisee who was friendly to contestant
could be made a party to the suit two years from the time the will was pro-
bated without affecting the statute of limitations. Lyons v. Berlau, 73 P.
52, 67 Kan. 426.
62 in an action against a railroad company for appropriating a street in
front of plaintiff's lots by laying its track therein, stopping his ingress and
egress, damages were claimed as for a quasi condemnation by the wrongful
use of the street. After the action had been pending more than 10 years,
plaintiff by amendment sought to bring in another railway company as de-
fendant, charging it with conspiring with the first to appropriate the street.
Held, that recovery against the new defendant was barred by limitations.
Anderson v. Atchison, T. & S. F. R. Co., 80 P. 946, 71 Kan. 453.
Amended cross-petition to foreclose mechanic's lien on lot on which build-
ing was erected did not set up new cause barred by limitations where the
original cross-petition sought foreclosure of lien against same lot and adjoin-
ing lot. Moline Elevator Co. v. Loewen Real Estate & Investment Co., 57
Okl. 478, 157 P. 99.
83 See note 63 on page 210.
(207)
§ 344 LIMITATIONS (Ch. 7
Where an original petition states no cause of action whatever,
it will not arrest the running of limitations, and an amendment
made after the bar of the statute is complete must be treated as
ed from the commencement of the action. Service v. Farmington Sav. Bank,
62 P. 670, 62 Kan. 857.
An amendment to a petition seeking recovery on a fire policy, whereby
the facts showing the fraud and mistake in description were set forth, and
praying reformation and recovery, held not to change the cause of action,
and hence limitations did not run from the time of amendment. Phenix Ins.
Co. of Brooklyn, N. Y., v. Ceaphus, 51 Okl. 89, 151 P. 568.
Where plaintiff sued on a note before it was barred by limitations, an
amendment of the complaint after limitations had run merely for the purpose
of correcting a recital that a copy of the note was attached to the complaint
as Exhibit A so as to allege that the original instead of a copy was attach-
ed did not state a new cause of action, and was therefore not barred. Brad-
ley v. Pinney, 93 P. 585, 77 Kan. 763.
Where an action to quiet title as against a tax deed was brought within
the prescribed five years, and after the expiration of that period, by stipula-
tion, the form of action was changed to ejectment, and amended pleadings
were filed, and the proceedings thereafter were in ejectment, it did not oper-
ate as a dismissal of the suit to quiet title and the commencement of an eject-
ment. Hillyer v. Douglass, 42 P. 329, 56 Kan. 97.
Where, in a suit for conversion, it appears that defendant did not in fact
sell the property, but it was sold under his direction, plaintiff is permitted
to amend his petition, so as to charge defendant with conversion, and such
amendment is made more than five years after the cause of action accrued,
still, as the amendment was in fact made and as the plaintiff's action was
commenced less than two years after the original cause of action accrued,
there is no room for claiming that the cause on which the plaintiff recovered
was barred at the time by the operation of any statute of limitations. Empo-
ria Nat. Bank v. Layfeth, 64 P. 973, 63 Kan. 17.
Wrongful death. — Amendment of petition to allow widow of one killed
while under federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665)
so as to permit her to sue as his personal representative, instead of personally,
was not commencement of new cause of action for purpose of applying two-
year limitation provided by act. Missouri, K. & T. Ry. Co. v. Lenahan (Okl.)
171 P. 455.
Filing of an amendment, under Rev. Laws 1910, § 4790, adding the names
of brothers and sisters as plaintiffs, in an action for death, held to relate
back to the commencement of the action by the mother so as to defeat a
plea of the statute of limitations, section 4692. Motsenbacker v. Shawnee
Gas & Electric Co., 49 Okl. 304, 152 P. 82, L. R. A. 1916B, 910.
In action for wrongful death under Rev. Laws 1910, §§ 5281, 5282, by fa-
ther of deceased child, where more than two years after death he amended
by joining mother of deceased as other next of kin, the amendment related
back to commencement of suit and arrested statute of limitations. Cowan
v. Atchison, T. & S. F. Ry. Co. (Okl.) 168 P. 1015.
Petition, in a widow's action for the negligent killing of her husband by
a train, held sufficient to constitute a commencement of the action within
the statute of limitations, though it failed to allege that deceased was a
(208)
Art. 2) COMMENCEMENT OF ACTION ' § 344
filed at the time the amendment is made, and a cause of action stat-
ed therein cannot escape the bar of the statute.6*
nonresident and that by the laws of the state of his residency the widow
was the only person entitled to bring the action. Robinson v. Chicago, R.
I. & P. Ry. Co., 133 P. 537, 90 Kan. 426.
Even after the expiration of the time within which an action for wrongful
death may be brought, the petition in such an action may be amended by
setting out the existence of a statute of the state where the wrongful act
occurred, which authorizes recovery. Cunningham v. Patterson, 132 P. 198,
89 Kan. 684, 48 L. R. A. (N. S.) 506. .
If, after a widow has brought an action for the death of her husband,
she is appointed administratrix and amends the petition, her action as ad-
ministratrix is not barred by the two-year statute of limitations. Mott v.
Long, 132 P. 998, 90 Kan. 110.
Even after the expiration of the time within which an action for wrongful
death may be brought, the petition therein may be amended by setting out
the existence of a statute of the state where the wrongful death occurred
which authorizes recovery by plaintiff. Robinson v. Chicago, R. I. & P. Ry.
Co., 133 P. 537, 90 Kan. 426.
Ejectment. — A petition in ejectment may be amended so as to change the
description of the property sought to be recovered where there was no con-
tention that limitations had expired between the beginning of the action and
the amendment. Hinnen v. Artz, 163 P. 141, 99 Kan. 579.
Damages. — An amendment of a petition in an action for damages, by add-
ing the name of a party plaintiff, made more than two years after the cause
of action accrued, relates back to the date of the commencement of the action,
and the cause of action is not for that reason barred by limitations. Huckle-
bridge v. Atchison, T. & S. F. Ry. Co., 71 P. 814, 66 Kan. 443.
An amended petition, which merely enlarged the claim for damages, held
not demurrable because it showed that the claim was barred, since the amend-
ed petition would relate back to the original filing and defeat the opera-
tion of the statute. Armstrong v. May, 55 Okl. 539, 155 P. 238.
Under Rev. Laws 1910, § 4970, amendment Df complaint for personal in-
juries after reversal, and after five years from accrual of cause of action,
to allege negligent failure to provide safe fellow servants, was permissible.
E. Van Winkle Gin & Machine Works v. Brooks, 53 Okl. 411, 156 P. 1152.
A petition alleging negligence in general terms may be amended, so as to
set forth definitely the alleged negligence, although the period of limita-
tions has expired when the amendment is made. Missouri Pac. Ry. Co. v.
Moffatt, 55 P. 837, 60 Kan. 113, 72 Am. St. Rep. 343.
The petition, in a servant's personal injury action against a railway com-
pany, charged that defendant's servants negligently pushed certain cars neg-
ligently fastened together with a chain, so as to make them dangerous to
handle and use, all of which was known to defendant, and while so push-
ing and switching said cars negligently so operated the cars as to throw
plaintiff off of one of said cars, etc. An amended petition charged that de-
fendant negligently fastened two cars together with a chain, making the
e* Missouri, K. & T. Ry. Co. v. Bagley, 69 P. 189, 65 Kan. 188, 3 L. R. A.
(N. S.) 259 ; Powers v. Badger Lumber Co., 90 P. 254, 75 Kan. 687.
HON.PL.& PBAC.— 14 (209)
§ 344 LIMITATIONS (Ch. 7
Though the statute provides that an action to foreclose a lien
shall be brought within one year from the time of its filing, an
cars dangerous; that defendant had knowledge of such defective coupling;
that plaintiff had no knowledge of the dangerous condition of the cars, and
was injured by a movement of the cars directed by defendant without proper
regard for safety. Held, that the first petition charged negligence in the
coupling of the cars, which was made the basis of the charge of negligence
in the amended petition, so that the latter did not set up a new cause of
action ; and hence the cause of action set up in~ the amended petition was
not barred by limitation. Taylor v. Atchison, T. & S. F. Ry. Co., 68 P. 691,
64 Kan. 888.
Where breaches of building contract constituted only a single cause of
action, an amendment to petition more than five years after completion of
work setting up additional items furnished under contract was not barred
by statute of limitations. Lantry Contracting Co. v. Atchison, T. & S. F.
Ry. Co., 172 P. 527, 102 Kan. 799.
A petition alleging that defendant unlawfully carried away stone from
land owned by plaintiff, and asking treble damages therefor, sufficiently
states a cause of action under Gen. St. 1909, § 9692, authorizing treble dam-
ages against one who carries away stone from land in which he has no in-
terest, so that after the lapse of limitations it may be amended to accord
to the language of that act. Fox v. Turner, 116 P. 233, 85 Kan. 146 ; Green
v. Same, 116 P. 234, 85 Kan. 877.
6 3 Where an amendment sets forth a new cause of action, limitation may
be pleaded to the new matter. Thompson v. Beeler, 77 P. 100, 69 Kan. 462 ;
Butt v. Carson, 48 P. 182, 5 Okl. 160.
Amendment to count of petition in action for malicious prosecution to
allege defendants' false testimony resulting in a conviction brought in a
new cause of action, and, when filed more than one year after cause of ac-
tion accrued, it was barred by Code Civ. Proc. § 17, subd. 4 (Gen. St. 1915,
§ 6907, subd. 4). Smith v. Parman, 172 P. 33, 102 Kan. 787.
Where plaintiff, by amendment, sets up no new matter or claim, but mere-
ly restates more specifically the cause of action set out in original declara-
tion, there is no new suit, and statute of limitation will not avail for period
between original and amended pleading. Continental Ins. Co. v. Norman
(Okl.) 176 P. 211. Where original declaration states a cause of action im-
perfectly and thereafter the defect is corrected by an amended declaration,
the plea of statute of limitations will relate to time of filing of original decla-
ration. Id.
An action on a note containing an indorsement of a payment, commenced
within five years after date of the indorsement, held barred by limitations,
where the petition did not allege payment to remove the apparent bar under
Code Civ. Proc. § 23 (Gen. St. 1909, § 5616), and the amended petition which
made such allegation was not filed until more than five years after the date
of the indorsement. Liphart v. Myers, 156 P. 693, 97 Kan. 686.
In an action against a township for injuries from a defective highway,
a petition failing to allege the notice essential to recovery cannot be cured
by amendment after expiration of the limitation period. Higman v. Quin-
daro Tp., 139 P. 403, 91 Kan. 673.
Where an action is brought on two notes, and during the trial it is dis-
(210)
Art. 2) COMMENCEMENT OF ACTION § 344
action is brought in time if brought within the year, though the
original contractor, which by law must be made a party, is not made
a party until after such year.65
missed as to one of them without prejudice, and afterwards plaintiff amends
his petition, and claims the same amount as balance due on a settlement,
and the pleadings show the settlement occurred more than three years be-
fore the petition was amended, the amendment does not relate back to the
time of beginning suit, and the claim is barred by the three-years statute
of limitations. Parsons Water Co. v. Hill, 26 P. 412, 46 Kan. 145.
Where a servant commenced his action against a railroad company for
injuries by the failure of defendant in its common-law duties towards him,
and more than two years after the injury filed an amended petition contain-
ing an additio'nal cause of action, that the injury was the result of the neg-
ligence of a fellow servant, for which defendant would be liable only under
Laws 1874, c. 93, the statute of limitations, as applied to such new cause,
treats the action as commenced when the amendment was filed. Atchison,
T. & S. F. R. Co. v. Schroeder, 44 P. 1093, 56 Kan. 731.
Plaintiff, whose daughter was killed through the alleged negligence of
defendants brought an action in which he stated a common-law liability
for loss of services of his daughter, but the averments were wholly insufficient
to constitute a statutory liability for her death. More than two years after
the negligent injury, he asked and obtained leave to amend his petition,
so as to state a cause of action for the recovery of damages for death under
Civ. Code, § 422. Held, that the' amendment constituted a new cause of
action which did not relate back to the commencement of the action, so that
the cause of action set up in the amendment was barred by limitations.
City of Kansas City v. Hart, 57 P. 938, 60 Kan. 684; Simpson v. Same. Id.
Amendments which only make more specific the averments of the original
petition, or state the wrong suffered or the right relied on, are ordinarily
permissible, and relate back to the beginning of the action, and, where an
amendment sets forth a new and different cause of action, limitations con-
tinue to run until the amendment is filed. Union Pac. R. Co. v. Sweet, 96
P. 657, 78 Kan. 243. In an action to recover damages for the negligent setting
out of a fire which destroyed plaintiff's trees, the original petition alleged
that the fire was set out at a certain time and place, and, after limitations
had expired, plaintiff obtained leave to amend his petition to aver that the
damage resulted from a different fire started five miles distant from the one
originally relied on. Held, that the amendment set out a distinct tort, and
a new cause of action, on which a recovery was barred by limitations. Id.
Where, in an action for injuries to a licensee, there was no allegation that
defendant was negligent in failing to light its depot platform, the petition
could not be amended so as to charge such failure as a ground of negligence
after limitations had run against it. Elrod v. St. Louis & S. F. R. Co., 113
P. 1046, 84 Kan. 444.
Where an action is brought in Kansas, based upon a particular section of
the Missouri statute, and afterwards an amended petition is filed, alleging
a right of action under another section of the same statute, and the time in
which the plaintiff had a right to bring said action expired before the amend-
ed petition was filed, the bar of the statute of limitations is not tolled by
the filing of the first petition. Walker v. Hester, 59 P. 662, 9 Kan. App. 201.
e & Western Sash & Door Co. v. Heiman, 68 P. 1080, 65 Kan. 5.
(211)
§§ 344-345 LIMITATIONS (Ch. 7
In an action to enforce a mechanic's lien, service of summons on
the owner within the period of limitation prescribed by statute for
the commencement of such an action does not preserve the lien as
against other incumbrancers who are not made parties to such an
action within the period of limitation.06
The filing of a petition against one reciting facts which would
authorize an action against one not made a defendant will not toll
limitations as to latter if he is not made defendant until the statute
has run.67
•
•
ARTICLE III
WHEN STATUTE BEGINS TO RUN
Sections
345. Accrual of right or defense — In general.
346. Real property.
347. Personal property.
348. Contracts in general.
349. Continuing contracts.
350. Severable contracts and installments.
351. Bonds.
352. Covenants — Mortgage deed.
353. Municipal warrants.
354. Torts.
355. Guaranty.
356. Malfeasance in office.
357. Statutory liability.
358. Equitable actions.
359. Conditions precedent.
360. Trusts.
§ 345. Accrual of right or defense — In general
The statute of limitations does not begin to run until an obli-
gation is due,68 but whenever one party to a contract may right-
fully sue another thereon, a cause of action has accrued, and the
statute begins to run.69
Where, before the time fixed for performance, one of the parties
66 Wood v. Dill, 43 P. 822, 3 Kan. App. 484.
6? Garrity v. State Board of Administration of Educational Institutions,
162 P. 1167, 99 Kan. 695.
ss Henshaw v. Smith, 171 P. 616, 102 Kan. 599.
ea Patterson v. Bonner (Okl.) 175 P. 826; United States Fidelity & Guaranty
Co. v. Fidelity Trust Co., 49 Okl. 398, 153 P. 195.
(212)
Art. 3) WHEN STATUTE BEGINS TO RUN § 346
to a contract for the exchange of lands repudiates it, the other
may immediately commence an action for specific performance.70
§ 346. Real property
The right of action to recover real property does not accrue until
there is a right vested in plaintiff and an adverse claim asserted or
perfected.71
TO Parks v. Monroe, 161 P. 638, 99 Kan. 368.
7i Limitations begin to run against a widow claiming under Gen. St. 1901,
§ 2510, providing that one-half in value of all the realty in which a husband
at any time during marriage had a legal or equitable interest which has
not been sold on judicial sale, and is not necessary for payment of debts,
and of which the wife has made no conveyance, shall, under the direction
of the probate court, be set apart by the executor as her property, upon
the death of her husband, if she survives him, when the husband makes a
conveyance of such property without the wife joining therein and the grantee
takes adverse possession thereof. Poole v. French, 111 P. 488, 83 Kan. 281.
In an action of ejectment, both parties claimed title under tax deeds. The
action was commenced more than nine years after the last tax deed (defend-
ant's) was recorded. Held, that the action was barred by the statute of limita-
tions. Campbell v. Stagg, 15 P. 531, 37 Kan. 419.
In an action against the original owner for the possession of lands by the
purchaser at a judicial sale, where it is shown that the lands remained un-
occupied for more than five years after the recording of the sheriff's deed
given to said purchaser at such sale, such original owner is barred from set-
ting up his title as a defense to said action. English v. Woodman, 20 P.
262, 40 Kan. 412.
When two grantees of a tax title holder are in the actual possession, each
of the one undivided half of the land sold for taxes before the tax deed has
been of record for five years, the statute of limitations does not operate in
favor of either in an action between them for partition. Hamilton v. Redden,
24 P. 76, 44 Kan. 193.
Where a mortgagee takes possession of real estate under an agreement
with the mortgagor to collect the rents and apply them on the debt, limita-
tions will not begin to run against the mortgagor's right to redeem until the
mortgagee, with notice to the mortgagor, asserts title in himself. Hunter v.
Coffman, 86 P. 451, 74 Kan. 308.
Where minor remainderman executed deed to life tenant in 1898 and dis-
affirmed it in 1901 after death of life tenant, her action in 1914 to recover
property from life tenant's husband who claimed adverse possession from
1898 was not barred by Code Civ. Proc. §§ 15, 16, since her cause of action
did not accrue until death of life tenant. Ralph v. Ball, 164 P. 1081, 100
Kan. 460.
The statute of limitations held not to run against an action to have a
deed declared a mortgage while the grantor was making repeated demands
for a reconveyance, and the grantee was promising to comply therewith.
Clark v. Shoesmith, 139 P. 426, 91 Kan. 797.
Where town lots were sold on March 16, 1897, at a foreclosure sale, which
was confirmed June 7, 1897, and a sheriff's deed issued which was record-
(213)
§§ 346-348 LIMITATIONS (Ch. 7
Where a mortgagee enters mortgaged premises under claim of
title, and notice of possession and adverse claim is brought home
to the mortgagor or his successor, the statute of limitations is set in
motion as to an action to redeem.72
The right of action in a forcible entry and detainer case between
adverse claimants of a homestead accrues when the contest is finally
adjudicated in the land office.78
§ 347. Personal property
As to lost personal property, or as to such property in the hands
of a thief, the statute of limitations begins to run from the wrong-
ful taking of possession, if there is no fraud or attempt to conceal
or remove from the court's jurisdiction.74
§•348. Contracts in general
Limitations did not begin to run against an attorney's right to a
fee, contingent on his collection of a debt owed to the client, until
the collection had been made.75
ed August 11, 1897, held, that a suit brought August 1, 1911, was barred by
the five-year limitations prescribed by Rev. Laws 1910, § 4655. Group v.
Jones, 44 Okl. 377, 144 P. 377.
-2 Turk v. Page (Okl.) 174 P. 1081.
73 Cope v. Braden, 67 P. 475, 11 Okl. 291.
-•t Adams v. Coon. 129 P. 851, 3G Okl. G44, 44 L. R. A. (X. S.) 624; Torrey
v. Campbell (Okl.) 175 P. 524. When personal property which has been lost
or stolen is in notorious possession by one in whose possession it is found
for two years from date of wrongful taking or possession, owner's right of
action therefor is barred by limitations. Id.
Limitations as to personalty in thief's hands do not begin to run until
the owner has an opportunity to assert his title. Chilton v. Carpenter, 78
Okl. 210, 189 P. 747.
Limitations (Mansf. Dig. § 4478 [Ind. T. Ann. St. 1S99, § 2945]) as to per-
sonal property stolen run in favor of an innocent purchaser against the true
owner from the time the property is taken possession of, and are a bar when
the same has been held openly for three years. McGehee v. Alexander, 127
P. 480, 33 Okl. 699.
Comp. Laws 1909, § 3550 (Sess. Laws 1895, c. 39; Wilson's Rev. & Ann.
St. 1903, § 4216), provides that actions for specific recovery of personalty
must be brought within two years. Held, that the statute as to personal
property, though stolen, when held in good faith and for value, openly and
notoriously runs in favor of such adverse possession, so as to bar a recovery •
by the true owner after expiration of two years, and after the statute be-
gins to run. such subsequent purchaser may tack on such prior adverse hold-
ing to complete the bar. Shelby v. Shaner, 115 P. 785, 28 Okl. 605, 34 L. It.
A. (N. S.) 621.
. .76 Joyce v. Miami County Nat. Bank, 136 P. 232, 90 Kan. 745.
(214)
Art. 3) WHEN STATUTE BEGINS TO RUN § 348
When time fixed for payment of oral obligation is uncertain,
but its maturity may arrive within one year and promisee has fully
performed his part of obligation, the statute of limitations does not
begin to run until obligation matures.76
A real estate agent's commissions, consisting of the profits aris-
ing from an exchange of his principal's land, were earned, and
the right to commissions accrued, when the principal accepted a
purchaser on terms satisfactory to him, and limitations began to
run against the agent from such time.77
An action for money had and received is not barred, where it
appears that the money was not received more than three years
before, though the wrong enabling defendant to receive the money
was committed more than three years before.78
A surety's right of action for contribution against a cosurety
.accrues when he pays the debt of his principal, so that limitations
do not begin to run against his cause of action until such pay-
ment.79
As against a claim for services under an implied contract to pay
their reasonable value, limitations begin to run at the end of the
services, in the absence of agreement as to the time of payment or
the length, of time the services shall continue.80
Where no time was fixed for the term of or payment for personal
services continuing until the death of the employer, the ordinary
rule is that limitations would not begin to run against a claim until
the services ended, in the absence of a general usage to the con-
trary.81
Where a note and mortgage are executed and delivered to the
mortgagee, the law implies, in the absence of an agreement to the
contrary, that the money loaned thereon is at once due and payable
to the mortgagor by the mortgagee, and an action therefor must
.be brought within three years from such delivery.82
TO Henshaw v. Smith, 171 P. 616, 102 Kan. 599.
77 Chamberlain v. Wagner, 144 P. 815, 93 Kan. 450.
78 Perry v. Smith. 2 P. 784, 31 Kan. 423.
7» Mentzer v. Burlingame, 97 P. 371, 78 Kan. 219, 18 L. R. A. (N. S.) 585.
so Blake v. Pratt, 54 P. 806, 8 Kan. App. 486.
si In re Jewell's Estate, 103 Kan. 381, 173 P. 923. In action for taking
care of property for plaintiff's brother since deceased, a custom of real estate
men as to monthly settlements was not controlling as to limitations, in view
•of character of services and relations of employer and employ^. Id.
sz McBride v. Lombard Mortg. Co., 24 P. 428, 44 Kan. 351.
(215)
§§ 348-349 LIMITATIONS (Ch. 7
When the grantee of mortgaged premises assumes and agrees
to pay the mortgage debt, as a part of the price, without specify-
ing time for payment, no cause of action accrues against him until
the debt becomes due according to the contract of the original
parties.83
Where a note, payable in two years after date, with interest pay-
able semiannually, was secured by a mortgage, providing that on
default in the payment of interest or taxes the whole sum should
become due and payable, a cause of action upon default in the pay-
ment of interest or taxes did not accrue, ~o as to start the running
of the statute.84
No cause of action arises on a contract of an heir to assign his
expectancy, until the death of his ancestor.85
Where a landowner who had agreed to leave one-half of his farm
to his son in consideration of services of the son sold the land, the son's
right of action then accrued, and limitations began to run.86
Where two persons jointly performed services for several years
and were to be paid by the recipient "after she was through with
her property," demand against her estate, if timely made, is not
affected by the statute of limitations.87
Limitations did not begin to run against an action on an agree-
ment to live jn the family of another and perform services until
the death of himself and his wife in consideration of his property at
his death, upon a dismissal of the party who had agreed to perform
the services prior to the other party's death, where she did not ac-
cept such renunciation as a breach and treat the contract as then
at an end.88
§ 349. Continuing contracts
Where there is single hiring and term of service and time of
compensation is not fixed, and service continues until death of em-
ployer, limitations do not begin to run against claim for compen-
sation until the services are ended.89
ss Carnahan v. Lloyd, 46 P. 323, 4 Kan. App. 605.
84 Core v. Smith, 102 P. 114, 23 Okl. 909.
85Clendening v. Wyatt, 38 P. 792, 54 Kan. 523, 33 L. R. A. 278.
so Engelbrecht v. Herrington, 172 P. 715, 101 Kan. 720, 103 Kan. 21, L. R. A.
191SE, 785.
87 Dubbs v. Haworth, 171 P. 624, 102 Kan. 603.
ss Heery v. Reed, 102 P. 846, 80 Kan. 380.
8» Schaffner v. Schaffner's Estate, 157 P. 402, 98 Kan. 167; Grisham v»
Lee, 60 P. 312, 61 Kan. 533; Same v. Greer, 60 P. 312, 61 Kan. 533.
(216)
Art. 3) WHEN STATUTE BEGINS TO RUN §§ 349~350
In an action for rent of property, based wholly upon a quasi
contract arising by operation of law from the occupation of the
premises, without any express or implied contract, no recovery can
be had based on such occupancy for more than three years prior to
the commencement of the action.90
§ 350. Severable contracts and installments
Where a note provides that default in interest shall mature the
debt at the option of the holder, and there is a default, and the
holder does not exercise the option, limitations will not run until
the time fixed for payment of the note.91
Where a note payable five years after date provides that interest
is payable semiannually, and, if not paid punctually, shall become
a part of the principal, the installments of interest due more than
five years before bringing the suit are not barred by the statute of
limitations.92
A mortgage by its terms provided that, if any coupon should not
be paid when due, the debt secured by mortgage, at the option of
the legal holder, might become due and payable without notice. On
default in such coupons the mortgagee brought suit for foreclosure,
declaring the whole debt due. Thereafter plaintiff died, and the
action was dismissed. It was held that the election to declare the
debt due was for all purposes, and limitations began to run against
the debt from the time of the election, and not from the time the
note was due according to its terms.03
Where a note became due on default in the payment of interest
for two successive semiannual periods, on payment of interest up
to December, 1892, limitation would not begin to run until Decem-
ber, 1893, and hence an action commenced in November, 1898, was
not barred.94
Where a mortgage securing a note due in five years gives the
holder an option to declare the note due in advance of maturity,
upon default by the maker, limitations do not begin to run until
the holder exercises such option.95
so Story v. McCormick, 78 P. 819, 70 Kan. 323.
»i Kennedy v. Gibson, 75 P. 1044, 68 Kan. 612.
»2 Beeler v. Highland University Co., 54 P. 295, 8 Kan. App. 89.
as Westcott v. Whiteside, 64 P. 1032, 63 Kan. 49.
»* Reed v. Gulp, 66 P. 616, 63 Kan. 595.
»5 York-Ritchie Exch. & Inv. Co. v. Mitchell, 51 P. 57, 6 Kan. App. 317.
(217)
§§ 351-353 LIMITATIONS (Ch. 7"
§351. Bonds
An action to recover damages on an attachment bond should be
commenced within five years from the final determination of the
district court that the order was wrongfully obtained.96
Where a petition on a stay bond alleges no element of damage
other than the suspension of the right to sue until the determination
of the proceeding in error, the cause of action accrued on such de-
termination.97
§ 352. Covenants — Mortgage deed
The covenants of seisin and of the right to convey, and that the
land is free from incumbrances, are broken as soon as the deed is
executed, if the title be bad; and a cause of action accrues at
once.98
One cannot come into court of equity and have a deed declared a
mortgage, and then plead the statute of limitations against the
mortgage, for in such case the statute begins to run only from
date of decree converting deed into mortgage.99
§ 353. Municipal warrants
Limitations do not run in favor of municipal or quasi municipal
corporations upon its outstanding obligations, evidenced by war-
rants, until the corporation has provided a fund out of which pay-
ment of the sum may be made.1
This rule does not apply to its ordinary bonded indebtedness
represented by negotiable bonds and interest coupons.2
90 Baker v. Skinner, 64 P. 981, 63 Kan. 83.
97 Cook v. Smith, 72 P. 524, 67 Kan. 53.
98 Jewett v. Fisher, 58 P. 1023, 9 Kan. App. 630.
99 Huff v. Lynde-Bowman-Darby Co. (Okl.) 175 P. 250.
1 Barnes v. Turner, 78 P. 108, 14 Okl. 284, 10 L. R. A. (N. S.) 478, 2 Ann.
Cas. 391, judgment affirmed Duke v. Same, 27 S. Ct. 316, 204 U. S. 623, 51 L.
Ed. 652, 9 Ann. Cas. 842; Hubbell v. City of South Hutchinson, 68 P. 52,
64 Kan. 645 ; City of Sulphur v. State, 62 Okl. 312, 162 P. 744.
Where a warrant is issued by the officers of a quasi corporation, and the
creditor accepts the same, relying on the ordinary modes of taxation to pay
the obligation, the municipality cannot set up the statute of limitations with-
out first showing that it has provided a fund for the payment of such in-
debtedness. Board of Com'rs of Greer County v. Clarke & Courts, 70 P. 206,
12 Okl. 197.
2 Schoenhoeft v. Board of Com'rs of Kearny County, 92 P. 1097, 76 Kan.
883, 16 L. R. A. (N. S.) 803, 14 Ann. Cas. 100.
(218)
Art. 3) WHEN STATUTE BEGINS TO RUN § 354
§ 354. Torts
A cause of action for tort accrues when the injury is actually
done.3
3 The cause of action for permanent injury to a riparian owner from a
municipal sewer system constituting a nuisance arises, and the statute of
limitations begins to run, when the municipality begins to operate the sys-
tem and occasions the injury. City of Mangum v. Sun Set Field (Okl.) 174
P. 501.
Action for damages caused by subsidence of surface of land due to min-
ing coal therefrom is not barred by limitations until two years have elapsed
after the subsidence. Walsh v. Kansas Fuel Co., 102 Kan. 29, 169 P. 219;
Audo v. Western Coal & Mining Co., 162 P. 344, 99 Kan. 454.
Cause of action for damages to land from a natural enlargement of a ditch
rightfully dug by defendant on its right of way accrued when ditch invaded
plaintiff's land and damages for permanent injury were recoverable, and
was barred when not commenced within two years. Civ. Code Kan. § 17,
subd. 3 (Gen. St. Kan. 1909, § 5610) ; Pever v. Atchison, T. & S. F. Ry. Co.,
164 P. 159, 100 Kan. 266.
An owner's right of action for permanent damages from the pollution of a
rstream by operation of a sewer system and oil refinery held barred by limita-
tions, where action was not brought within two years after the sewer system
and refinery were in operation. McDaniel v. City of Cherryvale, 136 P. 899,
•91 Kan. 40, 50 L. R. A. (N. S.) 388.
An adjacent owner's action against a city for damages from overflow caus-
ed by street improvements is barred by Code Civ. Proc. § 17, subd. 3 (Gen.
St. 1909, § 5610), unless brought within two years. Beard v. Kansas City,
150 P. 540, 96 Kan. 102.
An action for damages from an overflow caused by defective construction of
railroad embankments is not barred by limitations until more than two
years have passed since the injury, though the embankments were construct-
ed more than two years before. Atchison, T. & S. F. Ry. Co. v. Eldridge, 139
P. 254, 41 Okl. 463.
An action for personal injuries, being an action not arising on a contract,
must under Comp. Laws 1909, § 5550, subd. 3, be brought within two years
after cause of action accrues. Waugh v. Guthrie Gas Light, Fuel & Improve-
ment Co., 131 P. 174, 37 Okl. 239, L. R. A. 1917B, 1253.
When the cause of injury to realty is not permanent, the statute of lim-
itations does not begin to run until the injury is suffered. St. Louis & S.
F. R. Co. v. Ramsey, 132 P. 478, 37 Okl. 448.
The right of action against a city for injury from the flooding of property
by the negligent construction of a sewer accrues when the property is flooded,
and limitation runs only from that date. Kansas City v. King, 68 P. 1093,
65 Kan. 64.
Where a railway held goods in its warehouse for a consignee, and was in-
duced by wrongful acts of the consignor to deliver them to one not the own-
er, limitations began to run on the cause of action against the consignor at
the time his tortious act was committed, and not from the time when the
company was compelled to pay to the consignee the value of the goods. Nash-
ville, C. & St. L. Ry. v. Dale, 74 P. 596, 68 Kan. 108.
Where a corporation enters on the building of another, and without his
(219)
§§ 354-355 LIMITATIONS (Gh. 7
Where a city so grades and paves a street as to collect the sur-
face water for a large area and discharge it on the property of plain-
tiff, through a failure to provide suitable outlets for said water,
the city has a legal right, and it is its legal duty, to terminate the
cause of injury, "and the damage thereby caused is a continuing
damage, and the statute of limitations does not begin to run so
long as the damage so continues.4
Limitations commence to run against an action against a city
for damages for flooding of land owing to the negligence of the city
in the paving and guttering of a street at the time of the flooding,
and not at the time of the improvement causing the same.5
A right of action against an abstractor for damages from im-
perfections or error in an abstract accrues when the examination
is reported, and not when the error is discovered, and the damages
resulting therefrom have been paid.6
In an action under the federal Employers' Liability Act (U. S.
Comp. St. §§ 8657-8665), the statute of limitations began to run
from date of death, and not from date of accident.7
§ 355. Guaranty
A guarantor who has become such at the request of the principal
has the benefit of an implied promise of indemnity, and a new and
independent cause of action arises thereon whenever he is com-
pelled to make a payment, irrespective of the time of maturity of
original debt.8
consent fastens a telegraph wire to the roof, which does no injury to the
property at the time, but thereafter, on account of additional wires being
connected with the wire so fastened the building is greatly damaged, the
right of action for such damage arises from the placing of the additional
wires, and the statute of limitations begins to run only from that time. West-
ern Union Tel. Co. v. Moyle, 32 P. 895, 51 Kan. 203.
* City of Kansas City v. Frohwerk, 62 P. 432, 10 Kan. App. 120.
e City of Kansas City v. Frohwerk, 62 P. 252, 10 Kan. App. 116.
e Walker v. Bowman, 111 P. 319, 27 Okl. 172, 30 L. R. A. (N. S.) 642, Ann.
Cas. 1912B, 839, reversing judgment 105 P. 649, on rehearing; Provident
Loan Trust Co. v. Wolcott, 47 P. 8, 5 Kan. App. 473.
7 Lindsay v. Chicago, R. I. & P. Ry. Co.. 56 Okl. 234, 155 P. 1173.
s Leslie v. Compton, 172 P. 1015, 103 Kan. 92, L. R. A. 1918F, 706.
(220)
Art. 3) WHEN STATUTE BEGINS TO RUN §§ 356~359
| 356. Malfeasance in office
A cause of action against a court clerk for moneys of litigants
received in his official capacity accrues and limitation begins to run
upon his conversion of such moneys.9
§ 357. Statutory liability
That a cause of action is created by statute and did not exist at
common law does not necessarily prevent the limitation as te time
within which same may be brought from being subject to tolling
provisions of statute.10
Where a lien on the rents and profits of land was created by
operation of law to pay the value of improvements, the statute of
limitations would not run so long as the rents and profits were
being applied to the extinguishment of the lien.11
§ 358. Equitable actions
Limitations against a creditor's bill begin to run from return of
an. execution on judgment nulla bona.12
Limitations will not commence to run against a cause of action
on an executory contract to enforce specific performance, while
the grantor is receiving from the grantee payments on the contract
as part performance thereof.13
Where one sells land to others executing a bond for a deed, and
they on their part execute, as a part of the purchase price, their
promissory notes, and the owner conveys the land to plaintiffs by
a warranty deed, in pursuance of a prior contract of sale, plaintiffs'
right to be subrogated to the rights of the vendor on the notes of
defendants accrues on the execution of their deed.14
§ 359. Conditions precedent
The statute of limitations on a cause of action in the nature of a
creditors' bill begins to run from the time an execution on the judg-
ment is returned nulla bona, and not from the date of the fraudu-
lent transfer of the property, sought to be subjected to the judg-
ment.15
» Purcell Bank & Trust Co. v. Byars (Okl.) 167 P. 216.
10 Bean v. Rumrill (Okl.) 172 P. 453.
11 Silversmith v. Hart (Okl.) 173 P. 451.
12 Indian Land & Trust Co. v. Owen, 63 Okl. 327, 162 P. 818.
is Burnell v. Bradbury, 74 P. 279, 67 Kan. 762.
14 Brown v. Pilcher, 58 P. 560, 60 Kan. 860.
is Blackwell v. Hatch, 73 P. 933, 13 Okl. 169.
(221)
§§ 359-360 LIMITATIONS (Ch. 7
Running of limitations in an action to subject property fraud-
ulently conveyed cannot be indefinitely postponed by the delay of
the creditor in -reducing" his claim to judgment.16
Where a deed described a certain mortgage, "which grantee as-
sumes and agrees to pay," limitations begin to run from, acceptance
of the deed by the grantee.17
Although during pendency of suit defendant conveys realty, of
which plaintiff had knowledge limitations do not begin to run
against plaintiff's right to subject the land to payment of his claim
until judgment has been rendered in the original action, if pros-
ecuted with reasonable diligence.18
Where a deed is executed and delivered as an escrow, to take
effect on the grantor's death, the consideration therefor is not due
until then, and the cause of action for the consideration does not ac-
crue, nor does the statute of limitations begin to run, until an ad-
ministrator is appointed.19
An action in the nature of a creditors' bill to set aside a fraud-
ulent conveyance of land, and to subject the same to the payment
of a judgment, must be brought within two years after the plaintiff
is in position, by reason of his judgment, to maintain the suit.20
§ 360. Trust
Limitations ordinarily do not commence to run against a trustee
until he repudiates the trust or denies his liability, and it should
appear that the beneficiary had, or ought to have had, knowledge
of such repudiation or denial.21
is Donaldson v. Jacobitz, 72 P. 846, 67 Kan. 244.
i* Hendricks v. Brooks, 101 P. 622, 80 Kan. 1, 133 Am. St. Rep. 186.
is Young v. Buck, 154 P. 1010, 97 Kan. 195, denying rehearing 154 P. 213,
97 Kan. 39.
i» Mills v. Mills, 23 P. 944, 43 Kan. 699.
20 Taylor v. Lander, 60 P. 320, 61 Kan. 588, judgment Lander v. Pollard,
46 P. 975, 5 Kan. App. 621, affirmed.
21 Oooley v. Gilliam, 102 P. 1091, 80 Kan. 278.
The statute does not commence to run in favor of a trustee of land, as
against the beneficiary, until a renunciation of the trust. Kansas City Inv.
Co. v. Fulton, 46 P. 188, 4 Kan. App. 115.
A suit to impress money as a trust, filed as an amended petition in 1911 to
an action begun in 1907 for money paid by mistake, held barred by limita-
tions, where the trust had been disavowed in 1903 with notice to all parties
interested. Nicholson v. Nicholson, 146 P. 340, 94 Kan. 153. The act of a
party in obtaining money in 1898, and refusing to return it in 1903, with full
(222)
Art. 4) LIMITATION PERIODS §§ 360-362
Where a trust results by implication of law, a recognition by the
trustee of the rights of the equitable owner tolls the running of
limitations until the holder of the title disavows the trust.22
Limitations against an action by a Grand Lodge against a bank
for the amount of an overdraft by the defaulting treasurer of the
lodge do not begin to run in favor of the bank until the beneficiary
discovered the breach of trust.23
ARTICLE IV
LIMITATION PERIODS
Sections
361. Application of statutes.
362. Real actions.
363. Other actions.
364. Fraud.
365. Foreign judgment — Bonds, etc.
366. Action for recovery of estate sold by guardian.
367. Liens.
368. Liens against railroads.
369. Actions against notaries.
370. Rejected claim.
371. Vacancy in administration.
372. Action against sureties on bond.
373. Actions for wrongful death.
374. Assessments — Suits to set aside.
375. Demand — Tender.
376- Actions for usurious interest.
377. Tax deed.
378. Nonresident alien landowners.
§ 361. Application of statutes
Civil actions can only be commenced within the periods pre-
scribed in this article, after the cause of action shall have accrued ;
but where, in special cases, a different limitation is prescribed by
statute, the action shall be governed by such limitation." 24
§ 362. Real actions
"Actions for the recovery of real property, or for the determi-
nation of any adverse right or interest therein, can only be brought
knowledge of all parties from the latter date, held such a denial of a claim
that the money was a trust fpnd that suit should have been brought within
the limitation period. Id.
22 Hunnicutt v. Oren, 114 P. 1059, 84 Kan. 460.
23 Washbon v. Linscott State Bank, 125 P. 17, 87 Kan. 698.
z* Rev. Laws 1910, § 4654.
(228)
§ 362 LIMITATIONS (Ch. 7
within the periods hereinafter prescribed, after the cause of action
shall have accrued, and at no time thereafter: 25
"First. An action for the recovery of real property sold on exe-
cution, brought by the execution debtor, his heirs, or any person
claiming under him, by title acquired after the date of the judg-
ment, within five years after the date of the recording of the deed
made in pursuance of the sale.20
"Second. An action for the recovery of real property sold by
executors, administrators or guardians, upon an order or judgment
of a court directing such sale, brought by the heirs or devisees of
the deceased person, or the ward or his guardian, or any person
claiming under any or either of them, by the title acquired after
the date of the judgment or order, within five years after the date
of the recording of the deed made in pursuance of the sale.27
"Third. An action for the recovery of real property sold for
taxes, within two years after the date of the recording of the tax
deed.28
25 The statute of limitations contained in St. 1893, § 5668, relating to ac-
tions to recover possession of realty, does not apply to an action to quiet
title. Lowenstein v. Sexton, 90 P. 410, 18 Okl. 322.
26 The five-year statute of limitations (Code Civ. Proc. § 15 [Gen. St. 1909,
§ 5608]), against actions for recovery of real property sold on execution
brought by the execution debtor or any person claiming under him by title
acquired after the judgment, applies to all sales, void and voidable. James v.
Logan, 108 P. 81, 82 Kan. 285, 136 Am. St. Rep. 105.
27 The purchaser of land at guardian's sale under order of probate court,
after five years from record of deed, is not barred by Rev. Laws 1910, § 4655,
subd. 2, from bringing suit against one in possession for more than one year
and claiming under a title having no relation to the guardianship proceed-
ings. Drennan v. Harris (Okl.) 161 P. 781.
The five-year statute of limitations (Civ. Code Kan. § 15, subd. 2 [Gen. St.
Kan. 1909, § 5608]) held not to apply to an action to recover realty by one
claiming title from a source paramount to an administrator's deed. Byerly
v. Eadie, 148 P. 757, 95 Kan. 400, judgment modified 150 P. 523, 96 Kan. 137.
An heir or devisee having title paramount to, and independent of, that claim-
ed by decedent, may. sue to quiet title or to recover possession irrespective of
the five-year statute (Civ. Code Kan. § 15, subd. 2 [Gen. St. Kan. 1909, §
5608]). Id.
The five-year limitation prescribed by Gen. St. Kan. 1909, § 5608 (Code Civ.
Proc. Kan. § 15), subd. 2, does not apply to an action to recover land sold by
one as guardian, who was not so appointed. Harrison v. Miller, 123 P. 854,
87 Kan. 48.
2s Where the holder of a valid tax deed, before the two-year limitation has
barred his right to recover possession under it, obtains the actual and peace-
able possession of the land, the statute is satisfied, and, if he thereafter loses
(224)
Art. 4) LIMITATION PERIODS §§ 362-363
"Fourth. An action for the recovery of real property not here-
inbefore provided for, within fifteen years.29 •
"Fifth. An action for the forcible entry and detention, or forcible
detention only, of real property, within two years." 30
§ 363. Other actions
"Civil actions, other than for the recovery of real property, can
only be brought within the following periods, after the cause of
action shall have accrued, and not afterwards :
"First. Within five years : An action upon any contract, agree-
ment or promise in writing.31
possession, his right to recover it continues until barred by the general stat-
ute of limitations. Buckner v, Wingard, 115 P. 636, 84 Kan. 682.
Plaintiff assigned a land certificate in blank and forwarded it to defend-
ant in 1896, with authority to insert the name of a purchaser, but defendant
inserted his own name as assignee, and had the assignment recorded in 1900
without paying any consideration therefor, and in 1899 paid certain deferred
payments then due, preventing forfeiture, and obtained a patent in 1905.
Plaintiff learned on February 9, 1900, that defendant held the land in his
own name as his own, and brought an action in 1905 to recover the land on
the ground of fraud in inducing him to assign the certificate in blank, where-
by defendant was enabled to insert his own name as purchaser. Held that,
if plaintiff had any cause of action to recover the land, it was barred by the
two-year statute of limitations. Martin v. Cochran, 106 P. 45, 81 Kan. 602.
29 Action to cancel void conveyance is not barred by any lapse of time
short of that sufficient to establish title by prescription, as fixed by Laws
1910, § 4655, subd. 4. Burckhalter v. Vann, 59 Okl. 114, 157 P. 1148.
Where primary purpose of action was to recover possession of land, though
cancellation of deed was asked, the 15-year statute of limitations found in
Rev. Laws 1910, § 4655, subd. 4, applies. Campbell v. Dick (Okl.) 176 P. 520.
Where primary purpose of an action is recovery of real property, and in-
cidental relief is sought, Rev. Laws 1910, § 4655, subd. 4, limiting time of
bringing suit to 15 years, and section 4657, subd. 3, does not apply, notwith-
standing the incidental relief sought is that deed obtained by fraud be de-
clared a mortgage. Franklin v. Ward (Okl.) 174 P. 244.
In an action to quiet title, defendant, by cross petition and answer, alleged
that he was joint owner with plaintiff of the land, that plaintiff was in pos-
session, and held the legal title in trust for him, and asked for a recovery,
to have all adverse interest determined, and also for an accounting for taxes
and improvements. Held, that defendant's main cause of action was for the
recovery of real property, and the statutory limitation of 15 years was appli-
cable. Reihl v. Likowski, 6 P. 886, 33 Kan. 515.
so Rev. Laws 1910, § 4655.
31 An action to recover damages on an attachment bond is an action on a
written contract, and is not barred until the expiration of five years from
the time the right of action accrues. Baker v. Skinner, 64 P. 981, 63 Kan. 83.
An instrument acknowledging receipt of a sum of money, and stating that
the party receiving it deducted the same from the purchase price of described
HON.PL.& PRAC— 15 (225)
§ 363 LIMITATIONS (Ch. 7
"Second. Within three years: An action upon a contract ex-
press or implied, not in writing ; an action upon a liability created
by statute, other than a forfeiture or penalty.32
land as commission for the sale, as the commission belonged to a third person
and by agreement was to be deducted from the price is not an agreement,
contract, or promise in writing upon which an action may be brought within
five years, but is a mere receipt for the money. Lewis v. Norris, 103 P. 134,
80 Kan. 620. An instrument acknowledging receipt of a sum of money as
belonging to a person named, but containing no statement of any fact from
which the law implies an obligation or promise, is not an agreement, contract,
or promise in writing upon which an action may be brought within five years.
Id.
Where one contracts in writing to drill gas wells to be paid for whenever
a paying well has been drilled, and the other party refuses to make payment
and the work is abandoned, an action for the work already done is an action
upon the contract governed by five-year limitations. Bailey v. Fredonia Gas
Co., 109 P. 411, 82 Kan. 746.
A township warrant is such a promise in writing that an action may be
brought thereon against such township at any time within five years from the
date of its issue. Walnut Township v. Jordan, 16 P. 812, 38 Kan. 562.
In an action on a note and mortgage securing the same, the limitations pre-
scribed by Gen. St. Kan. 1901, § 4446, apply, and not those of section 4444,
relating to actions for the recovery of real property, and not for the recov-
ery of money. Kirk v. Andrew, 97 P. 797, 78 Kan. 612.
In an action on a note, wherein the defense was limitations, it was error
to instruct that, unless a partial payment indorsed on the note was made on
the date indorsed, plaintiff could not recover, and to refuse an instruction
that the action would not be barred if payment was made at or near such
date, and within the statutory period of limitation, though plaintiff testified
that the payment was made on the date stated. Keener v. Lloyd, 133 P. 710,
90 Kan. 250.
An action by a partner to enforce a constructive trust arising in his favor
by acts of his copartner is barred in five years unless cause for the delay is
shown. Hackett v. Pratt, 49 P. 100, 5 Kan. App. 586.
32 An action on a judgment held not an action on a contract, and therefore
barred within three years under Rev. Laws 1910, § 4657, subsec. 2. Wake-
man v. Peter, 52 Okl. 639, 152 P. 455.
Action to recover share of partnership losses, where alleged partnership
agreement was oral, and where existence of partnership was denied, was an
action to establish partnership agreement, based upon a "contract not in
writing," and within the three-year limitation. Patterson v. Bonner (Okl.)
175 P. 826.
An action to recover public money unlawfully received by a public officer
is barred in three years. Shelton v. State, 62 Okl. 105, 162 P. 224.
A suit by the guardian of a minor against a former guardian and sureties
to recover the amount due to the ward was not barred when it was begun
within three years from the date of former guardian's settlement in county
court and during ward's minority. Driskill v. Quinn (Okl.) 170 P. 495.
Kansas cases. — A cause of action against a guardian for a balance due
(226)
Art. 4) LIMITATION. PERIODS § 363
when the ward reached the age of majority accrues at that time, and is a
liability created by statute, to which the three-year limitation applies, under
Code Civ. Proc. 1909. § 17, subd. 2 (Gen. St. 1909, § 5610), though the action is
on the guardian's bond. Hawk v. Sayler, 83 Kan. 775, 112 P. 602.
A judgment was rendered against a corporation June 30, 1906. Execution
issued February 15, 1907, and was returned unsatisfied for want of property
on which to levy. Held, that the judgment creditor had three years there-
after in which to begin an action to enforce the judgment against a stock-
holder. Douglass v. Loftus, 119 P. 74, 85 Kan. 720, L. R. A. 1915B, 797, Ann.
Cas. 1913A, 378.
The liability of an officer to pay over money to the county treasurer, as
required by law, is one created by statute; and an action thereon against
the sureties on the bond can only be brought within three years after the
cause of action has accrued. Board of Com'rs of Cloud County v. Hostetler,
51 P. 62, 6 Kan. App. 286.
A civil action, brought under Gen. St. 1897, c. 18, § 74, against bank offi-
cers, for the recovery of deposits received by them when the bank was in a
failing condition, is on a "liability created by statute," within Civ. Code, §
12, subd. 2, requiring such action to be brought within three years. Seglem
v. Yaeger, 56 P. 508, 8 Kan. App. 655.
Under Code Civ. Proc. § 17 (Gen. St. 1915, § 6907), an action on a liability
imposed by statute, including the statutes of Arkansas, is barred in three
years after such statutory liability has accrued. Davis v. Drury, 105 Kan.
69, 181 P. 559.
A civil action by the state to enforce a lien for fines and costs against the
owner of real estate who has knowingly suffered a person to sell liquor there-
on in violation of law is an action "on a liability created by statute," within
the meaning of Code, § 18, subd. 2, which provides that an action on a liabil-
ity created by statute is barred in three years, and is not an action on a
"statute for a penalty or forfeiture," within the meaning of subdivision 4,
barring such actions in one year. State v. Pfefferle, 7 P. 597, 33 Kan. 718.
An action under Acts 1881, § 15, for damages by sale of intoxicating liq-
uors, is purely statutory, and must be commenced within three years after
the cause of action shall have accrued as prescribed by subdivision 2 of sec-
tion 18 of the Code ; the action being on a liability created by statute other
than a forfeiture or penalty. Durein v. Pontious, 8 P. 428, 34 Kan. 353.
The three-year statute of limitation (Code Civ. Proc. § 18, subd. 2), appli-
cable to actions on liabilities created by statute, has no application to an
original action in the supreme court, instituted by the attorney general in
the name of the state, to compel the officers of a county to keep their offices
at the county seat, and to determine its location ; it being but an exercise of
the sovereign power of the state compelling obedience to its statutory man-
dates. (1887) State v. Stock, 16 P. 106, 38 Kan. 154, rehearing denied (1888)
16 P. 799, 38 Kan. 184.
An action on the official bond of a county clerk to recover fees wrongfully
retained is an action on a liability created by statute, and barred by the
three-year statute of limitations (Civ. Code, § IS, subd. 2), and is not governed
by section 18, subd. 5, providing that an action on an official bond can be
brought only within five years after the cause of action accrues. Board of
Com'rs of Graham County v. Van Slyck, 35 P. 299, 52 Kan. 622.
The liability of an administrator for failure to pay over money of the es-
(227)
§ 363 LIMITATIONS (Ch. 7
tate to his successor when ordered to do so by the probate court is one cre-
ated by statute, and an action thereon by the administrator de bonis non
against the sureties upon the bond of the former administrator can only be
brought within three years after the cause of action has accrued. Davis v.
Clark, 49 P. 665, 58 Kan. 454.
A civil action brought under Gen. St. 1897, c. 18, § 74, against bank officers
for the recovery of deposits received by them when the bank was in a failing
condition, is upon a "liability created by statute," and is therefore governed
by Civ. Code, § 12, subd. 2, prescribing three years as the limit for bringing
an action on such liability. Judgment Ashley v. Frame (1896) 45 P. 927, 4
Kan. App. 265, reversed. Frame v. Ashley, 53 P. 474, 59 Kan. 477.
The three-year statute of limitations of Code Civ. Proc. div. 3, § 18 (Gen.
St. 1901, § 4446), does not bar the issuance and enforcement of an execution
under an order of court therefor, made pursuant to the statute relative to the
double liability of stockholders in a corporation, as the issuance and enforce-
ment of such an execution is not the bringing of a "civil action," within such
section, and the execution is based on the order awarding it, and not on the
statutory liability of the stockholder. Wheeler v. Chenault, 66 P. 1010, 63
Kan. 730.
The obligation resting on a township, which is a legal successor of a coun-
ty covering the same territory, and which has received the assets of such
county, is not a statutory one, nor an implied obligation, as those terms are
used in the statute of limitations, but is an obligation identical with that
which rested upon the original county. Van Auken v. Garfield Tp., Finney
County, 72 P. 211, 66 Kan. 594.
The statute requiring actions to enforce a liability' created by statute to be
brought within three years does not apply to suits brought to enforce tax
liens. Whitney v. Board of Com'rs of Morton County, 85 P. 530, 73 Kan. 502.
Where mother conveyed land to sons on oral agreement to care for her
during her life, action by her daughter 22 years after mother's death to can-
cel deed for nonperformance by grantees is barred by limitations. Wilson
v. Highley, 157 P. 411, 98 Kan. 154.
Where the joint maker of a note pays the same, and afterwards sues the
other joint maker to recover the amount paid,, on the ground that plaintiff
was only a surety, and there is no written agreement between the parties
that plaintiff should be liable only as surety, his action is 011 a contract not
in writing, and must be brought within three years after he pays the note,
under Comp. Laws, § 3811. Guild v. McDaniels, 23 P. 607, 43 Kan. 548.
An action to recover rents for land wrongfully withheld is founded on an
implied contract to which the three-year statute of limitations applies. Har-
lan v. Loomis, 140 P. 845, 92 Kan. 398.
A cause of action for rents and profits, although joined with one in the
nature of ejectment, is founded on an implied contract, and therefore the
three-year limitation provided in Civ. Code, § 18, subd. 2, applies. Seibert v.
Baxter, 12 P. 934, 36 Kan. 189.
A claim against the assignee of an insolvent firm for a trust fund, which
came into his hands with the assigned estate, is barred by the three-years
statute of limitations, though the contract with reference thereto between
the claimant and the assignor was in writing. The assignee's liability to ac-
count as trustee for^he claimant is founded not on the contract, but on his
(228)
Art. 4) LIMITATION PERIODS § 363
"Third. Within two years : An action for trespass upon real
property; an action for taking, detaining or injuring personal
property, including actions for the specific recovery of personal
property; an action for injury to the rights of another, not arising
on contract, and not hereinafter enumerated; an action for relief
on the ground of fraud — the cause of action in such case shall not
be deemed to have accrued until the discovery of the fraud." 33
receipt of funds which in equity belong to the claimant. Burrows v. Johntz,
48 P. 27, 57 Kan. 778.
Where a candidate for a state office was charged with misconduct as coun-
ty clerk and requested, in writing, the county board to inform him whether
he was indebted to the county, and agreed to be bound by their decision, and
on their report .that he owed a certain sum, paid it, and subsequently brought
suit to recover, claiming that the payment was under duress, his right of
action, if any, was on the county's implied contract to restore the money, and
not under a written contract ; and hence the statute of limitations applicable
was the three-year statute, and not that of five years. Kelly v. Board of
Com'rs of Miami County, 116 P. 477, 85 Kan. 38.
An action against an abstracter of titles for damages for giving a wrong
certificate of title is not one on the bond which he has given pursuant to
statute, nor on an agreement in writing (Code Civ. Proc. § 18, subd. 1), but
on a contract not in writing (subdivision 2), and is hence barred in three
years. Provident Loan Trust Co. v. Wolcott, 47 P. 8, 5 Kan. App. 473.
Action for services and materials, begun three years and two months after
they were, furnished, is barred by limitation. Wichita Water Co. v. City of
Wichita, 158 P. 49, 98 Kan. 256.
A passbook given by a bank to a depositor is not a written contract, but
is a mere receipt for the amount deposited ; and an action thereon is barred
by the three-year limitation. Civ. Code, § 18. Talcott v. First Nat. Bank, 36
P. 1066, 53 Kan. 480, 24 L. R. A. 737.
An action for the recovery of damages for a failure to comply with the
terms of a written agreement to erect a house, and to furnish all labor and
material therefor, is an action upon an agreement, contract, or promise in
writing, and is not barred by the three-years statute of limitations. Lingren
v. Fletcher, 56 P. 328, 8 Kan. App. 376.
Where plaintiff and defendant agreed in writing to erect a building, each
to pay one-half the cost, an action by plaintiff for a sum paid by him in ex-
cess of his half was not barred in three years. Ross v. Wellington Lodge Xo.
133, I. O. O. F., 146 P 1003, 94 Kan. 528.
ss Rev. Laws 1910, § 4657.
Actions for specific recovery of personal property must be brought within
two years. Torrey v. Campbell (Okl.) 175 P. 524.
Action for wrongfully killing cattle must be brought within two years.
Missouri, K. & T. Ry. Co. v. Wilcox, 121 P. 656, 32 Okl. 51.
Limitation of two years, not fifteen-year lynita-tion, applies to action in
ejectment in form, but in substance for relief for fraud. Campbell v. Dick
(Okl.) 157 P. 1062.
In replevin, where plaintiff contended that he had acquired title to proper-
(229)
§ 363 LIMITATIONS (Ch. 7
ty by possession for two years, held that, tinder evidence, two-year statute
of limitations was not applicable. Mc-Laughlin v. Dugan (Okl.) 166 P. 1069.
Kansas cases. — Under Civ. Code, § 18, declaring that actions for taking,
detaining, or injuring personal property must be brought within two years,
and actions on the official bonds of sheriffs, etc., within five years, an action
on a sheriff's bond for the wrongful levy on and sale of personal property
must be brought within two years. Ryus v. Gruble, 3 P. 518, 31 Kan. 767.
Under Civ. Code, § 18, subd. 3, ah action against a city for injuries by a
change of the channel of a stream by a permanent improvement must be
brought within two years after such change. Parker v. City of Atchison, 4S
P. 631, 58 Kan. 29.
Under Civ. Code, § 18, declaring that actions for taking, detaining, or in-
juring personal property must be brought within two years, and actions on
fhe official bonds of sheriffs, etc., within five years, an action on a sheriff's
bond for the wrongful levy on and sale of personal property must be brought
within two years. Ryus v. Gruble, 3 P. 518, 31 Kan. 767.
Comp. Laws 1885, c. 66, § 14, which provides that actions for damages by
the erection of a milldam must be brought within two years after the erec-
tion of the dam, applies only to permanent obstructions, and does not apply
to actions for the recovery of damages, where the upper proprietor, who has
actually built, and has in operation, a mill and milldam, seeks to have the
dam of defendant abated or lowered as an obstruction, and has commenced,
within two years after the completion of the dam, an action to abate or low-
er it. Hardesty v. Ball, 23 P. 937, 43 Kan. 151, modifying judgment 22 P.
1095.
A cause of action founded upon an allegation that the register of deeds
"wrongfully, willfully, and negligently" recorded an instrument, and failed
to insert in the record the correct description of the land conveyed, by rea-
son of which the plaintiff was damaged, is "an action for injury to 'the rights
of another, not arising on contract," and such action can only be commenced
within two years after the cause of action accrues. Hatfield v. Malin, 50 P.
108, 6 Kan. App. 855.
An employe's action for injuries from the master's failure to comply with
the Factory Act (Laws 1903, c. 356, Gen. St. 1909, §§ 4676, 4683) is not barred
by Code Civ. Proc. § 17, subd. 4 (Gen. St. 1909, § 5610), providing that an ac-
tion upon a statute for a penalty or forfeiture shall be barred within one
year, but is an action for injury to the rights of another not arising on con-
tract, which carries a two years' limitation. Slater v. Atchison, T. & S. F.
Ry. Co., 137 P. 943, 91 Kan. 226, L. R. A. 1916F, 949.
The tort statute of limitations has no application to an action on quasi
contract to recover money paid by mistake. Kansas City v. R. J. & W. M.
Boyd Const. Co., 120 P. 347, 86 Kan. 213.
Code Civ. Proc. § 18, subd. 3, declares that actions on liabilities created by
statute shall be brought within three years. Section 18, subd. 2, declares that
"an action for an injury to the rights of another, not arising on contract,"
shall be brought within two years. Held, that the limitation of two years
applies to an action brought by a servant against his master to recover £ur
injuries caused by the negligence of the master, or from the negligence of a
fellow servant. Atchison, T. & S. F, R. Co. v. King, 3 P. 565, 31 Kan. 708.
An action for trespass through the permanent obstruction of the channel
of a stream so as to divert its natural flow against the opposite bank, and
(230)
Art. 4) LIMITATION PERIODS § 364
§ 364. Fraud
A cause of action for relief on the ground of fraud is barred by
the two-year statute of limitations, if the fraud is discovered more
than two years before the action is commenced.34
thereby destroy a portion of plaintiff's land, held barred by the two-year
statute of limitations. Taylor v. Newman, 139 P. 369, 91 Kan. 864.
Where the complaint alleges the conversion of personalty in 1902, the ac-
tion therefor in 1910 is barred, though there is a prayer for an accounting.
Blackwell v. Blackwell, 129 P. 173, 88 Kan. 495.
Where property had been seised on execution, interplea, alleging ownership
and claiming the return thereof, comes too late after two years. Gardner
v. Quick, 54 P. 1034, 8 Kan. App. 559.
34 Losch v. Pickett, 12 P. 822, 36 Kan. 216 ; Sherman v. Havens, 119 P. 370,
86 Kan. 99.
A suit for fraud in exchange of property not commenced within two years
after cause of action accrued was barred by the statute of limitations. Cor-
nelssen v. Harman, 103 Kan. 624, 176 P. 141.
An action for relief on the ground of fraud, not brought for eight years
after discovery thereof, was barred by the two-year statute of limitations.
Fix v. Rose, 64 Okl. 113, 166 P. 145.
An action by a trustee in bankruptcy against bankrupt and insurance com-
panies for fraudulent conspiracy in compromising and paying insurance pro-
ceeds pending bankruptcy is barred after two years. Tripp v. English, 59
Okl. 225, 158 P. 912. A petition in tort action, showing on its face it was
filed more than two years after date of the tort, is demurrable. Id.
Where on exchange of property the deed to plaintiff expressly provided
for assumption of mortgage, in suit to set aside mortgage as being placed on
property to defraud plaintiff, he will be deemed to have notice of fraud with-
in two-year statute of limitations when he accepted deed ; there being no
showing of illiteracy. Ostran v. Bond (Okl.) 172 P. 447.
Kansas cases. — Any action by one defrauded of money, in which a recovery
depends on proof 'of the fraud, unless begun within two years after its dis-
covery, is barred by Gen. St. 1915, § 6907, subd. 3, though, under subdivision
2, limitation for action on oral contract, express or implied, is three years.
Orozem v. McNeill, 103 Kan. 429, 175 P. 633, 3 A. L. R. 1598.
Civ. Code, § 18, subd. 3, providing that a cause of action for relief on the
ground of fraud shall not be deemed to have accrued until the discovery of
the fraud, does not apply to an action founded on contract. Judgment (1903)
70 P. 933, modified. Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 75
P. 1051, 68 Kan. 585, 1 Ann. Cas. 639. An action to recover for violation of
a verbal agreement in which there was a stipulation against discrimination
accrues within 3 years from the violation of the agreement, and an averment
that defendant concealed such discrimination until less than 18 months be-
fore the filing of the petition shows no ground for postponing the operation
of limitations. Judgment (1903) 70 P. 933, modified on rehearing. Id.
Actions to ichich statute is applicable. — Where a county clerk fraudu-
lently draws county warrants for a sum in excess of the amount allowed by
the board of county commissioners, the cause of action against him and his
(231)
§ 364 LIMITATIONS (Ch. 7
bondsmen does not accrue until discovery of the fraud. Allen v. State, 51 P.
572, 6 Kan. App. 915.
Where an officer misappropriates money intrusted to him and fraudulently
conceals his default, limitations will not begin to run until the discovery of
the fraud and of the breach of the conditions of his bond. McMullen v. Win-
field Building & Loan Ass'n, 67 P. 892, 64 Kan. 298, 56 L..R. A. 924, 91 Am.
St. Rep. 236.
When property is fraudulently sold, by the administrator of a partnership,
to pay debts of the partnership, for which purpose he has in his hands other
partnership assets, which he conceals and applies to his own use, such ad-
ministrator is chargeable, with the rents and profits of such property from
the date of sale ; such recovery not being barred by the three-years statute
of limitations, concerning implied contracts, since the cause of action dates
from the discovery of the fraud. Branner v. Nichols, 59 P. 633, 61 Kan. 356.
An action to establish a partnership and plaintiff's interest therein, and
for an accounting, held not an action for relief on the ground of fraud, and
"hence not governed by the statute of limitations relating to actions for fraud.
Holmes v. Culver, 133 P. 164, 89 Kan. 698.
An attorney employed to collect a claim without authority from his client
employed another attorney to assist him ; and they jointly collected part of
it, and failed to account. The attorney originally employed notified the client
that he had made the collection, and promised to pay over the money, and
afterwards informed her of his employment of the other attorney to assist
him. Held, that an action to recover the money collected, brought against
the attorney not employed by plaintiff, four years after her attorney told her
of his employment, was barred by limitations. Eaton v. Elliott, 57 P. 243,
9 Kan. App. 882.
When a city's overpayments to a contractor by reason of fraudulent meas-
urements were made, a cause of action against the contractor and the surety
on his bond to recover them back accrued, and an action against the surety
was barred in five years therefrom, irrespective of when the fraud Avas dis-
covered. City of Topeka v. Ritchie, 102 Kan. 384, 170 P. 1003.
An action for damages from inducing plaintiff to become a user of morphine
in ignorance of its nature held not an action for relief "on the ground of
fraud" within the statute of limitations. Gillmore v. Gillmore, 137 P. 958, 91
Kan. 293, 295, 51 L. R. A. (N. S.) 838, judgment modified on rehearing 139 P.
386, 91 Kan. 707, 51 L. R. A. (N. S.) 834.
In an action by a wife against her husband and his brother to cancel and
set aside a tax deed, plaintiff alleged that her husband, for valuable consid-
eration, agreed to pay all taxes levied against her land ; that he failed to
pay the taxes and permitted the land to be sold at tax sale ; that he caused
certificates of sale and tax deeds to be issued and executed to such brother,
who was a party to the wrong. Held, that the action was for relief upon the
ground of fraud. Doyle v. Doyle, 7 P. 615, 33 Kan. 721.
In an action recovery against a garnishee depended upon whether certain
conveyances made to him were fraudulent, and this issue was developed by
the evidence on the trial, and was the theory on which the garnishment pro-
ceedings were conducted. Held, that such proceedings were "an action for
relief on the ground of fraud.'1 Nelson v. Stull, 6£ P. 617, 65 Kan. 585, judg-
ment affirmed 70 P. 590, 65 Kan. 585.
In an action by a wife against her husband and his brother to cancel and
Art. 4) LIMITATION PERIODS § 364
set aside a tax deed, plaintiff alleged that her husband, for valuable consid-
eration, agreed to pay all taxes levied against her land, that he failed to pay
the taxes and permitted the land to be sold at tax sale, and that he caused
certificates of sale and tax deeds to be issued and executed to such brother,
who was a party to the wrong. Held, that the action for relief on the
ground of fraud. Doyle v. Doyle, 7 P. 615, 33 Kan. 721.
An action brought by the buyer of corporate stock to open up an account
stated as to the amount of outstanding corporate liability assumed by him
and to remake the account according to the agreement held not an action for
relief on the ground of fraud, though he alleged that the account was not
only incorrect, but was fraudulently made so by the seller. McCue v. Hope,
154 P. 216, 97 Kan. 85, 11 A. L. R. 581.
An action to charge defendant for the amount of a debt owing plaintiff
from one who gave defendant a chattel mortgage to secure debt, on property
of more value than his debt, is an action for fraud, and barred by limitations
of two years. Houghton v. Axelsson, 67 P. 825, 64 Kan. 274.
Misconduct of an arbitrator in acting from motives of bias or partiality,
or from a misconception of duty in making the award, arising from the belief
that he was the representative of one of the parties thereto, does not consti-
tute fraud, so as to cause a right of action or defense based on the illegality
of the award to be barred by the two-year statute of limitations. Downey
v. Atchison, T. & S. F. R. Co., 57 P. 101, 60 Kan. 499.
An action to impose a trust on the entire assets of one who has wrongfully
converted public funds must be brought within two years, under Civ. Code,
§ 18, subd. 3, providing that an action for relief on the ground of fraud must
be commenced within that time. City of Clay Center v. Myers, 35 P. 25, 52
Kan. 363.
— Deeds. — An action to set aside a deed for fraud is ordinarily barred in
two years after the filing of such deed for record in the office of the register
of deeds of the county where the land is situated. Rogers v. Richards, 74 P.
255, 67 Kan. 706.
Where defendant induced plaintiff to sign a deed of land to him, she sup-
posing it to be a power of attorney, an action for relief is not barred until
two years after the discovery of the deception. Kahn v. Klaus, 67 P. 542,
64 Kan. 24.
In an action to set aside a deed on the ground of fraud, the cause of action
will not be deemed to have accrued at the time of the delivery of the deed,
but at the time of the discovery of the fraud by means of which the grantor
was induced to execute and deliver the same. Brown v. Brown, 64 P. 599,
62 Kan. 666.
- Defenses.— The statute of limitations barring an action for relief on
the ground of fraud in two years after the discovery of the fraud bars only
the "right of action," and does not prevent one who has been injured by the
fraud from pleading such fraud as a shield to protect himself from the ac-
tion of another. Thomas v. Rauer, 64 P. 80, 62 Kan. 568.
Under Civ. Code, § IS, subd. 3, barring an action on the ground of fraud
in two years after accrual of the cause of action, and declaring that the
cause of action shall not be deemed to have accrued until after the discovery
of the fraud, a defense in which it is sought to avoid a written agreement,
and reform the same, on the ground of fraud, is barred after two years from.
(233)
§ 364 LIMITATIONS (Ch 7
discovery of the fraud. McCormick Harvesting Mach. Co. v. Hayes (Kan.
App.) 49 P. 632.
Limitations run only from the time of discovery, or from time when the
defrauded party, with ordinary diligence, might have discovered the fraud.
Farmers' State Bank of Ada v. Keen (Old.) 167 P. 207.
The statute of limitations does not bar an action for fraud until two years
after the fraud has been discovered. Mohr v. Sands, 44 Okl. 330, 133 P. 238.
Plaintiff residing in New York was not charged with notice of fraud prac-
ticed on her by her attorney in Nebraska, so as to start the statute of limita-
tions because the records of the Nebraska courts would show fraud, where
the attorney was acting for her in the matter concerning which the record
was made, and she had no means of ascertaining what the records would
show, except from her attorney. Id.
In action for relief on ground of fraud, whether for rescission or damages,
limitations do not commence to run until discovery of fraud. Gillies v. Lins-
cott, 157 P. 423, 98 Kan. 78, judgment affirmed on rehearing 160 P. 213, 99
Kan. 215.
The statute of limitations does not commence to run against an action for
false representations of authority to contract until discovery of the fraud.
Pierson v. Holdridge, 140 P. 1032, 92 Kan. 365.
Where a casualty policy different from that applied for has been fraudu-
lently .issued, reformation is not barred until two 3rears after the fraud is dis-
covered. Hammond v. Western Casualty & Guaranty Ins. Co., 165 P. 291, 100
Kan. 582.
In an action to set aside an order approving an administrator's final ac-
count based on a release procured through fraud, limitations do not run until
discovery of the fraud. Pickens v. Campbell, 159 P. 21, 98 Kan. 518.
Diligence — Constructive notice. — To start limitations running against an ac-
tion for fraud, the fraud is deemed to be discovered whenever it is discover-
able by the exercise of diligence reasonably to be expected of one in the posi-
tion of the person defrauded. Duphorne v. Moore, 107 P. 791, 82 Kan. 159.
Fraud is deemed to be discovered, within the statute of limitations, when,
in the exercise of reasonable diligence, it could have been discovered : and
where a creditor knew of the execution of a deed, which he supposed named
his debtor as grantee, reasonable diligence would have required an examina-
tion of the record, which would have disclosed the fact that it was executed
to the debtor's wife. Donaldson v. Jacobitz, 72 P. 846, 67 Kan. 244. An ac-
tion to set aside a deed to a debtor's wife as fraudulent, and to subject the
property to the payment of the debt, is barred in two years from the time,
where the creditor knew of the execution of the deed when it was made, but
supposed it named his debtor as grantee. Id.
In action for relief on ground of fraud, constructive notice is sufficient to
start the running of the statute of limitations, within the meaning of the
Code provision that such an action is deemed to have accrued upon the "dis-
covery of the fraud." Davis v. Heynes, 105 Kan. 75, 181 P. 566.
In an action for damages from fraudulent representations as to irrigation
rights, held, that the plaintiff had shown ordinary diligence to discover the
fraud, and that the action was not barred, because not brought within two
years from the time the fraud, if any, was discovered. Mateer v. Great West-
ern Land Co., 137 P. 786, 91 Kan. 349.
Where, in an action against defendants on the ground of fraud of the ad-
(234)
Art. 4) LIMITATION PERIODS § 364
This statutory limitation only applies where the party against
whom the bar is interposed is required to allege fraud in pleading
his cause of action, or to prove fraud to entitle himself to relief.35
It has no application to actions for relief on the ground of duress
by threats.36
The phrase "until discovery of the fraud," does not mean actual
notice, as constructive notice is sufficient; and, where the means
of discovery lie in public records required by law to be kept, they
ministrator of an estate on whose bond they were sureties, it appeared that
in 1882 under an order of the probate court the land of the decedent was
sold, a sale was confirmed, and that the administrator filed an account at that
time crediting himself with a number of .items, showing no balance in his
hands as administrator, and that there were no debts requiring the sale of the
land and that the items credited to the administrator were false, the action
was barred ; the records of the probate court involving the transactions com-
plained of being constructive notice of the alleged fraud sufficient to set in mo-
tion the two-year statute of limitations. Walline v. Olson, 113 P. 426, 84 Kan.
37.
Where an action for relief on the ground of fraud is brought by children
against their mother, as administratrix of her husband and their guardian,
eighteen years after the estate was settled, and eight years after the guard-
ian's account was closed, a finding that the fraud was discovered by actual
examination of the mother's accounts within two years from the date of the
action is not a sufficient finding to remove the case from the operation of limi-
tations. Black v. Black, 68 P. 662, 64 Kan. 689. Under Civ. Code, § 18, par.
3, limitation of two years, in actions for relief against fraud, after "discovery
of the fraud," is not to be determined by actual notice; and where the means
of discovery lies in the public records required to be kept, and which involve
the very transaction in hand, they are sufficient constructive notice to set the
statute in motion. Id.
The rule that, if an examination of the public records would reveal a fraud,
the records are constructive notice sufficient to set limitations. in motion, does
not obtain in favor of a vendee who procured his conveyance by fraudulent
representations as to the state of the record on which the vendor relied. Hut-
to v. Knowlton, 108 P. 825, 82 Kan. 445.
The record of a deed executed to defraud creditors held not to give notice
of the fraud. Underwood v. Fosha, 152 P. 638, 96 Kan. 549, Ann. Gas. 1917A,
265.
35 Logan v. Brown, 95 P. 441, 20 Okl. 334, 20 L. B. A. (N. S.) 298.
The limitation of the time within which an action for relief on the ground
of fraud must be commenced applies only when the party against whom the
bar is interposed is required to allege fraud in pleading his cause of action,
or to prove fraud, to entitle him to relief. Brown v. Cloud County Bank, 42
P. 593, 2 Kan. App. 352.
se Eureka Bank v. Bay, 135 P. 584, 90 Kan. 506.
(235)
§ 364 LIMITATIONS (Ch. 7
are sufficient to set the statute in motion.37 But one standing in a
relation of trust is bound to disclose the real facts, and a defrauded
party is not charged with constructive discovery of the fraud be-
cause the facts are a matter of public record.38
Where a statutory quitclaim deed, instead of a warranty deed,
was fraudulently given, the grantee, who read and accepted it, was
charged with notice of its character, and limitations began to run
from the date of acceptance.39
A record of a deed is not notice to the grantor of the fraudulent
inclusion therein of land other than that intended to be conveyed,
so as to start running of limitations.40
Where the evidence, in an action by trustees for relief on ac-
count of fraud, fails to show that such fraud was not known to
one of the plaintiffs, or to their* predecessors, more than two years
prior to the commencement of the action, plaintiffs cannot re-
cover.41
In an action by a creditor for relief on the ground of fraud of his
debtor, it is necessary to establish ignorance of the fraud until the
time within the period limited for the commencement of an action
to remove the bar of limitations.42
The statute of limitations does not begin to run against an agent,
for misappropriation, until discovery by the principal of the defal-
cation.43
The limitation of time within which an action may be brought
in form in ejectment, but in substance for relief on the ground of
fraud, is two years after the discovery of the fraud, subject to being
tolled as in other cases, and not the fifteen-year limitation.44
An action for balance due from a guardian to his ward when the
37 Board of Com'rs of Garfleld County v. Renshaw, 99 P. 638, 23 Okl. 56,
22 L. R. A. (N. S.) 207.
38 Farmers' State Bank of Ada v. Keen (Okl.) 167 P. 207.
Registration of deed procured from ignorant and illiterate grantor by false
pretense that it was a rental contract, did not constitute constructive notice
of fraud sufficient to set limitations in motion against grantor. Ford v. Perry
(Okl.) 168 P. 221.
so Jones v. Woodward, 50 Okl. 704, 151 P. 586.
40 Webb v. Logan, 48 Okl. 354, 150 P. 116.
41 Manley v. Robertson, 51 P. 795, 6 Kan. App. 921.
42 Fuller v. Homer, 77 P. 88, 69 Kan. 467.
43 Guernsey v. Davis, 73 P. 101, 67 Kan. 378.
4'4 New v. Smith, 119 P. 380, 86 Kan. 1.
(236)
Art. 4) LIMITATION PERIODS §§ 364-365
latter reached the age of majority is not an action for relief for
fraud, within the two-year statute of limitations though the petition
contains allegations that certain charges against the ward in the
annual accounts are erroneous.45
An action by a trustee in bankruptcy to set aside conveyances
made by a bankrupt with intent to defraud creditors is an action
for relief on the ground of fraud.46
Where one who is entitled to an accounting against another, and
who has the express promise of such other to account, fails to insti-
tute his action within the statute of limitations, he cannot take his
case out of such statute by alleging a fraudulent conspiracy be-
tween his adversary and a third person to refuse such accounting.47
The fact that defendant, after defrauding plaintiff out of his prop-
erty, absconded from the state, and that plaintiff was unable to
discover her whereabouts, is not- equivalent to a failure by plaintiff
to discover the fraud.48
§ 365. Foreign judgment — Bonds, etc.
"Fourth. Within one year: An action on a foreign judgment;
an action for libel, slander, assault, battery, malicious prosecu-
tion, or false imprisonment; an action upon a statute for penalty
or forfeiture, except where the statute imposing it prescribes a dif-
ferent limitation.49
45 Hawk v. Sayler, 83 Kan. 775, 112 P. 602.
46 Harrod v. Farrar, 74 P. 624, 68 Kan. 153.
47 Rizer v. Board of Com'rs of Geary County, 48 P. 568, 58 Kan. 114.
48 Myers v. Center, 27 P. 978, 47 Kan. 324.
49 An action on a foreign judgment must be brought within one year from
the time the right of action accrues. Bank of Stockham v. Weins, 71 P. 1073,
12 Okl. 502.
Illustrations — Kansas cases. — A mortgage was executed and recorded, and
afterwards paid and satisfied. On several occasions, the mortgagor demand-
ed that the mortgagee should enter satisfaction of record, but the mortgagee
failed, and after more than one year from the time of making the first de-
mand, but within less than one year after making the last demand, the mort-
gagor sued to recover the penalty provided for by section 8 of the act relat-
ing to mortgages. Held, that plaintiff's cause of action was given by and his
action founded on "a statute for a penalty," and, his action not having been
brought within one year after his cause of action accrued, it was barred
before his action was commenced. Joyce v. Means, 20 P. 853, 41 Kan. 234.
A proceeding to amerce a sheriff under is governed by Code Civ. Proc. §
18, subd. 4, prescribing the time within which actions on a statute for a pen-
(237)
§ 365 LIMITATIONS (Cll. 7
"Fifth. An action upon the official bond or undertaking of an
executor, administrator, guardian, sheriff or any other officer, or
upon the bond or undertaking given in attachment, injunction,
arrest or in any case whatever required by the statute can only
be brought within five years after the cause of action shall have
accrued.50
alty or forfeiture must be begun. Fuller v." Wells, Fargo & Co., 22 P. 561, 42
Kan. 551.
A petition against a railroad company alleged that defendant had charged
plaintiff for the transportation of merchandise a greater rate than it charged
other persons, and asked judgment for three times the amount of the over-
charge. A demurrer having been sustained, an amended petition was filed,
leaving out the demand for triple damages, and asking to recover actual dam-
ages only. Held that, under the rule that when the language of a petition is
of doubtful import, and it Is challenged before trial by a demurrer, the plead-
ing must be construed against the pl&ader, on the ground that he should make
his meaning clear, the petition must be construed as having been based, not
on the common-law liability of the carrier for discrimination, but oil Gen. St.
1889, pars. 1333, 1342, making it unlawful for a railroad company to charge
any person for transportation of property a greater sum than it shall charge
any other person, and making it liable to the person so overcharged in three
times the amount of damages ; and the action is therefore barred in one year,
under Code, § 18, subd. 4, requiring an action upon a statute for a penalty to
be brought within one year. Beadle v. Kansas City, Ft. S. & M. R. Co., 29 P.
696, 48 Kan. 379.
The action for a penalty for failure to discharge of record a mortgage that
has been paid is barred in one year, where a demand for such discharge is not
made within that time after payment. Wey v. Schofield, 36 P. 333, 53 Kan.
248.
An action under Gen. St. 1889, par. 406, by a depositor against an officer for
receiving deposits, knowing the bank to be insolvent, is an action for a pen-
alty, barred in one year. Ashley v. Frame, 45 P. 927, 4 Kan. App. 265, judg-
ment reversed Frame v. Ashley, 53 P. 474, 59 Kan. 477.
The reciprocal demurrage act (Laws 1905, c. 345), provides that when a ship-
per applies for cars, the carrier must furnish them within a specified time,
subject to a forfeiture of $1 per day for each car failed to be furnished. Held,
in an action under the act, that the one-year statute of limitations applies.
Udall Milling Co. v. Atchison, T. & S. F. Ry. Co., 108 P. 137, 82 Kan. 256.
An action under Gen. St. 1889, c. 25, § 39, against a county commissioner for
the Recovery of unauthorized fees, is an action on a statute for a penalty,
within Gen. St. 1889, c. 80, § 18, subd. 4, limiting the bringing of such actions
to one year from the accrual of the cause of action. Roe y. Board of Com'rs
of Elk County, 40 P. 1082, 1 Kan. App. 219.
An action to recover for injuries sustained by a negligent shooting is barred
within one year. Byrum v. Edwards, 71 P. 250, 66 Kan. 96.
so The time within which an action may be brought against a guarantor for
breach of a guaranty contained in a paving contract with a city for the con-
tractor's failure to pay for material and labor is fixed by Rev. Laws 1'910, §
(238)
Art. 4) LIMITATION PERIODS §§ 365-367
"Sixth. An action for relief, not hereinbefore provided for, can
only be brought within five years after the cause of action shall
have accrued." 51
This provision applies to an action brought in district court to
determine the title to a fund in county court,52 to the time within
which the purchaser at a tax sale may maintain an action against
the county clerk to compel the issuance of a second tax deed, the
deed first issued being invalid,53 and to an action against a railroad
company to recover compensation for all damages sustained by
reason of the permanent taking and appropriation of the right of
way,54 but not to a proceeding in probate to sell real estate to pay
debts.55
§ 366. Action for recovery of estate sold by guardian
"No action for the recovery of any estate, sold by a guardian,
can be maintained by the ward> or by any person claiming under
him, unless it is commenced within three years next after the ter-
mination of the guardianship, or when a legal disability to sue ex-
ists by reason of minority or otherwise, at the time when the cause
of action accrues, within three years next after the removal there-
of." 56
§ 367. Liens
"A lien is extinguished by the mere lapse of the time within
which, under the provisions of civil procedure, an action can be
brought upon the principal obligation." 57
4657, limiting actions on bonds, not by section 3882. United States Fidelity &
Guaranty Co. v. Star Brick Co., 54 Okl. 103, 153 P. 1122.
Bond to state for use of lienors whose liens accrued under Laws Kan. 1909.
c. 183, § 1, in connection with contract for erection of public building, held a
bond to supersede mechanics' liens, to which the general statute of limita-
tion applies, and not the special statute. (Gen. St. Kan. 1915, § 7570 [Code
Civ. Proc. Kan. § 662]). Capital Iron Works Co. v. Chicago Bonding & Surety
Co., 171 P. 612, 102 Kan. 699.
si Rev. Laws 1910, § 4657.
52 Yockey v. Yockey, 148 P. 665, 95 Kan. 519.
53 Young v. Gibson, 105 P. 3, 80 Kan. 264, 81 Kan. 185.
54 Atchison, T. & S. F. R. Co. v. Lauterback, 54 P. 11, 8 Kan. App. 15.
55 Thomas v. Williams, 80 Kan. 632, 103 P. 772, 25 L. R. A. (N. S.) 1304.
se Rev. Laws 1910, § 6583.
57 Rev. Laws 1910, § 3844.
(239)
§§ 368-372 LIMITATIONS (Ch. 7
/
§ 368. Liens against railroads
Liens of mechanics, builders, artisans, workmen, laborers and
other persons against railroads, "shall not be effectual unless suit
shall be brought upon the claim within one year after it accrued." 58
§ 369. Actions against notaries
"No suit shall be instituted against any such notary or his se-
curities more than three years after the cause of action accrues." 59
§ 370. Rejected claim
. "When a claim is rejected, either by the executor or adminis-
trator, or the judge of the county court, the holder must bring suit
in the proper court, according to its amount, against the executor
or administrator, within three months after the date of its rejec-
tion, if it be then due, or within two months after it becomes due,
otherwise the claim is forever barred." 60
§ 371. Vacancy in administration
"The time during which there shall be a vacancy in the admin-
istration, must not be included in any limitation herein pre-
scribed," 61
§ 372. Action against sureties on bond
"No action can be maintained against the sureties on any bond
given by a guardian, unless it be commenced within three years
from the discharge or removal of the guardian; but if at the time
of such discharge the person entitled to bring such action is un-
der any legal disability to sue, the action may be commenced at
any time within three years after such disability is removed." 62
ss Rev. Laws 1910, § 3869.
so Rev. Laws 1910, § 4249.
Cause of action against notary public and sureties on his bond for making
false certificate of acknowledgment on June 8, 1909, accrued thea, and when
not brought until July 31, 1915, was barred by three-year limitations. Okla-
homa Farm Mortgage Co. v. Jordan (Okl.) 168 P. 1029.
eo Rev. Laws 1910, § 6344.
61 Rev. Laws 1910, § 6347.
62 Rev. Laws 1910, § 6582.
(240)
Art. 4) LIMITATION PERIODS §§ 373-374
§ 373. Actions for wrongful death
An action for wrongful death must be commenced within two
years.03
§ 374. Assessments — Suits to set aside
"No suit shall be sustained to set aside any such assessment, or
to enjoin the mayor and council from making any such improve-
ment, or levying or collecting any such assessment, or installment
thereof, or interest or penalty thereon, or issuing such bonds, or
providing for their payment," as authorized in chapter 10, article
12, providing for street improvements, "or contesting the validity
thereof on any ground, or for any reason other than for the failure
of the city council to adopt and publish the preliminary resolution
provided for in cases requiring such resolution and its publication,
and to give the notice of the hearing on the return of the apprais-
ers, unless such suit shall be commenced not more than sixty days
after the passage of the ordinance making such final assessment." 64
"No suit shall be sustained to set aside any assessment or cer-
tificate issued in pursuance of any assessment or to enjoin the city
council or town board from making any improvement, unless
brought within sixty days after the passage of the ordinance mak-
ing such assessment." 65
ss Rev. Laws 1910, § 5281; Rodman v. Missouri Pac. Ry. Co., 70 P. 642, 65
Kan. 645, 59 L. R. A. 704 ; Harwood v. Chicago, R. I. & P. Ry. Co., 171 P. 354,
101 Kan. 215.
64 Rev. Laws 1910, c. 10, § 644.
GS Rev. Laws 1910, § 471; Warner-Quinlan Asphalt Co. v. Smith (Okl.) 173
P. 516.
Suit cannot be maintained to set aside assessment for street improvement,
because amount includes an overpayment to contractor if suit is commenced
more than 60 days after passage of ordinance making final assessment. Cross-
lin v. Warner-Quinlan Asphalt Co. (Okl.) 177 P. 376.
Though mayor and council adopt resolution for paving improvement during
the 15 days from last publication of preliminary resolution of necessity with-
in which protest may be filed, action to enjoin collection of special assess-
ments, begun more than 60 days after final assessment ordinance, was barred
by special statute of limitations (Rev. Laws 1910, § 644). Bickel v. Warner-
Quinlan Asphalt Co. (Okl.) 174 P. 537. Where mayor and council granted
petition for paving purporting to be signed by requisite number of owners,
and gave legal notice of hearing on appraisers' return, without protest as to
sufficiency of petition, an action, begun more than 60 days after final assess-
ment ordinance, to enjoin collection because petition was not signed by requi-
site number of owners, was barred by special statute of limitations (Rev. Laws
1910, § 644). Id.
HON.PL.& PRAC.— 16 (241)
§§ 374-376 LIMITATIONS (Ch. 7
This statute is not applicable as a bar to an action to enjoin col-
lection of assessment when proceedings on which it is passed are
void.68
This statute does not deprive persons of property without due
process of law,67 or impair the obligation of contracts.68
s
§ 375. Demand — Tender
Where a demand is required to perfect a cause of action, it must
be made within a reasonable time, and the statute of limitations
cannot be extended by delay in making demand.69
Where a contract binds the purchaser on demand to set apart
and convey lots as part of the price, the statute of limitations does
not begin to run until a demand and failure to comply therewith.70
Where property is received by the provisional government of
a city, and appropriated to its own use, and later is appropriated
to the use of the incorporated city taking its place, the statute of
limitations does not run, as against the owner of the property, until
after a demand has been made therefor.71
An action for specific performance of a contract to convey realty
not fixing time for performance accrues when the purchaser within
reasonable time tenders performance, and the vendor refuses per-
formance, and the statute of limitations runs from that time.72
§ 376. Actions for usurious interest
The action must be brought within two years after the maturity
of the usurious contract, when brought under the statute providing
in part that the taking, receiving, reserving or charging a rate of
interest greater than is allowed by law "shall be deemed a for-
feiture of twice the amount of interest which the note, bill or other
66 Southern Surety Co. v. Jay (Okl.) 178 P. 95; City of Muskogee v. Nichol-
son (Okl.)'l71 P. 1102; Grier v. Kramer, 62 Okl. 151, 162 P. 490.
A provision under the city charter prescribing the time within which ac-
tion must be brought to secure relief against an assessment for street improve-
.ments held not to apply in the case of a void assessment made against a lot.
Flanagan v. City of Tulsa, 55 Okl. 638, 155 P. 542.
67 City of Chickasha v. O'Brien, 58 Okl. 46, 159 P. 282.
es City of Chickasha v. O'Brien, 58 Okl. 46, 159 P. 282.
69purcell Bank & Trust Co. of Purcell v. Byars (Okl.) 167 P. 216.
TO Kee v. Satterfield, 46 Okl. 660, 149 P. 243.
71 City of Guthrie v. T. W. Harvey Lumber Co., 60 P. 247, 9 Okl. 464.
72 Skidmore v. Leavitt (Okl.) 175 P. 503.
(242)
'
Art. 4) * LIMITATION PERIODS . §§ 376-378
evidence of debt carries with it, or which has been agreed to be paid
thereon. In case a greater rate of interest has been paid, the person
by whom it has been paid, or his legal representatives, may recover
from the person, firm or corporation taking or receiving the same
in an action in the nature of an action of debt twice the amount of
the entire interest paid." 78
Under this statute an action to recover the forfeiture prescribed
for usury must be brought within two years after the maturity of
the usurious contract, or from maturity of last renewal note given
on the contract.74
If usurious interest has been paid, it can only be recovered in
separate action brought therefor within two years.76
§ 377. Tax deed
The statute providing that an action to avoid a tax deed shall be
commenced within one year after the recording of the deed does
not apply to an action to avoid a void tax deed.76
§ 378. Nonresident alien landowners
"All nonresident aliens who may hereinafter acquire real estate
in Oklahoma by devise, descent. or by purchase, where such pur-
chase is made under any legal proceeding foreclosing liens in favor
of such alien, may hold the same for five years from the date of so
acquiring such title." 7T
73 Rev. Laws 1910, § 1005, amended by Sess. Laws 1916, p. 24, § 1.
74 First State Bank v. Pool (Okl.) 167 P. 760.
75 Daniels v. Bunch (Okl.) 172 P. 1086; First State Bank v. Pool (Okl.) 167
P. 760; Ardmore State Bank v. Lee, 61 Okl. 169, 159 P. 903.
Const, art. 14, § 3, and Rev. Laws 1910, §§ 1005, 4660, intended that limita-
tion prescribed within which action to recover twice the usurious interest
paid must be brought be subject to same tolling provisions of statute applying
to other actions for debt. Bean v. Rumrill (Okl.) 172 P. 452.
76 Union Savings Ass'n v. Cummins (Okl.) 177 P. 901 ; Rev. Laws 1910, § 7419.
77 Rev. Laws 1910, § 6648.
(243)
§ 379 LIMITATIONS (Ch. 7
ARTICLE V
SUSPENSION AND TOLLING OF STATUTE
Sections
379. Suspension of statute in general.
380. Disability.
381. Infancy.
382. Person of unsound mind.
383. Suspension of statute by death.
384. Absence or flight.
385. Nonresidence.
386. Concealment.
387. Of person.
388. Return.
389. Fraud or fault.
390. Ignorance, mistake, and duress.
391. Revivor.
§ 379. Suspension of statute in general
It will not suspend the running of the statute that the subject
of an action is held in custodia legis in another action to which
defendant is neither a party nor in privity with a party and over
which he has no control,78 or that an appeal is pending from the
final order and judgment, of the district court to the Supreme
Court, in the absence of a supersedeas,79 or that a composition is
effected,80 or that the defendant ;s declared a bankrupt, where
the plaintiff participated in the dividends.81
Where legal proceedings restrain one party from exercising a
legal remedy against another, the running of the limitations is
postponed or suspended during such restraint.82
78 Hawkins v. Brown, 97 P. 479, 78 Kan. 284.
79 Bank of Stockham v. Weins, 12 Okl. 502, 71 P. 1073.
80 Dobson v. Noyes, 18 P. 697, 39 Kan. 471.
81 Simpson v. Tootle, Wheeler & Hotter Mercantile Co., 141 P. 448, 42 Okl.
275, L. R. A. 1915B, 1221.
82 City of Hutchinson v. Hutchinson, 141 P. 589, '92 Kan. 518, 52 L. R. A.
(N. S.) 1165.
The running of the statute of limitations against a -judgment against a
township will be suspended during the operation of a supersedeas bond in
favor of the township staying the issuance of execution thereon. Ware v.
Pleasant Grove Tp., 59 P. 1089, 9 Kan. App. 700.
An order at chambers on a motion of a mortgagee discharging an attach-
ment obtained by a creditor of a chattel mortgagor, and to reverse which pro-
(244)
Art. 5) SUSPENSION AND TOLLING OF STATUTE § 379
The statute does not run during the pendency of an action,83 if
the causes of action are identical.84
ceeding in error was brought, did not prevent the mortgagee from suing the
creditor for conversion so as to suspend the running of limitations as against
such action. McDonald v. Symns Grocer Co., 67 P. 1111, 64 Kan. f£29.
In order that the pendency of other proceedings may toll the statute of limi-
tations the proceedings must be such as to prevent the enforcement of the
remedy by action. Harrison v. Scott, 95 P. 1045, 77 Kan. 637. Limitations
will run on a cause of action in favor of a stockholder of an insolvent cor-
poration for contribution from his co-stockholders based on a claim in his
favor against the corporation, notwithstanding an action against him on his
double liability in which he seeks to set off the same cause of action. Td.
A right of action accrues on plaintiff's undertaking in replevin when he
fails to comply with the judgment rendered against him, and the statute be-
gins to run from the rendition of the judgment even though plaintiff prosecutes
a proceeding in error without giving a supersedeas bond to reverse the judg-
ment. Delay v. Yost, 53 P. 482, 59 Kan. 496.
83 Where, before action on a judgment in favor of a corporation was barred
by limitation, a receiver was appointed and brought an action on the judg-
ment, which remained pending until his discharge, the statute of limitations
does not run during the pendency of the action. Chicago & A. Bridge Co. v.
Fowler, 39 P. 727, 55 Kan. 17.
Where proceedings to enforce stockholders' liability and obtain executions
against them are brought before the judgment against the corporation be-
comes dormant, and are diligently prosecuted, no statute of limitations will
run against the judgment creditor pending the litigation, and his right to
proceed to the end will not be barred because more than six years have elapsed
since the last execution on the judgment was issued. Steffins v. Gurney, 59
P. 725, 61 Kan. 292.
Where a corporation which has purchased the business and assumed the
liabilities of an individual is impleaded with the individual in an action to
recover an indebtedness . growing out of the business and while such action,
which finally results in a judgment against the corporation, is pending, the
corporation resells to another corporation, which in turn assumes the liabili-
ties of the former, the statute of limitations does not begin to run in favor of
stockholders of the latter corporation so long as the creditor is prosecuting
with reasonable diligence actions to establish the liability of the successive
purchasers. Walterscheid v. Bowdish, 96 P. 56, 77 Kan. 665.
Where a suit by a claimant to mortgaged premises brought in 1891 to quiet
title and cancel the mortgage was removed to the United States court, and
in 1897 remanded to the state court, and neglected for ten years, and where,
in 1908, a grantee of the mortgagor procured judgment quieting title against
plaintiff, but no judgment was taken against the mortgagee answering, held,
that the right of the assignee of the mortgage to foreclose by cross-petition
in 1910 was not barred by the five-year statute of limitations. City of Hutchin-
son v. Hutchinson, 141 P. 589, 92 Kan. 518, 52 L. R. A. (N. S.) 1165.
84 An action for compensation for property destroyed by fire negligently set
by railroad is not brought on same cause of action as one to recover amount
agreed to be paid in compromise and pendency of action on such agreement
§§ 379-380 LIMITATIONS (Ch.7
The absence from the state of the principal do.es not suspend the
running of the statute of limitations in favor of the sureties on an
administrator's bond ; they are severally liable, and are severally
entitled to the protection of the statute.85
§ 380. Disability
"Any person entitled to bring an action for the recovery of real
property, who may be under any legal disability when the cause
of action accrues, may bring his action within two years after
the disability is removed." 86
Where disability to sue exists when the right of action accrues,,
the statute of limitations does not begin to run during continuance
of the disability.87 But generally, the statute having once attach-
does not suspend statute of limitations as against the action on the tort.
Thompson v. Missouri, K. & T. Ry. Co., 171 P. 629, 102 Kan. 668.
85 Davis v. Clark, 49 P. 665, 58 Kan. 454.
86 Rev. Laws 1910, § 4656.
Where the purchaser of land at a void guardian's sale went into possession
and he and those claiming under him remained continuously in possession
thereafter an action by the minor to recover such land was barred, when not
brought within five years after the recording of the guardian's deed, or within
two years after removal of plaintiffs disability. Dodson v. Middleton, 3S
Okl. 763, 135 P. 368.
Plaintiff sued within two years after coming of age, on a single cause of
action for ejectment, partition, and the recovery of rents and profits. A
share of the land descended to plaintiff when he was a minor. Defendants,
tenants in common, had long held exclusive possession under a claim of ab-
solute ownership, and they and their ancestor had so held adversely to plain-
tiff for more than fifteen years before suit. Held, that as the principal pur-
pose of the action was to determine the title held by the adverse claimants,
and the other grounds of relief asked are incidental, it falls within the stat-
ute, which permits such action within two years after the disability of infancy
is removed. Delashmutt v. Parrent, 18 P. 712, 39 Kan. 548.
The statute provides that an action for the recovery of real estate, not
thereinbefore provided for, shall be brought within fifteen years. The statute
provides that any person entitled to bring an action for the recovery of real
property, who may be under any legal disability when the cause of action ac-
crues, may bring his action within two years after the disability is removed.
Held, that an action by a minor to recover land sold fifteen years before by
her guardian is barred, if the minor reached her majority two years before
bringing the action. Howbert v. Heyle, 27 P. 116, 47 Kan. 58.
A right of action in ejectment for the recovery of land sold by an adminis-
trator, brought by an heir of a deceased person, is saved to a minor who may
sue within two years after the disability of infancy has been removed. Thomp-
son v. Burge, 57 P. 110, 60 Kan. 549, 72 Am. St. Rep. 369.
s7 Title Guaranty & Surety Co. v. Cowen (Okl.) 177 P. 563.
(240)
Art. 5) SUSPENSION AND TOLLING OF STATUTE §§ 380-381
ed, the period will continue to run without suspension by any sub-
sequent disability, unless the statute so provides.88
An adjudication in bankruptcy under the Bankruptcy Act of
1898, as amended (U. S. Comp. St. §§ 9585-9656), does not put
the creditor under a "legal disability," as to an action in a state
court on a provable claim.80
The phrase "under legal disability" includes a person imprison-
ed.90
"If a person entitled to bring an action other than for the recov-
ery of real property, except for a penalty or forfeiture, be, at the
time the cause of action accrued, under any legal disability, every
such person shall be entitled to bring such action within one year
after such disability shall be removed." 91
§ 381. Infancy
Under statutes of limitations, excepting persons under disabili-
ties, but not specifically excepting infants, they are within the
saving clause, though an infant has a guardian who might main-
tain an action in his own name, where the right of action is in the
infant.92
A cause of action in favor of an infant, for personal injuries sus-
tained, may be brought at any time during infancy, and will in no
event be barred by the two-year limitation until one year after the
disability of infancy has been removed.93
Where an action is commenced by a Creek freedman allottee
while still a minor, as defined by Act Cong. May 27, 1908, against
a former guardian and surety for proceeds of sale of allotted lands,
limitations have not been set in motion to bar the relief sought.8*
Where a tenant in common with four others was a minor, and
was ousted of his possession by the grantee of the four, who took
88 Overstreet v. Wichita Falls & N. W. R. Co. (Okl.) 175 P. 354.
89 Simpson v. Tootle, Wheeler & Motter Mercantile Co., 141 P. 448, 42 Okl.
275, L. B. A. 1915B, 1221.
90 State v. Calhoun, 32 P. 38, 50 Kan. 523, 18 L. R. A. 838, 34 Am. St. Rep.
141.
91 Rev. Laws 1910, § 4658.
92 Hinton v. Trout (Okl.) 172 P. 450; Title Guaranty & Surety Co. of
Scranton, Pa., v. Burton (Okl.) 170 P. 1170.
93 Missouri Pac. Ry. Co. v. Cooper, 45 P. 587, 57 Kan. 185.
94 Brewer v. Dodson, 60 Okl. 81, 159 P. 329; Brewer v. Ferryman, 62 Okl.
176, 162 P. 791.
(247)
§§ 381-383 LIMITATIONS (Ch. 7
f
all the rents and profits for several years, and, as soon as he ar-
rived at the age of maturity, commenced an action for partition
and for rents and profits, such action is not barred by the statute
of limitations.95
. Limitations do not begin to run against an action to set aside
a void conveyance of Indian minor allottee, executed after May
27, 1908, until the minor has attained majority, as shown by en-
rollment records of the Commissioner to thq Five Civilized
Tribes.96
§ 382. Person of unsound mind
Limitations will not run in favor of a person claiming under a
deed made by one mentally unsound and under the undue influ-
ence of the grantee.97
An insane person is under disability, within the meaning of the
statute of limitations, though the question of his sanity has never
been adjudicated.98
§ 383. Suspension of statute by death
The running of limitations in favor of an adverse possessor of
land is not suspended by the death of the opposing claimant and
descent of the cause of action to minor heirs.99
As against heirs of a grantor of unsound mind, who so contin-
ues until his death, limitations do not begin to run until such
death.1
The death of a debtor ordinarily suspends the running of the
statute until the appointment of an administrator,2 but the stat-
ute will run on a demand against the estate after a reasonable time
has elapsed after death, though no executor or administrator has
been appointed,3 and the death of a debtor does not amount to an
indefinite suspension of the statute.*
90 Scantlin v. Allison, 4 P, 618, 32 Kan. 376.
oe Bell v. Fitzpatrick, 53 Okl. 574, 157 P. 334.
87 Howard v. Carter, 80 P. 61, 71 Kan. 85; Jenkins v. Jenkins, 146 P. 414,
94 Kan. 263.
98 Lantis v. Davidson, 56 P. 745, 60 Kan. 389.
»» Campbell v. Dick (Okl.) 157 P. 1062.
1 Jenkins v. Jenkins, 146 P. 414, 94 Kan. 263.
2 Nelson v. Herkel, 2 P. 110. 30 Kan. 456.
3 Black v. Elliott, 65 P. 215, 63 Kan. 211, 88 Am. St. Rep. 239.
4 The maker of a note secured by a mortgage removed from the state after
(248)
Art. 5) SUSPENSION AND TOLLING OF STATUTE §§ 383-384
A cause of action for the foreclosure of a mortgage does not ac-
crue on the death of the mortgagor and the allowance by the pro-
bate court of the note secured by the mortgage, as a demand
against the estate, without regard to the maturity of the mortgage
debt, and it does not set limitations running aga'inst such action.5
Under Federal Employers' Liability Act, § 6 (U. S. Comp. St.
•§ 8662), limiting an action to two years from accrual of the cause,
a personal representative appointed more than two years from the
death of the employe cannot maintain an action.6
§ 384. Absence or flight
"If, when a cause of action accrues against a person, he be out
of the state, or has absconded or concealed himself, the period lim-
ited for the commencement of the action shall not begin to run
until he comes into the state, or while he is so absconded or con-
cealed ; and if, after the cause of action accrues, he depart from the
state, or abscond, or conceal himself, the time of his absence or
concealment shall not be computed as any part of the period with-
in which the action must be brought." 7
This statute applies to an action to recover twice the amount of
interest paid on an usurious contract.8 It applies to actions con-
the maturity of the note, and was absent until his death. No administration
was ever had on his estate, nor were any steps taken to enforce the collec-
tion of the secured debt until about 10 years after his death, when an action
to foreclose the mortgage was begun. Held, that the action was barred.
Culp v. Gulp, 32 P. 1118, 51 Kan. 341, 21 L. R. A. 550.
Under Gen. St. 1889, par. 2796, a creditor of a decedent having a claim
which he wishes to establish against the estate, may, if the widow or next of
kin refuse to take out letters of administration, obtain letters for himself or
some other person, after 50 days from the death of decedent ; and he cannot,
without any good cause or reason therefor, defer making such application
until the statute o^ limitations has run, and then claim that all of the time
from the death of the debtor to the appointment of the administrator the
statute of limitations is suspended on account of the nonappointment of such
administrator. Bauserman v. Charlott, 26 P. 1051, 46 Kan. 480.
5 Linn v. Ziegler, 75 P. 489, 68 Kan. 528.
0 Giersth v. Atchison, T. & S. F. Ry. Go. (Kan.) 171 P. 591.
' Rev. Laws 1910, § 4660.
When a cause of action arises, limitations in the country where the obligor
resides immediately begin to run, and, if in another country than the state
of Kansas, an action on a contract is not barred by limitations in Kansas, un-
less the bar of limitations has fallen in such other country. Hays Land & In-
vestment Co. v. Bassett, 116 P. 475, 85 Kan. 48.
8 Bean v. Rumrill (Okl.) 172 P. 453.
(249)
§ 384 LIMITATIONS (Ch. T
cerning real property as well as to personal actions,9 provided the
action is not strictly in rem and no personal service is required.10
The fact of personal presence in the state, and not of domicile,.
controls.11
9 Chicago, K. & N. Ry. Co. v. Cook, 22 P. 988, 43 Kan. 83.
The statute of limitations does not run on a cause of action for the re-
covery of real property, while the person who claims title thereto is absent
from the state. Corby v. Moran, 49 P. 82, 58 Kan. 278 ; Ard v. Wilson, 54 P.
511, 8 Kan. App. 471, judgment affirmed 56 P. 80, 60 Kan. 85fT.
Code Civ. Proc. § 15 (Gen. St. 1897), excluding the period of a defendant's
absence from the state from the time of commencing actions against him, ap-
plies to a defendant in ejectment claiming title by adverse possession, though
he had possession through a tenant during such absence. Ard v. Wilson, 56
P. 80, 60 Kan. 857, affirming judgment 54 P. 511, 8 Kan. App. 471.
The running of limitations, as against grantee assuming a mortgaged debt,
may be suspended by the absence of the grantee from the state. Hendricks v.
Brooks, 101 P. 622, 80 Kan. 1, 133 Am. St. Rep. 186.
Limitation does not run against a mortgage foreclosure suit against a
nonresident, though the plaintiff is in possession of the mortgaged premises
as grantee of the mortgagor. Smith v. Perkins, 63 P. 297, 10 Kan. App. 577.
Where the statute of limitations is pleaded as a defense to a mortgage fore-
closure suit, and the court finds that the defendant left the state within two
years after the execution of the mortgage, and remained a nonresident there-
after, it is not error to refuse to make finding as to when the first default oc-
curred, since the cause of action did not mature until the plaintiff declared
the debt due, and the defendant's nonresidence prevented the running of limi-
tations. Id.
Where, in an action for the recovery of land, plaintiff claims under a tax
deed, and contends that the irregularities in the proceedings are cured by
the running of the statute of limitations after the recording of the deed, de-
fendant may show that plaintiff, since the recording of the deed, has been ab-
sent from the state, and therefore cannot invoke the protection of the stat-
ute. Case v. Frazier, 3 P. 497, 31 Kan. 689.
10 Absence from the state on the part of a tax deed holder will not prevent
the tax law from so operating as to bar any suit or proceeding brought against
the tax deed holder, or his heirs or assigns, for the recovery of the property, or
to defeat or avoid the tax deed, if such suit or proceeding is not commenced
within five years from the time of the recording of the tax deed. Beebe v.
Doster, 14 P. 150, 36 Kan. 666.
The absence from the state of the owner of real estate upon which there
is a mortgage, but lor which he is not personally liable, will not prevent the
statute of limitations from running against the mortgage lien. Ho,gaboom v.
Flower, 72 P. 547, 67 Kan. 41.
11 Investment Securities Co. v. Bergthold, 58 P. 469, 60 Kan. 813, following
Hoggett v. Emerson, 8 Kan. 262 ; Tanselous v. McClellan, 57 Okl. 742, 157 P.
923; Dixon v. Windscheffel, 129 P. 938, 88 Kan. 824; Miller v. Baier, 72 P.
772, 67 Kan. 292.
The residence out of the state which suspended the running of the Illinois
statute of limitations was the fixed abode entered into with the intention to
C250)
Art. 5) SUSPENSION AND TOLLING OF STATUTE § 385
f
§ 385. Nonresidence
The statute of limitations operates to bar all actions, except as
against persons and corporations upon whom notice of the action
cannot be served because of their being out of the state.12 It does
not run in favor of a nonresident until summons can be served
within the state and a valid personal judgment had, which can be
enforced as provided by law.18
The statute does not run in favor of a nonresident corporation
which neglects to comply with the laws of the state within which
it is permitted to transact business, by reason of which neglect it
is saved from service of process.14
If notice of an action can be served during the whole of a pre-
scribed period and a personal judgment obtained, which can be
enforced as provided by law, then such person or corporation is
not "out of the state," within the statute.13
remain permanently at least for a time for business or other purposes. Fidel-
ity & Deposit Co. v. Sheahan, 133 P. 228, 37 Okl. 702, 47 L. R. A. (N. S.) 309.
To constitute a "residence out of the state" sufficient to suspend the running
of the Illinois statute of limitations, it was not necessary that there should be
an actual change of domicile in the strict legal sense, but it was necessary
that a fixed and permanent abode or dwelling place out of that state should
have been acquired at least for the time being. Id.
12 St. Louis & S. F. R. Co. v. Taliaferro (Okl.) 168 P. 788, L. R. A. 1918B,
994.
Though one who assigns a mortgage note and guaranties payment within
two years of maturity can stand in place of the maker, and, like him, invoke
the statute of limitations, it is unavailing where the running of the statute
has been' suspended by the continuous absence of the maker from the state
from the time of giving the note. Spink v. Newby, 67 P. 437, 64 Kan. 883.
13 Bean v. Rumrill (Okl.) 172 P. 453.
Where a nonresident purchases property after statement for mechanic's lien
has been filed and her deed is duly recorded and no personal liability can be
enforced against her, her absence from state does not extend time within
which lien may be foreclosed. Bixeman v. Warren (Okl.) 173 P. 443.
14 Johnson & Larimer Dry-Goods Co. v. Cornell, 46 P. 860, 4 Okl. 412; Okla-
homa Nat. Bank v. Chicago, R. I. & P. Ry. Co., 45 Okl. 707, 146 P. 716; St
Louis & S. F. Ry. Co. v. Keiffer, 48 Okl. 434, 150 P. 1026 ; Hale v. St. Louis &
S. F. R. Co., 39 Okl. 192, 134 P. 949, L. R. A. 1915C, 544, Ann. Cas. 1915D,
907; Williams v. Metropolitan St. Ry. Co., 74 P. 600, 68 Kan. 17, 64 L. R.
A. 794, 104 Am. St. Rep. 377, 1 Ann. Cas. 6.
15 St. Louis & S. F. R. Co. v. Taliaferro (Okl.) 168 P. 788, L. R. A. 1918B,
994.
In action by city against foreign company, surety on contractor's bond,
surety at commencement of action held not an absent corporation within
Code Civ. Proc. § 20 (Gen. St. 1915, § 6910), so as to be precluded from urg-
(251)
§§ 385-386 LIMITATIONS (Ch. T
\
The time defendant is out of the state after a cause of action has
accrued against him cannot be computed as part of the period
within which the action must be brought.16
Where a defendant, against whom a cause of action for fraud
accrues, is at that time absent in another state, limitations does
not begin to run as to him until his return to this state.17
§ 386. Concealment
A party who wrongfully conceals material facts, or the fact that
a cause of action has accrued against him, cannot plead limita-
tions.18
However, mere failure to disclose that a cause of action exists
will not prevent the running of limitations. There must be some
actual artifice to prevent knowledge of facts, or some affirmative
act of concealment.19
One seeking to toll the statute of limitations by reason of the
fraudulent cpncealment of the facts out of which his action arises
must exercise reasonable diligence.20
ing the statute of limitations as a defense. City of Topeka v. Ritchie, 102
Kan. 384, 170 P. 1003.
An action of ejectment by a tax deed holder out of possession does not be-
come barred by the two-year statute of limitation, while occupied by tenants,
agents, or employes of a nonresident owner. Gibson v. Hinchman, 83 P. 981,
72 Kan. 382.
16 Ament v. Lowenthall, 35 P. 804, 52 Kan. 706.
17 Sherman v. Havens, 86 Kan. 99, 119 P. 370.
18 Oklahoma Farm Mortgage Co. v. Jordan (Okl.) 168 P. 1029; Weems v.
Melton, 47 Okl. 706, 150 P. 720 ; Atchison, T. & S. F. Ry. Co. v. Atchison Gram
Co., 70 P. 933, judgment modified 75 P. 1051, 68 Kan. 585, 1 Ann. Cas. 639;
McMullen v. Winfield Building & Loan Ass'n, 67 P. 892, 64 Kan. 298, 56 L. R.
A. 924, 91 Am. St. Rep. 236; Zinkeison v. Lewis, 66 P. 644, 63 Kan. 590;
Stinson v. Aultman, Miller & Co., 38 P. 788, 54 Kan. 537 ; Stewart v. Bank of
Indian Territory, 75 P. 1055, 68 Kan. 755 ; Gano v. Martin, 61 P. 460, 10 Kan.
App. 384.
The statute does not begin to run in favor of an agent, and against his
principal, until the principal has knowledge of some wrong committed by the
agent inconsistent with his rights as principal. Perry v. Smith, 2 P. 784, 31
Kan. 423 ; Same v. Wade, 2 P. 787, 31 Kan. 428.
19 Oklahoma Farm Mortgage Co. v. Jordan (Okl.) 168 P. 1029; Waugh v.
Guthrie Gas, Light, Fuel & Improvement Co., 131 P. 174, 37 Okl. 239, L. R.
A. 1917B, 1253.
20 Lewis v. Duncan, 71 P. 577, 66 Kan. 306.
(252)
Art. 5) SUSPENSION AND TOLLING OF STATUTE §§ 387-390
§ 387. Of person
The provision that, when a cause of action accrues against a
person who has "absconded or concealed" himself, the period lim-
ited for the commencement of the action shall not begin to run
while he is so absconded or concealed, does not apply to a cause
of action arising in another state from which defendant absconded
to this state, where she made no effort to conceal her whereabouts
while within the state.21
§ 388. Return
That, after^a debtor has moved from the state, limitations may
run in his behalf during a temporary return, it is not necessary
that such visit shall be made so as to give the creditor an oppor-
tunity to serve summons on him, but he is entitled to credit for
all the time spent in the state unless he conceals himself.22
§ 389. Fraud or fault
In order to shorten the time within which an action must be
brought, defendants cannot set up their own fraud,23 or fault es-
topping them from pleading limitations.24
§ 390. Ignorance, mistake, and duress
For the purpose of determining the time when limitations com-
menced to run against an action to correct a mistake in a deed,
the record of the deed does not impart notice of the mistake.25
21 Myers v. Center, 27 P. 978, 47 Kan. 324.
Defendant absconded from Iowa, where the debt sued on was contracted,
and came to Kansas, where he lived openly. His creditor thorugh reasonably
diligent, had failed to discover his whereabouts. Held, that the word "con-
ceal," as used in the Kansas statute of limitations, applied to acts of a party
in Kansas. Frey v. Aultman, Miller & Co., 2 P. 168, 30 Kan. 181.
22 Baxter v. Krause, 101 P. 467, 79 Kan. 851, 23 L. R. A. (N. S.) 547.
Before a debtor who is absent from the state when a cause of action accrue?,
and who makes occasional visits to the state during the period of limitations,
can set up a bar of the statute, the times of his temporary presence in the state
must aggregate the statutory period. Gibson v. Simmons, 94 P. 1013, 77 Kan.
461. Where a debtor is out or the state when a cause of action accrues against
him, limitations do not begin to run until he comes into the state, and it will
continue to run so long as he remains in the state ; but if, after he comes into
the state, he again departs from it, the running of the statute remains suspend-
ed during his absence. Id.
23 People of State of New York v. Ettenson, 56 P. 749, 60 Kan. 858.
24 School Dist, No. 5 v. First Nat. Bank, 66 P. 630, 63 Kan. 668; Missouri,
K. & T. Ry. Co. v. Pratt, 85 P. 141, 73 Kan. 210, 9 Ann. Gas. 751.
25 Jackson- Walker Coal & Material Co. v. Miller, 129 P. 1170, 88 Kan. 763.
§§ 390-392 LIMITATIONS (Ch. 7
While the lapse of time will bar equitable relief against a mis-
take in describing land conveyed, limitations will not run till the
discovery of the mistake, or the time at which, by reasonable dili-
gence, it might have been discovered.26
Limitations do not commence to run against an action for re-
lief on the ground of duress by threats while the mind of the ag-
grieved party continues to be dominated by the threats.27
§ 391. Reviver
A mere order of revivor is sufficient to prevent the running of
limitations.28
Where an action is revived in due time after the death of plain-
tiff, in the name of his administrator, but the petition is not amend-
ed so as to show the death of plaintiff and the succession of the
administrator to his rights for more than five years thereafter,
the statute of limitations does not run during the interval between
the revivor of the action and the filing of the amended petition.29
ARTICLE VI
EXTENSION AND WAIVER
Sections
392. Failure otherwise than on merits.
393. Extension.
394. Acknowledgment.
395. Extension agreement.
396. Part payment.
397. Waiver of limitations.
§ 392. Failure otherwise than on merits
"If any action be commenced within due time, and a judgment
thereon for the plaintiff be reversed, or if the plaintiff fail in such
action otherwise than upon the merits, and the time limited for
26 Jackson- Walker Coal & Material Co. v. Miller, 129 P. 1170, 88 Kan. 763;
Duvall v. Simpson, 36 P. 330, 53 Kan. 291.
An action filed in August, 1907, to recover money paid by mistake in 1898.
was barred by limitations, where the mistake was discovered in December,
1903. Nicholson v. Nicholson, 146 P. 340, 94 Kan. 153.
27 Eureka Bank v. Bay, 135 P. 584, 90 Kan. 506.
28McLain v. Parker, 129 P. 1140, 88 Kan. 717, judgment affirmed on re-
hearing 131 P. 153, 88 Kan. 873.
29 Kansas City, W. & N. W. R. Co. v. Menager, 54 P. 1043, 59 Kan. 687.
(254)
Aft. 6) EXTENSION AND WAIVER § 392
the same shall have expired, the plaintiff, or if he die, and the
cause of action survive, his representatives, may commence a new
action within one year after the reversal or failure." 30 '
This statute applies to an action which has failed otherwise
than on its merits, though the time limited had not expired at the
time of such failure.81 * For this statute to operate, a right of ac-
30 Rev. Laws 1910, § 4662.
Where a party sues for relief on the ground of fraud and on the trial, by
leave, dismisses the action without prejudice, more than two years after his
right of action accrued, and brings a second action within one year from the
dismissal of the first, the bar of the statute is not let in. Wilson v. Wheeler,
115 P. 1117, 28 Okl. 726.
Before the statute of limitations had run upon notes, an action thereon was
begun, which was thereafter, and before trial, dismissed without prejudice.
During the pendency of the action the notes were transferred to another. An
action thereon was brought more than five years after maturity, but within
one year after the dismissal of the former suit. Held, that the right of ac-
tion thereon was not barred. Anthony Inv. Co. v. Law, 61 P. 745, 62 Kan.
193 ; reversing judgment 58 P. 1116, 9 Kan. App. 890.
The holder of a note brought suit on it in a county wherein one of the mak-
ers resided and served him. A summons was also sent to another county and
served on another maker who resided there. The holder believed in good faith
that he had a valid cause of action against the local maker who was not joined
for the mere purpose of obtaining jurisdiction over the other maker. Pending
further proceedings, the makers' attorney convinced the holder that the ac-
tion against the one residing in the county wherein the note had been sued was
barred by the statute of limitations, and the action was subsequently dis-
missed as to that maker. Thereafter the maker in the other county moved
that the summons and service on him be set aside, which was done, and the
entire proceeding dismissed. Held, that the action was commenced, and that
the holder of the note failed otherwise than on the merits. Parker v. Dobson,
96 P. 472, 78 Kan. 62.
Where a demurrer to a petition was sustained on the ground of misjoinder
of causes, and without other pleading a judgment was entered that defendant
was the owner and entitled to the possession of the property in question, the
plaintiff, having commenced his action in due time, failed therein otherwise
than on the merits. New v. Smith, 119 P. 380, 86 Kan. 1.
Where a plaintiff recovered judgment before a justice, and again on ap-
peal to the district court, but such judgment was reversed and the action dis-
missed by the supreme court, on the ground that the amount involved was be-
yond the jurisdiction of the justice, the action "failed otherwise than upon the
merits." Ball v. Biggam, 49 P. 678, 6 Kan. App. 42.
31 Swift & Co. v. Hoblawetz, 61 P. 969, 10 Kan. App. 48; Knox v. Henry, 55
P. 668, 8 Kan. App. 313.
Where an action against a notary is commenced within three years and dis-
missed without a hearing on the merits, a new suit commenced within one
year on the same cause is not barred. Clapp v. Miller, 56 Okl. 29, 156 P. 210.
Where a person sues to enforce a mechanic's lien while under a disability
(255)
§ 392 LIMITATIONS (Ch. 7
tion must have existed when the first suit was brought,32 and
must have been pleaded,33 and the action not be for a cause of
action which has accrued to the plaintiff subsequent to the causes
set forth in his original action,34 and summons must have been
served.35 The actions must be substantially the same.36
This statute applies only when a party would be otherwise bar-
red from action by the statute of limitations relating to the cause
of action.37 It has no application to revivor proceedings; and
hence an unsuccessful attempt to obtain an order reviving a judg-
ment does not operate to extend the time within which such an
order may be made.38
The plaintiff cannot, in new action brought within a year, in-
graft causes that are barred upon causes pleaded in the first ac-
tion that are not barred.39
Where a party sues for services rendered, and a judgment in
his favor is subsequently reversed, and the case dismissed with-
out prejudice, a suit within one year to recover for the same serv-
ices, where reliance is had solely on an oral contract, is not such
a departure from the first action, setting up a contract partly oral
and partly in writing, as to let in the statute of limitations.40
depriving him of his right to sue because of failure to pay a city occu-
pation tax, and then dismisses the suit without prejudice, after which he ob-
tains a pardon, he may, within a year after such dismissal, institute a new
suit on the same claim. Draper v. Miller, 140 P. 890, 92 Kan. 275, rehearing
aenied 141 P. 1014, 92 Kan. 695.
On the dismissal for want of a previous demand of an action brought to
recover the penalty prescribed for refusal to release a chattel mortgage, a
second action, brought within one year after dismissing the first, is not barred,
though not brought within one year after demand made. Hall v. Hurd, 19
P. 802, 40 Kan. 374.
An action to foreclose a mechanic's lien, which was commenced within one
year alter the dismissal of a prior action without prejudice, was not barred
by the statute, though more than one year had elapsed since the filing of the
lien. Hobbs v. Spencer, 31 P. 702, 49 Kan. 769.
32 Smith v. Bourbon County Com'rs, 23 P. 642, 43 Kan. 619.
33 Becker v. Atehison, T. & S. F. Ry. Co., 78 P. 408, 70 Kan. 193.
34 Hatchell v. Hebeisen, 82 P. 826, 16 Okl. 223.
35 O'Neil v. Eppler, 162 P. 311, 99 Kan. 493.
36 McGlinchy v. Bowles, 75 P. 123, 68 Kan. 190.
37 English v. T. H. Rogers Lumber Co. (Okl.) 173 P. 1046.
88 Berkley v. Tootle, 64 P. 6zO, 62 Kan. 701.
80 Brice-Nash v. Hutchinson Interurban Ry. Co., 102 Kan. 36, 169 P. 189.
40 Myers v. First Presbyterian Church of Perry, 69 P. 874, 11 Okl. 544.
(256)
Art. 6) EXTENSION AND WAIVEE §§ 392-394
Where the new action is dismissed more than one year after
the first dismissal, there is no authority for the bringing of an-
other new action.41
Where in an action it was determined that plaintiff could not
maintain the same, because of an oral agreement not to sue until
other litigation was terminated, in an action after the termina-
tion of such other litigation defendants could not plead that limita-
tions had barred the action ; the decision in the first case suspend-
ing limitations until the action was determined.42
§ 393. Extension
"In any case founded on contract, when any part of the prin-
cipal or interest shall have been paid, or an acknowledgment of
an existing liability, debt or claim, or any promise to pay the
same shall have been made, an action may be brought in such case
within the period prescribed for the same, after such payment,
acknowledgment or promise; but such acknowledgment or prom-
ise must be in writing, signed by the party to be charged there-
by." 43
§ 394. Acknowledgment
An acknowledgment, to bar the statute of limitations, must be
unequivocal and without qualification, and a direct admission of
a present existing liability.44 It must itself be unqualified and
41 Denton v. City of Atchison, 90 P. 764, 76 Kan. 89.
42 Bendy v. Russell, 114 P. 239, 84 Kan. 377.
43 Rev. Laws 1910, § 4663.
A written acknowledgment of a balance due on a mortgage will extend the
time within which the action might be brought for three years after the date
of such acknowledgment. Cleveland Paper Co. v. Mauk, 54 P. 1035, 8 Kan.
App. 562.
44 Durban v. Knowles, 71 P. 829, 66 Kan. 397.
Sufficient acknoicledgment. — The payee of a note who has assigned it as col-
lateral security has such an interest therein that a written acknowledgment
made to him by the debtor will toll limitations. Girard Trust Co. v. Owen, 112
P. 619, 83 Kan. 692, 33 L. R. A. (N. S.) 262.
Where the grantee accepts a deed, and by a contract not set forth in the
deed agrees to pay the grantor's debt secured by a mortgage on the land, ne
is liable in an action by the mortgagee, though a recovery on the mortgage
note would be barred by limitations but for such an acknowledgment of the
debt by the mortgagor as tolled the statute as to him if such acknowledgment
was made before the conveyance. Disney v. Healy, 85 P. 287, 73 Kan. 326.
A statement to a cashier of a bank holding a note for collection, at the time
payment was made by the person making such statement, that he is liable
HON. Pi,. & PKAC.— 17 (257)
§ 394 LIMITATIONS (Ch. 7
for one-half of the note and interest, though he is neither the maker nor in-
dorser of the note, is sufficient to toll the statute of limitations as to him.
Miller v. McDowell, 77 P. 101, 69 Kan. 453.
• A postal card sent through the United States mail by the defendant, and
directed to plaintiff, which read as follows: "I will turn you over Farmer's
notes for the note you hold against me, the Frys' note. Let me hear from you"
— was an acknowledgment of an existing liability, debt, or claim, and the
time for complete operation of the statute was extended for five years after
that time. Pracht v. McNee, 18 P. 925, 40 Kan. 1.
A letter written by defendant to plaintiff, in which he states : "I think you
are a little mistaken about my notes amounting to over $800. Even at com-
pound interest, they would not amount to that much. The whole amount, $600,
on interest one year at 8 per cent., would only be $48, and for three years
would be $144, making a grand total of $744" — and assumes that the amount
of the notes will be deducted from his share of an estate of which plaintiff is
administrator, is a sufficient acknowledgment to stop the running of the
statute of limitation. Clarke v. King, 38 P. 281, 54 Kan. 222.
Where a petition on a note had letters attached which were alleged to have
been written by one of the makers to the payee offering to deed land in con-
sideration of the release of the note and mortgage and the return of the
note, it is a sufficient acknowledgment of the debt to toll the statutes. Disney
v. Healy, 85 P. 287, 73 Kan. 326.
Insufficient acTcncncledgment. — An answer acknowledging the execution and
delivery of a certain note, without more, does not acknowledge that such
note was then a subsisting obligation. McMillan v. Leeds, 49 P. 159, 58 Kan.
815.
A surety having signed a note payable to the order of a bank, afterwards
executed his own note to the bank for the full amount of the first note, across
which the bank wrote, "Received of A., surety, $1,949.04 in full payment,"
and handed to the surety, to collect from the principal, with the agreement
that he was to turn over the amount collected, and assign the judgment to
the bank, upon doing which he was to receive his own note, which was held
simply as security. Held, that the new note was not an acknowledgment of
indebtedness for the first note, nor a promise by the surety to pay that.
Gragg v. Barnes, 4 P. 276, 32 Kan. 301.
The acknowledgment of liability by a city on a warrant issued in payment
for a sidewalk built in front of a private lot was not shown by a recital, in
a resolution authorizing an assessment against the lot for the sidewalk tax,
that the warrant had been issued by the city for the cost of the walk and
bore interest from date, since an acknowledgment must be of a subsisting lia-
bility, and be made to the holder of the debt, or his representative. King
v. City of Frankfort, 43 P. 983, 2 Kan. App. 530.
Letter expressing regret at inability to pay account held insufficient to con-
stitute acknowledgment of debt. Corbett v. Hoss, 157 P. 1195, 98 Kan. 290;
Hamilton v. Beaubien, 142 P. 245, 92 Kan. 944.
A letter written by the maker of a note and a mortgage securing it,
stating that, if he could keep the land a year longer, he thought he could
make a half payment in a year, and, if he could not, he would be glad to
give up the land, and requesting that he be given a "show," is not an ac-
knowledgment of- an . existing debt or liability which will toll the statute.
Wood v. Merrietta, 71 P. 579, 66 Kan. 748.
An acknowledgment in writing that a debt once existed, but which does not
(258)
I
Art. 6) EXTENSION AND WAIVER §§ 394-395
direct, and not dependent for its meaning on some other writing,
or on a possible construction of its own language.45
After such acknowledgment, the action is not brought upon
the acknowledgment, but upon the original debt.48
§ 395. Extension agreement
An express promise made by the grantee suspends the running
of limitations against the foreclosure of a mortgage lien.47 An
extension agreement made with one having no interest in the mort-
gage will not interrupt the running of the statute of limitations
on the mortgage, as against a purchaser from the maker of the
extension agreement.48
Where a note has been extended by agreement, limitations will
not commence to run against an action thereon until the expira-
tion of the extension.49
Where one of two makers procures an extension for payment
of a note providing for its extension without releasing either, the
contain an admission of a present subsisting debt on which the party is
liable, is insufficient to remove the bar of limitation. Hawkins v. Brown,
97 P. 479, 78 Kan. 284.
A letter written by the maker of two notes, due in 30 and 60 days, re-
spectively, to the holder, in reference to a matter of "business" between them,
in which he offered to give his note, payable in one year, for a sum less than
one-half of the two notes, is not a sufficient acknowledgment of liability on
the notes to remove the bar of the statute. Andrew v. Kennedy, 46 P. 485, 4
Okl. 625.
A promise to pay a debt barred by the statute as soon as the debtor was
able was not such an acknowledgment as would take the debt out of the
statute. Dezell v. Thayer, 44 P. 686, 2 Kan. App. 587.
A letter written by a defendant to plaintiff, wherein he states that he is
bound that the plaintiff shall get his pay, but which does not describe the debt,
or show that it is a subsisting debt, owing by defendant to plaintiff, will not
operate to take the debt out of the operation of the statute of limitations.
O'Riley v. Finigan, 58 P. 281, 9 Kan. App. 889.
A writing stating that the writer had made a mortgage, and suggesting to
the holder ways in which he might escape loss by taking care of the property
mortgaged, is not such "an acknowledgment of an existing debt or liability"
as to remove the bar of the statute. Haythorn v. Cooper, 69 P. 333, 65 Kan.
338, judgment reversed Cooper v. Haythorn, 70 P. 581, 65 Kan. 860.
45 Richards v. Hayden, 57 P. 978, 8 Kan. Apn. 816.
48 Cleveland Paper Co. v. Mauk, 54 P. 1035, 8 Kan. App. 562.
47 Neosho Valley Inv. Co. v. Huston, 59 P. 643, 61 Kan. 859.
48 Investment Securities Co. v. Bergthold, 58 P. 469, 60 Kan. 813.
49 Sedgwick v. Sanborn, 65 P. 661, 63 Kan. 884.
(259)
§ 396 LIMITATIONS (Ch. 7
statute of limitations runs from first maturity of the note in favor
of the maker not a party to the extension agreement.50
§ 396. Part payment
The statute is tolled by a part payment in money or its equiva-
lent, or the giving of a note,51 or the giving and acceptance of a
credit.52 The part payment may be only interest,53 and written
50 Hurley v. Gray, 103 Kan. 345, 173 P. 919.
61 An action for a balance due on a note is not barred; there being a part
payment made by him on the note within five years, by the giving of a second
note. Pracht v. McNee, 18 P. 925, 40 Kan. 1.
52 A credit on a note, such as will toll the statute, must evidence a volun-
tary payment. Berry v. Oklahoma State Bank, 50 Okl. 484, 151 P 210, L.
R. A. 1916A, 731. A credit on a note of the proceeds of the sale of securities
held not to toll the statute. Id.
Credit of debt owing by creditor to debtor is sumcient to lift bar of limita-
tions, when made with consent of debtor. Ross v. Lee (Okl.) 172 P. 444.
A credit entered in a book of accounts by the creditor, after the account had
been barred by the statute of limitations, is not sumcient to establish such a
partial payment as will revive the account. Hamilton v. Coffin, 26 P. 42, 45
Kan. 556.
A creditor cannot prevent the running of the statute of limitations by the
arbitrary allowance of a credit on the debt of which his debtor had no knowl-
edge and to which ne had not in some manner given his assent. Atchison, T.
& S. F. Ry. Co. v. Atchison Grain Co., 70 P. 933, judgment modified 75 P. 1051,
68 Kan. 5185, 1 Ann. Cas. 639.
A receipt indorsed on a note, after action is barred by limitations, does not
indicate part payment, which will revive liability. Liphart v. Myers, 156 P.
693, 97 Kan. 686 ; Easter v. Easter, 24 P. 57, 44 Kan. 151.
It is the payment of a portion of a debt which tolls the statute of limita-
tions, and not the actual indorsement of such payment on the instrument evi-
dencing such debt. Hastie v. Burrage, 77 P. 268, 69 Kan. 560.
Where a mortgagee of land in possession applies the rents therefrom to
taxes and repairs, and indorses the balance as payments upon the mortgage
note, with the mortgagor's consent, but without any direction to do so, or
other authority than as implied from such facts, the indorsements will not
remove the bar of the statute of limitations. Shanks v. Louthan, 99 P. 613, 79
Kan. 363, 131 Am. St. Rep. 294.
The" action of plaintiff in voluntarily placing to the credit of a defunct
partnership a sum collected will not interrupt in his own favor the running
of limitations as to an action for a partnership accounting and settlement.
Brooks v. Campbell, 159 P- 41, 97 Kan. 208, Ann. Cas. 1918D, 1105.
An indorsement of a partial payment, without the knowledge or authority
of the surety, from moneys derived from the sale of property pledged by the
principal, does not take the note out of the operation of the statute of limi-
tations as to the surety. Peru Plow & Wheel Co. v. Ward, 51 P. 805, 6 Kan.
App. 289.
6a See note 53 on following page.
(260)
Art. 6) EXTENSION AND WAIVER § 396
indorsement of the interest payment is not essential.54 It may
have been made by a natural guardian or parent for a minor,55 or
by a legal guardian56 or trustee in bankruptcy,57 or by an assignee
for the benefit of creditors.58 But the payment by the clerk of
the distributive share of a scheduled creditor of a fund paid into
court by an assignee for the benefit of creditors, after the dis-
charge of the assignee, is not such part payment as to stop the
running of limitations.59
The running of limitations will not be interrupted by a pay-
ment where there is any uncertainty as to the identity of the
debt on which it was made.60
A part payment, to toll the statute of limitations, must have been
made as part payment by the obligor, or some one at his direction,
and under such circumstances as to amount to an acknowledg-
ment of an existing liability.61
68 McLane v. Allison, 56 P. 747, 60 Kan. 441, reversing judgment 53 P. 781, 7
Kan. App. 263 ; Spink v. Newby, 67 P. 437, 64 Kan. 883.
A mortgage is regarded as an incident to the note, and, where the note and
mortgage are once barred, payment of interest on the note revives both the
note and the mortgage so far as it affects the interests of the payers and con-
tinues it a valid lien superior to the rights of subsequent lienors. Clark v.
Grant, 109 P. 234, 26 Okl. 398, 28 L. R. A. (N. S.) 519, Ann. Gas. 1912B, 505.
Where a person purchased land, and assumed the payment of a mortgage
thereon, and paid interest on the mortgage debt for several years after it be-
came due, such payments were sufficient to prevent the running of the statute
of limitations on the debt. Woodruff v. Albright, 62 P. 250, 10 Kan. App. 113.
54 Topeka Capital Co. v. Merriam, 56 P. 757, 60 Kan. 397.
55 Perry v. Horack, 64 P. 990, 63 Kan. 88, 88 Am. St. Rep. 225.
56 First Nat. Bank v. Bangs, 136 P. 915, 91 Kan. 54, judgment affirmed on
rehearing 140 P. 896, 92 Kan. 270, and objections to taxation of costs sus-
tained 141 P. 1013, y2 Kan. 1031.
67 Simpson v. Tootle, Wheeler & Hotter Mercantile Co.. 141 P. 448, 42 Okl.
275, L. R. A. 1915B, 1221.
58 Letson v. Kenyon, 1 P. 562, 31 Kan. 301.
59 Smith-Frazer Boot & Shoe Co. v. White, 51 P. 790, 7 Kan. App. 11; White
v. Smith-Frazier Boot & Shoe Co., 32 P. 632, 51 Kan. 34.
«° Brock v. Corbin, 146 P. 1150, 94 Kan. 542.
61 Good v. Ehrlich, 72 P. 545, 67 Kan. 94.
A payment made upon a note by a stranger thereto and without authority
from the maker does not toll limitations. Kelsay v. Kelsay Land Co., 64
Okl. 291, 166 P. 173.
Where a mortgagor was in default for nonpayment of the first of a series
of notes, and for nonpayment of taxes, the running of limitations was not
suspended by payment of the taxes by a subsequent purchaser from the mort-
(261)
§ 396 LIMITATIONS (Ch. 7
fi. part payment to a mortgagee who has made an unrecorded
assignment is sufficient to toll limitations.62
Partial payments by one debtor on a note will not suspend the
running of the statute of limitations in favor of the other debtors
thereon, although the party paying be the principal debtor and
the others only sureties.63
I
gagor. Snyder v. Miller, 80 P. 970, 71 Kan. 410, 69 L. R. A. 250, 114 Am. St.
Rep. 489.
Husband and ^cife. — A mortgage on a homestead was given by a husband
and wife to secure the husband's note. The latter paid interest without tlie
knowledge of the wife. Within five years after the last payment an action
was brought to foreclose. Held, that the mortgaged land was subject to sale
for payment of the note. Skinner v. Moore, 67 P. 827, 64 Kan. 360, 91 Am.
St. Rep. 244.
A husband and wife executed a mortgage note, and the husband died, hav-
ing previously conveyed title to his wife, who rented the farm to her son-in-
law, and thereafter died. The son-in-law and wife continued in possession.
and within five years from maturity of the note made a small payment, and
continued in possession until action to foreclose was brought, with the acqui-
escence of the brothers and sisters of the wife, and he, with her consent,
made several payments on the debt and paid the taxes from the proceeds of
the crops raised on the land. No interval of five years elapsed between such
payments. Held, that the payments prevented the running of limitations in
favor of any of the heirs against the debt. Ellis v. Snyder, 112 P. 594, 83 Kan.
638, 32 L. R. A. (N. S.) 253.
A husband and wife jointly executed a note, and secured the same by a
mortgage on real estate belonging to the wife. The note became barred as
to the wife by the statute of limitations, but not as to the husband, he having
made payments which tolled the statute. Held, that the mortgage could be
foreclosed, and the wife's land sold to pay the judgment rendered against the
husband. Jackson v. Longwell, 64 P. 991, 63 Kan. 93.
G. and his wife borrowed money from a loan company, and, to secure such
loan, gave a mortgage on real estate owned by the wife ; the proceeds of such
loan being used to pay off a mortgage held by M. upon such real estate. Prior
to the execution and delivery of the mortgage given to the loan company, the
wife had been adjudged insane, and the husband appointed as her guardian.
The fact of the wife's insanity was fraudulently concealed from the company,
and it had no actual notice of such insanity. Payments of interest were made
upon the mortgage given to the loan company within less than five years prior
10 the commencement of foreclosure proceedings upon such mortgage. Held,
that the payment of interest by G. was sufficient to toll the statute. Gano v.
Martin, 61 P. 460, 10 Kan. App. 384.
62 Girard Trust Co. v. Owen, 112 P. 619, 83 Kan. 692, 33 L. R. A. (N. S.) 262.
63 Hurley v. Gray, 103 Kan. 345, 173 P. 919; McMillan v. Leeds, 49 P. 159,
58 Kan. 815.
Partial payments made by one debtor on a note will not suspend the running
of the statute of limitations in favor of the other debtors thereon. Wellington
Nat. Bank v. Thomson, 59 P. 178, 9 Kan. App. 667.
(262)
Art. 6) EXTENSION AND WAIVER §§ 396~397
Where one of two joint makers of a note makes a payment
thereon after it is due as the agent of the other and with his mon-
ey, and states that the money belongs to his co-obligor for whom
he is paying it, it does not affect the operation of limitations as
to himself.64
When one of two partners sells out to the other who assumes the
firm indebtedness, his part payment of a note given by partners
prior to such sale for a partnership debt tolls the statute of lim-
itations as to the other maker; the payee having had no notice of
the dissolution.68
Where land is purchased by a firm, which assumes a mortgage
thereon, and title is taken in the individual names of the partners,
and the partnership ceases to do business, and one partner at-
tempts to convey an undivided one-half interest in the land, the
other partner may pay a portion of the mortgage debt and thus
extend the running of limitations on the mortgage as to the en-
tire tract.66
Where stockholders and officers of a corporation give a note for
money for the corporation, and pay interest for nine years out of
corporate funds, they cannot avail themselves of limitations on
the theory that they are sureties, and have personally made no
payments.67
Where limitations have run against a claim, the payment of
part of it by way of compromise and settlement, in consideration
of release in full, does not remove the bar'of the statute as to re*
mainder.68
The payment dates from the time paid, and not from the time
of indorsement when there is a difference.09
§ 397. Waiver of limitations
The statute may be waived. Where a board of education en-
tered into a valid agreement to apply the judgment fund to judg-
ments in the order of entry, and complied therewith, it could not,
after the expiration of the statutory period when the judgment
6* Elrnore v. Fanning, 117 P. 1019, 85 Kan. 501, 38 L. R. A. (N. S.) 685.
65 Campbell v. Herrick, 104 Kan. 657, 180 P. 237.
ee McKee v. Covalt, 81 P. 475, 71 Kan. 772 ; Bucher v. Same, Id.
6T Gordon v. Russell, 158 P. 661, 98 Kan. 537.
cs Nolan v. Board of County Conrrs of Ellis County, 101 Kan. 513, 168 P. 326.
69 Benton v. Yurann, 55 P. 676, 8 Kan. App. 305.
(263)
§§ 397-399 LIMITATIONS (Ch. 7
became dormant for failure to issue execution, plead limitations
as a bar to those Judgments not yet reached for payment under
the agreement.70
Where default had commenced to run for nonpayment of a mort-
gage note and taxes, a purchaser from the mortgagor did not waive
the right to plead limitations by subsequently paying the taxes.71
ARTICLE VII
CONTRACT LIMITATIONS
Sections
398. In general.
399. Insurance policy.
400. Mutual accident and sickness insurance
§ 398. In general
A provision of an interstate shipment contract that the shipper
must bring his action within six months is reasonable, valid, and
binding.72
§ 399. Insurance policy
A provision in the standard form, of fire insurance policy, lim-
iting the right to sue on a policy to one year, is enforceable, where
no extrinsic facts excuse delay in commencing the action. The
period of limitation begins to run against an action on such a
policy from the day of the fire, though the policy provides the
loss shall not become payable until 60 days after notice, ascertain-
ment, estimate, and proof of loss have been received by the in-
surer.73
A provision of an insurance policy that no suit or action on the
policy shall be maintainable unless commenced not later than six
months,74 is void; and as to causes of action arising before the
70 In re Board of Education of City of Perry, 130 P. 951, 35 Okl. 733.
71 Snyder v. Miller, 80 P. 970, 71 Kan. 410, 69 L. R. A. 250, 114 Am. St. Rep.
489.
72 St. Louis & S. F. R. Co. v. Pickens, 51 Okl. 455, 151 P. 1055; St. Louis, I.
M. & S. Ry. Co. v. Bentley (Okl.) 176 P. 250.
7 3 Rev. Laws 1910, § 3482; Wever v. Pioneer Fire Ins. Co., 49 Okl. 546,
153 P. 1146, L. R. A. 1918F, 507.
74 Rev. Laws 1910, § 977; Oklahoma Fire Ins. Co. v. Wagester, 38 Okl. 291,
132 P. 1071.
(264)
Art. 7) CONTRACT LIMITATIONS § 400
adoption of the standard policy in 1909, a limitation to twelve
months after the fire, or loss, was void.75
§ 400. Mutual accident and sickness insurance
Any mutual accident and sickness insurance company "may lim-
it the time within which suit may be brought against it or any
claim based upon its policies or certificates of membership, and
after the expiration of the time thus limited, shall not be liable
therefor: Provided, such limitation shall be incorporated in, and
form a part of the contract between the corporation, association
or society and the assured or its members, and provided further
that such limitation shall not be limited to a period of less than
one year from the time such right of action accrues." 76
™ Keys v. Phoenix Ins. Co., 132 P. 820, 37 Okl. 514; Keys & Keys v. Wil-
liamsburg City Fire Ins. Co. of Brooklyn, N. Y., 132 P. 818, 37 Okl. 482;
Same v. Mechanics' & Traders' Ins. Co. of New Orleans, La., 132 P. 819, 37
Okl. 480 ; Seay v. Commercial Union Assur. Co. Limited, of London, England,
140 P. 1164, 42 Okl. 83.
»« Sess. Laws 1913, p. 230, § 14.
(265)
§ 401
PARTIES
(Ch.8
CHAPTER VIII
PARTIES
Sections
401-106. Article I. — In general.
407-423. Article II.— Plaintiff.
424-436. Article III.— Defendant.
437-139. Article IV.— Intervener.
440-443. Article V. — Defects, objections, and amendments.
ARTICLE I
IN GENERAL
Sections
401. Designation of parties.
402. Counties — Dental board.
403. Married women.
404. Joinder — .Necessary parties.
405. Where parties numerous.
406. Style.
§ 401. Designation of parties
The omission of or a mistake in an initial does not affect the ju-
risdiction of the court, where the right party is served and has
appeared.1
One may, without abandoning real name and without fraudu-
lent intent, adopt any name by which he may transact business,
execute contracts, and sue and be sued.2
One may lawfully change his name without resort to legal pro-
ceedings, and for all purposes the name so assumed will consti-
tute his legal name as if he had borne it from birth.3
The law does not generally recognize a middle name, but looks
rather to the identity of the individual, and when this identity is
established, this is all that the law requires.*
1 Maine v. Edmonds, 58 Okl. 645, 160 P. 483.
2 Badger Lumber Co. v. Collinson, 156 P. 724, 97 Kan. 791.
The sole owner and manager of a business may in good faith conduct his
business under any name, and sue under such name for breach of contract.
Robinovitz v. Hamill, 44 Okl. 437, 144 P. 1024, L. R. A. 1915D, 981.
8 Modern Brotherhood of America v. White (Okl.) 16S P. 794, L. R. A.
1918B, 520.
* Maine v. Edmonds, 58 Okl. 645, 160 P. 483.
(266)
Art. 1) IN GENERAL §§ 401-403
Ordinarily, identity of name is prima facie evidence of identity
of person, and it devolves upon those who deny the identity to
overcome the presumption by proof.5
Two names, though spelled differently, if they sound alike or so
nearly alike that the attentive ear finds difficulty in distinguishing
them, are regarded as the same.8
§ 402. Counties — Dental board
A county may sue and be sued.7
"The board of dental examiners may sue or be sued under the
name of the state board of dental examiners of Oklahoma; and
no suit shall abate by reason of any change of membership of the
board." 8
§ 403. Married women
"A married woman may sue and be sued in the same manner as
if she were unmarried." 9
"Woman shall retain the same legal existence and legal person-
» Bayha v. Munford, 49 P. 601, 58 Kan. 445.
0 Maine v. Edmonds, 58 Okl. 645, 160 P. 483.
The names "Mollie Brown" and "Mary Brown" are the same, and con-
stitute only one name, and the administering of medicines and drugs to
Mollie Brown was the administering of such medicines to Mary Brown ; it
apppearing that no claim was made in the court below that Mollie Brown was
not Mary Brown, and no question was raised in reference thereto. State v.
Watson, 1 P. 770, 30 Kan. 281.
Idem sonans. — "Johnston" and "Johnson" are idem sonans. Miltonvale
State Bank v. Kuhnle, 31 P. 1057, 50 Kan. 420, 34 Am. St. Rep. 129.
"Barbara" and "Barbra" are idem sonans. State v. Haist, 34 P. 453, 52
Kan. 35.
The names "Bert" and "Burt" are idem sonans. State v. Johnson, 79 P. 732,
70 Kan. 861.
In ejectment against a defendant described as "Ned Armstead," in which
plaintiff derives title through a judgment against one designated as "Ned
Almstead" and "Ned Olmstead," thp testimony of the officer who served the
summons in the action in which such judgment was rendered, that such serv-
ice was made on the defendant in the ejectment action justifies treating
"Almstead" and "Olmstead" as different spellings of the name "Armstead."
Armstead v. Jones, 80 P. 56, 71 Kan. 142.
' Rev. Laws 1910, § 1497.
Where Rev. Laws 1910, § 1497, requires action to be instituted in name of
county, reference must be made to section 1500, requiring county to sue in
name of "Board of County Commissioners of the County of ." Smith
v. State, 13 Okl. Cr. 619, 166 P. 463.
8 Rev. Laws 1910, § 6828.
9 Rev. Laws 1910, § 4684.
(267)
§ 404 PARTIES (Ch. 8
ality after marriage as before marriage, and shall receive the same
protection of all her rights as a woman, which her husband does
as a man ; and for any injury sustained to her reputation, person,
property, character or any natural right, she shall have the same
right to appeal in her own name alone to the courts of law or eq-
uity for redress and protection that her husband has to appeal in
his own name alone." 10
§ 404. Joinder — Necessary parties
"Of the parties to the action, those who are united in interest
must be joined as plaintiffs or defendants; but if the consent of
one who should have been joined as plaintiff cannot be obtained,
he may be made a defendant, the reason being stated in the pe-
tition." 1X
Where a firm of two attorneys bring action on an oral contract
for services, refusal to bring in as a party another attorney who
was in partnership with plaintiffs in another firm was not error.12
The shipper of live stock, under a written contract obligating
him to hold the carrier harmless for any damages it might be re-
quired to pay the caretaker accompanying the stock, is not a nec-
essary party to an action by the caretaker against the carrier for,
personal injuries.13
In order to obtain the rescission of a contract of sale, all parties
interested in the property involved must be brought before the
court.14
10 Rev. Laws 1910, § 3363.
11 Rev. Laws 1910, § 4692.
It was alleged that plaintiffs, LJ and husband, owned and resided on a
homestead, and that the husband executed a conveyance of the same to EL,
without consent of his wife ; that subsequently H. and his wife. Lydia, exe-
cuted a deed with the usual covenants to P. The action to set aside both
conveyances was brought against H. and P., without joining as a defendant
Lydia H. Held, that she is a necessary party plaintiff in the action to cancel
the deed in which she joined as grantor. Hill v. Lewis, 25 P. 589, 45 Kan.
162.
12 Grisso v. Crump, 61 Okl. 83, 160 P. 453; Rev. Laws 1910, § 4696.
13 Missouri, K. & T. Ry. Co. v. Lynn, 62 Okl. 17, 161 P. 1058.
14 Constant v. Lehman, 34 P. 745, 52 Kan. 227.
Where, in an action to set aside a deed on the ground of fraud, such deed
was executed by husband and wife, and where the former died before the
action was brought, a child born subsequent to the delivery of the deed is a
proper party to such action, and may be joined with the widow as plaintiff
therein. Brown v. Brown, 64 P. 599, 62 Kan. 666.
(268)
Art. 1) IN GENERAL §§ 404-406
A judgment in ejectment is not void as to defendants in actual
possession because the holder of the legal title, not in possession,
was not made a party.15
Where more than legal rate of interest has been paid on, note
by one of joint and several makers, party by whom it has been paid
may recover on account of usury, without joining other makers.16
§ 405. Where parties numerous
"When the question is one of common or general interest of
many persons, or when the parties are very numerous, and it may
be impracticable to bring them all before the court, one or more
may sue or defend for the benefit of all." 17
For example, where property is claimed by a church organiza-
tion not incorporated, and the property is in dispute, any number
of the members of such association or congregation may maintain
an action for the benefit of the church.18
§ 406. Style
"In a civil action, the party complaining shall be known as the
plaintiff, and the adverse party as the defendant." 19
« Fulton v. Mathers, 90 P. 256, 75 Kan. 770.
16 Security State Bank v. Chandler, 64 Okl. 10, 166 P. 162. See Rev. Laws
1910, § 1005, as to usury.
17 Rev. Laws 1910, § 4693.
is Fink v. Umscheid, 19 P. 623, 40 Kan. 271, 2 L. R. A. 146.
« Rev. Laws 1910, § 4651.
(269)
§ 407 PARTIES (Ch. 8
ARTICLE II
PLAINTIFF
Sections
407. Real party in interest.
408. Joinder.
409. New party.
410. Capacity to sue.
411. Corporations. • .
412. In particular cases.
413. Creditors.
414. Stockholders' suit.
415. Insurance.
416. Taxpayers — Injunction.
417. Assignee and assignor.
418. Persons not personally interested.
419. Guardian.
420. Infants — Wards.
421. Tenants in common.
422. Government and governmental agencies.
423. Action for death.
§ 407. Real party in interest
"Every action must be prosecuted in the name of the real party
in interest, except as otherwise provided in this article; but this
section shall not be deemed to authorize the assignment of a thing
in action, not arising out of contract." 20
The test of whether one is the real party in suit is : Does he satis-
fy the call for the person who has the right to control and receive
the fruits of the litigation? 21
20 Rev. Laws 1910, § 4681.
Every action must be prosecuted in the name of the real party in inter-
est. Maxia v. Oklahoma Portland Cement Co. (Okl.) 176 P. 907.
Under Code Civ. Proc. p. 767, c. 66, § 26, providing that every action must
be prosecuted in the name of the real party in interest, if an action is pros-
ecuted in the name of the government upon the relation of certain individuals,
these individuals must be the real parties in interest. United States v.
Choctaw, O. & G. R. Co., 41 P. 729, 3 Okl. 404. If the relief sought in an
action brought in the name of the government on the relation of certain in-
dividuals is merely for the protection of private rights, the relators must
show some special interest, and their rights must clearly appear, since they
are regarded as the real parties. Id. If the United States is the real party in
interest in a proceeding brought on the relation of certain individuals, such
relators are improperly joined. Id. If the object of a proceeding is to compel
the performance of a public duty or to restrain the commission of a public
wrong, the people are the real parties in interest, and the action must be
-1 Stinchcomb v. Patteson (Okl.) 167 P. 619.
(270)
Art. 2) PLAINTIFF §§ 407-408
Plaintiff in ejectment is not the "real party in interest," entitled to
bring action, unless he is a party who may be benefited or injured
by the judgment.22
The assignee of a lease contract is the real party in interest in ac-
tion of ejectment.23
Defendant has a right to insist that an action against him shall be
brought by the real party in interest under the statute, but it is suffi-
cient if defendant is not shut out from defenses and counterclaims,
and is fully protected from any further liability.2*
Where a widow brings suit in the name of her deceased husband,
and the evidence discloses that since his death she has signed his
name, instead of her own, in business transactions, and that she is
known by that name as well as by her own, such suit is prosecuted
in the name of the real party in interest, and the record sufficiently
identifies her to bar a similar action between the same parties.25
§ 408. Joinder
All persons having an interest in the subject of the action, and in
obtaining the relief demanded, may be joined as plaintiffs, except
as otherwise provided in this article.20
brought in the name of the territory upon the relation of some member of the
public who shows a personal interest in the result. Id.
An informer cannot maintain an action for damages under the first pro-
vision of Comp. Laws 1909, § 7413, against a public officer for malfeasance in
office, the right being given to innocent persons suffering special damage, as
distinguished from those injured generally in common with others. McGuire
v. Skelton, 129 P. 739, 36 Okl. 500.
Abstracters. — An abstracter's liability, under Wilson's Rev. & Ann. St. 1903.
§ 1, is not confined to the person for whom he makes an abstract. Sackett v.
Rose, 55 Okl. 398, 154 P. 1177, L. R. A. 1916D, 820. A person injured by in-
completeness or error in an abstract of title is entitled to all damages prox-
imately resulting. Id.
Under Wilson's Rev. & Ann. St. 1903, § 1, an abstracter is liable on his
bond for defects in an abstract not only to the person ordering same, but to
any one relying on same to his injury. Scott v. Jordan, 55 Okl. 708, 155 P.
498. Under Wilson's Rev. & Ann. St. 1903, § 1, an abstracter vouches for the
correctness of an abstract compiled and certified by him. Id.
2 2 Miller v. Grayson, 64 Okl. 122, 166 P. 1077; Jackson v. McGilbray, 46
Okl. 208, 148 P. 703.
23 McElroy v. Moose, 51 Okl. 173, 151 P. 857.
24 Rullman v. Rullman, 106 P. 52, 81 Kan. 521.
25 Deets v. Smith, 51 P. 581, 6 Kan. App. 601.
26 Rev. Laws 1910, § 4690.
This does not mean that all interested must join. Bissey v. City of Mar-
ion, 104 Kan. 311, 178 P. 611.
Plaintiff and two others were appointed by a city as a committee to super-
(271)
§ 408 PARTIES (Ch. 8
All parties united in interest as parties plaintiff in the subject-
matter of the litigation must be joined as plaintiff.27
Persons in whose favor an obligation exists must all join in an
action thereon, unless the interest of each of the parties to be bene-
fited is specially stated in the contract, or is determined by the
character of the obligation.28
Where two parties have joint interest in property, they must join
in an action for injuries thereto.29
Where two or more persons have a separate interest in property
and sustain a separate damage thereto, they cannot join in the same
action, though their several injuries were caused by the same act.30
intend the construction of waterworks for the city, plaintiff being appointed
because of his knowledge and experience as a civil engineer. Any two of the
committee were authorized to act. They all entered upon the discharge of
their duties under the appointment, but did not all do the same amount of
work. The work for which they were appointed was all performed and com-
pleted and was accepted by the city. Held, that plaintiff might thereafter
maintain an action against the city for compensation for his individual serv-
ices, without joining with him as plaintiffs the other members of the com-
mittee, under Civ. Code, § 35, providing that "all persons having an interest
in the subject of the action, and in obtaining the relief demanded, may be
joined as plaintiffs," and section 37, providing that) "of the parties to the
action those who are united in interest must be joined as plaintiffs or de-
fendants." City of Ellsworth v. Rossiter, 26 P. 674, 46 Kan. 237.
Decedent, in consideration of a conveyance to him of land, verbally agreed
to pay one-half of a mortgage on other land conveyed at the same time by
his grantor to plaintiff, and thereafter verbally agreed with plaintiff to pay
the same proportion of a mortgage given in renewal of said mortgage. On
his dying seised of the land, without sufficient personalty to pay his share of
the mortgage, and on his administrator's refusal to allow the claim based on
said agreement against the estate, plaintiff sued the administrator, praying
that the land be subjected to payment of the claim. Held, that there was no
defect of parties plaintiff. McDowell v. Miller, 42 P. 402, 1 Kan. App. 666.
Where the sureties on a sheriff's bond have paid the judgment rendered
against him for making an illegal levy, the sureties paying the same must all
be joined as plaintiffs in an action to recover the money paid from the orig-
inal attachment plaintiff, since "united in interest," within Code Civ. Proc.
§ 37. Burkett v. Lehman-Higginson Grocery Co., 56 P. 856, 8 Okl. 84. In
all actions those between whom there is a unity of legal interest must be
joined as plaintiffs. Id.
Evidence in an action to recover the price of corporate stock, which plain-
tiffs were fraudulently induced to buy, held to establish the right of plaintiffs
to sue jointly, where it showed that the money paid for the stock came from
a common fund. Ellsworth v. Trinkle, 153 P. 543, 96 Kan. 666.
27 Stinchcomb v. Patteson (Okl.) 167 P. 619.
28 Burkett v. Lehmen-Higginson Grocery Co., 56 P. 856, 8 Okl. 84.
29 St. Louis & S. F. R. Co. v. Webb, 128 P. 252, 36 Okl. 235.
3° St. Louis & S. F. R. Co. v. Dickerson, 118 P. 140, 29 Okl. 386.
(272)
Art. 2) PLAINTIFF §§ 408-410
Where plaintiffs had severally stored grain in an elevator, under
an agreement to pay storage thereon, and that each might remove
his grain whenever he saw fit, they could not properly join as plain-
tiffs in an action for conversion of tne grain.31
An insurer may join with the insured as plaintiff to recover for
the loss of property negligently destroyed by fire.32
Mortgagees under mortgages delivered and filed at the same time
may join in an action for the conversion of the mortgaged prop-
erty.33
A contract entered into and performed jointly by two or more
persons, the compensation for the performance of which is separate
and distinct as to each, may be sued upon separately by each to re-
cover the amount due to him or the damages sustained by him.34
Joint action may be maintained on a guardian's bond on behalf
of two wards for an accounting- and settlement, where they have a
joint interest in the fund or property.35
One who, though not the judgment plaintiff, is the real owner of
the judgment and of the note on which it is based, may sue on the
constable's bond for his failure to pay over the proceeds of the exe-
cution, without joining as plaintiff the judgment plaintiff.88
In action on note, payee may be joined as plaintiff with another
whojs beneficially interested.37
§ 409. New party
"When, in an action for the recovery of real or personal property,
any person having an interest in the property applies to be made a
party, the court may order it to be done." 38
§ 410. Capacity to sue
The' capacity to sue is the right to come into court, and differs
from a cause of action, which is the right to relief in court.39
81 Central State Bank of Geneseo v. Walker, 53 P. 379, 7 Kan. App. 748.
82 Atchison, T. & S. F. R. Co. v. Neet, 54 P. 134, 7 Kan. App. 495.
33 Hays v. Farwell, 35 P. 794, 53 Kan. 78.
3* Curry v. Kansas & C. P. Ry. Co., 48 P. 579, 58 Kan. 6; Kansas & C. P.
R. Co. v. Curry, 51 P. 576, 6 Kan. App. 561.
ss Donnell v. Dansby, 159 P. 317, 58 Okl. 165.
se Dodge v. Kincaid Bros., 1 P. 107, 30 Kan. 346.
87 Wade v. Hall, 64 Okl. 173, 166 P. 720.
38 Rev. Laws 1910, § 4697.
89 Howell v. lola Portland Cement Co., 121 P. 346, 86 Kan. 450.
HON.PL.& PBAC.— 18 (273)
§§ 411-412 PARTIES (Ch. 8
§ 411. Corporations
No foreign corporation transacting business in the state, which shall
fail to comply with the provisions of Article 10, chap. 15, Rev. Laws
1910, "can maintain any suit or action, either legal or equitable, in any
of the courts of this State, upon any demand, whether arising out of
contract or tort." *°
A foreign corporation engaged in interstate commerce may sue
on a contract of employment entered into with a citizen of Okla-
homa, though it has not filed a copy of its articles of incorporation,
or appointed a service agent in the state, the appointment of an
agent not constituting doing business in the state.41
Where a national bank is placed in voluntary liquidation in
charge of liquidating agent, it is capable of suing and being sued in
its corporate capacity, until its affairs are settled.42
§ 412. In particular cases
A principal may maintain in his own name an action upon a writ-
ten contract made in the name of the agent.43
An agent, who purchases a note with his principal's money and
has it indorsed to himself, may sue thereon in his own name.44
Where a building contractor's bond provided security for per-
sons furnishing material or labor without regard to whether the
claims were a lien on the building, one who furnished cement to be
used in building could maintain a suit on the bond.45
A person suing to abate a nuisance must bring himself within the
statute authorizing the suit.4*
40 Rev. Laws 1910, § 1341.
41 Kibby v. Cubic, Heimann & Co., 137 P. 352, 41 Okl. 116.
A foreign corporation which had not complied with Rev. Laws 1910, §§
1335, 1336, held not entitled to sue on any demand, whether arising out of
contract or tort. Goodner Krumm Co. v. J. L. Owens Mfg. Co., 51 Okl. 376,
152 P. 86.
That plaintiff was a foreign corporation, and had not complied with the
statute, by filing a copy of its charter, etc., held not to constitute a defense
in an action on notes. Citizens' Life Ins. Co. v. Owen, 139 P. 516, 40 Okl. 446.
42 Oklahoma City Nat. Bank v. Ezzard, 58 Okl. 251, 159 P. 267, L. R. A.
1918A, 411.
43 Choate v. Stander, 61 Okl. 148, 160 P. 737 ; Schmucker v. Higgins-Rob-
erts Grain Co., 116 P. 184, 28 Okl. 721.
44 Routh v. Kostachek, 81 P. 429, 15 Okl. 234.
45 Crudup v. Oklahoma Portland Cement Co., 56 Okl. 786, 156 P. 899.
46 Wilson's Rev. & Ann. St. 1903, c. 13, art. 10, § 134, provides that it
shall be unlawful to maintain a slaughterhouse within certain distances of
lands platted into lots for residence purposes. Section 136 provides that the
maintaining of any slaughterhouse in violation of the act shall be a nuisance,
(274)
Art. 2) PLAINTIFF § 412
A public nuisance may be abated by a civil action brought by the
state on the relation of the county attorney of the county in which
such nuisance exists.47
The grantor in a deed void as against defendants in adverse pos-
session may maintain an action in his own name against those hold-
ing adversely and his grantees to cancel void deeds to those in ad-
verse possession.48
One who owns an equitable title to real property and is in posses-
sion may maintain an action for permanent injuries thereto.49
and that any person owning real estate within the lands platted and set apart
for residences may sue to abate such nuisance, and that sheriffs, constables,
or other police officers may make complaint to abate the same. Held, that
section 136 limits the persons authorized to sue to the owners of real estate
as described therein, and one who is not such owner or officer must bring
himself within the provisions of Wilson's Rev. & Ann. St. 1903, c. 56, en-
titled "Nuisance." Weaver v. Kuchler, 87 P. 600, 17 Okl. 189.
Comp. Laws 1909, § 966 (Wilson's Rev. & Ann. St. 1903, § 625), makes it
unlawful to establish and use land for burial purposes which is less than
three-quarters of a mile from land platted as an addition to a city or town,
wherein lots have been sold in good faith before the cemetery was located,
or within such distance of land platted into blocks for sale for resident pur-
poses, wherein lots have been sold in good faith before the cemetery was lo-
cated. Section 967 (626) makes such maintenance and use of a cemetery a
nuisance, and provides that any person owning real estate within any such
addition to a town or city or within the land platted to be sold for resident
purposes may sue to abate such nuisance and enjoin its continuance. Held,
that the last section limits the persons authorized to sue to owners of lands
described therein, and another person seeking relief by way of abatement of
the nuisance must bring himself within Comp. Laws 1909, §§ 4751^1769 (Wil-
son's Rev. & Ann. St. 1903, §§ 3717-3735), relating to nuisances. Clinton Cem-
etery Ass'n v. McAttee, 111 P. 392, 27 Okl. 160, 31 L. R. A. (N. S.) 945-
Under Comp Laws 1909, §§ 966, 967, making it unlawful for any person to
maintain a cemetery located less than three-fourths of a mile from any platted
land to be sold for residences, where lots may have been sold in good faith
before the cemetery was located, and the facts show that plaintiff had pur-
chased in good faith lots lying within such platted lands, he is entitled to a
perpetual injunction . against parties maintaining such cemetery. Fursten-
burg v. Brissey, 115 P. 465, 28 Okl. 591.
47 Balch v. State (Okl.) 164 P. 776.
An action may be maintained in the name of the territory under the direct
provisions of Wilson's St. 1903, § 4440, to enjoin and suppress the keeping
and maintenance of a common nuisance. Reaves v. Territory, 74 P. 951, 13
Okl. 396.
48 Burckhalter v. Vann, 59 Okl. 114, 157 P. 1148.
49 Foster Lumber Co. v. Arkansas Valley & W. Ry. Co., 95 P. 224, 20 Okl.
583, 30 L. R. A. (X. S.) 231, judgment affirmed on rehearing 100 P. 1110, 20
Okl. 583, 30 L. R. A. (N. S.) 231.
(275)
§ 413 PARTIES (Ch. 8
§ 413. Creditors
The presumption of invalidity of a transfer of merchandise in
bulk may be taken advantage of by a creditor of the transferrer,
though his debt existed before the transferrer acquired the stock,
and though none of the consideration for the debt went into the
stock.50
A voluntary conveyance is good as against a subsequent creditor
when not made with fraudulent intent to incur the debt, and where
the creditor has not extended credit on faith of the grantor's owner-
ship of the particular property conveyed.51
A subsequent creditor, who extends credit after actual or con-
structive notice of a fraudulent conveyance, cannot attack same.52
A person having a claim growing out of a tort independent of con-
tract is a "creditor," so as to entitle him to have canceled and set
aside a conveyance of real estate made to defraud creditors.53
A direct action cannot'be maintained against the purchaser by a
creditor of one who has sold his entire stock of goods without com-
plying with the bulk sales law.54
To enable a creditor to assail the validity of a chattel mortgage
executed by his debtor, he must not only obtain a judgment, but
also a valid execution against the property of the debtor.55
Where a mortgagee of chattels to enforce its lien seizes the mort-
gaged chattels in the hands of a third person, claiming to be the
owner, and such third person sues to recover their value, and the
mortgagee defends on the ground that the mortgagor made a fraud-
ulent transfer to such third party and executed the mortgage, but
there was no change of possession, such mortgagee will be treated
as an incumbrancer, and not as a creditor of the mortgagor, and
must show that it became an incumbrancer in good faith subsequent
to the fraudulent transfer.66
80 Galbraith v. Oklahoma State Bank, 130 P. 541, 36 Okl. 807.
61 Van Arsdale v. Findley, 132 P. 135, 37 Okl. 425.
82 Rauh v. Morris, 137 P. 1174, 40 Okl. 288.
53 Shelby v. Ziegler, 98 P. 989, 22 Okl. 799.
54 Rogers' Milling Co. v. Goff, Gamble & Wright Co., 46 Okl. 339, 148 P.
1029.
88 Chandler v. Colcord, 32 P. 330, 1 Okl. 260.
«• First Nat. Bank v. Yeoman, 78 P. 388, 14 Okl. 626.
(276)
Art. 2) PLAINTIFF §§ 414-415
§ 414. Stockholders' suit
In an action by corporation upon a claim where a stockholder
had no interest in the subject-matter of the suit, the corporation
was the only proper party plaintiff."
Where a corporation has ceased to do business and stock is own-
ed exclusively by two, and the majority stockholder in charge of
its property and affairs has converted all assets to his own use, the
minority stockholder can maintain suit against him, where corpora-
tion is made a party defendant, and obtain a judgment against ma-
jority stockholder for aliquot part of funds due corporation.58
Where corporate stock is held by assignment and delivery as se-
curity for a debt, and the assignor, being the. president of the cor-
poration procures a reissue of such stock to himself and assigns the
reissued stock to a third person, and by the vote of such stock the
corporation is reorganized under a different name, and the property
and franchise rights af e sought to be invested into such reorganized
company, the bona fide holder of such stock is not required to reduce
his demand against his assignor to judgment before he may lawful-
ly sue to have the original company reinvested with its corporate
and franchise rights.58
§ 415. Insurance
Under a "standard" mortgage clause in a fire policy providing
that insurance shall not be invalidated as to the mortgagee by any
act or neglect of the mortgagor, the mortgagee may maintain a suit
in his own name, and the cause of action cannot be defeated by any
act or neglect of the mortgagor.60
Where the mortgage debt was less than the amount due on the
67 Burke Grain Co. v. Stinchcomb (Okl.) 173 P. 204.
58 Dill v. Johnston (Okl.) 179 P. 608. In suit by the minority stockholder
against the majority stockholder where corporation has permitted majority
stockholder to convert all its property to his own use, court may enter judg-
ment directly in favor of minority stockholder for his aliquot part, without
appointing a receiver or rendering judgment for corporation against majority
stockholder. Id. In suit by the minority stockholder for a division of cor-
poration's assets after their conversion by the1 majority stockholder to his
own use and after corporation had ceased to do business, evidence held suffi-
cient to sustain the findings of the referee and judgment of court thereon in
favor of the minority stockholder. Id.
69 First Nat. Bank v. Stribling, 86 P. 512, 16 Okl. 41.
60 Fidelity-Phenix Fire Ins. Co. v. Cleveland, 57 Okl. 237, 156 P. 638,
(277)
§§ 415-416 PARTIES (Ch.8
insurance policy, the insured could sue on the policy in her own
name though a mortgage clause was attached to the policy.61
Where the insured conveyed property covered by the policy by
a contract making the loss payable to the insured as its interest
might appear, and the property was destroyed before the policy was
assigned, the purchaser was not the owner with the right of ac-
tion thereon.62
§ 416. Taxpayers — Injunction
An injunction will not lie at the suit of a private citizen to protect
public interests.63
The right to maintain a taxpayer's suit is determined by statute
in many cases.64
Where the bridge over a creek crossed by a city street is allowed
to remain in a condition not open for traffic, the owner of a tract
on one side of the street and both sides of the creek sustains a spe-
cial injury, and may maintain an action for mandatory injunction
against those responsible for the condition, though such action can-
not be maintained by one owning a tract on a cross street opposite
the termination of a street.65
A taxpayer has no such interest in a suit to enjoin the holding
of an election to recall a mayor as will entitle him to prosecute such
suit.06
«i Liverpool & London & Globe Ins. Co. v. Cargill, 44 Okl. 735, 145 P. 1134.
02 Springfield Fire & Marine Ins. Co. v. E. B. Cockrell Holding Co. (Okl.)
169 P. 1060.
63 Ruthstrom v. Peterson, 83 P. 825, 72 Kan. 679.
64 An action may be maintained on relation of resident taxpayers against
city officers who have allowed and paid claim pursuant to an unlawful or
fraudulent contract, and against the person to whom the money is paid, to
recover double such amount. State v. Oklahoma City (Okl.) 168 P. 227.
Where city after written demand of ten resident taxpayers neglects to sue
to recover money unlawfully paid by its officers; to railroad, any resident
taxpayer may sue in the name of the state for the penalty ; one-half of recov-
ery going to plaintiff as a reward, and remainder to city. State v. City of
Muskogee (Okl.) 172 P. 796. When city neglects to sue for money unlawfully
paid out by city officials after written demand by resident taxpayers, a tax-
payer who sues to recover penalty under Rev. Laws 1910, §§ 6777, 6778, has
interest in cause of action not affected by city's subsequent suit. Id. Sure-
ties on official bonds of city officials sued by resident taxpayers to recover
penalty prescribed by Rev. Laws 1910, §§ 6777, 6778, for misappropriation of
moneys not being liable for such penalty, are not proper parties therein. Id.
es Bissey v. City of Marion, 104 Kan. 311, 178 P. 611.
66 City Council of City of McAlester v. Milwee, 122 P. 173, 31 Okl. 620, 40
L. R. A. (N. S.) 576.
(278)
Art. 2) PLAINTIFF § 416
In the absence of any statute so authorizing, a county attorney
cannot sue in his official name to enjoin issuance of warrants for
construction of bridges under a void contract.67
A petition to enjoin the action of the state engineer and an ap-
plicant for water rights is not subject to the charge of misjoinder
of parties because there are joined therein all the parties claim-
ing a right to the water along with the state engineer, and the
relief asked against him is different from that asked against his
codefendant.68
A final injunction will not be granted, in the absence of a neces-
sary and indispensable party to the action; and, until all those
whose legal rights are to be directly affected by a permanent injunc-
tion are made parties to the action, a perpetual injunction is rightly
refused.69
Where the record shows that defendants are only nominal parties,
and that the real parties in interest have not been brought into
court, and the relief sought would bar the absent parties from their
day in court, the injunction should be denied, although the defend-
ants before the court do not raise the question of a defect of parties,
either by demurrer or answer.70
«7 Dolezal v. Postick, 139 P. 964, 41 Okl. 743. Under St. 1893, §§ 1646, 1648,
1649, the territory of Oklahoma had sufficient interest to enable it to enjoin
county officers from unlawfully expending county money. Id. A county
officer, prior to statehood, was authorized to sue in the name of the terri-
tory to enjoin the county clerk from issuing warrants for the misapplication
of county funds. Id.
68 Gay v. Hicks, 124 P. 1077, 33 Okl. 675; Same v. Wallace, 124 P. 1082,
33 Okl. 687.
69 Jeffries-Ba Som v. Nation, 65 P. 226, 63 Kan. 247.
In an action to perpetually enjoin a city and its officers and certain county
officers from levying or collecting any taxes to pay interest on certain city
bonds, and to have the bonds declared null and void, the bondholders are nec-
essary parties, and the action cannot be maintained without making them
parties. City of Anthony v. State, 30 P. 488, 49 Kan. 246.
The board of railroad commissioners, under Laws 1887, c. 184, granted a
railroad company the right to cross the roads of two other companies, and
fixed the manner of crossing, and the compensation to be paid by the cross-
ing company. From this order no appeal was taken. Four months later, and
before the crossing was made, the companies over whose roads the crossing
was allowed applied to the board of railroad commissioners for a rehearing,
and to se-t aside the order allowing the crossing. Held, on application by the
crossing company for an injunction to restrain the board from granting such
rehearing, that the railroad companies which applied for the rehearing were
necessary parties. Union Terminal R. Co. v. Board of Railroad Com'rs., 35
P. 224, 52 Kan. 680.
70 Walker v. Cambern, 47 P. 980, 5 Kan. App. 545.
(279)
§ 417 PARTIES (Ch. 8
§ 417. Assignee and assignor
"In the case of an assignment of a thing in action, the action of
the assignee shall be without prejudice to any set-off or other de-
fense now allowed; but this section shall not apply to negotiable
bonds, promissory notes or bills of exchange, transferred in good
faith and upon good consideration, before due." 71
One to whom a contract right has been transferred may maintain
an action thereon, though he has no beneficial interest therein.72
The assignee of an account may maintain action thereon, although
the assignor is the party beneficially interested,73 and it is immaterial
to the debtor whether the account was given or sold to the assignee.74
Where a written contract of sale of land was assigned as col-
lateral security for faithful performance of a building contract by
the assignor, the assignee could sue the original vendor for breach
of the contract of sale, without making the assignor a party.76
One to whom a claim for injuries to freight is assigned is entitled
to maintain an action thereon ; the assignor not being a necessary
party.76
Where the assignee of a final foreign judgment which definitely
fixed the liability of defendants under an indemnity bond released
the judgment in consideration of the judgment debtors assigning
the bond to him, the assignee, being absolute owner of the bond,
could sue thereon.77
The assignee of the payee of a note is entitled to sue thereon,
though the payee was designated as guardian in the face of the note.78
Where a* note in aid of railroad construction was delivered to a
construction company and the railroad was duly completed and
the receiver of the construction company assigned the note to the
receiver of the railway company, and the assets of the railway were
sold to a third party, who delivered the note to the plaintiff rail-
road, plaintiff could maintain an action thereon.79
71 Rev. Laws 1910, § 4682.
72 Rullman v. Rullman, 106 P. 52, 81 Kan. 521.
78 Hull v. Massachusetts Bonding & Ins. Co., 120 P. 544, 86 Kan. 342.
74 Krapp v. Eldridge, 5 P. 372, 33 Kan. 106.
75 Marker v. Gillam, 54 Okl. 766, 154 P. 351.
76 Chicago, R. I. & P. Ry. Co. v. Bankers' Nat. Bank, 122 P. 499, 32 Okl. 290.
77 McFarlan v Adair, 46 Okl. 46, 148 P. 138.
7 s Bank of Welch v. Cabell, 52 Okl. 190, 152 P. 844.
79 Purcell Mill & Elevator Co. v. Canadian Valley Const. Co., 58 Okl. 629,
160 P. 485.
(280)
Art. 2) PLAINTIFF §§ 417-419
A claim for money found to be due by the verdict of the jury
in an action for the conversion of personalty may be assigned to
a third person, so as 'to give the assignee the right to recover the
same.80
§ 418. Persons not personally interested
"An executor, administrator, guardian, trustee of an express
trust, a person with whom, or in whose name, a contract is made
for the benefit of another, or a person expressly authorized by stat-
ute, may bring an action without joining with him the person for
whose benefit it is prosecuted. Officers may sue and be sued in such
name as is authorized by law, and official bonds may be sued upon
in the same way." 81
A trustee of personal property for sale and to apply proceeds to
payment of debts can maintain an action for the conversion of the
property.82
An action on a note is properly brought by the party holding the
legal title to same, though there are other parties beneficially in-
terested in the note.83
Where, in an action on a note by an assignee against the maker,
a third party intervenes, charging fraud of creditors and seeking
to recover money alleged to be theirs, such creditors are necessary
parties to the proceedings.84
• An action may be maintained on a contract for the benefit of a
third party by the person in whose name the contract was made.85
The assignee of a judgment, in whom is vested the legal title,
and who is authorized to receive the amount of it, may sue on the
supersedeas bond given upon an appeal from such judgment, with-
out joining those to whom, by collateral agreement between him
and his assignor, the proceeds of the judgment are to be paid.86
§ 419. Guardian
The guardian of an insane woman cannot bring an action
against her husband for divorce or for alimony.87
80 Noble v. Hunter, 43 P. 994, 2 Kan. App. 538.
81 Rev. Laws 1910, § 4683.
82 First Nat. Bank v. Hinkle (Okl.) 162 P. 1092.
88 Chaffee v. Shartel, 46 Okl. 199, 148 P. 686.
8* Goodrich v. Williamson, 63 P. 974, 10 Okl. 588, 617.
85 Shellberg v. McMahon, 157 P. 268, 98 Kan. 46.
86 Walburn v. Chenault, 23 P. 657, 43 Kan. 352.
87 Birdzell v. Birdzell, 6 P. 561, 33 Kan. 433, 52 Am. Rep. 539, rehearing de-
nied 11 P. 907, 35 Kan. 638.
(281)
§§ 419-421 PARTIES (Ch. 8
The duly appointed acting guardian of minors may in her own
name maintain an action for property of her wards without joining
them as parties.88
§ 420. Infants— Wards
"The action of an infant must be brought by his guardian or, next
friend. When the action is brought by his next friend, the court
has power to dismiss it, if it is not for the benefit of the infant, or
substitute the guardian of thp infant, or any person as the next
friend." 89
Where the guardian of an infant is removed for failure to account,
and no successor is appointed, an action on the bond for the bene-
fit of the infant may be brought by the next friend.90
A minor may sue by his legal guardian on the official bond of a
former guardian, though the bond executed prior to statehood was
made payable to the United States.91
Where guardian dies without settlement in the county court,
the former wards may maintain an action in the superior or district
court against his personal representatives and sureties on his bond
as guardian for such accounting and settlement.92
§ 421. Tenants in common
One tenant in common may sue to recover realty from a third
person; but his recovery is limited to such interest as he proves
title in himself superior to that of defendants.93
88 Kerr v. McKinney (Okl.) 170 P. 685.
8 9 Rev. Laws 1910, § 4686.
90 First State Bank of Vinita v. Fay, 60 Okl. 132, 159 P. 505; Hill v. Reed,
103 P. 855, 23 Okl. 616.
A minor may by his legal guardian sue on a former guardian's official bond.
Lyons v. Fulsom, 54 Okl. 84, 153 P. 868.
Where guardian dies without accounting and settlement, his former wards
may maintain action against his personal representatives and sureties on his
bond for such accounting and settlement. Donnell v. Dansby, 58 Okl. 165, 159
P. 317. Where father who had been appointed guardian made no charge for
expenditures in behalf of minors, and obtained no authority from county
court therefor, no credits can be allowed after his death in action against
sureties on his bond. Id.
91 Title Guaranty & Surety Co. v. Slinker, 128 P. 696, 35 Okl. 128; Id., 128
P. 698, 35 Okl. 153.
92 Title Guaranty & Surety Co. of Scranton, Pa., v. Burton (Okl.) 170 P.
1170 ; Asher v. Stull, 61 Okl. 320, 161 P. 808.
&s Moppin v. Norton, 137 P. 1182, 40 Okl. 284, Ann. Cas. 1915D, 1042.
(282)
Art. 2) PLAINTIFF §§ 421-423
A joint tenant of land, can maintain ejectment against his co-
tenant, who has ousted him or denied his interest in such land.94
§ 422. Government and governmental agencies
The United States may sue to cancel a patent for fraud, where the
government is the only part interested, where the land is not sub-
ject to patent, but is erroneously patented, and where the land,
though subject to patent, is patented to the wrong person, either
through fraud, mistake, or inadvertence.95
The United States, as plaintiff, has no superior rights, but is
controlled by the same principles of law and rules of practice as
a citizen.96
The right of county to sue and be sued is purely statutory, and
the mode prescribed by statute for prosecuting actions must be
strictly followed.97
Where the public are interested, and it is necessary to bring the
action in the name of the state, such action can only be brought
at the instance of the public officer authorized by statute.98
An action cannot be commenced against a delinquent officer, ex-
cept on order of the county commissioners, and the county attor-
ney cannot appeal from a judgment against the county in such case
without the consent and against the wishes of the commissioners.98
§ 423. Action for death
The statutes giving an action for wrongful death, contemplate
but one action, and the same death cannot be sued for in separate
actions by the various individuals sustaining damages thereby.1
If death results from personal injuries, an action cannot be main-
94 Jameson v. Goodwin (Okl.) 170 P. 241.
95 Lynch v. United States, 73 P. 1095, 13 Okl. 142.
96 Lynch v. United States, 73 P. 1095, 13 Okl. 142.
07 Smith v. State, 13 Okl. Cr. R. 619, 166 P. 463; Muskogee County v. Lan-
ning & McRoberts, 51 Okl. 343, 151 P. 1054 ; Showers v. Caddo County, 77 P.
189, 14 Okl. 157.
98 Territory v. De Wolfe, 74 P. 98, 13 Okl. 454, writ of error dismissed 25
S. Ct. 794, 196 U. S. 643, 49 L. Ed- 632. The bare allegation in a petition that
territorial officers have refused to bring the action is not sufficient to au-
thorize the use of the name of the territory by a private individual. Id.
99 Kingfisher County v. Graham, 139 P. 1149, 40 Okl. 571 ; Same v. Down-
ing, 139 P. 1153, 40 Okl. 580; Same v. Miles, 139 P. 1153, 40 Okl. 581; Same
v. Woodwor'th, 139 P. 1153, 40 Okl. 581 ; Same v. Bowman, 139 P. 1153, 40
Okl. 582 ; Same v. Lindsey, 140 P. 434, 40 Okl. 607.
1 Cowan v. Atchison, T. & S. F. Ry. Co-, 168 P. 1015, L. R. A. 1918B, 1141.
(283)
§ 423 PARTIES (Ch. 8
tained by the personal representative of the deceased for the ben-
efit of the estate, but may be brought for the benefit of the next
of kin.2
An action for wrongful death can be brought only by the par-
ties designated in the statute.8 The statute contemplates but one
action, and the same death cannot be sued for in separate actions
by the various individuals sustaining damage thereby.4
The words "next of kin" as used in the statute relating to wrong-
ful death mean those who inherit from the deceased under the
statutes of descent and distribution.5
2 Martin v. Missouri Pac. Ry. Co., 49 P. 605, 58 Kan. 475.
3 Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454.
4 Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454.
5 Bolinger v. Beacham, 106 P. 1094, 81 Kan. 746 ; Shawnee Gas & Electric
Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454; Atchison, T. & S. F. Ry. Co.
v. Ryan,. 64 P. 603, 62 Kan. 682.
Where estate of deceased adult, leaving &. father and sister surviving, was
not administered on, father is "next of kin," within Rev. Laws 1910, § 8418,
and may maintain an action for his wrongful death, where deceased contrib-
uted to his support. Whitehead Coal Mining Co. v. Pinkston (Okl.) 175 P.
364.
Where a person for whose death action is brought left neither widow nor
children nor father surviving him, but left a mother and brothers and sis-
ters, the mother, brothers and sisters are "next of kin" within the meaning
of the statute making the "next of kin" necessary parties to the action.
Motsenbocker v. Shawnee Gas & Electric Co., 49 Okl. 304, 152 P. 82, L. R. A.
1916B, 910.
Where a minor leaves no issue, or wife, but leaves both father and mother,
they are his only heirs and next of kin, who sue for his death under Rev.
Laws 1910, §§ 5281, 5282. Cowan v. Atchison, T. & S. F. Ry. Co., 168 P. 1015,
L. R. A. 1918B, 1141.
The surviving husband is, within Civ. Code, § 422, next of kin to his wife
and entitled to recover damages for her wrongful death. Atchison, T. & S.
F. Ry. Co. v. Townsend, 81 P. 205, 71 Kan. 524, 6 Ann. Gas. 191.
Under Code Civ. Proc. § 422, nonresident alien parents, next of kin of a
minor son whose death was wrongfully caused by the negligence of another,
may maintain an action to recover for his death. Atchison, T. & S- F. Ry.
Co. v. Fajardo, 86 P. 301, 74 Kan. 314, 6 L. R. A. (N. S.) 681.
Where a deceased child leaves no issue, 'husband, or wife, but leaves father
and mother, brothers and sisters of deceased should not be joined with the
father and mother in an action for wrongful death. Kali Inla Coal Co. v.
Ghinelli, 55 Okl. 289, 155 P. 606.
Where no personal representative is appointed, and the deceased left no
widow, all the next of kin must join in the action. Shawnee Gas & Electric
Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454. Where the person for whose
death suit is brought left neither widow nor children nor father surviving
him, but left a mother and brothers and sisters, the brothers and sisters are
Art. 2) PLAINTIFF § 423
No recovery can be had by a parent for the death of a child ex-
cept in virtue of the statute.6
A parent, to recover as next of kin for wrongful death of a minor
child, a resident of the state, must prove that no personal represen-
tative has been appointed.7
An action for the wrongful death of a spouse may be maintained
by the surviving spouse for the benefit of herself or himself and
minor children, where there has been no administration of dece-
dent's estate.8
The right of recovery extends to all children of deceased, re-
gardless of their ages ; but the recovery must be based on the rea-
sonable expectancy of pecuniary benefit of which they were de-
"next of kin" within the meaning of the statute, and must be joined in the
action, though the mother alone has sustained any loss. Id.
• Siegrist v. Atchison, T. & S. F. Ry. Co., 137 P. 975, 91 Kan. 260.
7 Atchison, T. & S. F. Ry. Co. v. Judah, 62 P. 711, 10 Kan. App. 577.
8 Big Jack Mining Co. v. Parkinson, 137 P. 678, 41 Okl. 125.
Where no personal representative has been appointed, an action for wrong-
ful death may be maintained by the widow. Mott v. Long, 132 P. 998, 90
Kan. 110.
Nonappointment of a personal representative of decedent is a condition
precedent to the right of the widow to bring an action for wrongful death.
Chicago R. I. & P. Ry. Co. v. Brooks, 57 Okl. 163, 156 P. 362.
An action on a cause arising in state for death of plaintiff's husband resi-
dent in the state, from defendant's wrongful act or negligence of another,
where no personal representative had been appointed, was properly brought
by widow in her own name- Blunt v. Chicago, R. I. & P. R. Co. (Okl.) 173
P. 656.
Under Comp. Laws 1909, §§ 5945, 5946, held that, where the petition in an
action for death, failed to state that plaintiff's husband at the time of his
death was a nonresident or was a resident, and that no personal representa-
tive had been appointed, it was demurrable. Frederick Cotton Oil & Mfg.
Co. v. Clay, 50 Okl. 123, 150 P. 451.
A special administrator, appointed in another state where the deceased
left property, held not entitled to sue to recover for the next of kin damages
for the death of deceased whose residence and death were in the state. Me-
trakos v. Kansas City, M. & O. Ry. Co., 137 P. 953, 91 Kan. 342. An admin-
istrator appointed in another state may sue to recover for the death in Kan-
sas of a resident of such other state. Id. An administrator appointed in
another state cannot proceed under Code Civ. Proc. § 419 (Gen. St. 1909, §
6014), authorizing recovery for wrongful death where the law of his state
prohibits him from maintaining an action there. Id. The widow of a non-
resident whose death occurred in Kansas may recover as such widow under
Code Civ. Proc. S 419 (Gen. St. 1909, § 6014), authorizing recovery for wrong-
ful death, though not entitled to recover as administratrix. Id. Alien par-
ents may recover under Code Civ. Proc. § 419 (Gen. St. 1909, § 6014), au-
thorizing recovery for wrongful death, for the death in Kansas of a minor
son. Id.
(2S5)
§§ 423-424 PARTIES (Ch. 8
prived by their father's death.9 A child born after its father's
death is a beneficiary, and entitled to damages for wrongfully caus-
• ing the death of the father.10
An ancillary administrator in a foreign state may sue there for
the death in this state of his intestate, who resided in a third state,
where a domiciliary administrator had been appointed, but could
not sue under the state laws.11
Heirs of an Italian citizen were not prohibited by the treaty with
Italy from suing for his wrongful death in the United States.12
The widow of a deceased railway employe cannot bring in her
own name the action for damages, given by Act Cong. April 22,
1908 (U. S. Comp. St. § 8657), conferring the right of action on
the "personal representative, for the benefit of the surviving wid-
ow or husband and children of such employe." 13
Since the right of action for death is based entirely on statute,
the action can be brought only in the name of the person to whom
the right is given by statute.14
ARTICLE III
DEFENDANT
Sections
424. Necessary and proper parties defendant.
425. Receiver.
426. Liens.
427. Joinder.
428. Defendants severally liable.
429. Infants.
430. Guardian ad litem.
431. Husband and wife.
432. State as defendant.
433. Change of parties and new parties.
434. Substitution— Plaintiff.
435. Disclaimer.
436. Substitution of judgment creditor.
§ 424. Necessary and proper parties defendant
In ejectment involving only the right of possession, the person
in actual occupancy is always a necessary party defendant.15
9 Pressley v. Incorporated Town of Sallisaw, 54 Okl. 747, 154 P. 660.
10 Herndon v. St. Louis & S. F. R. Co.. 128 P. 727, 37 Okl. 256.
11 Robinson v. Chicago, R. I. & P. Ry. Co., 150 P. 636, 96 Kan. 137.
12 Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606.
13 Missouri, K. & T. Ry. Co. v. Leuahan, 39 Okl. 283', 135 P. 383.
14 Id. 1B Mullen v. Carter (Okl.) 173 P. 512.
(286)
An. 3) DEFENDANT ' § 424
Persons not in possession, when claiming possessory rights, are
proper, but not necessary parties defendant.16
Where defendant sets up a deed to a third person before plain-
tiff obtained title as a defense, the fact that plaintiff introduces evi-
dence that the deed was made to defraud does not render such third
person a necessary party.17
In an action brought for the specific performance of a written
contract to convey real estate, one to whom the vendor sold and
conveyed the legal title, before the commencement of the action, is
a necessary party.18
One having a written contract for the purchase of real estate
with a person having a similar contract from the owner may bring
an action for specific performance against both parties.19
Specific performance may be compelled by the purchaser in a
recorded contract for the sale of land against one purchasing of
his vendor after the contract was recorded, without making the
vendor a party.20
In an action for divorce on the ground of cruelty, where it is
alleged that property has been fraudulently conveyed to a third
person to defeat the collection of any alimony, and defendant and
the party to whom the conveyance was made are both served, the
grantee is not a proper party to a divorce proceeding, and it is not
error to refuse to permit him to be heard on the question of di-
vorce, but his defense extends only to the question of alimony
and the validity of the conveyance.21
Where an Indian allottee, after mortgaging his allotment, con-
veyed same by warranty deed, he was not a necessary party to
proceedings to foreclose the mortgage, when no personal judgment
was prayed against him.22
In a suit to cancel a patent, every person having an interest in
the land included in the patent is an indispensable party.28
16 Mullen v. Carter (Okl.) 173 P. 512.
17 Rauer v. Thomas, 55 P. 285, 60 Kan. 71.
18Atchison, T. & S. F. R. Co. v. Benton, 22 P. 698, 42 Kan. 698.
18 Welch v. Mclntosh, 130 P. 641, 89 Kan. 47.
20 Topeka Water Supply Co. v. Root, 42 P. 715, 56 Kan. 187.
21 Bennett v. Bennett, 81 P. 632, 15 Okl. 286, 70 L. R. A. 864.
22 Freeman v. First Nat. Bank of Boynton, 44 Okl. 146, 143 P. 1165, Ann.
Cas. 1918A, 259.
23 Lynch v. United States, 73 P. 1095, 13 Okl. 142.
(287)
§§ 424-426 PARTIES (Ch. 8
In action to rescind a contract for the purchase of land and to
recover advanced payment for failure of defendant to convey title,
the only necessary defendant is the party against whom decree will
operate.24
In an action to enjoin collection of special assessments, officers
charged with their collection are the proper parties defendants, and
holders of certificates or bonds for payment of which assessments
are levied are not necessary parties.25
In a will contest, the refusal of the court to issue a citation for
service on legatees and devisees residing without the state did not
deprive the court of jurisdiction to proceed with the trial as to
contestant and such defendants as had been served with citation.26
The board of county commissioners is not a necessary party to
an action against the county treasurer or sheriff, or both, to en-
join the collection of an illegal tax or assessment.27
§ 425. Receiver
Where a receiver has been appointed for a lessee who has pre-
viously entered into a contract with the lessor, the receiver is not
a necessary or proper party to an action by the lessor against the
lessee for a violation of the contract.28
Where a receiver is appointed in the federal court for an inter-
state railroad, he may be made party defendant to an action in the
state court to demolish a bridge belonging to such road and is
bound by the judgment of the state court.28
§ 426. Liens
The original contractor is a necessary defendant to an action by
a subcontractor to enforce a materialman's lien ; but, if the return
shows that service cannot be had on the original contractor, the
subcontractor's lien may be enforced without obtaining a personal
judgment against the original contractor.30
24 Groves v. Stouder, 58 Okl. 744, 161 P. 239.
25 City of Muskogee v. Nicholson (Okl.) 171 P. 1102.
28 In re Land's Estate, 137 P. 246, 166 Gal. 538.
27 Rogers v. Bass & Harbour Co., 47 Okl. 786, 150 P. 706.
28 St. Louis & S. F. R. Co. v. Ravia Granite Ballast Co. (Okl.) 174 P. 252.
29Kaw Valley Drainage Dist. of Wyandotte County v. Missouri Pac. Ry.
Co., 161 P. 937, 99 Kan. 188.
30 New Home Lumber Co. v. Ryal, 56 Okl. 746, 156 P. 637.
The original contractor is an indispensable party to an action by a sub-
(288)
Art. 3) DEFENDANT § 426
Where a contractor for the erection of a building lets a subcon-
tract for a portion thereof, and the subcontractor permits liens to
be filed against the building, the contractor is not required to de-
fend against the respective amounts of such liens, but it is the duty
of the subcontractor and those claiming liens under him to defend
against the allowance by the court of excessive or unjust claims.31
A contractor for the erection of a building who lets a subcontract
for a portion thereof may refuse to pay to any lien claimant under
the subcontractor the amount of his lien until after he establishes
the correctness thereof in court, and before an adjudication as to
its correctness the contractor pays the same at his peril.32
Where a mortgagee fails to make the mechanic's lien holder par-
ty to foreclosure proceeding, a subcontractor, who has intervened
within one year from the time he filed his lien statement, may
make the contractors parties, after the expiration of one year, for
the purpose of asserting^jind foreclosing his lien against the mort-
gagee and other incumbrancers.33
In the absence of exceptional facts alleged in the petition, the
only proper parties defendant in foreclosure are the mortgagor and
persons claiming an inferior interest.3*
Where on foreclosure a grantee of the mortgagor appears and
alleges an interest in the property, and a sale of one-half of such
interest to a grantee named, such persons and their grantees are
proper and necessary parties to the full determination of the ac-
tion.35
A grantee in possession of the mortgaged premises is a necessary
party on foreclosure, where the petition alleges that the mortga-
gors have conveyed to such grantee.86
A junior incumbrancer is not a necessary party to a suit by a
contractor or materialman to foreclose a lien against the owner's property.
Eberle v. Drennan, 136 P. 162, 40 Okl. 59, 51 L. R. A. (N. S.) 68.
In a suit on account by a subcontractor for materials furnished, the con-
tractor, with all the lienholders, are indispensable parties. Union Bond &
Investment Co. v. Bernstein, 139 P. 974, 40 Okl. 527.
31 Vandenberg v. P. T. Walton Lumber Co., 92 P. 149, 19 Okl. 169.
32 Id.
33 Blanshard v. Schwartz, 54 P. 303, 7 Okl. 23.
34 De Watteville v. Sims, 44 Okl. 708, 146 P. 224.
35 Gillett v. Romig, 87 P. 325, 17 Okl. 324.
36 Page v. Turk, 143 P. 104* 43 Okl. 667.
HON.PL.& PBAC.— 19 (289)
§§ 426-427 PARTIES (Ch. 8
senior mortgagee to foreclose in such a sense that his presence on
the record is necessary to a valid decree.37
In a suit to foreclose a mortgage, the heir of an intestate is not
a necessary party, and is precluded by a decree of sale against
the administrator.38
Where no administrator of the estate of a deceased mortgagor
was appointed, and a suit to foreclose was brought against all the
heirs, and no judgment was rendered against the estate of the
mortgagor, the decree of foreclosure was valid.39
§ 427. Joinder
"Any person may be made a defendant who has or claims an
interest in the controversy adverse to the plaintiff, or who is a
necessary party to a complete determination or settlement of the
question involved therein." 40
In actions of equitable cognizance, the general rule is that all par-
ties materially interested, either legally or beneficially, in subject-
matter of suit must be made parties either as plaintiffs or defend-
ants, so that a complete decree may be made binding upon all par-
ties.41
In a petition to enjoin a foreclosure sale under a mortgage on the
ground of the mortgagee's breach of a contract to make releases to
purchasers from the mortgagor, joinder of the sheriff ordered to
make the sale and of purchaser from the mortgagor was not a misjoin-
der of parties.42
In an action by the administrator of a deceased trustee to recover
the trust fund, which was wrongfully mingled by the trustee with
his own property, it is not necessary to make all persons who may
be interested in the estate parties.43
In an action by the equitable owner of real estate to recover the
legal title and for an accounting against a mortgage company,
37 McCredie v. Dubuque Fire & Marine Ins. Co., 63 Okl. 184, 163 P. 535.
88 McClung v. Cullison, 82 P. 499, 15 Okl. 402.
39 Brocker v. Stallard, 126 P. 781, 34 Okl. 612.
40 Rev. Laws 1910, § 4691 ; Haynes v. City Nat. Bank of Lawton, 121 P.
182, 30 Okl. 614; Edmondston v. Porter (Okl.) 162 P. 692.
41 Southwestern Bell Telephone Co. v. State, 75 Okl. 42, 181 P. 487.
42 Nelson v. Hoskinson, 172 P. 993, 103 Kan. 46.
43 Hubbard v. Alamo Irr. & Mfg. Co., 36 P. 1053, 37 P. 625, 53 Kan. 637.
(290)
Art. 3) DEFENDANT §§ 427~428
which has procured of the mortgagors the legal title for plaintiff,
such mortgagors are not necessary parties.44
When all the parties who enter into a promise receive some ben-
efit from the consideration, whether past or present, the promise is
presumed to be joint and several, and one or more may be sued
thereon with or without uniting all in the same suit.45
Though one of three defendants against whom a joint action is
brought for damages is indemnified by one of the other defendants
against any loss, such defendant is not a nominal, but is a substan-
tial, party to the action.40
Where the loss exceeds the insurance and the insurer has paid
the assured, who refuses to sue the wrongdoer, the insurer may sue
the wrongdoer in its own name, joining assured as defendant under
proper allegations.47
A constable a^nd the sureties on his official bond, which is joint
and several, may be joined as defendants in an action for a breach
of the condition of the bond.48
§ 428. Defendants severally liable
"Persons severally liable upon the same obligation or instrument,
including the parties to bills of exchange and promissory notes, and
indorsers and guarantors, may all or any of them be included in the
same action, at the option of the plaintiff." 49
Where a guardian, besides the bond given when he was appoint-
ed, gave two other bonds as additional security, all the sureties on
i
44 Ross v. "Koble, 51 P. 792, 6 Kan. App. 361.
45 Schowalter v. Beard, 63 P. 687, 10 Okl. 454.
46 Choctaw, O. & G. R. Co. v. Hamilton, 95 P. 972, 21 Okl. 126.
47 Grain Dealers' Mut. Fire Ins. Co. v. Missouri, K. & T. Ry. Co., 157 P.
1187, 98 Kan. 344.
*8 Schilling v. Black, 31 P. 143, 49 Kan. 552.
49 Rev. Laws 1910, § 4694.
The holder of a note may, at his option, sue one only of several indorsers.
Home v. Oklahoma State Bank of Atoka, 139 P. 992, 42 Okl. 37.
The payee of a note may, at his option, sue one surety without joining the
maker and other sureties. Miller v. State, 52 Okl. 76, 152 P. 409; Baker v.
Gaines Bros. Co. (Okl.) 166 P. 159; Francis v. First Nat. Bank, 138 P. 140,
40 Okl. 267 ; Palmer v. Noe, 48 Okl. 450, 150 P. 462 ; Thompson v. Grider Im-
plement Co., 128 P. 266, 36 Okl. 165.
Under Rev- Laws 1910, §§ 969, 4694, action may be maintained against surety
for hire on a bond given pursuant to section 3881, without joining principal.
Fidelity & Deposit Co. of Maryland v. N. S. Sherman Machine & Iron Works,
62 Okl. 29, 161 P. 793.
(291)
§§ 428-431 PARTIES (Ch. 8
the several bonds can be joined in one suit to recover the amount
due from the guardian.50
Where a guardian attaches to his final account a certificate of a
purported time deposit in a bank, which deposit was falsely issued,
and the ward sued the surety on the guardian's bond, the bank was
not entitled to be made a party.61
§ 429. Infants
"The defense of an infant must be by a guardian for the suit, who
may be appointed by the court in which the action is prosecuted, or
by a judge thereof, or by a county judge. The appointment cannot
be made until after the service of the summons in the action, as di-
rected in this Code." 52
§ 430. Guardian ad litem
"The appointment may be made upon the application of the in-
fant, if he be of the age of fourteen years, and apply within twenty
days after the return of the summons. If he be under the age of
fourteen, or neglect so to apply, the appointment may be made up-
on the application of any friend of the infant, or that of the plaintiff
in the action." 53
A court has no jurisdiction to appoint a guardian ad litem for an
infant defendant until after service of summons in the manner re-
quired by statute.54
On the failure of the guardian ad litem to properly discharge his
duty, it is the duty of the court to protect the infant's rights.55
§ 431. Husband and wife
"If a husband and wife be sued together, the wife may defend for
her own right; and if her husband neglect to defend, she may de-
fend for his right also." 56
60 Abraham v. Harry (Okl.) 165 P. 1154.
61 Southern Surety Co. v. Jefferson (Okl.) 174 P. 563.
52 Rev. Laws 1910, § 4688.
53 Rev. Laws 1910, § 4689.
54 Boiling v. Campbell, 128 P. 1091, 36 Okl. 671; Same v. Gibson, 128 P.
1093, 36 Okl. 678.
s s Boiling v. Campbell, 128 P. 1091, 36 Okl. 671; Same v. Gibson, 128 P.
1093, 36 Okl. 678; In re Sanders' Estate (Okl.) 168 P. 197.
so Rev. Laws 1910, § 4685.
(292)
Art. 3) DEFENDANT § 432
§ 432. State as defendant
Suits against officers of a state as representing it, in which the
state is the real party in interest, and in which a judgment for plain-
tiff, though nominally against defendants as individuals, will con-
trol the action of the state, are suits against the state.57
Mandamus brought to require the allowance of a disputed claim
growing out of a private contract between the state and parties
owning property occupied by state officials is an action brought
against the state.58
A state cannot be sued except by its consent granted by express
legislative enactment.59
The immunity of the Oklahoma State Banking Board from lia-
bility to suit to control the administration of the depositors' guaran-
ty fund cannot be waived by the unauthorized participation by the
board in an agreed statement of facts.60
A suit to mandamus the state banking board is a suit against the
state.61
A suit in mandamus to compel the bank commissioner and the
banking board to pay a claim out of the depositors' guaranty fund,
being in effect a suit against the state, cannot be maintained with-
out the state's consent.62
The Agricultural and Mechanical College, being a public or quasi
corporation created and existing by virtue of the laws of Oklahoma,
cannot be sued, since the statutes give no such authority.63 .
67 Love v. Filtsch, 124 P. 30, 33 Okl. 131, 44 L. R. A. (N. S.) 212.
58 Id.
59 National Surety Co. v. State Banking Board, 49 Okl. 184, 152 P. 389.
60 Id.
I61 State Banking Board v. Oklahoma Bankers' Trust Co., 49 Okl. 72, 151 P.
566.
A suit to mandamus the state banking board is a suit against the state, so
that, without the state's consent, a judgment making the writ peremptory
was error. State Banking Board v. Oklahoma Bankers' Trust Co., 63 Okl. 260,
164 P. 660.
62 Lovett v. Lankford, 47 Okl. 12, 145 P. 767.
The state banking board and the state banking commissioner constitute a
part of the state government and cannot be sued without the state's consent.
Lankford v. Schroeder, 47> Okl. 279, 147 P. 1049, L. R. A. 1915F, 623. A suit
to compel the state bank examiner to pay a debt out of the state guaranty
fund or the bank's assets held not maintainable without the state's con-
sent. Id.
63 Oklahoma Agricultural & Mechanical College v. Willis, 52 P. 921, 6 Okl.
593, 40 L. R. A. 677.
(293)
§ 433 PARTIES (Ch. 8
§ 433. Change of parties and new parties
"The court may determine any controversy between parties be-
fore it, when it can be done without prejudice to the rights of oth-
ers, or by saving their rights ; but when a determination of the con-
troversy cannot be had without the presence of other parties, the
court must order them to be brought in." 64
Where a determination cannot be had without presence of others
not parties, and who are interested in the subject-matter, the court
may of its own motion order them brought in.65
In a legal action in which plaintiff seeks only a money judgment,
he cannot be compelled to bring in and admit other parties than
those whom he has chosen as defendants.66
Where insured sues in her own name on a policy to which a mort-
gage clause is attached, the court should by proper order protect
the mortgagee's rights.67
Plaintiff may amend his petition at any time before answer is
filed by joining as coplaintiff, a party having an interest in subject-
matter of action whether acquired before or after filing of original
petition.68
W^here the grantee of land, which, at the time of the conveyance,
was in another's adverse possession, sued in his own name to re-
cover same, it was not error to permit him to amend his petition so
as to join his grantor as plaintiff.69
Where judgment for defendant must be affirmed, a transfer of
defendant's property subsequent to such judgment could not af-
fect rights of plaintiff, and hence application for leave to make de-
fendant's transferees additional parties defendant will be denied.70
«* Rev. Laws 1910, § 4696.
The statute authorizes courts to determine any controversy when it can
be done without prejudice, and to order new parties to be brought in. Haynes
v. City Nat. Bank of Lawton, 12i P. 182, 30 Okl. 614.
65 Simpson v. Hillis, 30 Okl. 561, 120 P. 572, Ann. Gas. 1913C, 227.
ee Modern Woodmen of America v. Terry (Okl.) 171 P. 720.
Where, in an action on a note, in which plaintiff seeks nothing but a mon-
ey judgment, he cannot be compelled to bring in and to admit other parties
than those whom he has chosen as defendants. Goodrich v. Williamson, 63
P. 974, 10 Okl. 588, 617.
«*7 Liverpool & London & Globe Ins. Co. v. Cargill, 44 Okl. 735, 145 P. 1134.
«s Willis v. Cochran (Okl.) 168 P. 658.
09 Gannon v. Johnston, 140 P. 430, 40 Okl. 695, Ann. Cas. 1915D, 522.
70 Shaw v. Life & Annuity Ass'n, 165 P. 818, 101 Kan. 235.
(294)
Art. 3) DEFENDANT § 433
Where a third person is made defendant by order of court, after
the issues are joined, and such third party claims title to the prop-
erty sought to be foreclosed, it is not error to overrule a demurrer
to the petition filed by the newly made defendant.71
Where the cause of action is not changed, and all parties submit
to the jurisdiction of the court, and no showing is made for a con-
tinuance, it is not error, upon a proper application, after the jury
has been impaneled, to make one of a number of co-defendants
plaintiff in the action.72
Where one of several defendants files a supplemental complaint,
showing that he has paid the note in suit, it is proper to order him
to be subrogated to the rights of the payee, and to be made a party
plaintiff.73
The amendment of a petition in an action for damages by the ad-
dition of the name of a party plaintiff does not substantially change
the claim or defense.7*
Where an action is regularly pending, and a necessary party to
the full determination of the case has been made a defendant, and
has been duly served, and enters an appearance, such defendant
may not have the action dismissed as to himself on the ground of
want of jurisdiction in the court granting the order making him a
party defendant.75
Since the statute requires one made a party defendant to an ac-
tion to be notified in the manner provided for notifying original de-
fendants, the court had no jurisdiction to enter a default judgment
against one who was made a party defendant to a pending action
by an order requiring him to be given but three days' notice to an-
swer.76
71 Simpson v. Hillis, 30 Okl. 561, 120 P. 572, Ann. Cas. 1913C, 227.
72 Keokuk Falls Imp. Co. v. Kingsland & Douglas Manuf'g Co., 47 P. 484,
5 Okl. 32.
7sid.
74 Hucklebridge v. Atchison, T. & S. F. Ry. Co., 71 P. 814, 66 Kan. 443.
75 Redlon v. Fish-Keck Co., 54 P. 285, 7 Kan. App. 473.
76 Moore v. Donahew, 41 P. 579, 3 Okl. 396.
(295)
§ 434 PARTIES (Ch. 8
§ 434. Substitution— Plaintiff
A trial court, in the furtherance of justice, may permit a new
party to be substituted in the place of plaintiff.77
Where the interests in the subject-matter of a pending suit are
transferred, the court may substitute such party for the original
party in the action.78
The real parties in interest may be substituted as plaintiffs in
an action previously brought in the name of the state upon an ex-
ecutors bond.70
Permitting a plaintiff to amend the petition, so as to charge de-
fendant as a copartnership instead of a corporation as originally
77 Harper v. Hendricks, 31 P. 734, 49 Kan. 718; Gross v. Lincoln (Okl.) 196
P. 960.
Where, in a suit to restrain execution of a judgment, on the ground that
the land levied on was a homestead, the title thereto being at the time in
the United States, but subsequently proven up, an amendment, striking out
the name of plaintiff and substituting that of his wife, was properly allow-
ed. Rader v. Gvozdanovic, 130 P. 159, 35 Okl. 421.
Under Code, § 40, providing that, where there has been a transfer of in-
terest, an action may be continued in the name of the original party, or the
person to whom the transfer is made may be substituted, one who acquired
the entire interest in a judgment recovered by a plaintiff who thereafter died
may, on a revival of such judgment, be substituted as plaintiff. United
States Bldg. Co. v. Walker, 54 P. 1043, 59 Kan. 779.
Code Civ. Proc. § 3917, provides that, in actions against a sheriff for the
recovery of property taken under an execution and replevied by the execu-
tion debtor, the court may, on application of the defendant and of the par-
ty in whose favor the execution issued, permit the latter to be substituted as
the defendant; security for costs being given. Held, that an application for
permission to be substituted was properly refused where it was unverified,
and no security for costs was given, and the property had not been replevied
by the execution debtor. Pierce v. Engelkenieier, 61 P. 1047, 10 Okl. 308.
Under Act Cong. July 1, 1898, § 70 (U. S. Comp. St. § 9654), relating to
vesting of bankrupt's property in his trustee, the latter is a proper party to
sue on contracts or for injury to the property of the bankrupt, but he cannot
be substituted as plaintiff in a pending suit for libel on the bankrupt, though
the injuries occasioned by such libel may have been the cause of the bank-
ruptcy. Epstein v. Handverker, 116 P. 789, 29 Okl. 337.
7 8 Anderson v. Ferguson, 71 P. 225, 12 Okl. 307; Purcell Mill & Elevator
Co. v. Canadian Valley Const. Co., 58 Okl. 629, 160 P. 485 ; Bradford v. Bren-
nan, 12 Okl. 333, 71 P. 655.
On a transfer of real estate pending a litigation in connection therewith,
the action may be continued in the name of the original party, or the court
may allow the person to whom the transfer is made to be substituted in his
place. Gillett v. Romig, 87 P. 325, 17 Okl. 324.
™ Hudson v. Barratt, 61 P. 737, 62 Kan. 137.
(296)
Art. 3) DEFENDANT §§ 434-435
alleged, being within the discretion of the trial court, is not ground
of reversal.80
Where, during an action by an infant, by next friend, he attains
his majority, he may continue the action in his own name.81
Where all the parties are before the court, it is not error, in an
action that should be prosecuted by the heirs of a decedent, to per-
mit them to be substituted to prosecute such action in lieu of the
administrator, who had no right to maintain it.82
It is no abuse of discretion to refuse to permit the owner of a
note to be substituted as plaintiff in an action thereon commenced
in the name of another, and so continued for years after the at-
torney for the owner knew thereof, no reason for the delay in the
application being shown.83
That an order was that a guardian be substituted for plaintiff
instead of that the guardian be permitted to prosecute for her ward,
was a mere formal irregularity not depriving the court of jurisdic-
tion to proceed in the cause.84
§ 435. Disclaimer
"Upon affidavit of a defendant, before answer, in any action up-
on contract, or for the recovery of personal property, that some
third party, without collusion with him, has or makes a claim to the
subject of the action, and that he is ready to pay or dispose of the
same, as the court may direct, the court may make an order for the
safe keeping, or for the payment, or deposit in court or delivery of
the subject of the action, to such persons as it may direct, and an
order requiring such third party to appear, in a reasonable time, and
maintain or relinquish his claim against the defendant. If such
third party, being served with a copy of the order, by the sheriff, or
such other person as the court may direct, fail to appear, the court
80 Farmers' & Merchants' Bank v. Bank of Glen Elder, 26 P. 680, 46 Kan.
376.
Where defendant has been sued by a title as a corporation, and put in an
answer alleging) a partnership, and giving the names of its members, it is
proper to allow an amendment substituting their names. Anglo-American
Packing & Provision Co. v. Turner Casing Co., 8 P. 403, 34 Kan. 340.
81 Webb v. Harris, 121 P. 1082, 32 Okl. 491, Ann., Cas. 1914A, 602; Johnson
v. Alexander (Okl.) 167 P. 989.
" Farrell v. Puthoff, 74 P. 96, 13 Okl. 159.
83 Switzer v. Eadie, 80 P. 961, 71 Kan. 859.
84 Jones v. Southwestern Interurban Ry. Co., 141 P. 999, 92 Kan. 809.
(297)
§§ 435-437 PARTIES (Ch. 8
may declare him barred of all claim in respect to the subject of the
action, against the defendant therein. If such third party appear,
he shall be allowed to make himself defendant in the action, in lieu
of the original defendant, who shall be discharged from all liability
to either of the other parties in respect to the subject of the action,
upon his compliance with the order of the court for the payment,
deposit or delivery thereof." 85
"The provisions of the last section shall be applicable to an ac-
tion brought against a sheriff or other officer, for the recovery of
personal property, taken by him under execution, or for the pro-
ceeds of such property so taken and sold by him ; and the defendant
in any such action shall be entitled to the benefit of those provi-
sions against the party in whose favor the execution issued, upon
exhibiting to the court the process under which he acted, with his
affidavit that the property, for the recovery of which, or its proceeds,
the action is brought, was taken under such process." 8a
§ 436. Substitution of judgment creditor
"In an action against a sheriff or other officer for the recovery of
property taken under an execution and replevied by the plaintiff in
such action, the court may, upon application of the defendant and of
the party in whose favor the execution issued, permit the latter to
be substituted as the defendant, security for the cost being given." 87
ARTICLE IV
IXTERVRNER
Sections
437. Interplea — Affidavit— Trial.
438. Pleading.
439. Cases outside statute.
§ 437. Interplea— Affidavit — Trial
"Any person claiming property, money, effects, or credits attach-
ed, may interplead in the cause, verifying the same by affidavit,
made by himself, agent or attorney, and issues may be made upon
such interpleader and shall be tried as like issues between plaintiff
and defendant, and without any unnecessary delay." 88
85 Rev. Laws 1910, § 4698. 87 Rev. Laws 1910, § 4700.
86 Rev. Laws 1910, § 4699. 88 Rev. Laws 1910, § 4701.
(298)
Art. 4) INTERVENER , §§ 437-438
Where a wife had recovered a judgment awarding her land as
alimony she could intervene in a proceeding wherein husband's
creditor had attached land.88
In an action for divorce for adultery, the correspondent has no
right to intervene to protect his reputation.90/
In an action to enforce a landlord's lien, a petition for intervention
was properly denied, where the intervener had no claim sustainable
against either plaintiff or defendant.91
In an action of strict interpleader, plaintiff must show conflicting
claims against him for the same thing, and that he has no interest
therein.92
Where plaintiffs, who had offered a reward for the apprehension
of a criminal, alleged that they were threatened with litigation by
different parties claiming the reward, that some one or more of de-
fendants were entitled to receive it, and asked that defendants be
required to litigate their claims to the fund which was paid into
court, an action in the nature of a bill of interpleader was proper.93-
§ 438. Pleading
An application for leave to intervene must show that the ap-
plicant has been diligent in seeking the aid of the court.8*
A petition in intervention is demurrable, where it fails to show
that the petitioner has or claims an interest adverse to plaintiff, or
that she is a necessary party to a determination of the issues.95
g9 Germania Nat. Bank v. Duncan, 62 Okl. 144, 161 P. 1077.
90 Howell v. Herriff, 124 P. 168, 87 Kan. 389, Ann. Gas. 1913E, 429.
91 Reynolds v. Ryan, 59 Okl. 120, 157 P. 933.
92 Guaranteed State Bank of Durant v. D'Yarmett (Okl.) 169 P. 639.
Under Code Civ. Proc. § 43, providing that on affidavit of a defendant, in
any action on contract, that some third party, without collusion with him,
makes a claim to the subject-matter, and that he is ready to dispose of the
same as the court may direct, the court may order the delivery of the sub-
ject of the action to such person as it may direct, and require such third
party to appear in a reasonable time and relinquish his1 claim against de-
fendant, where, in an action by the assignee of a note against the maker, a
third party intervenes, claiming that the note was executed in fraud of cred-
itors, and asking that the liability claimed in plaintiff's behalf be disallowed
and the proceeds of the note awarded interpleader, and defendant, by affi-
davit, admits liability to the extent of the indebtedness then due on the note,
the court may order him to pay the amount into court and discharge him.
from liability. Goodrich v. Williamson, 63 P. 974, 10 Okl. 588, 617.
93 Taft v. Hyatt, 105 Kan. 35, 180 P. 213.
94 Gibson v. Ferrell, 94 P. 783, 77 Kan. 454.
95 Stebbens v. Longhoffer, 44 Okl. 84, 143 P. 671.
(299)
§§ 438-440 PARTIES (Ch. 8
A plea of intervention in the nature of a creditor's bill should con-
tain all the necessary allegations within itself, and the interpleader
should not be allowed to refer to, and make a part of his plea of
intervention, portions of the original petition; but, where such
reference is made and trial had on such pleadings, if the Supreme
Court can determine that the judgment is right, it will not be dis-
turbed.96
In an action to foreclose by a mortgagee, a lienholder who is not
made a party in the first instance is entitled to intervene at any
time before final judgment, and, by answer in the nature of a cross-
petition, ask to have the same foreclosed.97
§ 439. Cases outside statute
The district court may, in cases not provided for by the Code, per-
mit one not a party to a suit to intervene either before or after judg-
ment for the protection of some right with reference to the subject-
matter of the litigation.98 However, in an action on a note brought
by an assignee against the maker, a third party, claiming that the
note was executed by the maker in fraud of creditors of whom inter-
pleader was one, and asking that the liability claimed in plaintiff's
behalf be disallowed and the proceeds of the note awarded inter-
pleader, cannot be permitted to intervene without plaintiff's consent,
since such proceeding is not one contemplated by statute.99
ARTICLE V
DEFECTS, OBJECTIONS, AND AMENDMENTS
Sections
440. Want of interest or capacity.
441. Nonjoinder.
442. Misjoinder.
443. Amendment.
§ 440. Want of interest or capacity
"The due incorporation of any company, claiming in good faith
to be a corporation under" the law authorizing the creation of cor-
se Blackwell v. Hatch, 73 P. 933, 13 Okl. 169.
97 Blanshard v. Schwartz, 54 P. 303, 7 Okl. 23.
98 Gibson v. Ferrell, 94 P. 783, 77 Kan. 454.
»9 Goodrich v. Williamson, 63 P. 974, 10 Okl. 588, 617.
(300)
Art. 5) DEFECTS, OBJECTIONS, AND AMENDMENTS § 440
porations, "and doing business as such, or its right to exercise cor-
porate powers, shall not be inquired into collaterally, in any pri-
vate suit to which such de facto corporation may be a party ; but
such inquiry may be had, and action brought, at the suit of the state,
in the manner prescribed in civil procedure." x
An objection that one has no legal capacity to sue goes to his
right to maintain a suit at all, as that he is an idiot, insane, or a min-
or, and does not include the objection that the action is not prose-
cuted in the name of the real party in interest.2
The want of authority in plaintiff to sue in his own name, in
behalf of himself and others, cannot be taken advantage of by de-
murrer, but must be raised by a motion.3
If plaintiff has no legal capacity to sue, the question goes to
the sufficiency of his pleading to state a cause of action, and is not
waived by failure to demur, answer, or plead a want of capacity.
Where the petition of a widow, in an action for1 wrongful death
of her husband against a railroad company, failed to show that the
injury occurred while decedent was engaged in interstate com-
merce, and such fact was first alleged in defendant's answer and
not denied in plaintiff's reply, an objection that plaintiff had no
capacity to sue under the federal Employers' Liability Act (U. S.
Comp. St. §§ 8657-8665) was properly urged for the first time by
a motion for judgment on the pleadings. Where plaintiff is a
natural person under no legal disability to maintain actions, a failure
to state a cause of action in her own favor goes to the sufficiency in
substance of the petition, and not to her legal capacity to sue.4
The objection that plaintiff has no legal capacity to sue is a
ground of demurrer, and when not so raised, is waived.5 "Want of
capacity to sue," within the rule that a plea to the merits waives
such want, refers only to some legal disability, such as infancy,
illiteracy, or coverture.6
In an action on a bond, the question of real party in interest did
not concern defendants, not shown to have any defense.7
1 Rev. Laws 1910, § 1212.
2 Boyce v. Augusta Camp No. 7,429, M. W. A., 78 P. 322, 14 Okl. 642 ; Lo-
gan v. Oklahoma Mill Co., 79 P. 103, 14 Okl. 402.
3 Martin v. Clay, 56 P. 715, 8 Okl. 46.
4 Missouri, K. & T. Ry. Co. v. Lenahan, 39 Okl. 283, 135 P. 383.
5 Binion v. Lyle, 114 P. 618, 28 Okl. 430.
6 Bailey v. Parry Mfg. Co., 59 Okl. 152, 158 P. 581.
7 Moore v. Leigh-Head & Co., 48 Okl. 228, 149 P. 1129.
(301)
§§ 440-441 PARTIES (Ch. 8
Whether a party in whose name an action is prosecuted is the
real party in interest may be raised by answer when such defect
does not appear on the face of the pleadings.8
The defendant not having taken any objections that plaintiff was
not the proper party, or had no capacity to sue, either by demurrer
or answer, is deemed to have waived the same.9
The rule that a partnership has not a sufficient legal entity to sue
in its own name, and must sue in the name of the individuals com-
posing it, is for the benefit of and may be waived by the party
sued.10
By pleading to the merits a defendant admits plaintiff's ca-
pacity to maintain the action.11
In a suit to remove a sheriff from office for alleged malfeasance,
an objection that the proceeding was instituted by members of the
board of county commissioners as individuals, and not as a board,
raised by demurrer, was not jurisdictional, and was waived by de-
fendant filing his answer pending determination of the demurrer.12
The want of a plaintiff's legal capacity to sue as a corporation
where such fact does not affirmatively appear upon the face of the
petition, must be raised by special plea in the nature of a plea in
abatement, and not by motion for judgment upon the pleading or
by objection to the introduction of evidence under the pleadings,
and, if not raised by special plea, defendant, by pleading to the mer-
its, admits plaintiff's capacity to sue.13
§ 441. Nonjoinder
A nonjoinder of parties plaintiff, appearing on the face of the
petition, is waived by a failure to demur on that ground.14
On foreclosure of a mechanics' lien by a subcontractor, failure to
make the original contractor a party is waived when not objected to
by demurrer or answer.15
8Maxia v. Oklahoma Portland Cement Co. (Okl./ 176 P. 907.
9 Maelzer v. Swan, 89 P. 1037, 75 Kan. 496.
10 Kale v. Humphrey (Okl.) 170 P. 223.
11 Leader Printing Co. v. Lowry, 59 P. 242, 9 Okl. 89.
12 Meredith v. Choctaw County, 111 P. 197, 28 Okl. 531.
13Jantzen v. Emanuel German Baptist Church, 112 P. 1127, 27 Okl. 473,
Ann. Cas. 1912C, 659.
14 Foster v. Board of Com'rs of Lyon County, 64 P. 1037, 63 Kan. 43.
15 Eberle v. Drennan, .136 P. 162, 40 Okl. 59, 51 L. R. A. (N. S.) 68.
(302)
Art. 5) DEFECTS, OBJECTIONS, AND AMENDMENTS §§ 441-442
In an action for damages for the location of a public highway, on
appeal from the board of county commissioners, an objection made,
after the trial has commenced, that the action could not be maintain-
ed by the plaintiffs jointly, comes too late.16
Where an action for an accounting of a partnership in which the
estate is interested is brought by one executor, and the other execu-
tors are made defendants, the failure to name them as plaintiffs is
not fatal if objection is not taken before judgment.17
The rule that all beneficiaries of the trust should be before the
court in an action concerning it is one which has been established
for the protection of the trustee, in order to avoid his repeated vex-
ation by a multiplicity of suits ; and, if he waives the protection of
this rule, he may dispense with other parties, where suit is brought
by the trustee under a chattel mortgage against one of the bene-
ficiaries of the trust, in which the defendant's rights as presented
by a counterclaim may be protected without injury or injustice to
other beneficiaries of the trust.18
The statute requiring defects in petitions other than those which
appear on their face and other than those of jurisdiction and in
statements of fact to be set up by answer, does not apply to a
petition by a partner who conceals the fact of partnership, and
wrongfully brings suit in his own name for an injury to the partner-
ship property; and hence in such case defendant, if ignorant of
the partnership until disclosed on the trial, may then raise the objec-
tion without the amendment of his answer.18
§ 442. Misjoinder
The objection that there is a misjoinder of parties must be raised
before trial, or it will be deemed waived.20
16 Commissioners of Lyon County v. Coinan, 23 P. 1038, 43 Kan. 676.
17 Insley v. Shire, 39 P. 713, 54 Kan. 793, 45 Am. St. Rep. 308.
18Wyman v. Herard, 59 P. 1009, 9 Okl. 35.
19Atchison, T. & S. F. Ry. Co. v. Hucklebridge, 64 P. 58, 62 Kan. 506.
2 "Phillips v. Mitchell (Okl.) 172 P. 85, writ of error dismissed 248 U. S.
531, 39 S. Ct. 7, 63 L. Ed. 405 ; Schwartzel v. Karnes, 44 P. 41, 2 Kan. App.
782.
Wtyere a municipal corporation sued by an incorrect name answered and
went to trial without objection, and judgment was rendered against it in its
proper name, it waived the misnomer. City of Kingfisher v. Pratt, 43 P.
1068, 4 Okl. 284.
If one who is made a party to a cause of action appears and answers a
(303)
§§ 442-443 PARTIES (Ch. 8
The statute forbidding change of title of a cause, does not con-
flict with the statute authorizing amendment as to parties.21
Where land is conveyed, by two persons jointly by a single deed
for a joint consideration, the grantee, when sued for such considera-
tion by the grantors jointly, waives any objection to the misjoin-
der of plaintiffs by not raising the objection either by answer or de-
murrer, though at the trial it appears that each of the grantors
owned a separate portion of the land, since the Code has abrogated
the common-law rule that a legal action brought by two or more
persons jointly must entirely fail if the cause of action establish-
ed at the trial is in favor of a part of the plaintiffs only.22
An objection that an agent cannot be joined as defendant in an
action against the principal unless his agency is coupled with an in-
terest can only be made by the agent, but he is not in position to
make it where he has filed a written offer of judgment.28
§ 443. Amendment
Where an attaching officer sues on an indemnity bond for the
use of a third person, who recovered judgment against him for a
wrongful levy, he may amend so as to allege a cause of action in his
own name.24
The district court has power, in the furtherance of justice, to per-
mit an amendment of a petition by striking out one given name of
plaintiff, and substituting another when it is shown that the first
name was used by mistake.25
It was not an abuse of discretion to permit a plaintiff styled "In-
terstate Switch Company of Missouri" to amend by striking out ther
words "of Missouri," where those words were not a part of its cor-
porate name.26
cross-action against him without objection to being made a party or to mis-
joinder of causes of action, he will be deemed to have waived all objections,
except that the facts alleged are not sufficient to state a cause of action
against him. State Exch. Bank of Elk City v. National Bank of Commerce
of St. Louis, Mo. (Okl.) 174 P. 796, 2 A. L. R. 211; Same v. Traders' Nat
Bank of Kansas City, Mo. (Okl.) 174 P. 799.
21 Zahn v. Obert, 60 Okl. 118, 159 P. 298; Rev. Laws 1910, §§ 4768, 4790.
22 Hurd v. Simpson, 27 P. 961, 47 Kan. 372, affirming judgment 26 P. 465,
47 Kan. 245.
23 Gregg v. Berkshire, 62 P. 550, 10 Kan. App. 579.
24 Armour Packing Co. v. Or rick, 46 P. 573, 4 Okl. 661.
25 Weaver v. Young, 14 P. 458, 37 Kan. 70.
2? Maher v. Interstate Switch Co., 51 P. 286, 58 Kan. 817.
(304)
Ch. 9) COMMENCMENT OF ACTION §§ 444-445
CHAPTER IX
COMMENCEMENT OF ACTION
Sections
411 450. Article I. — Accrual of cause.
451-505. Article II. — Process.
451— 460. Division I. — In general.
461-489. Division II. — Service and return.
490-500. Division III. — Service by publication.
501. Division IV. — Exemption from service.
502-505. Division V. — Objections and amendments.
506-511- Article III. — Appearance.
ARTICLE I
ACCRUAL OF CAUSE
Sections
444. Definition.
445- How action commenced
446. Effect — Notice to third persons.
447. Premature actions.
448. Insurance.
449. Waiver.
450. Cure of defect.
§ 444. Definition
A cause of action accrues from the time the right to sue for the
breach attaches.1 ,
§ 445. How action commenced
"A civil action may be commenced in a court of record by filing in
the office of the clerk of the proper court a petition and causing a
summons to be issued thereon." 2
Where summons is served in due time, jurisdiction of the sub-
ject-matter is acquired as of the date of the filing of the petition and
issuance of summons.3
1 Walker v. Bowman, 111 P. 319, 27 Okl. 172, 30 L. R. A. (N. S.) 642, Ann.
Cas. 1912B, 839, reversing judgment 105 P. 649, on rehearing.
2 Rev. Laws 1910, § 4703.
Clerk of court held without authority to issue summons before petition is
filed by plaintiff. Atchison, T. & S. F. Ry. Co. v. Lambert, 121 P. 654, 31
Okl. 300, Ann. Cas. 1913E, 329.
s Drummond v. Drummond, 49 Okl. 649, 154 P. 514.
HON.PL.& PBAC.— 20 (305) '
§§ 445-447 COMMENCEMENT OF ACTION (Ch. 9
Where a party temporarily hands a petition to a clerk of the
court, that he may place his file mark thereon, and not for the pur-
pose of allowing it to remain in his custody, or to issue summons
thereon, the action is not commenced.4
§ 446. Effect — Notice to third persons
"When the petition has been filed, the action is pending, so as
to charge third persons with notice of its pendency, and while
pending no interest can be acquired by third persons in the subject-
matter thereof as against the plaintiff's title; but such notice
shall be of no avail unless the summons be served or the first pub-
lication made within sixty days after the filing of vthe petition." 5
Except as to computation of interest and some other exceptional
cases, the rights of parties, in the absence of supplemental plead-
ings, are fixed as of the time of the commencement of the action.6
§ 447. Premature actions
An action cannot be maintained on a debt before it is due.7
A provision in a mortgage, securing a note payable two years
after date that on default in any interest the whole interest should
* Wilkinson v. Elliott, 23 P. 614, 43 Kan. 590, 19 Am. St. Rep. 158.
5 Rev. Daws 1910, § 4732.
e Robertson v. Howard, 112 P. 162, 83 Kan. 453.
7 Where plaintiff and defendant agreed to furnish equal sums and purchase
segregated coal lands of Choctaw and Chickasaw Nations from Department
of Interior in name of defendant for their joint use, and agreed on division
of land, and certificate was issued to defendant, plaintiff's action for specific
performance was prematurely brought, as title did not pass under certificate,
and as defendant was not entitled to patent until full compliance with terms
of sale. Mahar v. Ward (Okl.) 180 P. 859.
A suit to restrain the publication under Rev. Laws 1910, § 615, of a resolu-
tion declaring that a necessity exists for paving, held premature. Pitser v.
City of Pawnee, 47 Okl. 559, 149 P. 201.
Where paving assessments against property owners had been ascertained
and notice thereof given those who had filed their written objections thereto
pursuant to charter of the city of Tulsa, art. 9, § 7, an action brought there-
after to enjoin the collection of such assessment after the objections were
overruled was not premature. Arnold v. City of Tulsa, 38 Okl. 129, 132 P. 669.
Under Rev. Laws 1910, §§ 6777, 6778, taxpayers' right of action against
city officers paying claim against city pursuant to unlawful or fraudulent con-
,tract and against party receiving money does not accrue until performance
of conditions under section 6778. State v. Oklahoma City (Okl.) 168 P. 227.
Where creditor's claim has been reduced to judgment and transcript there-
of filed in county court, and administrator refuses to pay a claim, though or-
dered to sell property to pay debts, the creditor may sue sureties on adminis-
(306)
Art. 1) ACCRUAL OP CAUSE § 447
I
become payable related alone to a foreclosure, and did not accel-
erate time of payment of the note.8
Where a note is executed in payment of corporate stock which is
to be delivered upon the execution and delivery or upon payment
of note, action will not lie thereon until the stock has been de-
livered or tendered to the maker.9
In an action involving separable claims, the right to try those on
which a cause of action has accrued is not affected by the fact that
the suit is prematurely brought as to the others.10
Interest payable at an annual rate will be presumed to be pay-
able annually.11
Default in the payment of interest will authorize the exercise of
the right given by an acceleration clause.12
Where the devisee sued, before the will was probated, to set aside
a deed of testator, alleged to have been procured while he was of
unsound mind, and after the will was probated filed an amended and
supplementary petition, on which the case was tried, the objection
that the action was prematurely brought became immaterial.13
tra tor's bond, though there has been no final accounting in county court, in
view of Rev. Laws 1910, § 6350. United States Fidelity & Guaranty Co. v.
Clutter (Okl.) 179 P. 754.
s Alwood v. Harrison (Okl.) 171 P. 325.
8 Cline v. First Nat. Bank (Okl.) 170 P. 472.
Though, under the mechanic's lien law, a party is not liable to an action
by the contractor until the expiration of 60 days from the completion of the
work, yet, if the action is brought within the 60 days, and the defendant, in-
stead of making objection by proper motion or plea which can be determined
before the merits of the case are tried, presents issues on the merits, and in-
cludes within his denial a counterclaim for damages, and also claims a
set-off, and asks for a judgment, and proceeds to trial, he cannot thereafter
be heard to assert 'that the action was prematurely brought. Fulkerson v.
Kilgore, 64 P. 5, 10 Okl. 655.
10 Anthony v. Smithson, 78 P. 454, 70 Kan. 132.
11 F. B. Collins Inv. Co. v. Sanner, 142 P. 318, 42 Okl. 634.
12 Where a note provided for interest payable annually at 7 per cent, before
maturity and 10 per cent, after maturity, the 7 per cent, being evidenced by
coupon notes, and where the mortgage provided that on default the hold-
er of the note and mortgage could declare the whole amount and interest due,
failure to pay an interest coupon was a breach of the conditions of the mort-
gage warranting foreclosure. Flesher v. Hubbard, 132 P. 1080, 37 Okl. 587;
Jones v. Same, 132 P. 1082, 37 Okl. 592.
Where a debt is evidenced by notes payable in one, two, and thvee years, iii-
is Bethany Hospital Co. v. Philippi, 107 P. 530, 82 Kan. 64, 30 L. R. A.
iN. S.) 194.
(307)
§§ 447-448 COMMENCEMENT OF ACTION (Gl. 9
After a mortgagee's exercise of an option making the whole
amount secured immediately due on default in principal or interest
by filing an action of foreclosure, an offer by the makers of the
notes and the mortgage, or purchasers from them, to pay the
amounts in default, is not a lawful tender, sufficient to support a
plea of tender, since the whole of the debt became due by the exer-
cise of the option.14
A mortgage provision that on default in the principal or interest
the whole amount secured should be "immediately due" and payable
at the holder's option means immediately upon or after holder's
election, and does not bind him to elect immediately after default,
and renders notes due for purpose of foreclosure and for all pur-
poses, which option exists while default continues, and is not
waived by mere delay not benefiting mortgagee nor detrimental to
'mortgagor.15
Where a mortgage provides that the whole debt shall become
due at the option of the mortgagee for default in payment of taxes,
a tax sale of the mortgaged property does not entitle the mortgagee
to foreclose, where all taxes and interest have been thereafter
fully paid by the mortgagors and notice given to the mortgagee
before suit.16
§ 448. Insurance
When an insurance policy provided that the loss should not be-
come payable until 60 days after proof and adjustment of loss, in-
cluding an award of arbitration when arbitration has been required,
suit cannot be brought until after 60 days after proof of loss was
furnished.17
In an action on a policy providing that the insurer shall not be
liable until 60 days after notice and proof of loss, where a suit is
brought within 60 days after such proof, and after the 60 days
terest payable annually, and a mortgage provides that, on default of any part
of the debt, the holder may sell the property on default in principal and inter-
est on the first note and in annual interest on the others, the holder may fore-
close. F. B. Collins Inv. Co. v. Sanner, 142 P. 318, 42 Okl. 634.
i* Damet v. ^Etna Life Ins. Co. (Okl.) 179 P. 760, 5 A. L, R. 434.
IB Damet v. ^Etna Life Ins. Co. (Okl.) 179 P. 760, 5 A. L. R. 434.
is Fleming v. Franing, 98 P. 961, 22 Okl. 644, 22 L. R. A. (N. S.) 360, 132
Am. St. Rep. 658.
if Dixon v. State Mutual Ins. Co., 126 P. 794, 34 Okl. 624, L. R. A. 1915F,
1210.
(308)
Art. 1) ACCRUAL OF CAUSE §§ 449-450
plaintiff amends his petition, and the insurer files an answer, the
action is maintainable on the amended petition.18
§ 449. Waiver
Objection that suit is prematurely brought is waived unless
presented to the trial court, either by demurrer or answer.19
§ 450. Cure of defect
Nonexistence of a cause of action when suit is brought is a fatal
defect which cannot be cured by accrual of cause while suit is pend-
ing.20
is Oklahoma Fire Ins. Co. v. Mundel, 141 P. 415, 42 Okl. 270.
Where an action was brought before the expiration of 60 days allowed by
the policy after proof of loss, but plaintiff thereafter amended his petition,
stowing the presentation of proof of loss, and that the 60 .days had elapsed,
and where the insurer then answered, denying liability, held that the action
was maintainable on the amended petition, as against an objection that it was
prematurely brought. Western Reciprocal Underwriters' Exchange v. Coon, 38
Okl. 453, 134 P. 22.
is Egan v. Vowell (Okl.) 167 P. 205.
The objection that the action is brought before the expiration of 60 days
from the completion of the work is waived if defendant proceeds to trial on
the merits. El Reno Electric Light & Telephone Co. v. Jennison, 50 P. JL44, 5
Okl. 759.
20 iBank of Chelsea v. School Dist. No. 1, Rogers County, 62 Okl. 185, 162
P. 809.
(309)
COMMENCEMENT OP ACTION (Ql. 9
ARTICLE II
PROCESS
Sections DIVISION I.-lN GENERAL
451. Definition.
452. Style of process.
453. Necessity and use of process.
454. Issuance of summons.
455. To another county.
456. Praecipe — Form.
457. Form and requisites.
458. Indorsements.
459. Alias summons. '
460. Abuse of process.
DIVISION II.— SERVICE AND RETURN
461. In general.
462. Indorsement.
463. Acceptance of service and appearance.
464. By whom served.
465. Service on only part of defendants.
466. Effect of judgment.
467. Manner of service.
468. Validity and effect of service.
469. Service out of state.
470. Service on corporation.
471. On foreign corporation.
472. On insurance company.
473. Insurance commissioner.
474. Insurance board.
475. On railroad company and stage line — Agent.
476. Where no agent appointed.
477. Where personal service impossible.
478. Actions against counties.
479. Service on infant.
480. Service on sheriff.
481. On inmates of hospitals for insane.
482. Notice or process issued by state board of arbitration.
483. County court.
484. Return.
485. Fees.
48G. Collusiveness.
487. Entering return.
488. Evidence of service.
489. Forms.
DIVISION III.— SERVIQE BY PUBLICATION
490. In general.
491. Service by publication — When authorized.
492. In what actions authorized.
493. On whom authorized.
(310)
Art. 2) PROCESS §§ 451-453
Sections
494. Unknown heirs or devisees.
405. Affidavit — Forms.
496. Divorce.
497. Order.
498. Publication notice — Form.
499. Mailing with petition.
500. Proof of publication.
DIVISION IV.— EXEMPTION FROM SERVICE
501. Persons attending court — Witnesses.
DIVISION V.— OBJECTIONS AND AMENDMENTS
502. Motion to Quash — Form.
503. Amendment.
504. Where service by publication.
505. Waiver of objections.
DIVISION I. — IN GENERAL
§ 451. Definition
Process in its broadest sense comprehends all proceedings to the
accomplishment of an end, including judicial proceedings. Fre-
quently its signification is limited to the means of bringing a party
into court. Jn the Constitution process which at the common law
would have run in the name of the king is intended. In the Code
process issued from a court is meant.21
§ 452. Style of process
"The style of all process shall be: 'The State of Oklahoma.' It
shall be under the seal of the court from whence the same shall
issue, shall be signed by the clerk, and dated the day it is issued." 22
§ 453. Necessity and use of process
Process is necessary to jurisdiction. It is indispensable, to give
a court jurisdiction in attachment proceedings, that there should be
personal service of the summons in the action upon the defendant,
or that the order of attachment be levied upon property of the
defendant, or that an order of garnishment should be served upon
a garnishee having property in his possession belonging to the de-
fendant, or who is indebted to such defendant, otherwise any pro-
21 McKenna v. Cooper, 101 P. 662, 79 Kan. 847.
22 Rev. Laws 1910, § 5319.
"The style of all writs and processes shall be The State of Oklahoma.' "
Const. Okl. art 7, § 19.
§§ 453-454 COMMENCEMENT OF ACTION (Ch. 9
ceedings taken in the cause are coram non judice and void, and the
cause must be dismissed.23
Defendants in a foreclosure proceeding are by the original sum-
mons brought into court for every purpose connected with the case,
and are bound to take notice of all following proceedings so that
a summons on a cross-petition for foreclosure of a second mort-
gage is unnecessary.24
Where a prsecipe for summons and the petition were not signed
by the party or his attorney, it is not necessary, on amendment; to
issue new summons.25
Where service is had by publication in an action to quiet a title
founded upon a tax deed, filed with the petition, which is void on
its face, it is error to allow amendment of the petition by sub-
stituting a valid deed, without any notice to defendant, and then
to render judgment against him as for default on the amended peti-
tion.26
§ 454. Issuance of summons
"All writs and orders for provisional remedies, and process of
every kind, shall be issued by the clerks of the several courts, upon
a praecipe filed with the clerk demanding the same.'V7
"The summons shall be issued by the clerk upon a written prse-
cipe filed by the plaintiff ; shall be under the seal of the court from
which the same shall issue, shall be signed by the clerk, and shall be
dated the day it is issued. It shall be directed to the sheriff of
the county, and command him to notify the defendant or defend-
ants, named therein, that he or they have been sued, and must
answer the petition filed by the plaintiff, giving his name, at a time
stated therein, or the petition will be taken as true and judgment^
rendered accordingly ; and where the action is on contract for the
recovery of money only, there shall be indorsed on the writ the
amount, to be furnished in the prsecipe, for which, with interest,
judgment will be taken, if the defendant fail to answer. If the de-
28 Central Loan & Trust Co. v. Campbell Commission Co., 49 P. 48, 5 Okl.
396, judgment reversed 19 S. Ct. 346, 173 U. S. 84, 43 L. Ed. 623.
z* Lawson v. Rush, 101 P. 1009, 80 Kan. 262.
ssManspeaker v. Bank of Topeka, 46 P. 1012, 4 Kan. App. 768.
26 Wood v. Nicolson, 23 P. 587, 43 Kan. 461.
27 Rev- Laws 1910, § 5328.
(312)
Art. 2) PROCESS §§ 454-455
fendant fail to appear, judgment shall not be rendered for a larger
amount and the costs." 28
The statute does not require the summons, where personal serv-
ice is had, to describe the real estate, nor what kind of judgment
will be rendered.29 It does not require summons in foreclosure
suit, where personal service has been had, to advise defendant of
nature of action and kind of judgment that will be rendered, nor
is it necessary to indorse on the writ the amount for which, with
interest, default judgment will be taken.30
§ 455. To another county
"Where the action is rightly brought in any county, a summons
shall be issued to any other county against any one^or more of the
defendants, at the plaintiff's request." 31
To justify the issuance of a summons to a foreign county and
the service of the same on a defendant residing or found there,
the action must be rightly brought and the person sued must be
rightly joined as a defendant.32
If service of summons is not legally obtained 6n one of several
defendants in the county where action is brought, a summons can-
as Rev. Daws 1910, § 4705.
29 Horton v. Haines, 102 P. 121, 23 Okl. 878.
Endorsement is unnecessary, where suit is not for recovery of money only.
Id.
so Littlefield v. Brown (Okl.) 172 P. 643.
si Rev. Laws 1910, § 4706.
Where action is rightfully commenced in any county, summons may issue to
any other county and be there served on one or more defendants. Oklahoma
City 'Nat. Bank v. Ezzard, 58 Okl. 251, 159 P. 267, L. R. A. 1918A, 411; Hem-
brow v. Winsor, 125 P. 22, 87 Kan. 714.
Where nonresident insurance company is sued in county where plaintiff re-
sides, summons to another defendant held properly issued to any other coun-
ty. Haynes v. City Nat. Bank of Lawton, 121 P. 182, 30 Okl. 614.
In action against guardian for diversion of trust fund and to fix trust on
land {purchased therewith in his wife's name, properly brought in county
where land was, where jurisdiction was obtained on one defendant, a sum-
mons could be served on other defendant in another county, warranting estab-
lishment of a lien against land. Clingman v. Hill, 104 Kan. 145, 178 P. 243.
Where an action is brought against several defendants, alleging that they
are jointly liable for causing the illegal arrest and imprisonment of the plain-
tiff, and summons is served upon one defendant in the county where the ac-
tion is brought, a summons may be issued, to any other county against code-
fendants residing therein. Reiffi v. Tressler, 120 P. 360, 86 Kan. 273.
32 Marshall v. Saline River Land & Mineral Co., 89 P. 905, 75 Kan. 445; Rull-
man v. Hulse, 5 P. 176, 32 Kan. 598, rehearing denied 7 P. 210, 33 Kan.
(313)
§ 456 COMMENCEMENT OF ACTION (Ql. 9
not be issued thereon to any other county, and there be legally
served on any one or more of the codefendants.33
§ 456. .Praecipe — Form
Defendant cannot object that summons was issued by the clerk
without a prsecipe having been filed.34
That a praecipe for summons and the petition were not subscribed
by the party or his attorney does not oust the jurisdiction where
summons was issued by the clerk, and personally served on de-
fendant.35
The issuance of a summons upon a prsecipe filed by a codefend-
ant is not an error of which defendant can complain, nor will the
jurisdiction of the court, after due service of the summons, be af-
fected by reason thereof.36
PR^CIPE FOR SUMMONS
In the District Court of Tulsa County, State of Oklahoma.
A. B., Plaintiff,- ]
v. L No. .
C. D., Defendant. J
To the Clerk of Said Court:
Issue summons in the above entitled cause, and direct the same
to the sheriff of county, state of Oklahoma, for the defend-
ant, C. D.
Amount claimed, $ and interest from the • — day of
, 19 — , at per cent, per annum.
Action brought for .
Defendants required to answer on or before the day of
10
. iy .
Make summons returnable day of , A. D. 19 — .
Dated this - - day of - — , A. D. 19—.
X. Y., Attorney for Plaintiff.
670; Wells v. Pattern, 33 P. 15, 50 Kan. 732; New Blue Springs Milling Co. v.
De Witt, 70 P. 647, 65 Kan. 665.
33 Bearman v. Hunt (Okl.) 171 P. 1124.
34 Manspeaker v. Bank of Topeka, 46 P. 1012, 4 Kan. App. 768.
a Bid.
se State Life Ins. Co. of Indianapolis, Ind., v. Oklahoma City Nat. Bank, 97
P. 574, 21 Okl. 823.
(314)
Art. 2) PROCESS §§ 457-458
§ 457. Form and requisites
A paper purporting to be a summons which is not signed by
the clerk of the district court is invalid,37 as is one not authen-
ticated by the seal of the court.88
A summons is not fatally defective by reason of being entitled
in the court of P. county, and directed to the sheriff of P. county,
when the name of said county had recently been changed.39
A summons, issued March 6th, returnable March 16th, in which
defendant is required to answer March 26th, was in violation of the
statute.40
A summons issued and made returnable on a Sunday or a legal
holiday does not limit the time in which the defendant may plead,
as it is returnable on the day stated, and the effect of the statute is
to give to the return upon the next business day the same validity
as if made on the designated return day.41
§ 458. Indorsements
The failure to indorse on the summons, regular in other respects,
the amount for which judgment will be taken in case the defendant
fails to appear, in an action for the recovery of money only, does
not render the judgment rendered in such action void, so that its
collection may be enjoined.42 Such judgment is voidable only, and
not absolutely void.43
ST Lindsay v. Kearney County Cora'rs, 44 P.- 603, 56 Kan. 630.
ss Kelso v. Norton, 87 Jt.184, 74 Kan. 442; McMurray v. Same, 87 P. 184, 74
Kan. 442.
Where the paper purporting to be a copy of a summons, left at the
usual place of residence of the defendant by the sheriff, fails to state the
name of the plaintiff, the answer day, is not dated, does not have the
name of -the clerk signed thereto, and has no indication of a seal thereon, it is
not a sufficient notice to the defendant to give the court jurisdiction over his
person. Jones v. Marshall, 43 P. 840, 3 Kan. App. 529.
39 Nix v. Gilmer, 50 P. 131, 5 Okl. 740.
40 state v. Parks, 126 P. 242, 34 Okl. 335.
4iHarn v. Missouri State Life Ins. Co. (Okl.) 173 P. 214.
A summons fixing the answer day falling on Sunday is a valid .summons,
since the statute fixes the time for filing answer on the succeeding Monday.
Harn v. Amazon Fire Ins. Co. (Okl.) 167 P. 473.
Under Rev. Laws 1910, § 2937, whenever any act of a secular, nature, other
than a work of necessity or mercy, is to be performed upon a particular day
which falls upon a holiday, the act may be performed upon the next business
day. Tucker v. Thraves, 50 Okl. 691, 151 P. 598.
42 Tootle v. Ellis, 65 P. 675, 63 Kan. 422, 88 Am. St. Rep. 246.
A petition and praecipe were filed, and a summons was issued by the clerk,
43 Dusenberry v. Bennett, 53 P. 82, 7 Kan. App. 123.
(315)
§§ 458-461 COMMENCEMENT OF ACTION (Ql. &
The statute is sufficiently complied with when the amount ap-
pears on the face of the summons.44
The indorsement of a summons need not necessarily be signed by
the clerk, and attested with the seal of the court.45
§ 459. Alias summons
"When a writ is returned 'Not summoned/ other writs may be
issued, until the defendant or defendants shall be summoned; and
when defendants reside, in different counties, writs may be issued
to such counties at the same time." 46
Where a foreign corporation has been properly brought into court
by service of a summons on its admitted agent for service, that an
alias summons is unnecessarily issued and served on a person not
its agent does not nullify the previous service.47
§ 460. Abuse of process
A plaintiff in replevin, who does not pa/ticipate in a malicious
abuse of the writ by the officer, is not liable for damages resulting
from the officer's unlawful acts.48
A sheriff who seeks to justify a seizure of property under process
in an action brought against him by a stranger to the writ, wha
claims title anterior to the levy, must show, if he acted under an
execution, that it was issued on a valid judgment, and if a writ of
attachment, that the party at whose suit it issued was a creditor
of the defendant named therein.49
DIVISION II. — SERVICE AND RETURN
§ 461. In general
"The summons shall be served and returned by the officer to-
whom it is delivered, except when issued to any other county than
on which he failed to indorse the amount for which judgment would be taken
if defendant did not answer. On the following day plaintiff caused a sum-
mons, properly indorsed, to be issued and served. No answer or demurrer
having been filed, plaintiff moved for judgment, when defendant objected be-
cause the amount claimed was not indorsed on the original summons. Held,
that if the first summons were void, the second was good, and judgment was
properly entered. Simpson v. Rice, Friedman & Markwell Co., 22 P. 1019, 4&
Kan. 22.
44 Thompson v. Pfeiffer, 56 P. 763, 60 Kan. 409.
45 Abbey v. W. B. Grimes Dry Goods Co., 24 P. 426, 44 Kan. 415.
4« Rev. Laws 1910, § 4709.
47 Supreme Lodge of Heralds of Liberty v. Herrod, 141 P. 269, 42 Okl. 308.
48 Wurmser v. Stone, 40 P. 993, 1 Kan. App. 131.
49 Mills v. Talbott, 64 P. 964, 63 Kan. 14.
(316)
Art. 2) PROCESS §§ 461-465
the one in which the action is commenced,' within ten days from
its date ; and, when issued to another county shall be made return-
able in not less than ten nor more than sixty days from the day
thereof, at the option of the party having it issued." 60
The words "personal service" mean actual service by delivering
to a person, and not to a proxy.51
Statutes prescribing the manner of service of summons are man-
datory and must be strictly complied with.62
§ 462. Indorsement
"The sheriff shall indorse upon every summons, order of arrest,
or for the delivery of property, or of attachment or injunction, the
day and hour it was received by him." 33
§ 463. Acceptance of service and appearance
"An acknowledgment on the back of the summons, or the volun-
tary appearance of a defendant, is equivalent to service." 5*
§ 464. By whom served
"The summons shall be served by the officer to whom it is di-
rected, who shall indorse on the original writ the time and manner
of service. It may also be served by any responsible citizen of the
county not a party to or interested in the action, appointed by
the officer to whom the summons is directed or by the court in
which the action is brought. The authority of such person shall
be endorsed on the writ, and the return of service made by any
person so appointed, or of any service made out of the state, shall
be verified by oath or affirmation of the person making the serv-
ice." 55
§ 465. Service on only part of defendants
"Where the action is against two or more defendants, and one
or more shall have have been served, but not all of them, the plain-
tiff may proceed as follows :
"First. If the action be against defendants jointly indebted upon
.contract, he may proceed against the defendants served, unless
the court otherwise direct; and if he recover judgment, it may be
BO Rev. Laws 1910, § 4707.
si Thisler v. Little, 121 P. 1123, 86 Kan. 787.
62 Sealey v. Smith (Okl.) 197 P. 490.
63 Rev. Laws ,1910, § 5336.
s* Rev. Laws 1910, § 4714. 65 Rev. Laws 1910, § 4710.
(317)
§§ 465-467 COMMENCEMENT OF ACTION (Ch. 9
entered against all the defendants thus jointly indebted, so far
only as that it may be enforced against the joint property of all,
and the separate property of the defendants served; and if they
are subject to arrest, against the persons of the defendants served.
"Second. If the action be against defendants severally liable, he
may, without pfejudice to his rights against those not served, pro-
ceed against the defendants served in the same manner as if they
were the only defendants." 66 i
Where a principal and sureties on a note are sued jointly and
the principal is not served, the action may proceed against such
sureties as are served, without service on or dismissal as to the
principal.57
§ 466. — - Effect of judgment
"Nothing in this code shall be so construed as to make a judg-
ment, against one or more defendants jointly or severally liable,
a bar to another action against those not served." 58
§ 467. Manner of service
"The service shall be made by delivering a copy of the summons
to the defendant personally or by leaving one at his usual place of
residence with some member of his family over fifteen years of
age, at any time 'before the return day." 59
Leaving a copy at the defendants' usual place of business with
his business manager is insufficient to confer jurisdiction of his
person.60
Service on defendant by leaving a summons at a house where he
had household goods stored but where neither he nor his wife had
ever lived, though his wife had once been there temporarily, was
void because not at his residence.61
66 Rev. Laws 1910, § 4730.
57 Moorehead v. Daniels, 57 Okl. 298, 153 P. 623.
88 Rev. Laws 1910, § 4731.
59 Rev. Laws 1910, § 4711.
Laws 1901, c. 392, § 1, providing that summons shall be issued and served
on defendants personally, if residents of the county, refers to personal serv^
ice on resident defendants, as distinguished from constructive service by pub-
lication against nonresident defendants and service by leaving a copy of the
summons at the usual place of residence of defendant is a service, within ttie
meaning of the act. Board of Com'rs of Atchison County v. Challiss, 69 P.
173, 65 Kan. 179.
eo Cohen v. Cochran Grocery Co. (Okl.) 173 P. 642.
6i O'Neil v. Eppler, 133 P. 705, 90 Kan. 314.
(318)
Art. 2) PROCESS §§ 467-469
Service by delivering a copy of original process to the wife of a
defendant, who had left the state, never intending to return, at
his last place of residence within the state, did not give the court
jurisdiction, since, after he has removed,, he has no "usual place
of residence" within the state.62
The word "service" means the reading thereof to the person to
be served, or the delivery to such person of the original or a copy
thereof, and the phrase "service of a notice," without qualification,
means a personal service of a written notice.63
§ 468. Validity and effect of service
Generally speaking, neither the process nor the action taken
under it will be adjudged void when the very thing which ought
to be done is specifically commanded, and only that thing is in fact
done,64 at least in the absence of fraud.65
When original summons is served, defendants are in court for
every purpose connected with the action, and those served are
bound to take notice of the filing of a cross-petition by a codefend-
ant.66
§ 469. Service out of state
"In all cases where service may be made by publication, per-
sonal service of summons may be made out of the state by the
sheriff or his deputy of the county in which such service may be
made. Such summons shall be issued by the clerk, under seal of
the court, and directed to the defendant or defendants to be
served, and shall notify him or them that he or they have been
sued by the plaintiff or plaintiffs, naming him or them, and re-
quiring him or them to answer the petition filed by the plaintiff
or plaintiffs in the clerk's office of the court, which shall be named,
within sixty days from the day of service, or the said petition will
be taken as true, and judgment rendered accordingly: Provided,
12 Amsbaugh v. Exchange Bank, 5 P. 384, 33 Kan. 100.
es Clemmons v. State, 113 P. 238, 5 Okl. Or. 119.
64 Merwin v. Hawker, 1 P. 640, 31 Kan. 222.
es Where defendant's trip to Kansas City, Mo., where he was served with
process, was not induced by any act of plaintiff, a mere statement by plaintiff's
attorney that the contemplated action would be brought in Kansas did not show
that the service in Missouri was fraudulent. McLain v. Parker, 129 P. 1140,
88 Kan. 717, judgment affirmed on rehearing 131 P. 153, 88 Kan. 873.
«a Littlefield v. Brown (Okl.) 172 P. 643.
(319)
§§ 469-470 COMMENCEMENT OF ACTION (Ch. 9
that such service shall have the same force and effect as service ob-
tained by publication, and no other or greater force or effect." 67
That such personal service may be had on a nonresident, it is
essential that the requisite affidavit be filed, summons be issued,
and served, and due proof of such service be made.88
The state has full power over all persons and things within its
jurisdiction, but cannot extend its process beyond its boundaries.69
In action against nonresident to determine an interest in realty
in the state, personal service out of state gives the court jurisdic-
tion, not defeated because the petition unites another separate cause
of action in which such service would not confer jurisdiction.70
§ 470. Service on corporation
"A summons against a corporation may be served upon the
president, mayor, chairman of the board of directors, or trustees,
or other chief officer, or upon an agent duly appointed to receive
service of process ; or, if its chief officer is not found in the county,
upon its cashier, treasurer, secretary, clerk or managing agent;
or, if none of the aforesaid officers can be found, by a copy left at
the office or usual place of business of such corporation, with the
person having charge thereof." 71
The prescribed statutory method of serving process upon a cor-
poration is exclusive and must be followed.72
Service on a corporation is limited to the class of officers and
agents specified in this statute.73
Where service is actually made on the proper officer or agent of
a corporation a return, failing to show this fact, may be amended.74
87 ReV. Laws 1910, § 4727.
es First State Bank of Addington v. La timer, 48 Okl. 104, 149 P. 1099;
Adams v. Baldwin, 31 P. 681, 49 Kan. 781.
69 Howell v. Manglesdorf, 5 P. 759, 33 Kan. 194.
TO Culver v. Diamond, 64 Okl. 271, 167 P. 223.
71 Rev. Laws 1910, § 4715.
72 Shawnee Tecumseh Traction Co. v. Webster (Okl.) 174 P. 266.
A service of summons upon a director of a. domestic corporation, other than
the chairman of the board, is unauthorized by Comp. Laws 1909, § 5604; it not
appearing in the return that he occupied any office named in the section,
though the return recites that the director was the highest officer of the de-
fendant to be found in the county. Oklahoma Fire Ins. Co. v. baroer Asphalt
Paving Co., 125 P. 734, 34 Okl. 149. A director is not a "chief officer" or "man-
aging agent" of a domestic corporation, within Comp. Laws 1909, § 5604, and
service of summons cannot be made by delivery of a copy to him. id.
73 M. Rumely Co. v. Bledsoe, 56 Okl. 180, 155 P. 872.
74 Id.
(320)
Art. 2) PROCESS §§ 470-471
When service is not made on one of the chief officers named, the
return must show why the service was not so made.75 It is not
ordinarily required that the officer shall state the degree of dili-
gence in attempting to find the chief officer of the defendant or
execute process.70
Where the service is not on the chief officer, the return must
show that he could not be found in the county.77
§ 471. On foreign corporation
"In all cases where a cause of action shall accrue to a resident or
citizen of the state of Oklahoma, by reason of any contract with a
foreign corporation doing business in this state, or where any
liability on the part of such foreign corporation shall accrue in
favor of any citizen or resident of this state, whether in tort or
otherwise, and such foreign corporation has not designated an
agent in this state upon whom process may be served or has not an
officer continuously residing in this state, upon whom summons
or other process may be served so as to authorize a personal judg-
ment, service of summons or other process may be had upon the
secretary of state, and such service shall be sufficient to give ju-
risdiction of the person to any court in this state having jurisdic-
tion of the subject-matter, whether sitting in the county where
the secretary of state is served or elsewhere in the state." 78
75 St. Louis & S. F. R. Co. v. Reed, 59 Old. 95, 158 P. 399.
'e Levy v. Tradesmen's State Bank (Okl.) 176 P. 512.
77 Ozark Marble Co. v. Still, 103 P. 586, 24 Okl. 559.
Under Rev. Laws 1910, § 4715, return of service on domestic corporation,
which shows that president was not found in county and that writ was serv-
ed on managing agent, is sufficient. Colonial Refining Co. v. Lathrop, 64
Okl. 47, 166 P. 747, L. R. A. 1917F, 890.
A return on a summons, showing date of its receipt and that the officer ex-
ecuted the same "in my county," by leaving a true copy with the cashier of
the defendant national bank, naming him, "President not in the county," held
a sufficient return showing service, as required by Comp. Laws 1909, § 5604.
First Nat. Bank of Tishomingo v. Latham, 132 P. 891, 37 Okl. 286; Same v.
Ingle, 132 P. 895, 37 Okl. 276.
A summons in error against a corporation served on its secretary without
any showing that the other chief officer could not be found in the county was
invalid. Cunningham Commission Co. v. Rorer Mill & Elevator Co., 105 P. 676,
25 Okl. 133.
78 Rev. Laws 1910, § 13b9.
Statute held valid. Title Guaranty & Surety Co. v. Slinker, 143 P. 41, 42
Okl. 811.
The phrase "transacting business" means the doing of a series of acts to
secure livelihood, profit, or pleasure, not merely the doing of a single act. Ful-
HON.PL.& PRAC.—21 (321)
§ 471 COMMENCEMENT OF ACTION (Ch. 9
The various methods provided by the statute for obtaining serv-
ice on foreign corporations are cumulative.79 Where a foreign
corporation has appointed a service agent, service must be made
upon such agent, and service on a local agent or manager is insuf-
ficient.80
The agent may be served either by delivering a copy of the sum-
mons to him personally or by leaving the same at his usual place
of residence.81
Summons issued for defendant corporation and served upon the
secretary of state, in the absence of a showing that defendant had
either a service agent or an officer in the state upon whom process
could be had, was sufficient.82 Service of summons upon a fore-
man of a pipe line company, a foreign corporation, is unauthorized
by statute, and void.83
The appointment of an agent to transact the company's business
is not "doing business" within the meaning of the statute.84 But
ler v. Allen, 46 Okl. 417, 148 P. 1008. A contract to sell machines to be used
or sold in the state by the purchaser, and to furnish other machines f. o. b. at
the place of business of the seller, a foreign corporation, held not "transacting
business" within the state, within Rev. Laws 1910, §§ 1335-1339. Id.
79 Continental Ins. Co. v. Hull, 38 Okl. 307, 132 P. 657.
so Waters Pierce Oil Co. v. Foster, 52 Okl. 412, 153 P. 169.
Where a foreign corporation, other than a railroad or stage company, has
complied with the statute and has appointed an agent in .this territory for
service of process, with his office and principal place of business at an acces-
sible point in the territory, service of process^must be made upon such agent
and service on any other person is irregular. Bes Line Const. Co. v. Schmidt,
85 P. 711, 16 Okl. 429; Same v. Taylor, 85 P. 713, 16 Okl. 481.
81 State Life Ins. Co., of Indianapolis, Ind., v. Oklahoma City Nat. Bank, 97
P. 574, 21 Okl. 823.
82 Municipal Paving Co. v. Herring, 50 Okl. 470, 150 P. 1067.
ss Gulf Pipe Line Co. v. Vanderberg, 115 P. 782, 28 Okl. 637, 34 L. R. A. (N.
S.) 661, Ann. Cas. 1912D, 407.
s* Verdigris River Land Co. v. Stanfield, 105 P. 337, 25 Okl. 265.
Not "doing business." Where a domestic mercantile corporation contracts
with a foreign manufacturing corporation to purchase the latter's goods, and
to sell them within the state, it does not constitute "doing business" by the
nonresident corporation, and service of summons on the domestic corporation
is not service on the foreign corporation. Harrell v. Peters Cartridge Co., 129
P. 872, 36 Okl. 684, 44 L. R. A. (N. S.) 1094. The sending of traveling agents
into the state by a foreign manufacturing corporation to advertise its goods
and assist the agents of a domestic mercantile corporation in selling them
does not constitute "doing business" within the state, and service of summons
on the secretary of state is not a valid service on the foreign corporation. Id.
A foreign corporation engaged in buying used automobiles and rebuilding and
selling them, which contracted with a resident to canvass for purchasers anO
forward orders to corporation at Pittsburgh to be filled by delivery f. o. b.,
(322)
Art. 2) PROCESS §§ 471-473
furnishing him with goods to be sold and which were sold in the
state is "doing business" in the state.85
Where a foreign surety company collected the premiums on
bonds executed prior to statehood and continued such bonds in
force, it was "doing business" in the state, within this statute.80
A foreign corporation engaged in interstate commerce within the
state with a resident thereof is not subject to this statute.87
The prosecution of an action for debt by a foreign corpora-
tion in a state court is not transacting business.88
§ 472. On insurance company
"Where the defendant is an incorporated insurance company,
and the action is brought in a county in which there is an agency
thereof, the service may be upon the chief officer of such agen-
cy." 89
§ 473. • Insurance commissioner
"Every foreign insurance company shall, "by duly executed in-
strument filed in his office, constitute and appoint the insurance
commissioner, or his successor, its true and lawful attorney, upon
whom all lawful processes in any action or legal proceeding against
it may be served and therein shall agree that any lawful process
against it, which may be served upon its said attorney, shall be
of the same force and validity as if served upon the company, and
that the authority thereof shall continue in force, irrevocable, as
long as any liability of the company remains outstanding in this
was not "doing business" in the state. Auto Trading Co. v. Williams (Okl.)
177 P. 583.
Where a nonresident corporation contracted with a resident to sell and de-
liver f. o. b. at a point outside the state certain proprietary njedicines to be
shipped into the state and resold at retail, it did not incur the penalty prescrib-
ed by Rev. Laws 1910, § 1338. Dr. Koch Vegetable Tea Co. v. Shumann, 139 P.
1133, 42 Okl. 60.
Nonresident corporation, which contracted with citizen of state, whereby its
products were sold and delivered f. o. b. at point outside state, to be sold at re-
tail within designated territory, held not doing business within state. J. R.
Watkins Medical Co. of Winona, Minn., v. Coombes (Okl.) 166 P. 1072.
ss Bailey v. Parry Mfg. Co., 59 Okl. 152, 158 P. 581.
'** Title Guaranty & Surety Co. v. Sliuker, 143 P. 41, 42 Okl. 811.
ST Hollister v. National Cash Register Co., 55 Okl. 214, 154 P. 1157; Fruit
Dispatch Co, v. Wood, 140 P. 1138, 42 Okl. 79.
ss j. p. Bledsoe & Son v. W. B. Young Supply Co., 44 Okl. 609, 145 P. 1125;
Freeman-Sipes Co. v. Corticelli Silk Co., 124 P. 972, 34 Okl. 229.
ss Rev. .Laws 1910, § 4716.
(323)
§ 473 COMMENCEMENT OF ACTION (Oh. 9
state. Any process issued by any court of record in this state, and
served upon such commissioner by the proper officer of the county
in which said commissioner may have his office, shall be deemed a
sufficient process on said company, and it is hereby made the duty
of the insurance commissioner to promptly, after such service of
process, forward by registered mail, an exact copy of such notice
to the company; or, in case the company is of a foreign country,
to the resident manager in this country; and also shall forward a
copy thereof to the general agent of said company in this state.
For power of attorney, each company shall pay a fee of three dol-
lars, and for each copy of process, the insurance commissioner
shall collect the sum of three dollars, which shall be paid by the
plaintiff at the time of such service, the same to be recovered by
him as a part of the taxable cost, if he prevails in his suit." 90
Every fraternal beneficiary association "now doing or hereafter
admitted to do business within this state, and not having its prin-
cipal office within this state, and not being organized under the
laws of this state, shall appoint in writing the insurance commis-
sioner and his successor in office to be its true and lawful attor-
ney, upon whom all legal process in any action or proceeding
against it must be served, and in such writing shall agree that
any lawful process against it which is served on said insurance
commissioner shall be of the same legal force and validity as if
served upon said association, and that the authority shall remain in
force as long as any liability against said association shall remain
outstanding within this state. Copies of such certificate, certified
by said insurance commissioner, shall be deemed sufficient evi-
dence thereof, and shall be admitted in evidence with the same
force and effect as the original thereof might be admitted. Serv-
ice upon said insurance commissioner shall be deemed sufficient
service upon such association: Provided, that such process shall
not be returnable until thirty days after such service. When legal
process against any such association is served upon the insurance
commissioner he shall immediately notify the association of such
service by registered letter, prepaid and directed to its secretary
or its corresponding officer, and shall within two days after such
service forward in the same manner a copy of the process served
upon him to such officer. The plaintiff in the action upon which
ao Sess. Laws 1910-11, p. 202, § 1, amending Rev. Laws 1910, § 3422.
(324)
Art. 2) PROCESS §§ 474-475
such process was issued shall pay to the insurance commissioner
at the time of such service a fee of three dollars which shall be re-
covered by said plaintiff as a part of his taxable costs, if he pre-
vail in his said action. The insurance commissidner shall keep a rec-
ord of all processes served upon him, which record shall show the
day and hour when such service was made, and when the notice
hereinbefore provided for was given to the officers of such asso-
ciation. In all suits in this state against any such association
organized under the laws of this state, and having its principal
officer in this state, service shall be had upon the chief executive
officer or the secretary, or corresponding officer of such associa-
tion." 91
§ 474. Insurance board
All individuals, partnerships and corporations of this state who
shall enter into contracts, as provided by law, to exchange recip-
rocal or inter-insurance with each other, "shall file with the state
insurance board an instrument in writing, executed by him for
said subscribers, conditioned that, upon the issuance of certificate
of authority provided for" by law, "service of process may be had
upon the state insurance board in all suits in this state arising out
of such policies, contracts or agreements, which service shall be
valid and binding upon all subscribers exchanging at any time re-
ciprocal or inter-insurance contracts through such attorney. Three
copies of such process shall be served, and the state insurance
board shall file one copy, forward one copy to said attorney, and
return one copy with his admission of service. For the copy of
the original process accepted by the state insurance board as at-
torney for service, a fee of three dollars shall be collected from the
plaintiff." 92
§ 475. On railroad company and stage line — Agent
"Every railroad company and every stage company doing busi-
ness in this state or having agents doing business therein for such
company, is hereby required to designate some person residing
in each county into which its railroad line or stage route may or
does run, or in which its business is transacted, on whom all process
and notices issued by any court of record or justice of the peace
of such county may be served." 83
»i Rev. Laws 1910, § 3490. es Rev. Laws 1910, § 4717.
»2 Sess. Laws 1915, p. 472, § 4.
(325)
'§ 475 COlUklEXCEMENT OF ACTION (Ch. 9
"In every case such railroad company and stage company shall
file a certificate of the appointment and designation of such person,
in the office of the clerk of the district court of the county in which
such person resides; and the service of any process upon the per-
son so designated, in any civil action, shall be deemed and held
to be as effectual and complete as if service of such process were
made upon the president or other chief officer of such company.
Any railroad company or stage company may revoke the appoint-
ment and designation of such person upon whom process may be
served, as hereinbefore provided, by appointing any other person
qualified as above specified, and filing a certificate of such appoint-
ment as aforesaid; but every second or subsequent appointment
shall also designate the person whose place is to be filled by such
appointment." 94
a* Rev. Laws 1910, § 4718.
A railroad company ran a short branch of its line from L/., Kan., into B.
county, for a distance of from four to six miles, for the purpose of taking up
cattle from a cattle chute, which it had located at the end of the brand*. No
station agent was located at the end of the line or at the cattle chute. The
short piece of track was managed by the agent at L. Passengers were not
carried for hire over the piece of track referred to. No freight charges
were made for1 carrying the cattle upon it. The trains ran irregularly, and
only when trains of cattle were to be shipped from the territory; and these
trains were billed and charged for from L,. No depot building was erected
at the point ref erred io, and no shelter was provided for passengers or freight,
and no other freight was carried upon the line except cattle received at the
chute mentioned. The point is not referred to in defendant company's print-
ed lists of stations or time schedules, and there is no evidence that the com-
pany ever intended to establish a station there. Code Civ. Proc. § 68c, au-
thorizes service of process by leaving a true copy, at any depot or station of
such company, with some person in charge thereof, or in the employ of such
company. Held, that service on the conductor who has charge of the
cattle train at the point in question is not such a service as will be deemed
"complete and effectual." Chicago, R. I. & P. Ry. Co. v. Groves, 54 P. 484, 7
Okl. 315.
An action against a railroad company for injury to property upon the
line of the company may be brought in any county through or into which
the road passes (Civ. Code, § 50), and, when rightly brought, the summons
may be issued to any other county of the state and there served upon the
president of the company (Civ. Code, §§ 60, 68). Newberry v. Arkansas, K. &
C. Ry. Co., 35 P. 210, 52 Kan. 613.
Civ. Code, § 68a, provides that every railroad doing business in this state,
or having agents doing business therein for the company, is required to desig-
nate some person in each county through which its railroad runs or its
business is transacted on whom process and notice may be served. Section
68c provides that, if the company shall fail to designate a person as required
(326)
Art. 2) PROCESS §§ 475-476
The interests of a federal receiver of a railroad and of the rail-
road company are not so adverse as to preclude the same per-
son from acting as station agent for the purpose of serving sum-
mons upon the railroad company pursuant to the laws while also
acting for the receiver.95
§ 476. Where no agent appointed
"If any railroad or stage company failed to designate or appoint
such person, as provided and required in the preceding sections,
such process may be served on any local superintendent of re-
pairs, freight agent, agent to sell tickets, or station keeper, of such
company, in such county or such process may be served by leaving
a copy thereof, certified by the officer to whom the same is directed
to be a true copy, at any depot or station of such company in such
county, with some person in charge thereof, or in the employ of
such company, and such service shall be held and deemed complete
and effectual." 96
by the previous section, such process may be served on any local superintend-
ent of repairs, freight agent, agent to sell tickets or station keeper of such
company in the county in which the action is brought, or such process may
be served by leaving a copy thereof at any depot or station of such company
in such county, with some person in charge thereof or in the employ of such
company. Defendant railroad company, after building a railroad, leased it
to another company, which took entire charge thereof. Defendant company
thereafter exercised no business relations in the state, except as lessor of
such railroad. Held, that a summons left with a station agent of the lessee
company in charge of the station of such railroad was insufficient, as the
lessor company was not doing business within the state, within the meaning
of the statute. Le Roy & C. V. A. L. R. Co. v. Sidell, 63 P. 509, 62 Kan. 349.
A return upon a summons against a railroad company that it was "served
by delivering a copy thereof, with the indorsements thereon duly certified, to
Mr. Fish, agent of the within railroad company," is not sufficient evidence of
service, as it fails to show that he is of that class of agents on whom service
may be made under Comp. Laws, c. 80, §§ 68, 68a, and chapter 81, § 13. Dick-
erson v. Burlington & M. R. R. Co., 23 P. 936, 43 Kan. 702.
»B Missouri, K. & T. Ry. Co. v.. Hudson (Okl.) 175 P. 743, 9 A. L. R. 223.
»6 Rev. Laws 1910, § 4719.
In action against receivers of railroad, held, in view of Rev. Laws 1910, §
4719, that where the track and a part of the depot platform were in Latimer
county, while the depot building, in which the depot agent resided, was in Le
Flore county, personal service on the agent while he was in Latimer coun-
ty conferred jurisdiction on the court of that county. St. Louis & S. F. R.
Co. v. Mobley (Okl.) 174 T. 510.
Under Rev. Laws 1910, § 4719, service of summons upon the superintendent
of a railway company is not authorized, it not appearing that he was in
(327)
§§ 477-479 COMMENCEMENT OF ACTION (Ql. 9
§ 477. Where personal service impossible
"In all cases where service of any process cannot be had per-
sonally upon the person designated by such company, service
may be made by leaving- a certified copy of such process at the
usual place of residence of such person, or as in the last preced-
ing section, and the same shall be deemed complete and effec-
tual." 97
§ 478. Actions against counties
"In all legal proceedings against the county process shall be serv-
ed on the county clerk as the clerk of the board of county commis-
sioners, and whenever suit or proceedings shall be commenced, it
shall be the duty of the clerk forthwith to notify the county attorney
and lay before the board of county commissioners at their next
meeting all the information he may have in regard to such suit or
proceedings." 98
§ 479. Service on infant
"When the defendant is a minor, under the age of fourteen years,
the service must be upon him and upon his guardian or father,
or if neither of those can be found, then upon his mother, or the
person having the care or control of the. infant, or with whom
he lives. If neither of these can be found, or if the minor be more
than fourteen years of age, service on him alone will be sufficient.
The manner of service may be the same as in the case of adults." "
If the service of summons be not made in strict compliance with
the statute, the court has no jurisdiction to render judgment
against the minor, and a judgment rendered against the minor,
where the statute has not been strictly complied with, is void, and
confers no rights upon the parties obtaining the same.1
charge of a depot or station of the company. Shawnee Tecumseh Traction
Co. v. Webster (Okl.) 174 P. 266.
The service of a summons against a railway company, upon its section fore-
man, as "a local superintendent of repairs," where it appears that the com-
pany has not designated any person upon whom service could be made under
section 68a, p. 613, Comp. Laws 1885, is valid. St. Louis & S. F. Ry. Co. v. De
Ford, 16 P. 442, 38 Kan. 299.
97 Rev. Laws 1910, § 4720. t
98 Rev. Laws 1910, § 1501.
8» Rev. Laws 1910, § 4723.
i Sealey v. Smith (Okl.) 197 P. 490.
(328)
Art. 2) PROCESS §§ 479-482
Service of process upon an infant defendant, as required by this
statute, cannot be waived.2
§ 480. Service on sheriff
"Every paper required by law to be served on the sheriff, may be
served on him in person, or left at his office during his business
hours." 8
§ 481. On inmates of hospitals for insane
"Any citation, order or process required by law to be served on
an inmate of the hospitals shall be served only by the medical su-
perintendent in charge thereof or by some one designated by him.
Return thereof to the court from which the same issued shall be
made by the person making such service, and such service and re-
turn shall have the same force and effect as if it had been made by
the sheriff of the county." *
§ 482. Notice or process issued by state board of arbitration
"Any notice or process issued by the state board of arbitration
and conciliation shall be served by any sheriff or constable to
whom the same may be directed or in whose hands the same may be
placed for service." 5
- Condit v. Gondif (Okl.) 168 P. 456; Echols v. Reeburgh, 62 Okl. 67, 161 P.
1065. ;
Service upon a minor under 14 must be upon him and upon his guardian or
father, or upon his mother or the person having his care and control, jbut
service upon a minor above 14 years is sufficient. Jefferson v. Gallagher, 56
Okl. 405, 150 P. 1071. An infant cannot waive the issuance and service of sum-
mons, nor can his guardian, guardian ad litem, or attorney waive it for him,
and no person can appear for an infant until he is brought into court accord-
ing to law. Id. ; Boiling v. Campbell, 128 P. 1091, 36 Okl. 671 ; Same v. Gibson,
128 P. 1093, 36 Okl. 678.
s Rev. Laws 1910, § 1705.
Gen. St. 1897, c. 88, § 14, declares that every paper required by law to be
served on the sheriff may be served on him in person or left at his office
during his business hours. The return on a summons read as follows: "Re-
ceived this writ July 15, 1893, and was commanded therein to summon the
following persons, the defendants within named, at the time following, to
wit, J. B. N., sheriff, June 24, 1893, by leaving a true certified copy of the
within summons at the office of the said sheriff with the undersheriff of said
county." Held that, while it did not affirmatively appear from the return
that the summons was left at the sheriff's office in his business hours, the
return was sufficient. Nipp v. Bower, 61 P. 448, 9 Kan. App. 854.
4 Sess. Laws 1917, p. 331, § 36.
5 Rev. Laws 1910, § 3710.
(329)
§§ 483-484 COMMENCEMENT OF ACTION (Ch. !>
§ 483. County court
"All process issued by the county court shall be served in the
same manner, and by the persons and officers as provided for the
service of process of the district court with the same fees." 6
§ 484. Return
"In all cases the return must state the time and manner of serv-
ice." "The officer or person to whom the summons is directed, must
return the same at the time therein stated." 7
Where a summons is made returnable in nine days from the day
of its issuance, and is served one day before the day upon which
it is made returnable, and twenty-one days before the defendants are
required to answer, neither the summons nor the service thereof,
nor a judgment rendered thereon upon default by the defendants,
are void or voidable because of the failure of the sheriff to return
such summons and file the same with the clerk of the district court
until the day after the return day.8
A return of service, made and signed by a sheriff, when actually
made by his deputy, is irregular, but not invalid.9
A return reciting that summons was served on one defendant
by delivering to him a true copy thereof and on another by leaving
such a copy at his usual place of residence with a member of his
family over 16 years of age, and purporting to-be signed by the
sheriff by his deputy is sufficient.10
Where a summons, directed to an officer of another county, and
returnable in less than ten days from its date was served and re-
turned within such time it was irregular, but where it gave defend-
ant full statutory time to plead, and in no way prejudiced him, court
properly refused to quash summons.11
. 6 Rev. Laws 1910, § 6191.
i Rev. Laws 1910, §§ 4712, 471.3.
s Miller v. Forbes, 49 P. 705, 6 Kan. App. 617.
» Orchard v. Peake, 77 P. 281, 69 Kan. 510.
10 Bollenbach v. Huber, 46 Okl. 127, 148 P. 716.
A return reciting that the officer "summoned the within-named S. by leav-
ing a certified copy of the within summons, and the indorsements thereon,
at the usual place of residence" on a certain day, shows that the copy was
left at the usual place of residence of S., and is sufficient. Sextou v. Rock
Island Lumber & Mfg. Co., 30 P. 164, 49 Kan. 153.
11 Continental Ins. Co. v. Norman (Okl.) 176 P. 21L,
(330)
Art. 2) PROCESS §§ 485-486
§ 485. Fees
"When a summons is issued to another county than that in
which the action or proceeding is pending, it may be returned by
mail, and the sheriff shall be entitled to the same fees as if the sum-
mons had issued in the county of which he is sheriff." 12
§ 486. Conclusiveness
A sheriff's return showing personal service of summons, though
not conclusive, is prima facie evidence of its truthfulness, and re-
quires clear and convincing proof to overcome it.13
When an officer makes a false return of personal service on which
judgment is rendered, such return is not conclusive evidence against
the fact.1*
is Rev. Laws 1910, § 4708.
is Jones v. Jones, 57 Okl. 442, 154 P. 1136; Humphrey v. Coquillard Wagon
Works, 132 P. 899, 37 Okl. 714, 49 L. R. A. (N. S.) 600. .
The return of an officer as to service of summons is not conclusive of the-
facts therein stated, and defendant may appear specially on the return day,,
and contradict the same. Jones v. Marshall, 43 P. 840, 3 Kan. App. 529.
As between the parties to a suit and their privies, the general rule is; that
the return of the sheriff to process is conclusive. Warren v. Wilner, 60 P.
745, 61 Kan. 719 ; Goddard v. Harbour, 44 P, 1055, 56 Kan. 744, 54 Am: St..
Rep. 608.
A return that personal service was had on defendant is not open to contra-
diction or disproof by extrinsic evidence after judgment. Orchard v. ,Peake,
77 P. 281, 69 Kan. 510.
A sheriff's return with respect to the service of original process may be
impeached so far as it states jurisdictional facts, where the facts stated are
not within the personal knowledge of the officer, but as to all matters stated
in his return which are within the officer's personal knowledge the return
is conclusive as between the parties to the action. Eastwood v. Carter, 61
P. 510, 9 Kan. App. 471.
Evidence held insufficient to show fraud in procuring service on nonresident
defendant. Van Arsdale-Osborne Brokerage Co. v. Jones, 156 P. 719, 97
Kan. 646.
Return of sheriff reciting that certified copy of summons was left with
defendant's wife at his usual place of residence makes out a prima facie
case of residence. Jones v. Reser, 61 Okl. 46, 160 P. 58. An official return is
sufficient pr6of of facts which the officer is authorized to certify. Cox v^
State, 61 Okl. 182, 160 P. 895.
i< Ray v. Harrison, 121 P. 633, 32 Okl. 17, Ann. Cas. 1914A, 413.
§§ 487-489 COMMENCEMENT OF ACTION (Ql. 9
§ 487. Entering return
The clerk "shall, upon the return of every summons served, enter
upon the appearance docket the name of the defendant or defend-
ants summoned, and the day of the service upon each one. The en-
try shall be evidence of the service of the summons, in case of the
loss thereof." 15
§ 488. Evidence of service
Where the return of a sheriff that he has served a summons per-
sonally is ambiguous and open to a construction that but one copy
was delivered to both defendants, parol evidence is admissible to
show that no service was had on one of the defendants.18
Testimony of one on whom a summons was served as secretary
of a corporation, tending to show that at the time of service of sum-
mons he was not such officer, is admissible to impeach the return
on the summons.17
Where the original process in an action in the district court is
lost, and the appearance docket recites that a summons was issued
and returned "Served," the presumption arising therefrom that the
return was regular, and the service valid, is not overcome by tes-
timony of a deputy sheriff .that he made a service of the summons
in the case, which was invalid, in the absence of a showing that no
further service was made.18
§ 489. Forms
SUMMONS
(Caption.)
The State of Oklahoma, to the Sheriff of —. County — Greetings :
You are hereby commanded to notify that he (or she)
Ha — been sued by in the district court of county,
Oklahoma, and that must answer the petition of said
filed against in said court, in the city of , in said
county, on or before the day of , 19 — , or said petition
will be taken as true and judgment rendered, accordingly.
You will make due return on this summons on the day
of , A. D. 19—.
IB Rev. Laws 1910, § 5332.
ie Jackson v. Tenney, 87 P. 867, 17 Okl. 495.
IT Schnack v. Boyd, 52 P. 874, 59 Kan. 275.
is Stunkle v. Holland, 46 P. 416, 4 Kan. App. 478,
(332)
Art. 2) PROCESS § 489
In witness whereof, I have hereunto set my hand and affixed the
seal of said court at , in said county, this day of
— , A. D. 19—. — , Court Clerk,
By , Deputy.
(Indorsements as follows:)
Suit brought for .
If the defendant fail to answer, plaintiff will take judgment for
the sum of $ , with interest thereon at the rate of per
cent, per annum from the day of , 19 — , and costs
of suit. , Court Clerk,
By , Deputy.
RETURN OF SUMMONS PERSONALLY SERVED
State of Oklahoma,"
County of
Received this writ , 19 — , and, as commanded therein, I
summoned the following persons of the defendant within named
at the times following, to wit:
A. B., ,19—
C. D., , 19-
by delivering to each of said defendants, personally, in said county,
a true and certified copy of the within summons, with all of the
indorsements thereon, and leaving the same with them.
, Sheriff,
By , Deputy.
RETURN OF SUMMONS SERVED ON ADMINISTRATOR
State of Oklahoma,
County of
Received this writ , 19 — , and, as commanded therein, I
summoned the within named defendant, A. B., as administrator
of the estate of C. D., deceased, by delivering to said A. B., person-
ally, in said county, a true and certified copy of the within sum-
mons, with all of the indorsements thereon.
, Sheriff,
By , Deputy.
(333)
489-490 COMMENCEMENT OP ACTION (Cll. 9*
RETURN OE SUMMONS SERVED BY LEAVING COPY AT PLACE OE RESI-
DENCE
State of Oklahoma,'
County of
Received this writ , 19 — , and, as commanded therein, I
summoned the within named defendant, A. B., on the day
of — — , 19 — , by leaving for said defendant at his usual place
of residence in said county, with C. B., wife (or child, etc.) of said
defendant and a person over fifteen years of age, a true and cer-
tified copy of the within summons, with all the indorsements
thereon.
, Sheriff,
By -, Deputy.
RETURN OE SUMMONS SERVED ON CORPORATION
ss. :
V
Received this writ , 19 — , and, as commanded therein, I
summoned the within named defendant, A. B. & Co., on the
day of , 19 — , by delivering to C. D., secretary of said cor-
poration, personally, in said county, a true and certified copy of the
within .summons, with all of the indorsements thereon; the pres-
ident, mayor, chairman of the board of directors, or trustees, or
other chief officer, cashier, or treasurer, not being- found in said
county.
• , Sheriff,
By , Deputy.
DIVISION III. — SERVICE BY PUBLICATION
§ 490. In general
A state has power by statute* to provide for the adjudication of
titles to real estate within its limits as against nonresidents who
are brought into court only by publication.18
The method of obtaining jurisdiction over a person not within
the state must be as indicated by the statute.20
i» Gushing v. Cummings (Okl.) 179 P. 762.
20 First State Bank of Addington v. Lattimer, 48 Okl. 104, 149 P. 1099.
(334)
Art. 2) PROCESS §§ 490-491
Service by publication is authorized only where plaintiff with
due diligence is unable to serve defendant within the state.21 A
valid personal judgment cannot be rendered against a nonres-
ident on publication.22
§ 491. Service by publication — When authorized
"Service may be had by publication in any of the following
cases: In actions brought under sections 4671 and 4672, article 6,
chapter 60 of the Revised Laws of Oklahoma, 1910, where any or
all of the defendants reside out of the state, or where it is stated
in the affidavit for service by publication that the plaintiff with due
diligence is unable to make service of summons upon such defend-
ant or defendants within the state ; in actions brought to establish
or set aside a will, where any or all of the defendants reside out
of the state; in actions brought to obtain a divorce or alimony or
annulment of the contract of marriage, where the defendant resides
out of the state ; in an action brought against a nonresident of
the state or a foreign corporation having in this state property or
debts owing them, sought to be taken by any of the provisional
remedies, or to be appropriated in any way; in actions which re-
late to, or the subject of which is, real or personal property in this
^state where any defendant has or claims a lien or interest, actual
or contingent therein, or the relief demanded consists wholly or
partly in excluding him from any lien or interest therein, and such
defendant is a nonresident of the state or a foreign corporation ;
in all actions where the defendant, being a resident of this state,
has departed therefrom or from the county of his residence, with
intent to delay or defraud his creditors, or to avoid the service of
summons or keep himself concealed therein with like intent; and,
in any of the actions mentioned in this section, against a domestic
corporation which has not been legally dissolved and has ceased to
maintain an office with some person in charge thereof at the place
in this state where, in its article of incorporation, it is stated its
principal business is to be transacted, and its officers and agents,
if any, upon whom service of summons against such corporation is
authorized to be made by the laws of this state are either non-
residents thereof or have departed therefrom or cannot, upon dili-
21 Richardson v. Howard, 51 Okl. 240, 151 P. 887.
22 Pettis v. Johnston, 78 Okl. 277, 190 P. 68L
(335)
§§ 491-492 COMMENCEMENT OF ACTION (Ql. 9
gent inquiry, be' found therein, or where it is stated in the affidavit
for service by publication, in such action, that the plaintiff with
due diligence is unable to make service of summons upon such
defendant within this state.
"In any of the actions mentioned in this section wherein the un-
known heirs, executors, administrators, devisees, trustees or as-
signs or any of them, of any deceased person, or the unknown suc-
cessors, trustees or assigns, if any, of any dissolved corporation,
are made defendants; or wherein the plaintiff upon diligent in-
quiry, is unable to ascertain the whereabouts of a person named
as a defendant or whether he is living or dead, and if dead, is un-
able to ascertain who are his heirs, executors, administrators, dev-
isees, trustees or assigns, if any, or their whereabouts ; or wherein
the plaintiff upon diligent inquiry, is unable to ascertain whether a
corporation, domestic or foreign, named as a defendant, continues
to have legal existence or not, or has officers or not, or their names
and whereabouts, and if dissolved, is unable to ascertain the names
or whereabouts of the successors, trustees or assigns, if any, of
such corporation ; or wherein the plaintiff cannot ascertain whether
a person named as a defendant is living or dead, or, if dead, the
names of his heirs, executors, administrators, devisees, trustees or
assigns, if any, or cannot ascertain whether a corporation has been
dissolved or not, or if dissolved, the names of its successors, trus-
tees, or assigns; publication service may be had upon such un-
known party or in the alternative upon such person, if living, or
corporation, or if dead, or dissolved, upon the unknown heirs, ex-
ecutors, administrators, trustees, devisees and assigns, if any, of
such deceased person, or the unknown successors, trustees, and
assigns of such dissolved corporation." *3
§ 492. In what actions authorized
In an action to quiet title to real estate, brought by one in actual
possession against a person who is nonresident and out of the state,
service of summons may be made by publication.2*
Service of summons by publication on a nonresident is unauthor-
ized in an action which joins claims only personal in their nature
with claims affecting real estate situated within the state.26
23 Sess. Laws 1919, c. 145, § 1, amending Rev. Laws 1910, § 4722.
24 Dillon v. Heller, 18 P. 693, 39 Kan. 599.
25 Zimmerman v. Barnes, 43 P. 764, 56 Kan. 419.
(336)
Art. 2) PROCESS §§ 492-493
In an action for specific performance to convey land, no jurisdic-
tion of a defendant could be obtained by publication.28
In actions relating to real or personal property in state where any
defendant has or claims a lien or interest actual or contingent there-
in, or where the relief demanded consists in excluding him from
any interest therein, and where such defendant is a nonresident
or a foreign corporation, service by publication may be had.27
An action against nonresident of territory of Oklahoma having
property attachable therein is an action in which service of summons
may be made on defendant by publication.28
A temporary restraining order, while a provisional remedy, is not
such a remedy as contemplated by the statute allowing service by
publication in actions against nonresident having property in the
state, sought to be taken by provisional remedies.29
§ 493. On whom authorized
In civil actions against residents, jurisdiction must be acquired
by personal service or voluntary appearance and cannot be obtained
by publication service.80
Service of process, under the statute providing for publication,
where defendant, being a resident of the state, has departed with
the intent tb avoid service, was not invalid because the defendant,
at the time thereof, resided outside of the state.81
In an action against a nonresident, to trace a trust fund into spe-
cific property held by him in the state, with notice of the trust,
service by publication is sufficient.32
se Homer v. Ellis, 90 P. 275, 75 Kan. 675, 121 Am. St. Rep. 446.
27 Gushing v. Cummings (Okl.) 179 P. 762.
28 Richardson v. Carr (Okl.) 171 P. 476.
- 29 Waldock v. Atkins, 60 Okl. 38, 158 P. 587.
so Friedman v. First Nat. Bank, 39 Okl. 486, 135 P. 1069, 49 L. R. A. (N.
S.) 548.
Where a civil action is commenced against two residents in a county other
than that of their residence, and a garnishment summons is issued upon a
resident of the county where the action is commenced, and defendants are
not served and make no appearance, and service by publication is attempted
to be made upon them, a judgment rendered against them by default is void.
Friedman v. First Nat. Bank, 39 Okl. 486, 135 P. 1069, 49 L. R. A. (N. S.) ~548.
si Cole v. Hoeburg, 13 P. 275, 36 Kan. 263.
32 Reeves v. Pierce, 67 P. 1108, 64 Kan. 502.
HON.PL.& PBAC.— 22
(337)
§§ 494-495 COMMENCEMENT OF ACTION (Ch. 9
§ 494. Unknown heirs or devisees
"In actions where it shall be necessary to make the heirs or
devisees of any deceased person defendants, and it shall appear by
the affidavit of the plaintiff, annexed to his petition, that the name
of such heirs or devisees, or any of them, and their residences, are
unknown to the plaintiff, proceedings may be had against such
unknown heirs or devisees, without naming them. In such ac-
tions service may be had upon such defendants by publication and
the notice shall be published as in other cases of service by pub-
lication." 33
The term "unknown heirs," where the relief demanded is to ex-
clude defendants from any interest in real property, means all
kinds of heirs, including heirs of heirs of such defendants as well
as the legatees of heirs.3* .
In a suit to quiet title brought against unknown heirs of one erro-
neously supposed to be dead, and unknown heirs of those from
whom his right and title descended, where service was attempted
by publication, such one is not a party to action, and court acquired
no jurisdiction of him by such attempted service.35
§ 495. Affidavit— Form
"Before service can be made by publication, an affidavit must be
filed stating that the plaintiff, with due diligence, is unable to make
service of the summons within the state upon the defendant to
be served by publication, and showing that the case if one of those
mentioned in the preceding section. .When such affidavit is filed
the party may proceed to make service by publication.
"In actions against unknown heirs, executors, administrators,
devisees, trustees and assigns, of any deceased person, or in the al-
ternative against a person or his unknown heirs, executors, adminis-
trators; devisees and assigns, or against a corporation or its un-
known successors, trustees and assigns, the affidavit shall state
that the plaintiff does not know and with diligence is unable to
ascertain the names or whereabouts of any such heirs, executors,
administrators, devisees, trustees or assigns, or successors, trus-
«s Rev. Laws 1910, § 4729.
s* Howell v. Carton, 108 P. 844, 82 Kan. 495.
as Buck v. Simpson (OkL) 166 P. 146, L. R. A. 1918F, 604.
(338)
Art. 2) PROCESS § 495
tees or assigns of a corporation, or with diligence is unable to
ascertain whether a person named in the alternative is living or
dead, or his whereabouts, and if he be dead, is unable to ascertain
the names or whereabouts of his heirs, executors, administrators,
devisees, trustees or assigns, or is unable to ascertain whether a
corporation named in the alternative is legally existing or dissolved,
and if not in existence, is unable to ascertain the names or where-
abouts of its officers, successors, trustees or assigns, if any. When
such affidavit is filed the party may proceed to make service, in such
actions, by publication. Statements as to any and all kinds of
defendants, natural or corporate, known or unknown, may be
united in one affidavit for service by publication, and notice to all
of them may be included in one publication notice." 8e
Where publication is relied on to confer jurisdiction, the affidavit
as well as the publication notice are jurisdictional matters, and both
must, comply with the statute.37
It is not necessary to allege in terms that the action is one of
those enumerated in the statute, where the affidavit to obtain serv-
ice by publication mentions sufficient grounds.88
3« Sess. Laws 1919, c. 145, § 2, amending Rev. Laws 1910, § 4723.
Under Code Civ. Proc. § 72, enumerating the cases in which service may
be had by publication, and section 73, requiring an affidavit for such service
to show "that the case is one of those mentioned" by section 72, an affidavit
stating that the action is one "to quiet title to real estate, as provided by
section 72," does not sufficiently show that the case is "one of those men-
tioned." Leavenworth, T. & S. W. Ry. Co. v. Stone, 55 P. 346, 60 Kan. 57.
An affidavit for service by publication under Code Civ. Proc. §§ 72, 73, in an
action concerning real estate, must state the location of the land because it
is a local action. Id.
An affidavit for service by publication was entitled in the cause, but the
venue was stated thus: "State of Kansas, County." Held sufficient.
Baker v. Agricultural Land Co., 61 P. 412, 62 Kan. 79.
ST Cordray v. Cordray, 91 P. 781, 19 Okl. 36.
s s Chaplin v. First Bank of Hitchcock (Okl.) 181 P. 497; Lausten v. Union
Nat. Bank of Bartlesville (Okl.) 173 P. 823.
An affidavit for service by publication need not state that the action is one
of those mentioned in Code Civ. Proc. § 78 (Gen. St. 1909, § 5671), or that
it is one in which service by publication can be made, but should state facts
showing that the action is one in which such service is authorized. Harvey
v. Harvey, 118 P. 1038, 85 Kan. 689. An affidavit for service by publication
which alleges that the action is brought to set aside a deed to plaintiff's
homestead and to quiet title, that defendant is a nonresident, that personal
service cannot be had, and that plaintiff has a just cause of action is sufficient
as against an attack by a suit to set aside the judgment brought more than
three years after judgment. Id.
(339)
§ 495 COMMENCEMENT OF ACTION (Ql. 9
If there is a total want of evidence upon a vital point in the affi-
davit for publication, the court acquires no jurisdiction by pub-
lication of the summons ; but where there is not an entire omission
to stale some material fact, but it is inferentially or insufficiently
set forth, the proceedings are merely voidable.39
. Certain averments omitted from the affidavit may be inferred
from facts alleged ; *° but there must be some substantial allega-
tion on which to base the inference,41 and the facts showing due
diligence to obtain personal service in the state should be set up,42
39 Harris v. Olaflin, 13 P. 830, 36 Kan. 543.
40 Affidavit for summons by publication under Rev. Laws 1910, §§ 4722,
4723, made in case specified in section 4722, and alleging inability to make
summons, otherwise than by publication, held sufficient to support judgment
based on such service as against attack on ground that defect in affidavit ren-
dered judgment void, as averment omitted from affidavit would be inferred.
Richardson v. Carr (Okl.) 171 P. 476.
Under Gen. St. 1915, §§ 6969, 6970, affidavit in action against railroad for
damages to live stock in transit for service by publication, based on garnish-
ment proceedings, held sufficient. Dye v. Denver & R. G. R. Co., 101 Kan.
666, 168 P. 1087.
In an action to reform and foreclose a mortgage, service of summons by
publication was obtained on affidavit that "defendant has removed from said
county of Shawnee, and now resides in that region of country known as
'Pikes' Peak,' and that service of summons cannot be made on said defend-
ant within this territory." Held that, when attacked in a collateral proceed-
ing, the affidavit was sufficient, though it did not mention the reformation,
nor directly state that defendant was a nonresident of Kansas. Carey v.
Reeves, 5 P. 22, 32 Kan. 718.
An affidavit to obtain service by publication, which inferentially states all
material facts required by Gen. St. 1901, § 4507, is not void because failing to
state that plaintiffs were unable to make service "with due diligence," but
is at most only voidable. Morris v. Robbins, 111 P. 470, 83 Kan. 335.
The omission of an allegation in an affidavit for service by publication that
service could not be had "by due diligence" is immaterial. Smith vJ United
States Sugar & Land Co., 108 P. 860, 82 Kan. 539.
41 Ballew v. Young, 103 P. 623, 24 Okl. 182, 23 L, R. A. (N. S.) 1084.
Where the affidavit for publication does not state directly, inferentially,
or in any other way, that the action brought is one of those mentioned in
Civ. Code, § 72, the affidavit is fatally defective, and service by publication
cannot be obtained thereon. Harris v. Claflin, 13 P. 830, 36 Kan. 543.
An affidavit for publication is insufficient which does not state that the
case is within Civ. Code, § 72, enumerating the cases in which service by
publication may be had. Grouch v. Martin, 27 P. 985, 47 Kan. 313. An at-
tempted service of process by publication is insufficient, where the affidavit
for publication does not state that plaintiff is unable to obtain personal service
on defendant. Id.
42 Nicoll v. Midland Savings & Loan Co. of Denver, Colo., 21 Okl. 591, 96
Pac. 744.
Affidavit for summons by publication, averring that whereabouts of de-
(340)
Art. 2) PROCESS § 495
unless it is alleged that defendant is a nonresident;48 mere conclu-
sions or hearsay being insufficient.44
An affidavit for service by publication that defendant is a non-
resident of Oklahoma and a resident of another state, without show-
fendants could not be known by affiant, that he had used due diligence and
had made trips to find them, was insufficient, where facts as to due diligence
used a? to service in the state were not set up. Rentie v. Rentie (Okl.) 172
P. 1083.
Where an affidavit for notice by publication was fatally defective, the
court obtained no jurisdiction over the person of defendants. Griffin v. Jones,
45 Okl. 305, 147 P. 1024. An affidavit filed for a notice of publication held
insufficient, where it failed to allege any facts showing that defendants could
not be served by the exercise of diligence, or that they1 were not in the
state. Id.
Where an affidavit for service on a foreign corporation by publication
did not show that such corporation had not complied with the laws relative to
foreign corporations in appointing and designating agents on whom service
might be had, nor state facts showing that due diligence had been used to
obtain personal service a judgment rendered thereon was void. Nicoll v.
Midland Savings & Loan Co. of Denver, Colo., 96 P. 744, 21 Okl. 591.
Under Code Civ. Proc. § 79 (Gen. St. 1909, § 5672), which takes the place
of section 73 of the old code, an affidavit for service by publication which
wholly fails to show that plaintiff diligently inquired as to the residence
of the defendants to be served by publication and was unable to learn same
is void. Van Gundy v. Shewey, 133 P. 720, 90 Kan. 253, 47 L. R. A. (N.
S.) 645.
43 An affidavit for service on nonresident by publication, otherwise suffi-
cient, was not void or voidable because not stating facts showing that plaintiff
in exercise of due diligence was unable to make service of summons. Con-
tinental Gin Co. v. Arnold (Okl.) 167 P. 613, L. R. A. 1918B, 511.
Where the element of nonresidence of defendant is absent, the affidavit for
publication must either show proper active effort to find and serve him with-
in the state or facts showing that such effort would be futile. Richardson
v. Howard, 51 Okl. 240, 151 P. 887. Where defendant in a mortgage fore-
closure is a nonresident, and plaintiff neither knows nor has reason to be-
lieve that he may be served within the state, the affidavit for publication
need not show active diligence to serve him within the state. Id.
Where an affidavit for service by publication is otherwise sufficient, it is
not void or voidable because 'facts are not stated therein showing that plain-
tiff, by the use of due diligence, was unable to make service in the state.
Harris-Lipsitz Co. v. Oldham, 56 Okl. 124, 155 P. 865.
Affidavit that defendants are nonresidents, that plaintiff by due diligence
44 An affidavit for service by publication, which states that the defend-
ant is a nonresident, as affiant is advised and informed, and that the de-
fendant's last-known residence was Claremore, Okl., but that the defend-
ant has left the said place, as affiant is informed and believes, is a mere
hearsay declaration, insufficient as a basis for service by publication. Hol-
land v. Holland (Okl.) 173 P. 1139.
(341)
§ 495 COMMENCEMENT OF ACTION (Ql. 9"
ing that service could not be had on him in Oklahoma, is insuffi-
cient.45
An affidavit made some time after the petition is filed, which
states that defendant resides out of the state and is a nonresident
thereof is sufficient without relating back and averring that he
was a nonresident at the time the petition was filed.46
The affidavit may be made by an attorney.47
AFFIDAVIT TO OBTAIN SERVICE BY PUBLICATION
(Caption.)
A. B., being duly sworn according to law, says:
That he is the (agent, or attorney, for) above named plaintiff.
That on the day of , 19 — , he caused a summons
to be issued in the above entitled cause against the above named
is unable to make service of summons on them within territory, and that
action is to quiet title to described land is sufficient to authorize service by
publication. Gray v. Gray, 57 Okl. 667, 157 P. 730.
An affidavit for service by publication that defendant is a nonresident 'of
the state, and service cannot be had upon him therein, and otherwise suf-
ficient, is valid, though not stating facts showing that service cannot be
made by due diligence. Ballew v. Young, 103 P. 623, 24 Okl. 182, 23 L. R.
A. (N. S.) 1084.
Affidavit for service by publication held sufficient without stating the facts
as to diligence used. Tolbert v. State Bank of Paden, 121 P. 212, 30 Okl. 403.
An affidavit to obtain service by publication held to comply with the re-
quirements of Rev. Laws 1910, § 4722. Oates v. Freeman, 57 Okl. 449, 157
P. 74.
Under Sess. Laws 1889, c. 107, § 2, providing that an affidavit for service
by publication must allege that plaintiff, with due diligence, is unable to
make service of summons on defendant, an allegation that defendant is a
nonresident of the state, and service cannot be had upon him within the
state, is sufficient. Washburn v. Buchanan, 52 Kan. 417, 34 P. 1049.
An affidavit for publication, alleging nonresidence, negatives a usual place
of residence in the state where summons can be served, and personal ab-
sence from the state precludes personal delivery of summons. Ennis v. Grimes,
102 P. 454, 80 Kan. 429.
An affidavit for service of process by publication, filed on January 17, 1861,
that defendant resided within the region of country known as "Pike's Peak,"
which was then within the territory of Kansas, shows on its face that de-
fendant is not a nonresident of Kansas, and service on the ground of non-
residence (Comp. Laws 1862, c. 26, tits. 4, 5; Code Civ. Proc. § 1859) is un-
authorized. Carey v. Reeves, 26 P. 951, 46 Kan. 571.
45 Fenton v. Burleson, 124 P. 1087, 33 Okl. 230.
*6 Bogle v. Gordon, 17 P. 857, 39 Kan. 31.
47 Tolbert v. State Bank of Paden, 121 P. 212, 30 Okl. 403.
(342)
Art. 2) PROCESS §§ 495-496
defendant C. D., but was unable with due diligence to make service
of the same upon said defendant within said state.
That the defendant, C. D., is a nonresident of the state of Okla-
homa (or is a foreign corporation) having property in this* state,
which plaintiff is seeking in this action to have taken by attach-
ment (or, garnishment).
That said defendant's last known place of residence was -
(or, is unknown to this plaintiff).
Affiant further says that this action is brought for (specify re-
lief demanded), and that the said plaintiff wishes to obtain service
on said defendant by publication ; vand further affiant saith not.
A. B.
Subscribed in my presence and sworn to before me this
day of , 19— , Court Clerk,
By , Deputy.
§ 496. Divorce
An affidavit for service by publication in divorce, that the where-
abouts of defendant are unknown and her post office address can-
not be ascertained by any means within affiant's control, carries a
sufficient inference of diligent inquiry to save the affidavit from
total insufficiency.48
It is not necessary in a divorce case that the clerk of the district
court should issue a summons, where service of summons is made
by publication.49 In a divorce case, where an affidavit is filed stat-
ing that the residence of the defendant is unknown to the plaintiff,
and cannot be ascertained by any means within the control of the
plaintiff, in lieu of sending a copy of the petition and a copy of
the publication notice to the defendant within three days after the
date of the first publication, it is not necessary that the affidavit
should be filed within the same period.50
" Bell v. Bell, 156 P. 778, 97 Kan. 616.
4» Larimer v. Knoyle, 23 P. 487, 43 Kan. 338.
sold.
Code Civ. Proc. § 640, provides that when, in a suit for divorce, service is
made by publication, a copy of the petition with a copy of the notice attached
shall be mailed to the defendant within three days after the first publica-
tion, unless the plaintiff shall make and file an affidavit that the defendant's
residence is unknown and cannot be ascertained. Held, that the affidavit
need not be filed within three days after the first publication. Ensign v.
Ensign, 26 P. 7, 45 Kan. 612.
An affidavit for service by publication under Civ. Code Proc. § 73 (Gen.
(343)
§§ 497-498 COMMENCEMENT OF ACTION (Ql. 9
§ 497. Order
Where an affidavit was presented to obtain an order to serve
defendants by publication which was granted and notice of publica-
tion given, and a decree to quiet title was entered by default, the
fact that 37 days intervened between the date when the affidavit
was sworn to and when the order was made did not render the affi-
davit stale in that the order should have been made on facts then
shown to exist.51
§ 498. Publication notice — Form
"The publication must be made three (3) consecutive weeks in
some newspaper authorized by ifiw to publish legal notices printed
in the county where the petition is filed if there be any printed in
such county, and if there be none, then in some such newspaper
printed in this State' of general circulation in that county. It shall
state the court in which the petition is filed, the names of the par-
ties, or where unknown, shall describe them as the unknown heirs,
executors, administrators, devisees, trustees and assigns of such
person, or the unknown successors, trustees and assigns of such
corporation and must notify the defendants thus to be served that
he or they have been sued and must answer the petition filed by
the plaintiff on or before a time to be stated (which shall not be
less than forty-one (41) days from the date of the first publica-
St. 1905, § 4950), alleging that affiant was the plaintiff, that she had filed
a petition against the defendant to obtain a divorce, that defendant was a
nonresident of the state, and that plaintiff wishes to obtain service by publica-
tion, is sufficient, and due publication of notice will confer jurisdiction to
grant a divorce. Roberts v. Fagan, 92 P. 559, 76 Kan. 536. Civ. Code Proc.
§ 73 (Gen. St. 1905, § 4950), not requiring the residence of plaintiff to be
stated in the affidavit for service by publication in divorce, such a statement
is unnecessary. Id.
An affidavit, in an action for divorce, as a basis for service by publica-
tion, alleging that S. is the plaintiff and that defendant is not a resident of
the territory, "but to the best of her knowledge and belief is a resident of
, and that service of summons in this case cannot be had upon the
said defendant in the territory," does not comply with Wilson's Rev. & Ann.
St. 1903, § 4377, and a judgment rendered thereon is void for want of juris-
diction ; the affidavit failing to state what diligence was used, or the nature
of the action, and that at the time of the making of the affidavit defend-
ant was out of the territory. Cordray v. Cordray, 91 P. 781, 19 Okl. 36.
o i Aherne v. Wa Keeney L,and & Investment Co., 108 P. 842, 82 Kan. 435.
(344)
Art. 2) PROCESS § 498
tion), or the petition will be taken as true, and judgment, the na-
ture of which shall be stated, will be rendered accordingly." !
A publication notice which advises defendant of the nature of
the action and of his interest therein is sufficient.53
A publication notice need not mention any of the defendants ex-
cept those to be served by publication ; 5J but the latter must be
designated or described with reasonable certainty.55 It is suffi-
52 Sess. Laws 1919, c. 145, § 3, amending Rev. Laws 1910, § 4725.
A publication notice held to comply with the requirements of Rev. Laws
1910, § 4725. Gates v. Freeman, 57 Okl. 449, 157 P. 74.
A publication notice, which in its heading contains the name of the court
and the county and state, which is attested by the clerk of the district court
with the seal of the district court attached thereto, and which notice de-
scribes the land as being in the same county named in the heading, when
construed liberally, as required by Code, § 4, is sufficient, so far as stating
4 the court in which the petition is filed, under the provisions of Code, § 74.
Townsend v. Burr, 60 P. 477, 9 Kan. App. 810.
Newspaper. — A newspaper published on each day of the week except Mon-
day is a "daily newspaper." Alley v. City of Muskogee, 53 Okl. 230, 156
P. 315.
Evidence held to show that a certain newspaper was a "newspaper of the
county having general circulation therein." Hesler v. Coldron, 116 P< 787,
29 Okl. 216.
Kansas rule. — The notice required to obtain service by publication is not
process within Const, art. 3, § 17, or Code Civ. Proc. § 700 (Gen. St. 1901, §
5196), and need not bear the style "The State of Kansas," nor the seal of
the court in which suit is pending, nor be signed or issued by the clerk.
; McKenna v. Cooper, 101 P. 662, 79 Kan. 847.
That publication notices in divorce proceedings did not run in the name
of the state did not render the divorces void. Gordon v. Munn, 125 P. 1, 87
Kan. 624, Ann. Cas. 1914A, 783, rehearing denied 127 P. 764, 88 Kan. 72,
Ann. Cas. 1914A. 783.
53 Head v. Daniels. 15 P. 911, 38 Kan. 1.
In an action to quiet title, a notice by publication which describes the real
estate by the lot and block numbers of an addition to a city according to
the recorded plat thereof, which plat designates the land by its proper gov-
ernment subdivision, which had been of record for a number of years and
recognized by the city and the public generally and acted upon by the author-
ities for the purposes of taxation, sufficiently identifies the property affected
to give the court jurisdiction as against defendant who might have impeached
the plat as invalid. Oaldwell v. Bigger, 90 P. 1095, 76 Kan. 49.
54 Head v. Daniels, 15 P. 911, 38 Kan. 1.
55 Service of summons by publication on a married woman, who had borne
the name of "Durham" for nearly 20 years, by her maiden name of "Morris,"
was invalid. Morris v. Tracy, 48 P. 571, 58 Kan. 137.
In an action to quiet title, where the only attempt to obtain jurisdiction
of Florence D. Whitney, an unmarried woman was by publication in which
she was referred to as " Whitney, and Whitney, his wife, whose
(345)
§§ 498-499 COMMENCEMENT OF ACTION (Cll. 91
cient, however, where the name contained in the notice aud the cor-
rect name of the defendant are idem sonans.58
PUBLICATION NOTICE
(Caption.)
The State of Oklahoma, to the Above Named Defendant, C. D.—
Greeting :
You will take notice that you have been sued in the above named
court by the above named plaintiff for (state relief asked for), and
you must answer the petition filed therein by said plaintiff on or
before the day of , 19 — , or said petition will be taken
as true and a judgment for said plaintiff will be rendered accord-
ingly in the sum of — dollars, and interest thereon at the
rate of per cent, per annum from the day of ,
19 — , and costs, and in the attachment therein had and granted.
— , Court Clerk,
By f Deputy.
X. Y., Attorney for Plaintiff.
§ 499. Mailing with petition
"Where service by publication is proper a copy of the petition,
with copy of the publication notice attached thereto, shall, within six
days after the first publication is made, be inclosed in an envelope
addressed to the defendant at his place of residence or business,
postage paid, and deposited in the nearest post-office, unless the
plaintiff shall make and file an affidavit that such residence or place
of business is unknown to the plaintiff and cannot be ascertained
by any means within the control of the plaintiff." 5T
This statute is mandatory.58
first names are unknown," without any other description, and where there
was no appearance or waiver of summons, the court did not acquire juris-
diction of her, and a judgment against her on such notice is void. Whitney
v. Masemore, 89 P. 914, 75 Kan. 522, 11 L. R. A. (N. S.) 676, 121 Am. St.
Rep. 442.
ce A notice of publication of summons, describing a defendant whose name
was Elizabeth D. Borthwick as Elizabeth D. Bothwick, was sufficient; the
names being idem sonans. Barrel v. Neef, 102 P. 838, 80 Kan. 348.
A default judgment quieting title based upon service made by publishing
a notice which stated defendant's name as Joseph Remer is valid against
Joseph Renner; the names being idem sonaus. Puckett v. Hetzer, 82 Kan.
726, 109 P. 285, 136 Am. St. Rep. 127.
57 Rev. Laws 1910, § 4724.
c s Rev. Laws 1910, § 4724, requiring copy of petition with copy of nublica-
(346)
Art. 2) PROCESS § 500
§ 500. Proof of publication
"Service by publication shall be deemed complete when it shall
have been made in the manner and for the time prescribed in the
preceding section; and such service shall be proved by the affidavit
of the printer; or his foreman or principal clerk, or other person
knowing the same. No judgment by default shall be entered on
such service until proof thereof be made, and approved by the
-court, and filed." 59
Where service is had upon a defendant by publication, and the
affidavit of the printer does not show that the notice was published
the requisite length of time before answer day, and the judgment
founded upon such service is challenged for want of sufficient pub-
lication, the court may examine copies of the newspaper in which
the notice appeared, and also receive evidence of the publisher of
the paper and other parties, to prove that the publication was had
for a sufficient time to comply with the provisions of the statute.60
An 'order approving service of publication on defendants after
the evidence is submitted is not an abuse of discretion.61
PROOF OF PUBLICATION
(Caption.)
G. H., of lawful age, being first duly sworn, on his oath, says :
That he is the publisher (or editor) of the , a newspaper
printed and of general circulation m county, state of Okla-
homa, and that the notice by publication, a copy of which is hereto
attached, was published in said paper for consecutive days
(or weeks) the first publication thereof being on the • day
tion notice attached to be mailed to defendant's address within six days
after first publication, unless plaintiff files affidavit that residence or place
of business is unknown and cannot be ascertained, is mandatory. Stumpff
v. Price TOkl.) 177 P. 109. Where there are iwo nonresident defendants, a
copy of petition and publication notice addressed to them jointly at their
place of residence does not comply with Rev. Laws 1910, § 4724, as that
shows service only on one defendant, and uncertainty to which makes pub-
lication service prima facie void as to both, so that court did not acquire
jurisdiction. Id. It is mandatory, and a condition precedent to the granting
of a divorce. Rodgers v. Nichols, 83 P. 923, 15 Okl. 579.
59 Rev. Laws 1910, § 4726.
eo Robinson v. Hall. 5 P. 763, 33 Kan. 139.
ei Earl v. Cotton, 96 P. 348, 78 Kan. 405.
(347)
§§ 500-501 COMMENCEMENT OF ACTION (Ch. 9"
of , 19 — , and the last publication thereof being on the
day of , 19—. G. H.
Subscribed and sworn to before me this day of , 19 — ..
X. Y., Notary Public.
My commission expires , 19 — .
(Attach copy of publication notice.)
DIVISION IV. — EXEMPTION FROM SERVICE
§ 501. Persons attending court — Witnesses
One attending court as a material witness or as a suitor in a coun-
ty other than that of his residence is exempt from service of sum-
mons in action brought in that county, though his attendance is
not in obedience to a subpoena.62
This exemption allowed a witness extends to the service of sum-
mons on him in his representative capacity as managing officer or
agent of a corporation.63
*
ezBearman v. Hunt (Okl.) 171 P. 1124; Rev. Laws 1910, § 5064.
A suitor who is in attendance, either in his own behalf or under process,
outside the territorial judicial jurisdiction of his residence, is exempt from
service of summons while in attendance on such court, or in going or re-
turning therefrom. Bolz v. Crone, 67 P. 1108, 64 Kan. 570.
Nonresident trustee in bankruptcy, appointed in Kansas, is exempt from
service of summons while within the state to sell property under order of
sale issued by referee in bankruptcy. Eastern Kansas Oil Co. v. Beutner, 101
Kan. 505, 167 P. 1061.
A nonresident, while within the state to attend court as a witness and in
actual attendance, is exempt from service of summons in a civil action.
Gillmore v. Gillmore, 137 P. 958, 91 Kan. 293, 295, 51 L. R. A. (N. S.) 838, judg-
ment modified on rehearing 139 P. 386, 91 Kan. 707, 51 L. R. A. (N. S.) 834.
A resident of the state while in attendance on a federal court in a county
other than that of his residence as a party is exempt from service of sum-
mons in an action brought in that county. Underwood v. Fosha, 85 P. 564,
73 Kan. 408, 9 Ann. Cas. 833.
A resident of the county while in attendance on a federal court in a coun-
ty other than that of his residence as a material witness, though 'he is not
under subpoena, is exempt from service of summons in an action brought in
that county. Underwood v. Fosha, 85 P. 564, 73 Kan. 408, 9 Ann. Cas. 833.
One who is in good faith attending court as a witness in a county other
than that of his residence is exempt from service of summons in an action
brought in that county, but if he is not a party to the litigation, and is not
attending as a bona fide witness, he may be legally served with summons,
and, where there is conflicting testimony as to whether he is attending court
as a witness in good faith, the finding of the trial court that he did not da
so is binding on him. Reiff v. Tressler, 120 P. 360, 86 Kan. 273.
c3 Commonwealth Cotton Oil Co. v. Hudson, 62 Okl. 23, 161 P. 535.
Officer of a foreign corporation, coming into state to testify in action
(348)
Art. 2) . PROCESS §§ 501-502
Where defendant went voluntarily into another county on his
private business, and was not going to, returning from, or attend-
ing court under a subpoena, and was not in such county through
any fraud or procurement of plaintiff, he was subject to service of
summons in the county, in an action against him.6.4
Nonresident plaintiffs who voluntarily come within the jurisdic-
tion of courts to attend the trial of a suit commenced by them
against citizens of the state are not exempt from service of sum-
mons in an action by the defendants for relief connected with the
suit when complete adjustment of rights of parties cannot be had in
first action.65
A nonresident, in the state to attend the taking of depositions
in a cause to which he is party, is privileged from service of process,
though he transacts other business; 66 but he loses his right to ex-
emption if he transact other business, which was the controlling
motive for his presence in state, and fails to leave within a reason-
able time.67
DIVISION V. — OBJECTIONS AND AMENDMENTS
§ 502. Motion to quash — Form
To contest the service of a summons, the proper motion is to set
aside the service, not to dismiss the action.68
•wherein corporation is plaintiff, is privileged from service of summons in
another action against corporation in county in which he is attending as wit-
ness, although he is not subpoenaed. Lonsdale Grain Co. v. Neil (Okl.) 175
P. 823. Exemption allowed a witness, under Rev. Laws 1910, § 5064, while
actually attending court to testify, from service of summons in suit in a
county in which he does not reside, extends to service of summons on him
in his representative capacity as officer of a corporation. Id. Under Rev.
Laws 1910, § 5064, nonresident who in good faith comes into state to testify
in cause is exempt from service of summons in civil action against him, or
against corporation of which he is an officer, while coming, attending, and
during a reasonable time for return. Id.
e* Clark v. Willis, 44 Okl. 303, 144 P. 587.
esLivengood v. Ball, 63 Okl. 93, 162 P. 768, L. R. A. 1917C, 905.
ee Burroughs v. Cocke & Willis, 56 Okl. 627, 156 P. 196, L. R. A. 1916E, 1170.
67 Burroughs v. Cocke & Willis, 56 Okl. 627, 156 P. 196, L. R. A. 1916E, 1170.
68 Foster v. Markland, 14 P. 452, 37 Kan. 32.
Where an action was begun by two and summons notified defendant of a
suit by a named plaintiff and others, refusal to quash service of summons
because of omission of name of other parties plaintiff was nvot error. Kuy-
kendall v. Lambert (Okl.) 173 P. 657.
Under Code Civ. Proc. § 701, providing that, when the sheriff is a party,
the summons shall be directed to the coroner, a summons is irregular and
(349)
§ 502 COMMENCEMENT OF ACTION (Ch. 9
A summons issued before the petition is filed and service thereon
should be quashed on motion.69
Where it is shown without contradiction that defendant was a
resident of the state, an affidavit for publication service should
have been quashed ; 70 but a motion to quash service by publication
should be overruled where plaintiff was entitled to make such serv-
ice on a ground incidentally stated in the affidavit in terms not
sufficiently specific as to facts.71
A motion to set aside a service of summons by publication on a
nonresident of the state, in an action which joins claims only per-
sonal in their nature with claims affecting real estate situated in
the state, will be sustained, if seasonably made.72
Service by publication, based upon an affidavit which contains
no reference to a defendant attempted to be served, will be set aside
on motion of such defendant, subsequently made.73
Where a person, by fraud and deceit, inveigles another into the
jurisdiction of the court, for the purpose of suing him, and of ob-
taining service of summons upon him in that jurisdiction, the sum-
mons should be set aside.74
A motion to quash, because defendant was given 22 days to an-
swer, was properly overruled.75
should be set aside on motion where it is directed to the sheriff but delivered
to the coroner and served by him. Pelham v. Edwards, 26 P. 41, 45 Kan. 547.
In a summons issued on a writ of error the names of the parties, "Patmor"
and "Rombauer," were spelled "Palmer" and "Rambauer," respectively, but
the summons was correct in other respects, was duly served on the attor-
ney of record, and the errors were paused by no fault of plaintiff in error.
Held, that the service will not be set aside on a motion filed more than four
months afterwards, and more than one year after the rendering of the judg-
ment complained of, and after the time for bringing a case to the Supreme
Court has elapsed. Patmor v. Rombauer, 21 P. 284, 41 Kan. 295.
Evidence as to the coming of one defendant into jurisdiction of county
district court the commencement of action and service of process on him
there, and subsequent service on other defendants in another county held
not to show an abuse of judicial process. People's Nat. Bank of Kansas
City v. Niquette, 103 Kan. 410, 493, 174 P. 581.
6»Atchison, T. & S. F. Ry. Co. v. Lambert, 121 P. 654, 31 Okl. 300, Ann.
Cas. 1913E, 329.
TO Tolbert v. State Bank of Paden, 121 P. 212, 30 Okl. 403.
71 Richardson v. Howard, 51 Okl. 240, 151 P. 887.
72 Zimmerman v. Barnes, 43 P. 764. 56 Kan. 419.
73 Rawson v. Sherwood, 53 P. 69, 59 Kan. 776.
74 Van Horn v. Great Western Mfg. Co., 15 P. 562, 37 Kan. 523.
75 Armstrong v. May, 55 Okl. 539, 155 P. 238.
(350)
Art. 2) PROCESS §§ 502-503
Where full hearing is given before trial on a motion to quash the
service and the motion is overruled, it is not error to refuse to re-
open the issue, and submit the question to the jury.78
Where, upon a motion to set aside summons and service, evidence
is offered, and judgment rendered "that such summons be, and the
same is hereby, quashed and set aside, and declared null and void,
at the costs of the plaintiff," and not objection or exception is made
to the judgment, a motion for a rehearing thereof filed seven days
after the adjournment of the term does not give the court jurisdic-
tion to review such judgment; 77 but where a motion to set aside
service on defendant is sustained, and a motion for rehearing is filed,
the court, by continuing the hearing of that motion to the next
term, may preserve jurisdiction to correct an error in its earlier rul-
ing.78
MOTION TO QUASH SUMMONS AND SERVICE AND RETURN THEREOF
(Caption.;
Special Appearance and Motion to Quash Service of Summons and
Return Thereof
Now comes the defendant, A. B., a corporation, and, appearing
specially for the purposes of this motion only, moves the court to
quash, set aside, and hold for naught the purported service of the
summons and return thereof, upon this defendant, for the follow-
ing reasons, to-wit :
1. Because said summons was not served and returned as re-
quired by law.
2. Because said summons was not served upon any officer or
agent of this defendant, or upon any other person upon whom
service of summons might be lawfully made.
, 'Attorneys for Defendant.
For the'Purpose of This Motion Only.
§ 503. Amendment
Errors curable by amendment include clerical errors apparent by
the record; 79 a return to a summons by a deputy sheriff in his own
TO Conrath v. Johnston, 128 P. 1088, 36 Okl. 425.
77 Cannon v. Birney, 51 P. 298, 6 Kan. App. 188.
78 Dye v. Denver & R. G. R. Co., 101 Kan. 666, 168 P. 1087.
7» Summons was issued November 9, 1887. It designated the answer day
to be the 9th day of December, 1887. It directed the sheriff to return it
(351)
§§ 503-504 COMMENCEMENT OP ACTION (Ch. 9
name;80 and the omission of the signature of the clerk from a
summons otherwise regular.81
Officers are allowed, with liberality, to amend their returns of
service of process.82
§ 504. Where service by publication
Where the jurisdictional facts exist, and the affidavit for publica-
tion is defective in the statement of matters required by statute, it
is amendable, even after judgment; but where there is a total want
of an allegation in the affidavit of some material matter required
by statute, the service is void, and 'the defect cannot be cured by
amendment.83
December 19, 1887, Instead of November 19, 1887. Held, that the summons
was not void, but that the error which was apparent by the record could
be corrected at any time. Alford v. Hoag, 54 P. 1105, 8 Kan. App. 141.
80 First Nat. Bank v. Ellis, 114 P. 620, 27 Okl. 699, Ann. Cas. 1912C, (587.
si Aultman & Taylor Machinery Co. v. Wier, 74 P. 227, 67 Kan. 674.
82 Payne v. Long-Bell Lumber Co., 60 P. 235, 9 Okl. 683.
A sheriff will be permitted to amend his return of process so as to make it
conform to the facts. Jordan v. Johnson, 42 P. 415, 1 Kan. App. 656.
Where an officer making return of service of summons inadvertently omits
the date of service, the return may be amended by leave of court. Lee v.
State, 47 Okl. 738, 150 P. 665.
The summons directed the sheriff to summon James M. Hendry. The re-
turn showed that he had duly served "James M. Dendry, the within-named
defendant." Held, that the return could be amended, after the expiration of
the sheriff's term of office, to show that he had in fact served the defendant,
"James M. Hendry." Alford v. Hoag, 54 P. 1105, 8 Kan. App. 141.
ss City Nat. Bank v. Sparks, 50 Okl. 648, 151 P. 225.
Where jurisdictional facts necessary to warrant service by publication
existed at commencement of action, and the affidavit for publication was
defective only in stating inferentially or otherwise any matter required by
statute to be alleged therein, it is amendable. Chaplin v. First Bank of
Hitchcock (Okl.) 181 P. 497; Reister v. Land, 76 P. 156, 14 Okl. 34; Ham-
merslough v. Hackett, 1 P. 41, 30 Kan. 57.
Where defendants contended that an amendment to a proof of publication
should be refused as not in furtherance of justice, on the ground that plaintiff
had agreed to notify defendants' counsel of the time when suit would be
brought, but the evidence failed to show any actual promise or refusal1 of
plaintiff to give such notice, it not being his duty to do so, held, that there
was no ground for refusing the amendment Hackett v. Lathrop, 14 P. 220,
36 Kan. 661.
An affidavit for service by publication, if voidable, may by leave of court
be corrected after judgment by another affidavit showing that the requisite
facts existed at the time of filing the original affidavit. Morris v. Robbins,
111 P. 470, 83 Kan. 335.
Where the affidavit to procure notice by publication, under Code Civ. Proc.
(352)
Art. 3) APPEARANCE §§ 505-507
§ 505. Waiver of objections
After presentation of a motion to dismiss because plaintiff im-
properly named a resident of county as a defendant solely to give
jurisdiction to serve movant, the real defendant, with summons
in another county, it is too late to raise objection going merely to
manner of service.84
Defendant did not waive a fatal defect in the summons by con-
fessing judgment on an interplea of a third party after his motion
to quash the summons was overruled.88
In trespass for abuse of legal process, subsequent irregularities
in the action in which the process issued, for which the defendant
was not responsible, cannot be considered to characterize the pre-
vious wrongful acts.88
ARTICLE III
APPEARANCE
Sections
506. For infant.
507. General appearance.
508. Special appearance.
509. Effect.
510. Waiver of process.
511. Objections — Preservation and waiver.
§ 506. For infant
An infant defendant cannot waive issuance and service of sum-
mons, nor can his guardian or any other person do so for him.87
§ 507. General appearance
A general appearance is entered by any plea or proceeding which
raises nonjurisdictional questions involving the merits,88 regard-
§ 74, is defective merely, the defect may be cured by amendment after pub-
lication. Weaver v. Lockwood, 43 P. 311, 2 Kan. App. 62.
See Appearance.
s* Maynard v. State Bank of Lehigh, 105 Kan. 259, 182 P. 542.
85 State v. Parks, 126 P. 242, 34 Okl. 335.
88 Wurmser v. Stone, 40 P. 993, 1 Kan. App. 131.
87 Iowa Land & Trust Co. v. Dawson, 134 P. 39, 37 Okl. 593.
Appearance cannot be made for an infant before service of process. Echols
v. Reeburgh (Okl.) 161 P. 1065-
88 City Nat. Bank v. Sparks, 50 Okl. 648, 151 P. 225; Walton v. Kennamer,
136 P. 584, 39 Okl. 629; Haynes v. City Nat. Bank of Lawton, 121 P. 182,
30 Okl. 614 ; Kaw Life Ass'n v. Lemke, 19 P. 337, 40 Kan. 142, judgment af-
HON.PL.& PRAC.— 23 (353)
§ 507 COMMENCEMENT OF ACTION (Oh. 9
less of the form of pleading as distinguished from the substance,89
and though it be denominated a special appearance.90
A general appearance is entered by an objection or filing of a
motion based on both jurisdictional and nonjurisdictional
grounds,91 the filing of a motion before or after judgment, based on
firmed 20 P. 512, 40 Kan. 661 ; Anderson v. Burchett, 30 P. 174. 48 Kan. 781 ;
Wells v. Patton, 33 P. 15, 50 Kan. 732 ; Linney v. Thompson, 45 P. 456, 3 Kan.
App. 718 ; Burnham v. Lewis, 70 P. 337, 65 Kan. 481 ; Burnham v. Lewis, 70
P. 337, 65 Kan. 481 ; Hanson v. Hanson. 122 P. 100, 86 Kan. 622.
Where defendants appeared and submitted nonjurisdictional questions
which could not be determined on special appearance, they recognized court's
general jurisdiction and waived all irregularities in manner in which it ob-
tained jurisdiction of their persons. Chicago, R. I. & P. Ry. Co- v. Austin, 63
Okl. 169, 163 P. 517.
The defendant's presence and plea of not guilty gives the superior court
jurisdiction of the person. Ripley v. State (Okl. Cr. App.) 190 P. 710.
Where defendants summoned personally and those summoned by publica-
tion service join in pleading] or motion raising questions of law and ques-
tions of fact involved in general issue, general appearance is entered by all.
Meador v. Manlove, 156 P. 731, 97 Kan. 706.
Where in a will contest after probate, the contestants invoke the court's
jurisdiction on the merits, this operates as a general appearance waiving
right to attack the court's jurisdiction. In re Blackfeather's Estate, 54 Okl.
1, 153 P. 839.
Where pending appeal to Supreme Court cause was transferred to district
court pursuant to Laws 1913, c- 77, and Supreme Court's mandate was lodged
in district court, and defendants appeared generally therein, they waived
right to object to its jurisdiction, though chapter 77 was afterwards held un-
constitutional. Chicago, R. I. & P. Ry. Co. v. Austin, 63 Okl. 169, 163 P. 517.
A general appearance and plea to the merits give the court jurisdiction of
the person of defendant. Anglo-American Packing & Provision Co. v. Turner
Casing Co., 8 P. 403, 34 Kan. 340-
89Lindley v. Hill, 58 Okl. 71, 158 P. 356; Hill v. Persinger, 57 Okl. 663,
157 P. 744; Edmondston v. Porter (Okl.) 162 P. 692.
Where a defendant appears in court, and moves to dissolve the attach-
ment on the merits of the proceedings, such as the insufficiency of the at-
tachment affidavit, he enters a general appearance in the case. Raymond v.
Nix, 49 P. 1110, 5 Okl. 656.
00 A defendant, who seeks to enter a special appearance in a cause by
motion, and sets forth therein both jurisdictional and nonjurisdictional
grounds for dismissal, makes a general appearance, and the fact that he
called it a special appearance avails him nothing. Nichols & Shepard Co. v.
Baker, 73 P. 302, 13 Okl. 1 ; Thompson v. Pfeiffer, 71 P. 828, 66 Kan. 368 ;
St. Louis Cordage Mills v. Western Supply Co., 54 Okl. 757, 154 P. 640.
ai Gorham v. Tanquerry, 48 P. 916, 58 Kan. 233 ; Ziska v. Avey, 122 P.
722, 36 Okl. 405.
Where a defendant appears after judgment and moves to set same aside
for want of jurisdiction, and because the petition failed to state a cause of
(354)
Art. 3) APPEARANCE § 507
nonjurisdictional grounds;92 also where he moves for and pro-
cures a stay of execution after judgment,93 the filing of a demur-
action, and the action was not a proper .one for service by publication, it
is, a general appearance. Willett v. Blake, 39 Okl.. 261, 134 P. 1109.
Defendant corporation, by attacking a default judgment rendered against
it by a petition for a new trial based in part on grounds not jurisdictional,
thereby enters a general appearance, which waives any defect in the service
of the summons. Neosho Valley Inv. Co. v. Cornell, 56 P. 475, 60 Kan. 282.
A motion by defendant to set aside a judgment rendered against him which
contains both jurisdictionai and noujurisdictional grounds constitutes a gen-
eral appearance in the case. Barnett v. Holyoke Mut. Fire Ins. Co., 97 P.
962, 78 Kan. 630.
A defendant who, in making a "special appearance to set aside the service
of a summons," sets up and submits nonjurisdictional matters relating to
the merits, thereby waives the service of summons and submits to the juris-
diction. Frazier v. Douglass, 57 Kan. 809, 48 P. 36.
Where a nonresident defendant, defectively served with notice, makes a
special appearance challenging the jurisdiction, and invites an inquiry as to
the sufficiency of a pleading on a matter involving the merits, he submits
himself to the jurisdiction of the court, and waives any defect in the process.
Thompson v. Pfeiffer, 71 P. 828, 66 Kan. 368-
02 By a general appearance to set aside a default judgment entered without
jurisdiction of the person the judgment is validated. Welch v. Ladd, 116 P.
573, 29 Okl. 93. By a general appearance defects in service of summons are
waived, though such appearance is only made on motion to vacate default
judgment. Id.
By a motion to set aside a default judgment not made on jurisdictional
grounds but to let in a defense on the merits defendant enters a general ap-
pearance. Welch v. Ladd, 116 P. 573, 29 Okl. 93.
A defendant, who files a motion for new trial after judgment, based on
nonjurisdictional grounds, enters a general appearance. Trugeon v. Gallamore,
117 P. 797, 28 Okl. 73.
Action was tried March 12, 1906, before the United States commissioner
acting as a justice of the peace. Judgment was not rendered till May 2, 1907 ;
counsel urging him to render judgment from time to time. After its entry
defendant filed an affidavit for appeal and caused the commissioner to trans-
mit the transcript to the United States court, but failed to have the appeal
docketed. November 15th it was docketed by plaintiff, and on its motion was
affirmea, and judgment rendered against defendant. Held that, by appear-
ing and filing affidavit for appeal and superseding the judgment, defendant
entered appearance and could not complain of the jurisdiction of the com-
missioner. Farmers' Nat. Bank of Vinita v. First Nat. Bank of Pryor Creek,
103 P. 685, 24 Okl. 140.
Where on motion questions going to the jurisdiction are raised and also
questions which can be raised only on a general appearance, the parties will
be held to have entered the general appearance, so that defects in the service
of the summons will be deemed waived, even though such appearance be made
»3 Hahn v. Steinecke. 104 Kan. 660, 180 P. 204; Woodhouse v. Nelson Land
& Cattle Co., 139 P. 356, 91 Kan. 823.
(355)
§ 507 COMMENCEMENT OF ACTION (Ql. 9
after judgment and on motion to vacate the same. Roger's v. McCord Collins
Mercantile Co., 91 P. 864, 19 Okl. 115.
A motion to set aside a sheriff's sale on foreclosure constitutes a person-
al appearance in the foreclosure suit. Jones v. Standiferd, 77 P. 271, 69 Kan.
513.
After decree entered against a defendant, based upon service by publica-
tion, he appeared, and filed a motion to redeem the land in controversy from
a lien fixed upon it in the judgment. Held, that this act was, in effect, an
appearance in the suit, and that the validity of the judgment could not there-
after be questioned in an action of ejectment by such defendant. Baker T.
Agricultural Land Co., 61 P. 412, 62 Kan. 79.
Where defendant objected to. a judgment by default being rendered on a
supplemental petition, because no notice of the application for leave to file or
of the filing of the supplemental petition had been given, and also because
the supplemental petition did not state facts sufficient to constitute a cause
of action, by challenging the sufficiency of the supplemental petition he made
a general appearance to it; and, as no continuance or leave to plead was
asked, the court did not err in rendering judgment. Carter v. Tallant, 32 P.
1108, 51 Kan. 516.
A motion to vacate a judgment on nonjurisdictional grounds is general ap-
pearance. Morgan v. Karcher (Okl.) 197 P. 433; First Nat. Bank of Newton
v. Briggs, 50 P. 462, 6 Kan. App. 684 ; Lookabaugh v. Epperson, 114 P. 738, 28
Okl. 472 ; Kaw Xife Ass'n v. Lemke, 19 P. 337, 40 Kan. 142, judgment af-
firmed 20 P. 512, 40 Kan. 661; Montgomery v. Wm. Cameron & Co., 49 Okl.
179, 152 P. 398 ; Pratt v. Pratt, 139 P. 261, 41 Okl. 577.
Where an action against a decedent was revived in the name of his ad-
ministrator, and the administrator thereafter asked to have a default set
aside, held, that such appearance was a waiver of any right to insist that the
court had no jurisdiction in the first instance over his decedent. Moses v.
Hoffmaster, 67 P. 459, 64 Kan. 142.
In an action on a note to foreclose a mortgage, the maker thereof having
died, his administratrix and minor heirs were made parties and served. A
decree was taken against the minors as on default. More than 12 years aft-
erwards and 8 years after the youngest had reached majority, the heirs mov-
ed to vacate the judgment, because they had not been legally served and the
petition did not state a cause of action. Held, that the last ground of the
motion constituted a general appearance, and cured any defective service of
summons. Barnett v. Holyoke Mut. Fire Ins. Co., 97 P. 962, 78 Kan. 630.
Where judgment was entered against defendants over whom the court did
not have jurisdiction, and defendants voluntarily request the court-to open
the judgment under Code Civ. Proc. § 77 (Gen. St. 1901, § 4511), With per-
mission to plead, and the request is granted and pleadings are filed and issues
made are rejected, all questions are waived, and the' parties are in court for
all purposes. Aherne v. Wa-Keeney Land & Investment Co., 108 P. 842, 82
Kan. 435.
Where, by the court's order, one is made a party to an action, and no prop-
er summons is served upon him, his general appearance in an action to va-
cate the judgment on nonjurisdictional grounds, as well as because of de-
fects in the summons, waives all objection to the summons. Johnson Loan &
Trust Co. v. Burr, 51 P. 916, 7 Kan. App. 703.
(356)
Art. 3) APPEARANCE § 507
rer,9* the giving of a redelivery bond in replevin,95 the giving of a
bond to discharge garnishment, conditioned to pay any judgment
against the defendant,96 the giving of a bond for appeal to the dis-
trict court in probate proceedings,97 a request in court for an ex-
tension of time or leave to plead or answer,98 and an appearance to
contest the right to the custody of children .in a divorce suit,99
or to contest the right to amend the affidavit in attachment,1 or
to apply for a change of venue.2 It is also entered where the de-
fendant files a motion to make the petition more definite and cer-
tain, joins in a stipulation that plaintiff may have time to amend,
files a general denial, or files an answer to his codefendant's cross-
petition.3
A general appearance is not entered by the mere taking of depo-
sitions not taken before the court.4
An unauthorized appearance for a nonresident does not give ju-
risdiction over him.5 But where the attorney for the defendant in
an action to quiet title enters an appearance for her without her
94 Kauter v. Entz, 61 P. 818, 8 Kan. App. 788.
National Surety Co. v. Oklahoma Presbyterian College for Girls, 38 Okl.
429, 132 P. 652; Comp. Laws 1909, § 5632; Fitzgerald v. Foster, 69 P. 878,
11 Okl. 558; Whitaker v. Hughes, 78 P. 383, 14 Okl. 510.
95 Fowler v. Fowler, 15 Okl. 529, 82 P. 923.
Ferguson v. McKee, 125 P. 458, 33 Okl. 332; McCord-Collins Mercantile
Co. v. Dodson, 121 P. 1085, 32 Okl. 561 ; T. D. Turner & Co. v. Same, 121 P.
1087, 32 Okl. 566.
»•« Bishop-Babcock-Becker Co. v. Hyde, 61 Okl. 250, 161 P. 172.
97 Where replevin is brought in the probate court, and defendant appeals
to the district court on questions of law and fact, the district court then
tries the case de novo and not as a court of review, and the giving of an
appeal bond is an appearance waiving1 any question as to jurisdiction over
the person of defendant. Fowler v. Fowler, 82 P. 923, 15 Okl. 529 ; Deming
Inv. Co. v. Love, 31 Okl. 146, 120 P. 635.
98 Anderson v. Burchett, 30 P. 174, 48 Kan. 781; Lookabaugh v. Epperson,
114 P. 738, 28 Okl. 472.
99 Abercrombie v. Abercrombie, 67 P. 539, 64 Kan. 29.
1Burnham v. Lewis, 70 P. 337, 65 Kan. 481.
2 A defendant who appears in court and applies for a change of venue, and
thereafter answers to the merits of the action, and goes to trial without ob-
jection, cannot question the jurisdiction as to his person, even though a
defense on that ground be included in his answer. Linney v. Thompson, 45
P. 456. 3 Kan. App. 718-
3 Wetmore State Bank v. Courter, 155 ,P. 27, 97 Kan. 178.
4 Bentz v. Eubanks, 4 P. 269, 32 Kan. 321 ; Bentz v. Eubanks, 4 P. 269, 32
Kan. 321.
5 Mortgage Trust Co. of Pennsylvania v. Cowles, 45 P. 605, 3 Kan. App. 660.
(357)
§ 507 COMMENCEMENT OF ACTION (Ch. 9
consent and judgment is rendered in her favor, either she or her
grantee may ratify such appearance and become entitled to the
benefits of the judgment in the absence of any previous repudiation
by her of the unauthorized appearance.6
Where an attorney is directed by his client to enter a special ap-
pearance, yet in doing so he honestly pleads matter operating as a
general appearance, the client is bound thereby.7
An agreement to appear in an action and waive service of sum-
mons does not confer jurisdiction, as by voluntary appearance, even
where it was filed at the same time as the petition.8
Defendants appearing by counsel, without specially limiting their
appearance, to resist the granting of a temporary injunction, are
in court for all purposes without the issuance of a summons.0
If a party to an action over which the court has obtained no ju-
risdiction presents himself and becomes a party to the proceeding,
he thereby waives the jurisdiction, but such appearance must be
in some matter before the court.10
Where a default judgment is rendered without summons or upon
6 Plummer v. Ash, 133 P. 157, 90 Kan. 40.
7 McNeal v. Gossard, 74 P. 628, 68 Kan. 113.
8 Prescott v. Farmers' Nat. Bank, 53 P. 769, 9 Kan. App. 886.
An agreement signed by defendants 16 days prior to the filing of the pe-
tition, "We hereby consent that this -tase may be tried in N. county district
court, and accordingly enter our appearance in this case in said N. county
district court, and waive the issuance of summons," and filed with the pe-
tition, did not constitute an appearance, within the statute. Bradley, Wheel-
er & Co. v. Harwi, 42 P. 411, 2 Kan. App. 272.
9 Arment v. Dodge City, 154 P. 219, 97 Kan. 94.
10 Hentig v. Redden, 16 P. 820, 38 Kan. 496.
After the issues were joined in an action on a foreign judgment, defend-
ant died, and plaintiff presented his claim to his executors who rejected the
same. The court allowed plaintiff to amend his petition, and gave defend-
ants 30 days in which to answer. The petition set up the death of the de-
fendant, the appointment of the executors, and the presentation and rejec-
tion of the claim. The executors filed a general appearance. Held, that such
appearance was a submission to jurisdiction and waived a formal revivor.
Brown v. Hillman, 116 P. 775, 29 Okl. 205.
Where defendant enters a general appearance in the case without first at-
tacking the service by publication, on the ground of the defect in the affi-
davit for publication, he waives such defect. Raymond v. Nix, 49 P. 1110, 5
Okl. 656.
The voluntary general appearance of the defendant is equivalent to the
personal service of summons, and where it has been made by a nonresident
defendant it is error to enter an ex parte order permitting him to withdraw
(358)
Art. 3) APPEARANCE §§ 507-508
fatally defective process, defendant, during that term, may appear
by motion and have the judgment vacated on that ground, and that
the motion contains matters constituting a general appearance does
not render order vacating the judgment erroneous.11
Filing a suit constitutes submission to the jurisdiction for all
purposes within the petition.12
§ 508. Special appearance
Any plea or proceeding which raises jurisdictional questions only
is a special appearance,18 and will not give the court jurisdiction
over defendant's person.14
An appearance to be special must be shown to be such by proper
designation.15
Where a court has no jurisdiction and the defendant appears spe-
cially to call attention to such irregularity and the court overrules
his motion to such jurisdiction, he may save his exception, file his
answer, and proceed to trial without waiving such error; and he
his appearance. Insurance Trust & Agency v. Failing, 71 P. 826, 66 Kan.
336; Same v. Green, Id.
A voluntary appearance, so as to be equivalent to a service of summons, is
made by defendant signing a paper, entitled in the cause, waiving service of.
summons and entering an appearance in the action, whether the same is tiled
with the petition or afterwards, or in term time or vacation. Judgment 53
P. 769, 9 Kan. App. 886, reversed. Salina Nat. Bank v. Prescott, 57 P. 121,
60 Kan. 490.
« Fried v. First Nat. Bank (Okl.) 176 P. 909.
12 Humphreys v. Smith (Okl.) 197 P. 155.
13 City Nrit. Bank v. Sparks, 50 Okl. 648, 151 P. 225.
A motion to set aside an order confiscating property held not a "general
appearance." Bishop v. Fischer, 145 P. 890, 94 Kan. 105, Ann. Cas. 1917B, 450.
A defendant who appears specially, and moves to dismiss an action against
him on jurisdictional grounds, does not thereby enter a general appearance in
the case. Thompson v. Greer, 64 P. 48, 62 Kan. 522.
Where defendants merely move to dismiss the action on the ground that
the court has no jurisdiction of them, because there has been no service of
summons, and limit their appearance to the purpose of the motion, the ap-
pearance is special, and gives the court no jurisdiction of the persons of
defendants. Anglo-American Packing & Provision Co. v. Turner Casing Co.,
8 P. 403, 34 Kan. 340.
By moving to set aside a judgment on the ground that no proper service
was had on defendant, the latter makes a special appearance only. Green v.
Green, 22 P. 730, 42 Kan. 654, 16 Am. St. Rep. 510.
For form, see Motion to Quash, ante, § 502.
14 City Nat. Bank v. Sparks, 50 Okl. 648, 151 P. 225.
Green v. Green, 22 P. 730, 42 Kan. 654, 16 Am. St. Rep. 510.
16 Drennan v. Warbul-ton, 122 P. 179, 33 Okl. 561.
(359)
§§ 508-509 COMMENCEMENT OF ACTION (Ch. 9
may take advantage of such error on appeal ; 1S but, where he files
a cross-petition and asks for affirmative relief, he submits his person
to the jurisdiction of the court for all purposes of the entire ac-
tion.17
When a defendant files a plea in the nature of a plea in abate-
ment, which questions the jurisdiction of the court over the per-
son of the defendant, and such defendant, without requesting or ob-
taining a ruling upon such plea, voluntarily obtains leave of court,
and files his answer to the merits of the case, the filing of such an-
swer waives the special plea to jurisdiction, and amounts to a gen-
eral appearance in the case for all purposes.18
A judgment having been entered against one of several defend-
ants, who had not been served, and had not entered an appearance,
a motion by him to modify and vacate the judgment as against him
will not render the judgment valid as to him, though, in addition
to stating that the court had acquired no jurisdiction of his person,
the motion recites that the judgment was entered as it was by mis-
take and inadvertence, and that the judgment actually rendered by
the court did not affect the party moving for a modification of the
entry.19
§ 509. Effect
A general appearance by giving a bond to discharge a garnish-
ment converts the action from one in rem to one in personam.20
In a creditor's action against the state bank examiner, an appear-
18 Chicago Bldg. & Mfg. Co. v. Pewthers, 63 P. 964, 10 Okl. 724; Same v.
Kirby, 63 P. 966, 10 Okl. 730 ; Jones v. Chicago Bldg. & Mfg. Co., 64 P. 7, 10
Old. 628; Mortgage Trust Co. of Pennsylvania v. Norris, 54 P. 283, 8 Kan.
App. 699 r St. Louis & S. F. R. Co. v. Clark, 87 P. 430, 17 Okl. 562.
17 F. C. Austin Mfg. Co. v. Hunter, 86 P. 293, 16 Okl. 86; Thompson v.
Greer, 64 P. 48, 62 Kan. 522.
Where the attorney for a railroad company takes part in the trial of a
case in which it is defended under protest, after his motion to quash the
summons has been overruled, he having made a special appearance to test
the validity of the service, there is no such appearance as will give th(. court
jurisdiction of the person of defendant if the service is in fact invalid. Dick-
erson v. Burlington & M. R. R. Co., 23 P. 936, 43 Kan. 702.
18 Winfield Nat. Bank v. McWilliams, 60 P. 229, 9 Okl. 493.
19 First Nat. Bank of Newton v. Wm. B. Grimes Dry-Goods Co., 26 P. 56,
45 Kan. 510.
20 Bishop-Babcock-Becker Co. v. Hyde, 61 Okl. 250, 161 P. 172.
(360)
Art. 3) APPEARANCE §§ 509-511
ance by the commissioner to defend the suit did not make the state
a party consenting to the action.21
The application of the trustees under the will of a deceased per-
son to be let in to defend will not render effective for any purpose a
void judgment against such person rendered after his death.22
§ 510. Waiver of process
A general appearance waives all defects in the summons and
confers jurisdiction for all purposes.23
No summons need be issued where a voluntary general appear-
ance is entered.24 Hence, where a motion to quash service of sum-
mons is overruled and not excepted to, and upon application mov-
ant files his answer, service of summons is waived and movant is
properly in court.25 Likewise, where no summons was issued by
defendant on the filing of its motion to set aside the judgment,
plaintiff's appearance at the hearing and his participation therein
operated as a waiver of the issuance and service of summons.26
§ 511. Objections — Preservation and waiver
Where a defendant appears specially and objects to the jurisdic-
tion, he may, when his motion is denied, file his answer without
making a general appearance, unless in his answer he asks for af-
firmative relief, in which case his appearance is general.27
21 Lankford v. Schroeder, 47 Okl. 279, 147 P. 1049.
22 Morris v. Winderlin, 142 P. 944, 92 Kan. 935.
23 Hanson v. Hanson, 122 P. 100, 86 Kan. 622; Ziska v. Avey, 122 P. 722,
36 Okl. 405 ; Turk v. Mayberry, 121 P. 665, 32 Okl. 66.
Where after judgment against a grantee on the warranty, and over against
her grantor, the grantor moved for a new trial, he thereby entered a general
appearance and validated the judgment regardfess of any defect in the proof
of service of the notice to warrantor prescribed by Comp. Laws 1909. § 1205,
and in the absence of service of summons on him. Clarkson v. Washington,
38 Okl. 4, 131 P. 935.
Where a defendant appears after judgment and moves to set same aside for
want of jurisdiction, and because the petition failed to state a cause of
action, and the action was not a proper one for service by publication, it is
a waiver of his right to question the court's jurisdiction to render the judg-
ment. Willett v. Blake, 39 Okl. 261, 134 P. 1109.
Guardian cited to show cause why he should not be discharged by entering
general appearance waives all defects in citation. In re Byrd, 122 P. 516, 31
Okl. 549.
24 Wetmore State Bank v. Courter, 155 P. 27, 97 Kan. 178.
25 Tracy v. State, 60 Okl. 109, 159 P. 496.
26 Continental Gin Co. v. Arnold (Okl.) 167 P. 613, L. R. A. 1918B, 511.
27 Shufeldt v. Jefcoat, 50 Okl. 790, 151 P. 595; Vann v. Missouri, K. & T..
(361)
§ 511 COMMENCEMENT OF ACTION (Ch. 9
Where defendant appears specially to challenge the court's juris-
diction over the person and saves exceptions to an adverse ruling,
he may file his answer and proceed to trial without*waiving such
error.28
Where an objection to service by publication in a case begun by
garnishment is properly overruled, jurisdiction to render a personal
judgment against the defendant, after trial on the merits, is confer-
red by his answer, notwithstanding right to review a ruling on ob-
jection was preserved.29
Any plea or proceeding which raises nonjurisdictional questions
involving the merits waives all questions as to regularity of the
service,30 but does not waive any irregularities in the proceedings
and judgment which may deprive them of a substantial right.31
In action by a Seminole freedman to quiet title to her allotted
lands, where, on suggestion of her death, the court, without notice
to defendants, revived the action in the name of her father, enrolled
as a Creek, who filed supplemental pleadings, the irregularity in
making the order of revival was waived by defendants' general ap-
pearance.32
Ry. Co. (Kan.) 176 P. 652; Bes Line Const. Co. v. Schmidt, 85 P. 711, 16
Okl. 429; Bes Line Const. Co. v. Taylor, 85 P. 713, 16 Okl. 481.
Where defendant, after the overruling of his objections to jurisdiction,
voluntarily demands affirmative relief, he waives his objection. Win. Camer-
on & Co. v. Consolidated School Dist. No. 1 of Kiowa County, 44 Okl. 67, 143
P. 182.
Filing of answer claiming damages after overruling of special appearance
held a general appearance waiving any error in overruling a special appear-
ance. Hamra v. Fitzpatrick, 55 Okl. 780, 154 P. 665.
Where a nonresident defendant in attachment, after denial of his motion
to discharge the attachment, answered and filed cross-action, it thereby enter-
ed a general appearance and waived its objection to the court's jurisdiction.
Southwestern Broom & Warehouse Co. v. City Nat. Bank, 52 Okl. 422, 153 P.
204.
Where defendant, after denial of motion to quash service, answered and ask-
ed for affirmative relief, he waived any defect in the service of publication.
Oates v. Freeman, 57 Okl. 449, 157 P. 74 ; Hill v. Persinger, 57 Okl. 663, 157
P. 744.
28 St. Louis & S. F. R. Co. v. Reed, 59 Okl. 95, 158 P. 399.
29 Dye v. Denver & R. G. R. Co., 101 Kan. 666, 168 P. 1087.
80 City Nat. Bank v. Sparks, 50 Okl. 648, 151 P. 225 ; Valley Abstract Co.
v. Page, 141 P. 416, 42 Okl. 365.
31 Griffin v. Jones, 45 Okl. 305, 147 P- 1024.
32 Dickinson v. Abb (Okl.) 176 P. 523.
(362)
Ch. 10) CONTINUANCE AND DISMISSAL § 512
CHAPTER X
CONTINUANCE AND DISMISSAL
Sections
512-526. Article I. — Continuance.
527-539. Article II.— Dismissal.
ARTICLE I
«»
CONTINUANCE
Sections
512. When granted — Discretion.
513. Stipulation.
514. Grounds — Illness of party.
515. Accident or mistake.
516. Amendment of pleading.
517. Absence of counsel.
518. Depositions.
519. Absence of witness.
520. Surprise at trial.
521. Admissions to prevent continuance.
522. Offer to confess judgment.
523. Application and affidavit — Forms.
524. Time of making.
525. Further continuances.
526. Objections — Waiver.
§ 512. When granted — Discretion
"The court may, for good cause shown, continue an action at any
stage of the proceedings -upon such terms as may be just; provided,
that, if a party, or his attorney of record, is serving as a member of
the Legislature, or of the Senate, sitting as a court of impeachment,
or within ten days after an adjournment of a session of the Legis-
lature, such fact shall constitute cause for continuance, the refusal
to grant which shall constitute error, and entitle such party to a
new trial as a matter of right. When a continuance is granted on
account of the absence of evidence it shall be at the cost of the par-
ty making the application unless the court otherwise order." x
t
i Sess. Laws 1915, p. 556, § 1, amending Rev. Laws 1910, § 5044, effective
March 22, 1915 ; McMahan v. Norick, 69 P. 1047, 12 Okl. 125.
For additional grounds for continuance, where a litigant or his attorney is
(363)
§§ 512-513 CONTINUANCE AND DISMISSAL (Ch. 10
The granting or refusal of a motion for a continuance is ad-
dressed to the trial judge's sound discretion,2 and a continuance
should be granted only when clearly in furtherance of justice.3
Where facts and circumstances tend to cast doubt as to the truth
of matters averred in affidavits supporting a motion for a continu-
ance, or to raise a judicial suspicion that the motion was made for
mere delay and to hinder the administration of justice, there is no
abuse of discretion in denying the continuance.4
The act of a trial judge in stating to counsel off the bench and be-
fore a motion for a continuance has been presented that the motion
would be overruled, while not commendable, is not sufficient to
show an abuse of discretion in overruling the motion.6
§ 513. Stipulation
Plaintiff's motion for a continuance founded upon an alleged oral
agreement of counsel made out of court, but denied by defendant's
counsel, is properly refused, the court not being bound by such
agreements, especially where counsel differ as to what the agree-
ment actually was.6 Where there was an agreement between coun-
sel that the testimony of certain witnesses in another case should
be transcribed and used as a deposition in the present case, and the
party in whose favor the testimony was given relied on the agree-
ment and did not procure the attendance of the witnesses, such tes-
timony should have been admitted, though objected to, or a contin-
uance should have been granted.7
a member of the Legislature, see Sess. Laws 1919, p. 374, amending Sess.
Laws 1915, c. 236, § 1.
2 Scott v. Iman (Okl.) 176 P. 81 ; Columbian Nat. Life Ins. Co. v. Wirthle
(Okl.) 176 P. 406 ; Priest v. Quinton (Okl.) 171 P. 1113 ; Walton v. Kennamer,
136 P. 584, 39 Okl. 629 ; Fire Ass'n of Philadelphia v. Farmers' Gin Co., 39
Okl. 162, 134 P. 443.
s Jennings Co. v. Dyer, 139 P. 250, 41 Okl. 468.
* Economy Hog & Cattle Powder Co. v. Bilby, 104 Kan. 769, 180 P. 735.
It is not error to refuse to continue a case on defendant's request, in the
absence of any showing that he could not be ready for trial. Clark v. Elli-
thorpe, 51 P. 940, 7 Kan. App. 337.
s Crutchfield v. Martin, 117 P. 194, 27 Okl. 764.
e Clark v. Dekker, 23 P. 956, 43 Kan. 692.
7 Cherokee & P. Coal & Mining Co. v. Wilson, 28 P. 178, 47 Kan. 460.
(364)
Art. 1) CONTINUANCE §§ 513-514
STIPULATION FOR CONTINUANCE
(Caption.)
It is hereby stipulated and agreed by and between the parties to
this action that this cause may be continued (at the cost of ), to
the term of this court, subject to the approval of the court.
G. H., Attorney for Plaintiff.
X. Y., Attorney for Defendant.
§ 514. Grounds — Illness of party
"A motion for a continuance, on account of the absence of evi-
dence, can be made only upon affidavit, showing the materiality of
the evidence expected to be obtained, and that due diligence has
been used to obtain it, and where the evidence may be ; and if it is
for an absent witness, the affidavit must show where the witness re-
sides, if his residence is known to the party, and the probability of
procuring his testimony within a reasonable time, and what facts
he believes the witness will prove, and that he believes them to be
true. If thereupon, the adverse party will consent that on the trial
the facts alleged in the affidavit shall be read and treated as the dep-
osition of the absent witness, or that the facts in relation to other
evidence shall be taken as proved to the extent alleged in the affi-
davit, no continuance shall be granted on the ground of the absence
of such evidence." 8
It was not error to refuse a continuance on the ground of defend-
ant's sickness, which had already lasted a year, without a showing
of probability that he could attend court within a reasonable time ; 9
nor was it error to refuse a continuance asked by one of two defend-
ants sued as co-partners, where the only showing was that defend-
ant, who was a nonresident of the state, desired to attend the trial,
but was unable to do so on account of sickness.10
Where an application for a continuance on the ground that the ap-
plicant is prevented from attending on account of his sickness is
supported only by the certificate of a physician, and no affidavit is
filed by the physician, or any other person having personal knowl-
s Rev. Laws 1910, § 5045 ; Martin v. Hubbard, 121 P. 620, 32 Okl. 2.
That the president of a corporation plaintiff was sick was not ground for
a continuance. Jennings Co. v. Dyer, 139 P. 250, 41 Okl. 468.
» Cohn v. Clark, 48 Okl. 500, 150 P. 467, L. R. A. 1916B, 686.
10 Paulucci v. Verity, 40 P. 927, 1 Kan. App. 121.
(365)
§§ 514-516 CONTINUANCE AND DISMISSAL (Ch. 10
edge that the party is unable to attend court, the ruling of the court
refusing a continuance will not be reversed ; 1X but where an appli-
cation for a continuance is made on the ground of an absence of a
party to the action, and it is shown by the affidavit of a physician
that she is unable to attend on account of serious sickness, and the
.attorney for the party makes an affidavit showing that she is a ma-
terial witness, and that her presence at the trial is necessary, it was
an abuse of discretion to deny the application for a continuance. l2
§ 515. Accident or mistake
The denial of a continuance sought because of the absence of
plaintiff, who was an important witness, was an abuse of discretion,
where his absence was due to being informed by his counsel that
the" case would be dismissed on his motion, which motion was de-
nied.13
A motion by plaintiff for a continuance when the case was called
for trial in her absence should have been granted on a showing that
plaintiff intended to be present, and that a failure to attend was due
to the miscarriage of a letter written by her attorney.1*
§ 516. Amendment of pleading
"When either party shall amend any pleading or proceeding, and
the court shall be satisfied, by affidavit or otherwise", that the ad-
verse party could not be ready for trial, in consequence thereof, a
continuance may be granted to some day in term, or to another
term of the court." 15
11 Harlow v. Warren, 17 P. 159, 38 Kan. 480.
A postponement of a trial on account of the absence of defendant, who, it
was alleged, was unable to attend by reason of personal injuries, was asked
for by his counsel. In the affidavit for continuance the inability of defend-
ant to attend was shown, and it was stated that no defense could be made
without his personal attendance. There had been a previous trial, and it was
not shown that defendant had a bona fide defense, or that he was a witness
to any material fact, or possessed of any knowledge not shared by his coun-
sel. Held, that the overruling of the motion was not such an abuse of discre-
tion as to justify a reversal. Beard v. Mac-key, 32 P. 921, 51 Kan. 131.
Evidence held to justify court's decision that the defendant's sickness,
made the ground of an application for a continuance, was only feigned, and
that the application was merely to hinder the administration of justice. Ladd
v. Flato, 102 Kan. 312, 169 P. 958.
12 McMahan v. Norick, 69 P. 1047, 12 Okl. 125.
is Cox v. Kirkwood, 139 P. 980, 41 Okl. 704.
n Helm v. Veils, 49 P. 662, 58 Kan. 816.
is Rev. Laws 1910, § 4793.
(366)
Art. 1) CONTINUANCE § 516
Where the issues are closed for ten days before the case is set for
trial by the filing of a pleading or by the lapse of time by failure to
plead, the statute ceases to operate, and the subsequent filing of
amended pleadings not changing the issues or prejudicing the com-
plaining party will not necessarily work a delay of the trial.16
A cause may not be delayed by reason of an amendment except
on good cause shown by the affidavit of the party asking the delay
showing distinctly in what respect he has been prejudiced by the
amendment.17
A continuance on account of a formal amendment of the petition
is not a matter of right.18
The denial of a continuance sought because of an amendment to
the petition is not error, in the absence of a showing of surprise,19
or the need of unanticipated testimony to meet a new question.20
Surprise is not sufficient ground for a continuance, unless the sur-
prise is such as cannot be obviated by the exercise of ordinary care
and due diligence on the part of the party asking for the continu-
ance.21
Where an amended petition was filed by leave of court, setting up
additional claims for relief against defendants who had not answer-
ed the original petition, it was error to refuse to continue as to said
defendants for additional service, and to dismiss said action as to
them, since the plaintiff was entitled to additional time in which to
notify such defendants of the additional allegations against them.22
is Ham v. Missouri State Life Ins. Co. (Okl.) 173 P. 214; Rev. Laws, 1910,
§ 5043.
i? Diebold Safe & Lock Co. v. Holt, 46 P. 512, 4 Okl. 479.
is Union Pac. Ry. Co. v. Motzner, 55 P. 670, 8 Kan. App. 431; State Bank
of Downs v. Abbott, 104 Kan. 344, 179 P. 326 ; Thompson v. Aultman & Tay-
lor Mach. Co., 146 P. 1188, 94 Kan. 453.
i» Lewis v. Bandy, 45 Okl. 45, 144 P. 624 ; Parsons Water Co. v. Hill, 26 P.
412, 46 Kan. 145.
20 Chandler v. Parker, 70 P. 368, 65 Kan. 860.
Where the plaintiff sues on various items of account and damage, and the
defendant answers, admitting some of the claims, and denying others, and
setting up various items of counterclaim, to which plaintiff replies with a gen-
eral denial, and the parties go to trial, and, after the plaintiff has rested, the
defendant is allowed to file an amendment setting up an entirely new item of
counterclaim, the plaintiff should be allowed time to plead to said amend-
ment, or to procure evidence thereon. Vale v. Trader, 48 P. 458, 5 Kan. App.
307.
21 Missouri, K. & T. Ry. Co. v. Horton, 119 P. 233, 28 Okl. 815.
22 Woodruff v. Albright, 62 P. 250, 10 Kan. App. 113.
(367)
§§ 517-519 CONTINUANCE AND DISMISSAL (Ch. 10
§ 517. Absence of counsel
Absence of counsel is not a statutory ground for a continuance,
and the grant or refusal of a continuance therefor is within the dis-
cretion of the court.23
§ 518. Depositions
On objection to depositions because not filed one day before trial,
the court on its own motion may continue the cause.2*
Where depositions are suppressed because when received
through the mail, the envelope inclosing them was found torn open,
it is error to refuse a continuance ; it appearing that the defective
condition in which the depositions were received was not caused by
any neglect of^the party taking the same.25
§ 519. Absence of witness
The continuance of a case for the absence of a witness is in the
discretion of the trial court.26
After a case has been called for trial, and both parties have an-
nounced themselves ready, and evidence has been introduced, an
application for a continuance to send to another county to procure
a witness is properly denied.27
It is proper to overrule a,ri application for a continuance which
23 Pool v. Riegal, 46 Okl. 5, 147 P. 1193. Denial of a continuance, sought
for absence of counsel, held not error, where the motion was unverified, and
did not show that the absent counsel was the sole counsel, or the facts as to
his absence, or effort made to procure other counsel. Id.
Defendants' application for a continuance on the ground that one of their
attorneys was a member of the Legislature and could not be present at the
trial because the Legislature was in session was properly denied. Berry v.
Dewey, 172 P. 27, 102 Kan. 593.
Denial of motion for continuance, on ground of absence of counsel by rea-
son of illness, held not an abuse of the trial court's discretion, where party
was represented by two able lawyers present. Snyder Co-op. Ass'n v. Brown
(Okl.) 172 P. 789.
24 Kepley v. Dingman, 130 P. 284, 36 Okl. 771.
25 Order of United Commercial Travelers of America v. Barnes, 82 P. 1099,
72 Kan. 293, 7 Ann. Cas. 809, affirming judgment 80 Pac. 1020.
26 Missouri Pac. Ry. Co. v. Haynes, 42 P. 259, 1 Kan. App. 586.
A motion for a continuance, after the beginning of the trial, to procure wit-
nesses to support movant's credibility, is addressed to the discretion of the
court. McCann v. McCann, 103 P. 694, 24 Okl. 264.
27 Butt v. Carson, 48 P. 182, 5 Okl. 160.
(368)
Art. 1) CONTINUANCE §§ 519-520
does not show that diligence has been exercised in endeavoring to
procure the absent witnesses.28
It is not an abuse of discretion to deny a continuance for the ab-
sence of a witness whose deposition the applicant has not attempted
to procure, though the witness was not amenable to or served with
a subpoena but promised to appear and testify.29
A motion for continuance for absent witnesses is properly over-
ruled, where the proposed testimony shown is immaterial to the
issues.30
There was no abuse of discretion in refusing an application of a
corporation defendant for a continuance to procure attendance of
its president, who had absented himself with knowledge that the
case had been set for trial.31
§ 520. Surprise at trial
Denial of a continuance on the ground of surprise from a state-
ment by plaintiff's counsel in examining jurors, which statement
was claimed to disclose ground for removal to the federal court,
was not error where plaintiff's attorney expressly denied the exist-
ence of any such ground, and the undisputed evidence showed that
no such ground existed.32
Where on the trial of a civil action, one party introduces evidence
tending to impeach the character for veracity of the other party,
28 Swope v. Burnham, 52 P. 924, 6 Okl. 736 ; Terrapin v. Barker, 109 P. 931,
26 Okl. 93 ; Standifer v. Sullivan, 30 OkL 365, 120 P. 624 ; Berry v. Dewey, 102
Kan. 392, 170 P. 1000 ; King v. King, 141 P. 788, 42 Okl. 405 ; Missouri, O. &
G. Ry. Co. v. Vandivere, 141 P. 799, 42 Okl. 427 ; Clark v. Dekker, 23 P. 956,
43 Kan. 692.
Where a sale was made on May 7th, and a motion to set it aside was filed
October 1st, a continuance to allow the person making the motion to procure
testimony was properly denied. McDonald v. Citizens' Nat. Bank of Con-
cordia, 51 P. 289, 58 Kan. 818.
29 Wood v. French, 136 P. 734, 39 Okl. 685.
There was no error in refusing an application for a continuance because of
the absence of a witness living in another county, who, the application show-
ed, was sick and unable to attend, where no effort had been made to procure
the deposition of this witness until four days before the trial, and after the
case was assigned for trial. Gill v7 Buckingham, 52 P. 897, 7 Kan. App. 227.
so Standifer v. Sullivan, 30 Okl. ,365, 120 P. 624; Title Guaranty & Surety
-Co. v. Slinker, 128 P. 696, 35 Okl. 128; Id., 128 P. 698, 35 Okl. 153.
si Garner v. Dodge City Wholesale Grocery Co., 102 Kan. 5, 169 P. 219.
32 St. Louis & S. F. R. Co. v. Long, 137 P. 1156, 41 Okl. 177, Ann. Cas. 1915C,
432.
HON.PI-.& PRAC.— 24
§§ 521-523 CONTINUANCE AND DISMISSAL (Ch. 10
and the party sought to be impeached thereupon requests, and the
court allows, a delay in the trial to enable the impeached party to
obtain witnesses in rebuttal of such impeachment, and thereupon
the other party, to save time, withdraws the impeaching evidence,
and the court orally instructs the jury to disregard such evidence, it
is not error for the court to revoke the order for (delay and to at once
proceed with the trial.88
§ 521. Admissions to prevent continuance
Where a party opposing a continuance asked for on ground of the
absence of a material witness admits that the witness, if present,
would testify as stated in the moving affidavit, the trial court com-
mits no error in refusing the continuance.34
Where the defendant's depositions were quashed, and he moved
for a continuance, and filed an affidavit of diligence, and made the
depositions which had been quashed a part of his affidavit, and
plaintiff elected to go to trial and to admit the affidavit, the deposi-
tions were as much a part of the affidavit as though they had been
copied on the paper containing the balance of the affidavit.35
A party who agreed that statements contained in an application
for a continuance could be read as the deposition of an absent wit-
ness, was not entitled to impeach such testimony by showing prior
statements of the witness.36
§ 522. Offer to confess judgment
The making of an offer to confess judgment shall not be a cause
for a continuance of an action or a postponement of the trial.37
§ 523. Application and affidavit — Forms
"A motion for a continuance, on account of the absence of evi-
dence, can be made only upon affidavit, showing the materiality of
the evidence expected to be obtained, and that due diligence has
been used to obtain it, and where the evidence may be; and if it is
ss Gulliford v. McQuillen, 89 P. 927, 75 Kan. 454.
s* Chandler v. Colcord, 32 P. 330, 1 Okl. 260.
See Rev. Laws 1910, § 5045, post, § 528; Sanford v. Gates, 16 P. 807, 38
Kan. 405.
35 Bell v. Lloyd, 74 P. 242, 67 Kan. 859. '
se National Council, Knights and Ladies of Security, v. Owen, 47 Okl. 464,
149 P. 231.
37 Rev. Laws 1910, § 5302.
(370)
Art.l) CONTINUANCE § 523
for an absent witness, the affidavit must show where the witness re-
sides, if his residence is known to the party, and the probability of
procuring his testimony within a reasonable time, and what facts he
believes the witness will prove, and that he believes them to be true.
If thereupon, the adverse party will consent that on the trial the
facts alleged in the affidavit shall be read and treated as the depo-
sition of the absent witness, or that the facts in relation to other
evidence shall be taken as proved to the extent alleged in the affi-
davit, no continuance shall be granted on the ground of the absence
of such evidence." 88
38 Rev. Laws 1910, § 5045.
Diligence. — An application for a continuance for newly discovered evidence
must show due diligence and that there is a probability of procuring the tes-
timony of the witnesses within a reasonable time. Murphy v. Hood & Lum-
ley, 73 P. 261, 12 Okl. 593 ; Crutchfield v. Martin, 117 P. 194, 27 Okl. 764 r
Fisher v. State (Okl. Or. App.) 196 P. 724 ; Board of Regents of Kansas State
Agricultural College v. Linscott, 1 P. 81, 30 Kan. 240; Kilmer v. St. Louis,
Ft. S. & W. R. Co., 14 P. 465, 37 Kan. 84.
Statement of facts. — Where a continuance is sought because of an absent
witness, the applicant must clearly show in the application where the witness
resides, if he knows, the probability of procuring his testimony within a rea-
sonable time, and that the facts affiant believes he will prove are true. St.
Louis & S. F. R. Co. v. Cox, 109 P. 511, 26 Okl. 331 ; Terrapin v. Barker, 109
P. 931, 26 Okl. 93 ; Clouston v. Gray, 28 P. 983, 48 Kan. 31.
Materiality. — Affidavit on motion for continuance to procure additional evi-
dence to rebut plaintiff's evidence, containing no statement of any material
evidence which movant would have offered in view of movant's failure to in-
troduce alleged evidence at the argument after a postponement, did not au-
thorize a continuance. Columbian Nat. Life Ins. Co. v. Wirthle (Okl.) 176
P. 406 ; Terrapin v. Barker, 109 P. 931; 26 Okl. 93 ; Chas. T. Derr Const. Co.
v. Gelruth, 120 P. 253, 29 Okl. 538.
Belief of facts. — He must show that he believes to be true the material facts
which he believes the witness would prove. -Wood v. French, 136 P. 734, 39
Okl. 685.
Probability of procuring evidence. — The affidavit for continuance for the
absence of material witnesses should contain a statement of the facts show-
ing the probability of procuring the evidence of such witnesses. Creek Coal
Mining Co. v. Paprotta (Okl.) 175 P. 235 ; Fisher v. State (Okl. Cr. App.) 196
P. 724.
Verification. — The denial of a continuance on the ground that applicant de-
sired to attend the trial as a witness, but was prevented by sickness in his
family, was not error, where no one with knowledge of sickness swore to ei-
ther certificate or application. Berry v. Dewey, 172 P. 27, 102 Kan. 593.
(371)
§ 523 CONTINUANCE AND DISMISSAL (Ch. 10
MOTION FOR CONTINUANCE
(Caption.)
Comes now the plaintiff, A. B., and moves the court to grant him
a continuance of the above-entitled cause until the next term of this
court, for the reason that (set out reasons).
And in support of this motion, the affidavit of is attached
hereto, marked Exhibit A, and made a part hereof.
X. Y., Attorney for Plaintiff.
(Attach affidavits.)
AFFIDAVIT FOR CONTINUANCE
(Caption.)
State of Oklahoma,
County of
A. B., being first duly sworn, upon oath says:
That he is the plaintiff in this action; that C. D. is a material
witness for this plaintiff, without the benefit of whose testimony de-
ponent cannot safely proceed to the trial of said action ; that said
witness is absent; that he has been duly subprenaed; that he
resides in the county where the above case is pending; that his
testimony is material ; that such witness is not absent by the per-
mission, directly or indirectly, of this applicant; that he expects
that he will be able to procure the testimony of such witness at the
next term of this court ; that this application for a continuance is not
made for the purpose of delay, but to enable him to procure the
testimony of such absent witness ; that there is no other witness by
whom he can prove the same facts ; that deponent expects to prove
by said absent witness the following facts : (Stating same.) (Set
forth any other material facts as to cause of absence of witness, etc.)
Subscribed and sworn to before me this day of ,
19—. (Jurat.)
JOURNAL ENTRY OF ORDER GRANTING CONTINUANCE
(Caption.)
Now on this day of , 19 — , this cause comes on for
hearing on the motion of plaintiff for a continuance of the above-
entitled cause until the next term of this court, said cause having
(372)
Art. 1) CONTINUANCE §§ 523~526
been heretofore regularly set for trial on this date, the plaintiff ap-
pearing by his attorney X. Y., and the defendant appearing by his
attorney, G. H., and the court, upon consideration of said motion
and affidavits presented in support thereof and oral testimony heard,
and being fully advised in the premises, finds that said plaintiff
would be prevented from having a fair and impartial trial on ac-
count of the absence of material evidence which he has used due
diligence to obtain, and that it is probable that said evidence may
be produced by plaintiff at the next term of this court; and the
said defendant, having refused to consent that on the trial the facts
alleged in the affidavit of plaintiff for a continuance might be read
and treated as the deposition of the absent witness.
It is therefore by the court ordered that this cause be and the
same is hereby continued to the next term of this court, and that
the costs of such continuance shall be taxed against said plaintiff.
, Judge.
§ 524. Time of making
An application for continuance should be made without delay.30
Where, by a rule of court, a party desiring the continuance of a
cause is required to make his application therefor on the first day
of the term, or show cause why he has not done so, it is not er-
ror for the court to overrule such an application made during the
term, if no such showing is made.40
§ 525. Further continuances
The denial of a continuance was not an abuse of discretion, where
the cause had been continued three times on practically the same
grounds and it did not appear that a further continuance would be
to any advantage.41
§ 526. Objections — Waiver
By withdrawing his answer and demurring to the petition and
electing to stand on his demurrer after the overruling thereof,
30 in an action by an administrator, there was no abuse of discretion in re-
fusing a postponement of the trial, in order that defendant might have a hear-
ing upon his application to revoke the letters of administration; the applica-
tion not having been filed in the probate court until the day of the trial, al-
though the suit had been pending for nearly six months. Livermore v. Ayres,
119 P. 549, 86 Kan. 50.
40 Lesh v. Meyer, 66 P. 245, 63 Kan. 524.
*,i Weems v. Melton, 47 Okl. 706, 150 P. 720.
(373)
§ 527 CONTINUANCE AND DISMISSAL (Ch. 10
a defendant waives the error in overruling his previous application
for a continuance on account of the absence of witnesses.42
ARTICLE II
DISMISSAL
Sections
527. Dismissal without prejudice.
528. Right— Discretion.
529. Involuntary — Discretion — Grounds.
530. Process — Pleadings — Non-compliance with order.
531. Continuance.
532. Want of prosecution.
533. Forms — Motion to dismiss — Order.
534. Reinstatement,
535. Dismissal without order of court.
536. Parties.
537. Dismissal as to part of defendants.
538. Trial of Counterclaim after dismissal.
539. Jurisdiction subsequent.
§ 527. Dismissal without prejudice
"An action may be dismissed, without prejudice to a future ac-
tion:
"First. By the plaintiff, before the final submission of the case
to the jury, or to the court where the trial is by the court.
"Second. By the court, where the plaintiff fails to appear on the
trial.
"Third. By the court, for the want of necessary parties.
"Fourth. By the court, on the application of some of the defend-
ants, where there are others whom the plaintiff fails to prosecute
with diligence.
"Fifth. By the court, for disobedience by the plaintiff of an order
concerning the proceedings in the action.
"Sixth. In all other cases, upon the trial of the action, the deci-
sion must be upon the merits." 43
42 Day v. Mooney, 41 P. 142, 3 Okl. 608.
43 Rev. Laws 1910, § 5125.
Dismissal of action under Rev. Laws 1910, § 5125, is judgment, and requires
order of court. Mullen v. Noah, 64 Okl. 181, 166 P. 742. Authority given
plaintiff by Rev. Laws 1910, § 5126, to dismiss without order of court does
not deprive court of power to inquire into means by which motion was ob-
tained. Id.
Gen. St. 1897, c. 95, § 393, provides that plaintiff may dismiss his action
(374)
Art. 2) DISMISSAL §§ 528-529
§ 528. Right— Discretion
The right of the plaintiff to dismiss his action without prejudice
at any time before the final submission of the same is absolute.4*
But, where the plaintiff has submitted his case by introducing evi-
dence and filing a written brief, and the court has taken the case
under advisement and has considered the merits, the plaintiff can-
not as a matter of right dismiss his action without prejudice.45
Where the evidence is closed, the jury have returned their find-
ings, and the case is ready for judgment, there is a "final submis-
sion" of the case.46
After the trial court sustains a demurrer to the plaintiff's evi-
dence, it is within its discretion to set aside such order and allow
the cause to be dismissed by the plaintiff without prejudice.47
§ 529. Involuntary — Discretion — Grounds
Whether it is an abuse of discretion to refuse to continue an ac-
tion and to dismiss the case for want of prosecution and to refuse to
without prejudice before the final submission of the case to the jury or to the
court, where the trial is by the court. In actions to set aside a will, a jury
acts merely for the purpose of advising the court, which may refuse to accept
their findings. In such an action, the court submitted to the jury certain
particular questions of fact, which covered part of the issues of the case.
After the jury had answered the questions, plaintiff asked leave to dismiss
the action without prejudice, which was denied. Thereupon the court pro-
ceeded, after the jury was discharged, to hear testimony on another issue not
passed on by the jury. Held, that it was error to refuse to permit a dismissal.
Osborne v. Davies, 57 P. 941, 60 Kan. 695.
44 New Hampshire Banking Co. v. Ball, 48 P. 137, 57 Kan. 812.
Under Rev. I>aws 1910, §§ 5033, 5125, the refusal of the court to permit the
plaintiff below, after the introduction of the evidence, to dismiss without
prejudice, to which it excepted, was error. Boardman Co. v. Board of Com'rs
of Atoka County (Okl.) 174 P. 272.
*5 Warner v. Warner, 112 P. 97, 83 Kan. 548.
46 Dickerman v. Crane, 57 P. 305, 8 Kan. App. 795.
*7 Hutchison v. Brown (Okl.) 167 P. 624.
Where demurrer to the evidence was sustained, and the jury discharged,
and a motion for new trial overruled, and judgment rendered against plain-
tiff, the court had power thereafter, at the same term, on motion of plaintiff,
to vacate the judgment and grant .plaintiff's motion to dismiss without prej-
udice and render a new judgment against him for costs. Missouri Pac. Ry.
Co. v. Berry, 98 P. 204, 79 Kan. 19.
Where a court is considering a demurrer to plaintiff's evidence, and giving
reasons why it will have to be sustained, it is error to overrule an application
by plaintiff to dismiss without prejudice. Pugsley v. Chicago, R. I. & P. Ry.
Co., 77 P. 579, 69 Kan. 599.
(375)
§ 529 CONTINUANCE AND DISMISSAL (Ch. 10
reinstate it depends on the particular facts, and is not governed by
any general rule.48
A motion for a nonsuit is available in cases tried to the court
without a jury.49
While the plaintiff has a right to dismiss without prejudice,
a defendant, brought into court by summons, has no right to de-
mand that the action be dismissed as to any proper party plaintiff.5*
Where both parties claim to own and be in possession of real
estate, the subject of an action to quiet title, and pray for judg-
ment and introduce evidence presenting questions of law and fact,
it is error to dismiss the action.51
The trial court, in the exercise of its discretion, may dismiss an
action without prejudice after it has sustained a demurrer to the
evidence and heard and overruled a motion for a new trial.62
When the question of jurisdiction was properly presented and it
appeared that a local defendant was sued to subject a nonresident
defendant to litigation in the county where the suit was brought,
the nonresident was entitled to a dismissal.53
In the absence of a showing of prejudice, a petition filed in the
office of the clerk of the district court will not be dismissed because
entitled in, and by the clerk given, the same docket number as a
former case between the same parties which had been -finally closed
in that court.54
The question of the ownership of notes sued on cannot be raised
by a motion to dismiss.55
It is indispensable, to give a court jurisdiction in attachment pro-
ceedings, that there should be personal service of the summons in
the action upon the defendant, or that the order of attachment be
levied upon property of the defendant, or that an order of gar-
48 Bane v. Cox, 88 P. 1083, 75 Kan. 184.
49 Lyon v. Lyon, 39 Okl. Ill, 134 P. 650.
eo Roberts v. Tomlinson, 57 P. 1060, 9 Kan. App. 85.
si Wilkinson v. Mears, 94 P. 136, 77 Kan. 273; Inman v. Same, 94 P. 136, 77
Kan. 853.
•52 National Hotel Co. v. Crane Bros. Mfg. Co., 31 P. 682, 50 Kan. 49, fol-
lowing Ashmead v. Ashmead, 23 Kan. 262.
C3 Majkemson v. Edwards, 101 Kan. 269, 166 P. 508.
P4 Allison v. Bryan, 109 P. 934, 26 Okl. 520, 30 L. R. A. (N. S.) 146, 138 Am.
St. Rep. 988.
66 Waldock v. Winkler, 51 Okl. 485, 152 P. 99,
(376)
Art. 2) DISMISSAL §§ 530-531
nishment should be served upon a garnishee having property in
his possession belonging to the defendant, or who is indebted to
such defendant, otherwise any proceedings taken in the cause are
coram non judice and void, and the cause must be dismissed.56
§ 530. Process — Pleadings — Noncompliance with order
An action will not be dismissed, on motion of defendant, because
there was no service of summons on him within 60 days from the fil-
ing of a petition.57
In an original action in the supreme court, where the parties sub-
mit the case on the pleadings, and the pleadings fail to disclose a
right of recovery in plaintiff, a judgment of dismissal and for costs
will be entered.68
Where the court directs that plaintiff amend his petition by strik-
ing out irrelevant and redundant allegations the court may, on
plaintiff's refusal to so amend, dismiss the action.58
Likewise, where the court properly sustained a motion to require
three causes of action set out in a petition to be separately stated
and numbered, on the refusal of the plaintiff to comply with the
order, a dismissal of the action was not error.60
An action against an agent and trustee for money for which he
had not accounted after demand was properly dismissed on failure
of plaintiff to comply with an order to make the petition definite
by stating approximately the date of demand.61
§ 531. Continuance
When a continuance is granted as to one member of a defendant
partnership, and plaintiff refuses to proceed with the trial against
the other and recover a separate judgment, there is no error in dis-
missing the action as to him, without prejudice.62
It is error for the district court to dismiss an appeal from a
56 Central Loan & Trust Co. v. Campbell Commission Co., 49 P. 48, 5 Okl.
396, judgment reversed 19 S. C. 346, 173 U. S. 84, 43 L. Ed. 623.
ST Green v. McCracken, 67 P. 857, 64 Kan. 330.
ss Territory v. Jacobs, 70 P. 197, 12 Okl. 152.
59 Drake v. First Nat. Bank of Ft. Scott, 7 P. 219, 33 Kan. 634.
«o Burdick v. Carbondale Inv. Co., 80 P. 40, 71 Kan. 121.
«i Null v. Potts, 157 P. 415, 98 Kan. 1.
62 Clark v. Dekker, 23 P. 956, 43 Kan. 692.
(377)
§§ 532-533 CONTINUANCE AND DISMISSAL (Ch. 10
justice of the peace, because the record fails to show that a continu-
ance for more than 90 days was with the consent of the parties.03
§ 532. Want of prosecution
A case should be dismissed without prejudice where the plaintiff
fails to appear, and defendant does not file a counterclaim or set-
off.64
Where specifications and charges for disbarment were' filed
and a referee was appointed, who filed a report, and where the com-
plainant, after the matter was called to his attention by the referee,
took no action, the proceeding will be dismissed for want of prose-
cution.65
When an application for a writ of prohibition had been made, and
time extended to the petitioner in which to file briefs, and the same
are not filed within such time, the application may be dismissed for
want of prosecution.66
Where, after issue joined, the parties enter into and file a stipula-
tion that the case shall be submitted to the court without a jury, to
be decided upon documents then on file, and to be taken up by the
court at its pleasure, without reference to the presence of attorneys
of either party, and the court's attention is called to the stipulation,
it is error for the court thereafter, in the absence of plaintiff's at-
torney, to dismiss the action for want of prosecution.67
§ 533. Forms — Motion to dismiss — Order
MOTION TO DISMISS
(Caption.)
Now comes the said defendant, and moves the court to dismiss
the above-entitled action for want of prosecution for the reason
that the plaintiff failed to appear at the time said cause had been
regularly set down for trial, to wit, on the day of .
19—.
X. Y., Attorney for Defendant.
es Rhyne v. Manchester Assur. Co., 78 P. 558, 14 Okl. 555.
** Kansas City, W. & N. W. R. Co. v. Walker, 32 P. 365, 50 Kan. 739.
so In re Townsend (Okl.) 168 P. 218.
ee Seargeant v. Cullison, 38 Okl. 154, 132 P. 345.
c7 Lardner v. Windle, 45 P. 945, 4 Kan. App. 175.
(378)
Art. 2) DISMISSAL §§ 533-534
ORDER
(Caption.)
Now on this day of , 19 — , this cause comes on
for hearing on the motion of the defendant to dismiss said action
for want of prosecution, ,and it appearing to the court that said
cause has heretofore been regularly set down for hearing on this
date, and the plaintiff failing to appear on the trial to prosecute
' said cause, either in person or by attorney.
It is by the court ordered and adjudged that said cause be and the
same is hereby dismissed at the cost of plaintiff, without prejudice
to a future action.
, Judge.
MOTION TO DISMISS FOR WANT OP JURISDICTION
(Caption.)
Now comes the said defendant for the purpose of this motion
only, and not appearing herein for any other purpose, and moves
the court to dismiss this action upon the ground that it has no
jurisdiction of the defendant, for the reason that no service of sum-
mons, either actual or constructive, has been made upon said de-
fendant, and said defendant has not appeared herein except for the
purpose of this motion.
X. Y., Attorney for Defendant,
For the Purpose of This Motion Only.
§ 534. Reinstatement
Within the term of court, the trial court or judge may vacate an
order or judgment dismissing an action at plaintiff's cost, and may
order the cause reinstated and grant time to file amended plead-
ings.68
If an order of dismissal has been entered, but is afterwards, at the
same term, set aside, and the cause continued for a further hearing,
the court does not thereby lose jurisdiction of the parties.69
A cause may be reinstated after dismissal without service of a
es Mulcahy v. City of Moline, 171 P. 597, 101 Kan. 532, 102 Kan. 531 ; Chinn
v. Bretches, 22 P. 426, 42 Kan. 316.
6» Hutchinson Salt & Stock Yards Co. v. Baldridge. 36 P. 1005, 53 Kan. 522.
(379)
§§ 534-535 CONTINUANCE AND DISMISSAL (Ch. 10
new summons, where the order of reinstatement is made at the
same term and while the opposing counsel is in court.70
Where the plaintiff's action is dismissed, but the case is continued
as to defendant's counterclaim, the court has no authority, at a
subsequent term, before the issues raised by the counterclaim have
been tried, to reinstate plaintiff's action upon motion.71
A motion to set aside a dismissal having been overruled, a court
cannot, three months thereafter, set aside the order, and reinstate
the case.72
A cause having been dismissed for want of prosecution, and ap-
plication filed to reinstate the cause for unavoidable casualty, the
court should exercise a wise discretion, and where it clearly appears
by affidavits that the party was unavoidably absent, that his de-
fense was meritorious, that he appeared immediately after the time
set for trial and before adjournment, and was unavoidably absent,
the case should be reinstated.78
Where a case has been set for trial, and the attorneys absent
themselves from the courtroom, and during their absence the case
is reached and dismissed for want of prosecution, and the only show-
ing is that they left the room a short time before the noon adjourn-
ment, believing the case on trial would last the remainder of that
session, it is not error to refuse to reinstate the same.74
If an action is dismissed and afterwards reinstated, and a trial
thereof had, no error can be predicated on the dismissal.75
§ 535. Dismissal without order of court
"A plaintiff may, on the payment of costs and without an order
of court, dismiss any civil action brought by him at any time be-
fore a petition of intervention or answer praying for affirmative
relief against him is filed in the action. A plaintiff may, at any
time before the trial is commenced, on payment of the costs
and without any order of court, dismiss his action after the filing
of a petition of intervention or answer praying for affirmative re-
70 Pierce v. Shelton, 144 P. 219, 93 Kan. 189.
71 Rumsey v. Kiowa Town Co., 53 P. 886, 7 Kan. App. 674.
72 Kauter v. Fritz, 47 P. 187, 5 Kan. App. 756.
73 Aultman-Taylor Machinery Co. v. Caldwell, 78 P. 319, 14 Okl. 472.
74 Kline v. Higday, 79 P. 774, 15 Okl. 137.
75 Howe v. Parker, 90 P. 15, 18 Okl. 282.
(380)
Art. 2) DISMISSAL § 535
lief, but such dismissal shall not prejudice the right of the inter-
venor or defendant to proceed with the action. Any defendant or
intervenor may, in like manner, dismiss his action against the plain-
tiff, without an order of court, at any time before the trial is be-
gun on payment of the costs made on the claim filed by him. All
parties to a civil action may at any time before trial, without
an order of court, and on payment of costs; by agreement, dismiss
the action. Such dismissal shall be in writing and signed by the
party or his attorney, and shall be filed with the clerk of the district
court, the judge or clerk of the county court, or the justice, where
the action is pending who shall note the fact on the proper record :
Provided, such dismissal shall be held to be without prejudice, un-
less the words 'with prejudice' be expressed therein." 76
A dismissal complying with this statute becomes effective im-
mediately on the filing of same, without an order of court."
Before a motion by plaintiff to dismiss the cause can become ef-
fective, it is necessary that all costs accumulated up to the time of
the filing of the motion be paid.78
76 Rev. Laws 1910, § 5126; Davis v. Mimey, 60 Okl. 244, 159 P. 1112.
Filing by defendants of motion to dismiss signed by plaintiff did not oper-
ate as dismissal under Rev. Laws 1910, § 5126, where on hearing trial court
found that plaintiff did not understand effect of motion and wished to con-
tinue action. Mullen v. Noah, 64 Okl. 181, 166 P. 742.
In an action on an attachment undertaking by the assignee of defendant
in the attachment for damages against the sureties, it appeared that the prin-
cipal on the undertaking, who was not made a party, had a judgment against
defendant in the attachment, obtained in the attachment action, greatly in ex-
cess to the alleged damages, which was unpaid, and that defendant in the at-
tachment was insolvent. Held that, after the principal had been made a par-
ty and had filed an answer setting forth such facts, it was not error to refuse
to allow plaintiff to dismiss his action against the principal, so that he might
proceed against the sureties alone. Gerson v. Hanson, 9 P. 230, 34 Kan. 590.
77 Stuart v. Hicks, 52 Okl. 665, 153 P. 143; Davis v. Mimey, 60 Okl. 244,
159 P. 1112.
A cause held effectively dismissed without prejudice on the date on which
plaintiff filed a written dismissal thereof, though subsequent thereto defend-
ant filed a stipulation of dismissal with prejudice obtained from plaintiff prior
to dismissal by him. Stuart v. Hicks, 52 Okl. 665, 153 P. 143.
7 s Oklahoma City Land & Development Co. v. Patterson (Okl.) 175 P. 934;
Davis v. Mimey, 60 Okl. 244, 159 P. 1112 ; Interstate Crude Oil Co. v. Young,
118 P. 257, 29 Okl. 465.
In ejectment, and to clear title to land, where C. filed a cross-petition set-
ting up his interest, and thereafter filed a written dismissal of cross-petition,
but paid no part of costs, there w,as no dismissal as to him and the court did
(381)
535-538 CONTINUANCE AND DISMISSAL (Ch. 10
VOLUNTARY DISMISSAL
(Caption.)
Comes now the above-named plaintiff and dismisses this action,
at his cost, without prejudice to a future action.
G. H., Attorney for Plaintiff.
•
STIPULATION TO DISMISS
(Caption.)
It is hereby stipulated and agreed by and between the parties
hereto, that the above-entitled action be dismissed, at the cost of
plaintiff (or defendant) with (or without) prejudice to a future ac-
tion.
G. H., Attorney for Plaintiff.
X. Y., Attorney for Defendant.
§ 536. Parties
Where the trustees of a church sue for specific performance, and
two of them move to dismiss, contrary to the wishes of the members
of the church, the court did not err in allowing the suit to proceed
under the direction of the other trustees elected to their place.78
§ 537. Dismissal as to part of defendants
Plaintiff can, before trial, dismiss as to one of the defendants
without affecting the liability of the codefendants.80
The filing of an amended petition omitting the name of one de-
fendant and not referring to or adopting any part of the original
petition operates as a dismissal as to the defendant omitted.81
§ 538. Trial of counterclaim after dismissal
"In any place where a set-off or counterclaim has been presented,
the defendant shall have the right of proceeding to the trial of his
not err in overruling his motion to reinstate the case. Cowokochee v. Chap-
man (Okl.) 171 P. 50.
Plaintiff has the right, after payment of costs, to dismiss his action, with-
out an order of court at any time before trial is commenced, but the filing of
the preecipe without paying of costs is not a dismissal of the action. State
v. Pitchford (Okl.) 171 P. 448.
7» Berry v. Second Baptist Church of Still water, 130 P. 585, 37 Okl. 117.
so Edwards v. Kenstrom, 65 P. 249, 63 Kan. 883.
si Rogers v. Bass & Harbour Co., 47 Okl. 786, 150 P. 706.
(382)
Art. 2) DISMISSAL §§ 538-539
claim, although the plaintiff may have dismissed his action or failed
to appear." 82
Where one filed a written dismissal, which the court refused to
set aside, the rendering of a final judgment, without giving him his
day in court as a defendant, and upon the issues joined upon the
allegations of his answer and cross-petition was error.83
When a defendant files a cross-petition against a codefendant, his
right to have such cross-petition tried is not affected by the dis-
missal of the petition by the plaintiff as to such codefendant.84
In a suit to have two deeds adjudged mortgages and for an ac-
counting, wherein judgment was entered declaring the deeds to
be mortgages and the hearing on the accounting was continued,
plaintiffs' motion to dismiss their action for accounting was proper-
ly overruled, where it appeared that defendant had rights which
should be determined in the action in which the deeds were de-
clared to be mortgages.85
An answer setting up limitations against the foreclosure of a
mortgage, followed by a prayer for the cancellation of the mort-
gage, and the quieting of defendant's title to the mortgaged premis-
es, is not a set-off or counterclaim, so as to entitle the defendant
to a trial notwithstanding the dismissal of the action by the plain-
tiff.86
§ 539. Jurisdiction subsequent
When a motion to dismiss is made by the plaintiff and called to
the attention of the court, its jurisdiction over the parties and the
subject-matter is at an end, except to render and enter a formal or-
der of dismissal.87
82 Rev. Laws 1910, § 5127; Wyman v. Herard, 59 P. 1009, 9 Okl. 35.
Where plaintiff in ejectment dismisses his cause of action after defendant
has filed a counterclaim claiming an interest in the land and asking affirma-
tive relief, defendant has a right to proceed to trial upon such counterclaim.
Long v. Bagwell, 38 Okl. 312, 133 P. 50.
ss Cowokochee v. Chapman (Okl.) 171 P. 50.
s* Kolp v. Parsons, 50 Okl. 372, 150 P. 1043.
85 Holmes v. Holt, 136 P. 246, 90 Kan. 774, judgment affirmed on rehearing
139 P. 1030, 92 Kan. 254, and affirmed on second rehearing 142 P. 369, 93 Kan.
7.
»e Corlett v. Mutual Ben. Life Ins. Co., 55 P. 844. 60 Kan. 134.
87 New Hampshire Banking Co. v. Ball, 51 P. 899, 59 Kan. 55.
(383)
§ 540
PLEADINGS
(Ch.ll
CHAPTER XI
PLEADINGS
Sections
540-544. Article I — In general.
545-553. Article II. — Rules of pleading.
554-561. Article III. — Rules for construing pleadings.
562-587. Article IV.— Petition.
562. Division I. — In general.
563-579. Division II. — Contents, form, sufficiency, and construction.
580-585. Division III. — Joinder, splitting, consolidation, and severance.
586-587. Division IV.— Exhibits and prayer.
588-637. Article V.— Answer.
588-602. Division I. — Answer in general.
603-606. Division II. — General denial.
607-615. Division III.— Verified denial.
616-635. Division IV. — Counterclaim and set-off.
636-637. Division V. — Unauthorized pleas.
638-645. Article VI.— Reply.
646-648. Article VII.— Filing and subscribing.
649-660. Article VIII. — Amended and supplemental pleadings.
661-664. Article IX. — Defects and objections.
665-702. Article X. — Motions and orders thereon.
665-673. Division I. — Motions in general.
674-678. Division II — Orders.
679-702. Division III. — Particular motions.
703-721. Article XI. — Demurrer.
722-733. Article XII. — Issues, proof, and variance.
722-728. Division I. — Issues.
729-732. Division II. — Proof.
733. Division III. — Variance.
ARTICLE I
IN GENERAL
Sections
540. Defined.
541. Pleadings allowed.
542. Nature, how determined.
543. Caption — Forms.
544. Counties.
§ 540. Defined
"The pleadings are the written statements, by the parties, of the
facts constituting their respective claims and defenses." x
i Rev. Laws 1910, § 4734.
(384)
Art. 1) IN GENERAL §§ 541-543
§ 541. Pleadings allowed
"The only pleadings allowed are:
"First. The petition by the plaintiff.
"Second. The answer or demurrer by the defendant.
"Third. The demurrer or reply by the plaintiff.
"Fourth. The demurrer by the defendant to the reply of the
plaintiff." 2
"All fictions in pleadings are abolished.3
§ 542. Nature, how determined
The nature of a pleading is determined, not by the title, but by
the subject-matter. A motion to dismiss, setting up defensive mat-
ters, cannot be treated as a motion, but may be treated as an an-
swer.4
§ 543. Caption— Forms
"The title of a cause shall not be changed in any of its stages." 6
•
CAPTIONS
State of Oklahoma, ]
L SS. I
County of .J *
In the Court of Said County and State.
A. B., Plaintiff,
v.
C. D., Defendant.
A. B., a Minor, by E. F., His Next Friend, Plaintiff,
v.
C. D., a Minor, Defendant.
A. B., Sheriff of County, Oklahoma, Plaintiff,
v.
C. D., Defendant.
A. B., C. D., and E. F., Partners as B., D. & F. Co., Plaintiffs,
v.
G. H. and I. J., Partners as H. & Co., Defendants.
2 Rev. Laws 1910, § 4736.
s Rev. Laws 1910, § 4767.
* State v. City of Muskogee (Okl.) 172 P. 796.
s Rev. Laws 1910, § 4768.
HON.PL.& PBAC.— 25 (385)
§§ 543-545 PLEADINGS (Ch. 11
A. B. C. Company, a Corporation, Plaintiff,
v.
C. D. Railroad Co., a Corporation, Defendant.
A. B., Executor of the Will of E. F., Deceased, Plaintiff,
v.
C. D., Administrator of the Estate of G. H., Deceased, Defendant.
A. B., as Assignee for the Benefit of the Creditors of E. F., Plaintiff,
v.
C. D., Defendant.
§ 544. Counties
"In all suits or proceedings by or against a county, the name in
which a county shall sue or be sued shall be, 'Board of County
Commissioners of the County of ,' but this provision shall
not prevent county officers, where authorized by law, from suing
in their official name fer the benefit of the county." 8
ARTICLE II
RULES OF PLEADING
Sections
545. Former rules abolished.
546. What must be pleaded.
547. Special matters.
548. Estoppel.
549. Pleading conclusions and law.
550. Pleading evidence.
551. Uncertainty in pleadifcgs.
552. Pleading in the alternative.
553. Pleading by reference.
§ 545. Former rules abolished
"The rules of pleading heretofore existing in civil actions are
abolished; and hereafter, the forms of pleadings in civil actions
in courts of record, and the rules by which their sufficiency may
be determined, are those prescribed by this code." T
e Rev. Laws 1910, § 1500.
7 Rev. Laws 1910, § 4735.
(386)
Art. 2) RULES OF PLEADING §§ 546~547
«
§ 546. What must be pleaded
It is not necessary to plead facts of which the court will take
judicial notice.8
There need be no direct allegation of a fact which otherwise
sufficiently appears or of facts necessarily implied from averments
in the petition.9
§ 547. Special matters
A party relying on the defense of accord and satisfaction must
both plead and prove the offer and acceptance by the parties.10
Where the transferee of a note desires to avoid equities as be-
tween the original parties, he must plead and prove that the note
was transferred by indorsement.11
The insurer should plead and prove its contention that insured's
s French v. State Senate, SO P. 1031, 146 Cal. 604, 69 L. R. A. 556, 2 Ann.
Cas. 756.
By chapter 98, Laws 1893, the territory formerly known as "Garfield
county, Kansas," was made a municipal township of Finney county for judi-
cial purposes. Held, that in an action against the township to recover upon
indebtedness created by the county the de facto existence of the county, the
existence of the township of Garfield, the succession of the township to the
county, and the liability of the township for the debts of the county are facts
of which the court will take judicial notice, and need not be pleaded. Gar-
field Tp. v. Dodsworth, 58 P. 565, 9 Kan. App. 752.
9 That a minor child's earnings have been relinquished to him will be im-
plied, in an action brought by the father as such, and as next friend for the
minor, for damages for decreased earning power, from averments in the peti-
tion that the minor is entited tc recover in his own suit, though emancipa-
tion of the minor is not specifically alleged, Revel v. Pruitt, 142 P. 1019, 42
Okl. 696.
The use of the word "fratfd" in stating the conduct of a party sought to
be charged for false representations is unnecessary where the facts stated are
sufficient to show fraudulent conduct and resulting injury. Way v. Bronston,
138 P. 601, 91 Kan. 446.
Where a petition though not using the word "dedication," alleges facts
showing a dedication for a public highway by conduct of the owner and ac-
ceptance and user by the public, dedication may be relied on. Kansas City
v. Burke, 144 P. 193, 93 Kan. 236, denying rehearing 141 P. 562, 92 Kan. 531.
In an action by a partnership an allegation of compliance with Rev. Laws
1910, §§ 4469, 4471, requiring the filing of a certificate of the names of the
partners where a fictitious name or designation is used, is not required, as it
is presumed that the law has been complied with. Oklahoma Fire Ins. Co. v.
Wagester, 38 Okl. 291, 132 P. 1071.
10 Deming Inv. Co. v. McLaughlin, 30 Okl. 20, 118 P. 380.
11 Gault v. Kane, 44 Okl. 763, 145 P. 1128.
(3S7)
§§ 547-548 PLEADINGS (Ch. 11
death was due to a cause excepted from the accident policy sued
on.1*
When an action is brought against a nonresident of the state in
the district court, which is a court of general jurisdiction, it is not
necessary to allege in the petition that defendant may be found in
the county where the action is brought, or that he has property in
the county.13
§ 548. Estoppel
Estoppel, to be available as part of a cause of action or defense,
must be pleaded with particularity.14
12 Union Accident Co. v. Willis, 44 Old. 578, 145 P. 812, L. R. A. 1915D. 358.
is Bohart v. Republic Investment Co., 30 P. 180, 49 Kan. 94.
i4 Halsell v. First Nat. Bank of Muskogee, 48 Okl. 535, 150 P. 489, L. R. A.
1916B, 697; Tonka wa Milling Co. v. Town of Tonkawa, 83 P. 915, 15 Okl.
672 ; Nance v. Oklahoma Fire Ins. Co., 31 Okl. 208, 120 P. 948, 38 L. R. A.
(N. S.) 426 ; Halsell v. First Nat. Bank of Muskogee, 48 Okl. 535, 150 P. 489,
L. R. A. 1916B, 697 ; McKallip v. Geese, 30 Okl. 33, 118 P. 586 ; Fidelity Mut
Life Ins. Co. of Philadelphia, Pa., v. Dean, 57 Okl. 84, 156 P. 304; Cooper v.
Flesner, 103 P. 1016, 24 Okl. 47, 23 D. R. A. (N. S.) 1180, 20 Ann. Gas. 29;
Insurance Co. of the State of Pennsylvania v. Harris, 49 Okl. 165, 152 P. 359 ;
Bunker v. Harding (Okl.) 174 P. 749.
A waiver relied upon as an estoppel against defendant to take advantage
of a breach by plaintiff of the contract sued on must be specially pleaded.
American Jobbing Ass'n v. James, 103 P. 670, 24 Okl. 460.
For an estoppel or waiver of the conditions of a benefit certificate prohib-
iting entering on hazardous occupations to be available to the beneficiary, it
must be specifically pleaded. Modern Woodmen of America v. Weekley, 139 P.
1138, 42 Okl. 25.
Waiver of conditions of policy, to be available, must be specifically pleaded.
Edwards v. Sovereign Camp, Woodmen of the World, 61 Okl. 243, 161 P. 170.
In action for freight, contract of consignor and consignee as to payment of
freight cannot be pleaded as defense, in absence of plea raising estoppel, to
which such contract was germane. Indiana Harbor Belt R. Co. v. Britton, 56
Okl. 750, 156 P. 894.
The town council of an incorporated town is not estopped to rely on the
invalidity of an ordinance amending another ordinance extending the time
set in the ordinance amended for furnishing gas to the inhabitants of said
town, where such estoppel is not pleaded, and the evidence fails to disclose
that the grantee of said franchise or its assignee was misled to its injury
Town of Sapulpa v. Sapulpa Oil & Gas Co., 97 P. 1007, 22 Okl. 347.
In action to subject wife's separate property to payment of husband's debts,
facts showing her estoppel by conduct must be specifically pleaded. Farm-
ers' State Bank of Ada v. Keen (Okl.) 167 P. 207.
Estoppel in pais against maker of instrument materially altered, to be
available, must be pleaded. Wayne County Nat. Bank v. Kneeland, 61 Okl.
265, 161 P. 193.
(388)
Art. 2) RULES OF PLEADING §§ 548~549
No intendments are indulged in favor of a plea of estoppel, and
every essential element of estoppel must be averred.15
If the facts constituting estoppel are in any way sufficiently
pleaded, the pleader is entitled to the benefit of the estoppel though
it is not formally pleaded.16
§ 549. Pleading conclusions and law
It is neither necessary nor sufficient to plead mere conclusions,17
or statements of law; 18 but a petition is not demurrable, though it
IB Holt v. Holt, 102 P. 187, 23 Okl. 639.
IB Jones v. S. H. Kress & Co., 54 OkL 194, 153 P. 655.
17 Where there is no averment of facts from which the conclusions of law
are drawn, the same will have no force in a pleading. International Har-
vester Co. of America v. Cameron, 105 P. 189, 25 Okl. 256.
"Where the petition in an employees action for injuries states facts impl}'-
ing that defendant has negligently failed to provide a reasonably safe place
to work, it need not state the legal conclusion to that effect. Barnett v,
United Kansas Portland Cement Co., 139 P. 484, 91 Kan. 719.
Conclusions. — The allegation that county commissioners have advertised
for bids, and, unless interfered with, will let a contract for a bridge at a cer-
tain point with a further allegation that the advertisement for the contract
has not as they verily believe been posted as required by law, is, as to the
latter, a statement merely of a legal conclusion, and the petition based there-
on is demurrable. Smith v. Board of Com'rs of Rogers County, 110 P. 669, 26
Okl. 819.
A petition in ejectment which sets forth in general terms the fact that ille-
gal interest, penalties, and costs were charged against real property sold for
taxes, and the deed was void because separate school taxes were assessed
against the property, and that a special tax was illegally assessed against the
property, the same being a part of the taxes, interest, and expenses for which
the property is sold, does not, on demurrer, state facts sufficient to raise such
questions; it being necessary to show wherein the tax was illegal or the ex-
penses illegally charged. Jones v. Carnes, 87 P. 652, 17 Okl. 470.
An allegation that a certain person is not now, and never has been, the
legally appointed assignee for another person, is a mere conclusion. Smith
v. Kaufman, 41 P. 722, 3 Okl. 568.
Defendant's petition to vacate judgment, averring that he has a good de-
fense, as shown by his answer on file in the cause, but not making such an-
swer a part of the petition, is insufficient as stating a mere legal conclusion,
Tracy v. State, 60 Okl. 109, 159 P. 496.
The allegation of a petition that there was and is no high school in the
county which has been established or created according to law, equivalent to-
the allegation that the high school established was illegal, is a mere conclu-
is A statement, in a petition in an action to vacate a judgment, which al-
leges that no publication notice as required by law has been filed, is a state-
ment of law, not a statement of fact. Townsend v. Burr, 60 P. 477, 9 Kan.
App. 810.
(389)
§§ 549-551 PLEADINGS (Ch. 11
states a conclusion of the pleader, where it states the facts on
which such conclusion is based.19
But it is a sufficient allegation of facts, if a petition sets forth
such facts as are probative with reference to the issue to be estab-
lished, and it is unnecessary to set out the evidentiary facts.20
§ 550. Pleading evidence
It is not good practice to plead evidence and the granting of a
motion to strike out the evidence when pleaded will not be dis-
turbed.21
In an action by a wife for the alienation of the. affections of her
husband, a statement in the petition of the ultimate facts of the
alienation and separation is enough without pleading the acts
done and artifices used to accomplish the result.22
§ 551. Uncertainty in pleadings
The essential facts of a cause of action or defense should be un-
equivocally alleged. Where the averments of the pleading are con-
ditional, contingent, and conjectural, it will be held insufficient.23
sion of law, insufficient against direct challenge by demurrer. Houser v.
Smith, 101 P. 1001, 80 Kan. 260.
An answer which merely denies the debt sued on, without denying the facts
on which it is ba'sed, where they are pleaded in the petition, is insufficient
to raise an issue of fact. Jackson v. Green, 74 P. 502, 13 Okl. 314.
Where petition alleges injury by negligence of defendant, a part of an an-
swer, additional to a general denial, merely stating that the act of defendant
was rightful, is demurrable. Murray v. Empire Dist. Electric Co., 150 P. 533,
96 Kan. 336.
In action against city for personal injury, from alleged unsafe condition of
street or sidewalk, a general allegation "that the plaintiff's negligence caused
the injury" was a mere conclusion, and not a sufficient allegation of contrib-
utory negligence. City of Gushing v. Bowdlear (Okl.) 177 P. 561.
i» Maple v. State, 142 P. 1182, 43 Okl. 277.
Statements of fact. — In a reply attacking tax deeds alleging that they fail
to show the date of sale, that the notice of sale does not show by whom it
was made or the place of sale, and other specifications of fact, a statement
that no notice of final redemption was published as required by law will be
regarded as a statement of fact. Wolf v. Wolf, 128 P. 374, 88 Kan. 205.
20 City of Guthrie v. Finch, 75 P. 288, 13 Okl. 496.
21 Cahill v. Pine Creek Oil Co., 136 P. 1100, 40 Okl. 176.
22 White v. White, 90 P. 1087, 76 Kan. 82.
as Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 70 P. 933, judgment
modified (1904) 75 P. 1051, 68 Kan. 585, 1 Ann. Cas. 639.
A pleading should contain a positive statement of essential facts; and it
must be held insufficient where it merely states that such facts are alleged
to exist. Byington v. Saline County Com'rs, 16 P. 105, 37 Kan. 654.
(390:
Art. 3) RULES FOR CONSTRUING PLEADINGS §§ 551~554
The allegations in a petition should be sufficiently certain to
enable the court to understand, not only the wrongs complained
of, but also the correct measure of redress.24
Essential facts necessary to be shown to entitle a party to the
relief demanded should be stated in the pleadings by allegation
or averment, and not by way of recital.25
§ 552. Pleading in the •alternative
An alternative statement of facts, under either of which the op-
posite party would be liable, may be pleaded, where it is impossi-
ble for the pleader to know which of such statements are true.26
§ 553. Pleading by reference
Allegations in another pleading in the same case may be made
a part of a pleading by reference thereto and adoption thereof.27
ARTICLE HI
RULES FOR CONSTRUING PLEADINGS
Sections
554. Liberal construction.
555. General and specific allegations.
556. Admissions.
557. Presumptions.
558. Surplusage.
559. Construction against pleader.
560. Construing allegations together.
561. Construed as of what time.
§ 554. Liberal construction
"In the construction of any pleading, for the purpose of deter-
mining its effect, its allegations shall be liberally construed; with
a view to substantial justice between the parties." 28
24 Midland Valley R. Co. v. Featherstone, 123 P. 1123, 32 Okl. 837.
25 Emmerson v. Botkin, 109 P. 531, 26 Okl. 218, 29 L, R. A. (N. S.) 786, 138
Am. St. Rep. 953.
26 Where an employe1 is injured, either by the willful or intentional act of
the employer, or the failure to exercise ordinary care on the part of such em-
ployer, such employ6 or his representative may plead both in the alternative
in one count. Chicago, R. I. &j P. Ry. Co. v. Mclntire, 119 P. 1008, 29 Okl.
797.
-7 In action on notes, where answer and cross-petition set out execution
and transfer of notes secured by chattel mortgage, the reply might refer to
such allegation in cross-petition, and thereby make them a part of the reply.
Lower v. Shorthill, 103 Kan. 534, 176 P. 107.
28 See note 28 on following page.
(391)
"§ 554 PLEADINGS (Ch. 11
Where the allegations of a petition clearly show that the plain-
tiffs have no adequate remedy at law, it is unnecessary to so al-
lege.28
Under this statute averments of pleadings must be so construed
that substantial justice may be done between the parties though es-
sential averments lacking in a pleading need not be construed into
it, or a necessary averment be supplied, unless it must necessarily
be inferred from other pleadings.30
A pleading will not be construed so as to defeat it by undue
technicality.31 It will be liberally construed on objection to the in-
troduction of any evidence,32 and on a demurrer to the evidence,33
^8 Rev. Laws 1910, § 4766; Bank of Glasco v. Marshall, 47 P. 561, 5 Kan.
App. 252.
An allegation, in an employe's action for injuries, that defendant knew or
should have known of a certain defect was an implied allegation that such
defect existed. Roberts v. Pendleton, 142 P. 289, 92 Kan. 847.
After a party has amended his petition three times, and a demurrer is
again sustained to it, no presumption will be indulged in favor of the plead-
ing. Schilling v. Moore, 125 P. 487, 34 Okl. 155.
29 Clark v. Frazier (Okl.) 177 P. 589.
soWeatherly v. Sawyer, 63 Okl. 155, 163 P. 717; Emmerson v. Botkin, 109
P. 531, 26 Okl. 218, 29 L. R. A. (N. S.) 786, 138 Am. St. Rep. 953.
si Smith v. McCarthy, 18 P. 204, 39 Kan. 308.
*2 Against an objection to the introduction of any evidence for plaintiff on
the ground that the petition does not state a cause of action, the petition will
be liberally construed, and, if possible, sus-tained. State v. School District
No. 3, 8 P. 208. 34 Kan. 237 ; Burnette v. Elliott, 84 P. 374, 72 Kan. 624 ;
Simmonds v. Richards, 86 P. 452, 74 Kan. 311; Mills v. Vickers, 50 P. 976,
6 Kan. App. 884 ; Carr v. Seigler, 52 Okl. 485, 153 P. 141 ; McKee v. Jolly
(Okl.) 178 P. 656; Minnetonka Oil Co. v. Cleveland Vitrified Brick Cp., 48
Okl. 745, 150 P. 712 ; Barker v. Moodie, 141 P. 562, 92 Kan. 566.
33 Gregg v. Oklahoma State Bank (Okl.) 179 P. 613.
Allegations of fraud and consequent damage in procuring credit for insol-
vents, when tested by demurrer, are to be liberally construed. Blair v. Mc-
Quary, 162 P. 1173, 100 Kan. 203, judgment modified on rehearing 164 P. 262,
100 Kan. 203.
The allegations' of a petition, challenged by a general demurrer or objection
to the introduction of evidence, based upon the insufficiency of the petition,
must be construed liberally in favor of the pleader. Ruby v. Warrior (Okl.)
175 P. 355.
In a suit for annulment of a marriage, an allegation that the wife had not
been divorced from a former husband will be construed on demurrer to mean
that the husband was still living. Browning v. Browning, 130 P. 852, 89 Kan.
98, L. R. A. 1916C, 737, Ann. Cas. 1914C, 1288.
Where a contract is pleaded which is open to two interpretations, one that
the contracting parties were honest and innocent in their purposes and ac-
Art. 3) RULES FOR CONSTRUING PLEADINGS §§ 554~555
particularly where no motion to make more definite and certain lias
been made,34 but doubtful language will be construed against the
pleader.85
If material allegations are omitted, it will be assumed, without
application to amend, that facts to justify them do not exist.36
A petition attacked for the first time on appeal on the ground that
it does not state facts sufficient to constitute a cause of action will
be liberally construed.37
The same is true of a counterclaim.88
§ 555. General and specific allegations
A specific statement of facts in a pleading will always control a
general statement, whether that general statement is or is not re-
garded as a mere conclusion of law.39
tions, and the other that they were immoral and criminal, and the sufficiency
of the pleading is challenged on demurrer, an interpretation will be given in
favor of honesty and innocence, and which will uphold the validity of the-
contract and the sufficiency of the pleading. Atchison, T. & S. F. Ry. Co. v.
Atchison Grain Co., 70 P. 933, judgment modified 75 P. 1051, 68 Kan. 585, I
Ann. Cas. 639.
s* vVhere a demurrer is filed to a petition on the ground that it does not
state facts sufficient to constitute a cause of action, without first presenting a
motion to have the allegations of the petition made more definite and cer-
tain, the statements of such petition will be liberally construed in favor of
the pleader. Upham v. Head, 85 P. 1017, 74 Kan. 17; Balmer v. Long, 104
Kan. 408, 179 P. 371.
as Lusk v. Porter, 53 Okl. 294, 156 P. 224; Atwood v. Rose, 122 P. 929, 32
Okl. 355.
After a motion to make certain allegations of a petition more definite and
certain has been overruled, such pleading in respect to such allegations can-
not be upheld as against a general demurrer, unless it fairly states a cause
of action without resort to inferences or construction of doubtful language.
Mergen v. Salina Northern R. Co., 104 Kan. 811, 180 P. 736.
se Fretz v. City of Edmond (Okl.) 168 P. 800, L. R. A. 1918C, 405.
3?Wass v. Tennent-Stribbling Shoe Co., 41 P. 339, 3 Okl. 152? Hoehler v,
Short, 140 P. 146, 40 Okl. 681 ; Cook v. State, 130 P. 300, 35 Okl. 653 ; Mis<-
souri Pac. Ry. Co. v. Morrow, 13 P. 789, 36 Kan. 495; Kansas City & S. W.
Ry. Co. v. Farnsworth, 18 P. 202, 39 Kan. 356.
ss Where the sufficiency of the counterclaim is not challenged below, and
the evidence taken thereon is not in the record, a judgment for defendant will
not be disturbed because the averments of the counterclaim would have been
subject to a motion to make more definite and certain. Brown Shoe Co. v.
Cuff, 132 P. 1090, 37 Okl. 776.
3» Whi taker v. Crowder State Bank, 110 P. 776, 26 Okl. 786,
A petition containing general averments of negligence, and stating that the
negligence "hereinbefore complained of consisted in this," presents only such-
(393)
§ 556 PLEADINGS (Ch. 11
§ 556. Admissions
Where a party to an action makes solemn admissions* against his
interest in a pleading in the absence of mistake on his part, or on
the part of his counsel who inserted them in such pleading, a court,
in passing on the sufficiency of a subsequent amended pleading filed
by him should take such admissions into consideration, and treat
them as admitted facts in the case.40
A party should be bound by the allegations of his pleadings, de-
liberately made, and should not be allowed to obtain benefits from
issues as are found in the specific allegations. Chicago, R. I. & P. Ry. Co. v.
Mclntire, 119 P. 1008, 29 Old. 797.
In suit by abutting owner to enjoin ferry landing at end of public highway,
general allegations that he would suffer irreparable injury unless landing is
enjoined were negatived by his more specific allegations showing that relief
was based upon mere fact of such landing. Hale v. Record (Okl.) 168 P. 420.
Where a petition sets out a specific title followed by a general averment of
ownership, it will be understood that this general averment refers to the spe-
cific title, and the testimony will be limited to such title. Armour Bros.
Banking Co. v. Riley County Bank, 1 P. 506, 30 Kan. 163.
40 Lane Implement Co. v. Lowder, 65 P. 926, 11 Okl. 61.
Where a party to an action makes solemn admissions against his interest
in. a pleading, they must be treated as admitted facts, and he cannot question
the correctness thereof in the trial court or on appeal so long as they remain
a part of the record. Rogers v. Brown, 86 P. 443, 15 Okl. 524.
Where, in an action for injury to a shipment of live stock, plaintiff alleged
that defendant issued bills of lading, he cannot thereafter claim that the con-
tract of shipment was oral, though in his reply he alleged that the bills of
lading were executed as a receipt and for the purpose of entitling plaintiff
to return transportation. St. Louis & S. F. R. Co. v. Zickafoose, 39 Okl. 302.
135 P. 406.
One who brought an action to cancel a deed on the ground that it was pro-
cured by fraud, and who prays- an accounting with her grantee for moneys
received for lots sold from land, cannot, at the conclusion of the trial, aban-
don that theory and insist that the deed be deemed a mortgage, and recover
the title to the lots from parties held to be innocent purchasers for value, and
without notice. Herbert v. Wagg, 117 P. 209, 27 Okl. 674.
In action for specific performance against a foreign executor, if the exec-
utor plead the will to show that it contains no grant of power to convey, he
cannot dispute its existence, authenticity, or terms. Niquette.v. Green, 106
P. 270, 81 Kan. 569.
In an action of replevin against an officer to recover cattle levied upon by
him, wherein the defendant answers, admitting possession, and justifies un-
der a writ of execution, and denies the ownership of the plaintiff, it is error
to permit him to prove that he was not in possession of the property at the
commencement of the suit. Hursh v. Starr, 49 P. 618, 6 Kan. App. 8.
(394)
Art. 3) RULES FOR CONSTRUING PLEADINGS §§ 556~558
contradictory and inconsistent allegations therein, even if made in
separate counts.41
Allegations in a petition which have been superseded by an
amended petition complete within itself and not referring to the
original petition are not conclusive upon plaintiff.42
When the prayer of a petition asks for interest from a certain
date, the plaintiff cannot recover interest from a prior date.43
If allegations in the answer are inconsistent with each other, the
defendant is bound by those allegations which are against him-
self.44
Where a copy of the note sued on is attached to the petition, and
defendants admit the execution thereof, they cannot, on the intro-
duction of evidence, be heard to say that the note was changed after
its execution, as the admission is of the execution of the note in
the very form pleaded.45
§ 557. Presumptions
Considerable latitude of presumption is allowed in sustaining a
petition, where issue is joined, and it is only attacked at the trial by
an objection to evidence.46
Where a petition avers facts of a continuous nature which would
preclude recovery, they will be presumed to continue unless the pe-
tition avers the contrary.47
§ 558. Surplusage
Where a pleading, which is otherwise good, contains allegations
which are not essential, such allegations may be disregarded* as sur-
plusage.48
41 Losch v. Pickett, 12 P. 822, 36 Kan. 216.
42 Letcher v. Maloney (Okl.) 172 P. 972; Reemsnyder v. Reemsnyder, 89 P.
1014, 75 Kan. 565.
43 Phenix Ins. Co. of Brooklyn r. Weeks, 26 P. 410, 45 Kan. 751.
44 Mitchell v. Ripley, 49 P. 153, 5 Kan. App. 818; Bierer v. Fretz, 4 P. 284,
32 Kan. 329.
45 White v. Smith, 98 P. 766, 79 Kan. 96.
46 Burnette v. Elliott, 84 P. 374, 72 Kan. 624.
*7 Alexander v. Bobier (Okl.) 166 P. 716.
48 Where the facts are fully set out in a petition, and are followed by a
formal statement of the pleader's conclusions, such conclusions, if erroneous,
may be disregarded as surplusage. Lawton Pressed Brick & Tile Co. v. Ross-
(395)
§§ 558-560 PLEADINGS (Ch. 11
The court may, in its discretion, order such matters stricken out,
but such surplusage will not render a pleading subject to demur-
rer.*9
§ 559. Construction against pleader
Any pleading containing allegations made by the same party,
both affirming and denying a particular thing, carries falsehood up-
on its face ; and in such a case the court may consider as true such
of the allegations as are against the pleader.50
When the petition states a number of causes of action, and asks
for a variety of relief, thereby comprising several of the pre-existing
forms of action, its language will, on demurrer, be construed against
the pleader.61
§ 560. Construing allegations together
In determining whether any one or more of the counts of a peti-
tion state a good cause of action, all the facts -stated will be consid-
ered together.52
/
Kellar Triple Pressure Brick Mach. Co., 124 P. 43, 33 Okl. 59, 49 L. R. A.
<N. S.) 395.
Allegation of the answer that insurer had fraudulently misrepresented in
her proof of loss the value of the property was put in issue by general denial ;
and further allegations in the reply, as to waiver of conditions of the policy,
were surplusage, and did not constitute a material variance. American Ins.
€o. of Newark, N. J., v. Rodenhouse, 128 P. 502, 36 Okl. 211.
Where the answer alleges that insured has failed to comply with conditions
precedent to an action, a denial of those allegations in the reply puts them
in issue; and a further allegation that defendant has waived the conditions
is surplusage. Rochester German Ins. Co. of Rochester, N. Y., v. Rodenhouse,
128 P. 508, 36 Okl. 378.
Where a petition in an action for wrongful ejection of a passenger from a
train alleged a violation of the contract of carriage, and also tortious acts
of the conductor, the latter allegations may be treated as surplusage. Chase
v. Atchison, T. & S. F. Ry. Co., 79 P. 153, 70 Kan. 546.
Allegation in petition that notice of injury had been given, as required by
the fellow servant act (Gen. St. 1909, § 6999) , is 'surplusage, where the neg-
ligence claimed is that of the master in failing to exercise proper care in
furnishing the servant with a safe place in which to work. Young v. Mis-
souri, K. & T. Ry. Co., 108 P. 99, 82 Kan. 332.
49 Drake v. First Nat. Bank of Ft. Scott, 33 Kan. 634, 7 Pac. 219.
BO Losch v. Pickett, 12 P. 822, 36 Kan. 216.
si Thomas v. Sweet, 14 P. 545, 37 Kan. 183.
62 McClung v. Cullison, 82 P. 499, 15 Okl. 402.
(396)
Art. 4) PETITION §§ 561-562
§ 561. Construed as of what time
The pleadings all relate to the time of the commencement of the
suit, the same as if filed at that time, and the rights of the parties
are to be determined as they existed when suit was commenced.63
ARTICLE IV
PETITION
Sections DIVISION I.— IN GENERAL
562. Copy for defendant.
DIVISION II.— CONTENTS, FORM, AND CONSTBUCTION
563. Contents.
564. Designation of parties.
565. Of unknown defendant.
566. Necessary allegations.
567. Presumptions — Judicial notice.
568. Judgment — Form. t
569- Form and manner of allegations.
570. Election.
571. Contractual conditions precedent — Form.
572. Instrument for payment of money — Private statute — Form.
573- Libel or slander — Form.
574. Construction a*nd operation.
575. Requisites and sufficiency.
576. Fraud — Form.
577. Limitations — Form.
578. Matters necessary to be pleaded.
579. Forms — Petitions.
DIVISION III.— JOINDER, SPLITTING, CONSOLIDATION, AND SEVERANCE
580. Joinder — Forms of motions.
581. Separately stating and numbering.
582. Where demurrer sustained.
583. Splitting.
584. Consolidation.
585. Order— Forms.
DIVISION IV.— EXHIBITS AND PRAYER
586. Exhibits.
587. Prayer.
DIVISION I. — IN
§ 562. Copy for defendant
"A copy of the petition need not accompany the summons, but
the defendant or plaintiff shall be entitled to a copy of the petition,
53 Brown v. Galena Mining & Smelting Co., 4 P. 1013, 32 Kan. 528.
(397)
§§ 563-565 PLEADINGS (Ch. 11
or any other paper filed in the action, upon application to' the clerk
therefor; and the cost of such copy shall be taxed among the costs
in the action." B* '
DIVISION II. — CONTENTS, FORM, AND CONSTRUCTION
§ 563. Contents
"The petition must contain:
"First. The name of the court, and the county in which the ac-
tion is brought, and the names of the parties, plaintiff and defend-
ant, followed by the word 'petition.'
"Second. A statement of the facts constituting the cause of ac-
tion, in ordinary and concise language, and without repetition.
"Third. A demand of the relief to which the party supposes
himself entitled. If the recovery of money be demanded, the
amount thereof shall be stated; and, if interest thereon be claim-
ed, the time from which interest is to be computed shall also be
stated." B5
"In any action for the recovery of real property, it shall be de-
scribed with such convenient certainty as will enable an officer
holding an execution to identify it." 56
§ 564. Designation of parties
The omission of the names of the parties is not a fatal defect,
where they are set out in the title.57
§ 565. Of unknown defendant
"When the plaintiff shall be ignorant of the name of a defend-
ant, such defendant may be designated, in any pleading or pro-
ceeding, by any name or description, and when his true name is
discovered, the pleading or proceeding may be amended accord-
ingly. The plaintiff, in such case, must state in his petition that he
could not ascertain the true name; and the summons must contain
s* Rev. Laws 1910, § 4704.
55 Rev. Laws 1910, § 4737.
Where a petition contains all the statutory requirements, it states a cause
of action. Kemper v. Lord, 49 P. 638, 6 Kan. App. 64.
66 Rev. Laws 1910, § 4778.
BT Scott v. Vulcan Irori Works Co., 122 P. 186, 31 Okl. 334.
(398)
Art. 4) PETITION §§ 566-568
the words, 'real name unknown/ and a copy thereof must be serv-
ed personally upon the defendant." 58
§ 566. Necessary allegations
Every fact necessary to be proven to entitle the plaintiff to re-
cover must be averred in his pleadings.59
§ 567. Presumptions — Judicial notice
"Neither presumptions of law nor matters of which judicial no-
tice is taken, need be stated in the pleading." 60
§ 568. Judgment — Form
"In pleading a judgment, or other determination of a court or
officer of special jurisdiction, it shall be sufficient to state that such
judgment or determination was duly given or made; and the ju-
risdiction of any such court or officer shall be presumed until the
contrary appears." 61
PETITION IN ACTION ON JUDGMENT
(Caption.)
Comes now the plaintiff and for cause of action shows to the
court :
1. That it is and at all times hereinafter mentioned was a cor-
poration duly created, organized and existing under the laws of
the state of and having its principal office and place of
business in and in said state.
2. That the defendant is and at all times hereinafter mentioned
was a corporation duly created, organized and existing under the
laws of the state of — - and having a principal office and place
of business in the city and county of in the state of Ok-
lahoma.
ss Rev. Laws 1910, § 4794.
B9 Choctaw, O. & G. R. Co. v. Zwirte, 73 P. 941, 13 Okl. 411.
«o Rev. Laws 1910, § 4781.
The word "alley," used by itself in a petition in connection with the streets
of a town, will be deemed a public way, unless prefixed by the word "pri-
vate." Bellevue Gas & Oil Co. v. Carr, 61 OkL 290, 161 P. 203.
si Rev. Laws 1910, § 4772.
* (399)
§ 568 PLEADINGS (Ch. 11
3. That on or about the day of , 19 — , plaintiff
duly commenced an action against the defendant in the —
court of the state of ; that said court was and is a court of
record and of general jurisdiction duly created by the laws of said
state, and had jurisdiction of said cause and of the parties, thereto ;
that on said date summons was duly issued therein to said de-
fendant which summons with a copy of the complaint in said ac-
tion was duly served on the defendant in said state on the -
day of , 19 — ; that return of service was duly made and the
original summons and complaint in said action were filed in the
office of the clerk of said court on the day of , 19 — ;
that thereafter and on the day of , 19 — , the defend-
ant duly answered said complaint and set up a counterclaim
against the plaintiff, which answer and counterclaim were filed in
the office of said clerk on said last mentioned date; that thereaft-
er the plaintiff duly made reply to the answer and counterclaim
of the defendant, which reply was duly filed in the office of said
clerk on the day of , 19 — ; that said cause duly came
on for trial in the circuit of said court, and was tried on
the day of , 19 — , at which trial the jury rendered a
verdict against the defendant and for the plaintiff for $ ,
which verdict was certified by the presiding judge of said court
by postea filed in the office of the said court on - ,
19 — ; that thereupon said court duly and regularly ordered judg-
ment with costs upon said postea by order entered , 19 — ;
that thereafter and on , 19 — , judgment was duly rendered
in said court in favor of the plaintiff and against the defendant for
the said sum of dollars, with costs taxed at dollars,
making a total judgment so entered of dollars ; that said
judgment remains in said court'in full force and effect and unsatis-
fied and unreversed, and no part of said judgment has been paid
but the same and all thereof remains due, owing and payable
from the defendant to the plaintiff together with interest at —
per cent, per annum from the said day of , 19 — .
That a complete exemplified copy of the summons, complaint,
return of service, answer and counterclaim, reply, postea, order
for judgment, and final judgment in the said action, duly exempli-
fied under, the act of Congress appertaining thereto by ,
(400)
Art. 4) PETITION §§ 568-569
clerk, and the Honorable , Chief Justice of said court, are
attached hereto and made a part hereof and marked Exhibit A.
Wherefore plaintiff demands judgment against the defendant
for the sum of dollars, with interest thereon at the rate of
per cent, per annum from , 19 — , and for his costs of
this action. X. Y., Attorney for Plaintiff.
(Verification.)
(Attach exhibits.)
§ 569. Form and manner of allegations
Common-law forms of action have been abolished by statute in
this state, but common-law causes of action have not been abolish-
ed, and under the Code the plaintiff need only state the facts con-
stituting his cause of action in ordinary and concise language with-
out repetition.62
A pleading need not state facts to bring the cause under any
particular form of action, but is sufficient if it clearly states facts
from which the court may see that plaintiff is entitled to relief.63
62Eggleston \\ Williams, 30 Okl. j2P, 120 P. 944.
63 Kee v. Satterfleld, 46 Okl. 660, 149 P. 243.
It is not necessary that the petition should contain a statement of facts,
stated in such manner as would have been necessary to entitle the plaintiff
to a recovery under any particular form of action prior to the adoption of the
Code. It is sufficient if such facts are alleged as show a legal or equitable
right to a recovery by the plaintiff against the defendant under the general
principles of law or equity determining the rights of parties. Hawkins v.
Overstreet, 54 P. 472, 7 Okl. 277.
A petition that alleged that the plaintiff was induced by the fraudulent and
untruthful misrepresentations of the defendant to buy from him and pay for
the capital stock of a corporation, the same being utterly valueless, and that
the defendants knew at the time they made the representations of the un-
truthfulness thereof, and that the plaintiff, relying upon such statements,
parted with his money, and bought stock, states but one cause of action
sounding in tort; and it was error for the court, upon demurrer being pre-
sented by the defendants to the evidence of the plaintiff in support thereof,
to require the plaintiff to state or say by* what common-law name be denom-
inated his cause of action. Freeman v. TricKett, 49 P. 672, 6 Kan. App. 83.
A petition alleging facts showing that plaintiff had been wronged by de-
fendant, and what such wrong consisted in, and the amount of damages, and
that defendant was liable therefor, and asking judgment for such amount,
states a cause of action under the rules of Code pleading and Rev. Laws
1910, § 4737, relative thereto. Smith v. Gardner, 131 P. 538, 37 Okl. 183.
Petition, in action on an account drawn upon theory of rescission of debt-
HON.PL.& PRAC.— 26 (401)
§§ 569-571 PLEADINGS (Ch. 11
A petition must be framed on a distinct theory, and where it is
not so drawn, or there is confusion of theories, so that the court
cannot determine upon which a recovery is sought, the petition is
insufficient.6*
§ 570. Election
An allegation in conversion that, when property was taken, it
wasv of a specified value, is not an election by plaintiff to claim as
the measure of damages the property's value at the time, with
interest, rather than the highest market value between the conver-
sion and verdict, without interest.85
§ 571. Contractual conditions precedent — Form
"In pleading the performance of conditions precedent in a con-
tract, it shall be sufficient to state that the party duly performed
all the conditions on his part; and if such allegations be contro-
verted, the party pleading must establish, on the trial, the facts
showing such performance." 66
CLAUSE OF PETITION — CONTRACTUAL CONDITIONS PRECEDENT
And plaintiff further says that, relying upon the contract and
agreement so made as aforesaid, and with the consent of said de-
fendant, he went into possession of said lot and commenced to
build a stone building for the purpose of selling groceries there-
in; that he made contracts for stonework and other materials for
said buildings at a great expense and outlay to himself, and spent
days' time in getting said material and labor together and
contract made far the erecting of said building; and plaintiff
says that after he had made said contract and purchased said ma-
or's constructive delivery of goods in satisfaction of claim, held good against
demurrer on the ground that petition stated a cause of action for conversion,
since plaintiff should be given whatever relief facts entitle him to, even if he
has misconceived their legal effect. United States Tire Co. v. Kirk, 102 Kan.
418, 170 P. 811.
e* Grentner v. Fehrenschield, 68 P. 619, 64 Kan. 764.
es Funk v. Hendricks, 105 P. 352, 24 Okl. 837.
ee Rev. Laws 1910, § 4773.
Where plaintiff alleges that he has performed all the conditions precedent
on his part, such allegation is sufficient to tender the issue to the defendant.
Milwaukee Mechanics' Ins. Co. v. Winfleld, 51 P. 567, 6 Kan. App. 527.
(402)
Art 4) PETITION g 572
terial and commenced work on said building, the said defendants
stopped this plaintiff in his work, and refused to make said lease
in writing, and told this plaintiff they would not execute said lease,
and then and there refused to comply with their agreement; and
thereupon said defendants went into possession of said lot and
have so continued ever since, to the great damage of this plaintiff
in time, labor and money, materials, etc., in the sum of
dollars.
§ 572. Instrument for payment of money — Private stat-
ute— Form
"In an action, counterclaim or set-off, founded upon an account,
promissory note, bill of exchange or other instrument, for the un-
conditional payment of money only, it shall be sufficient for a
party to give a copy of the account or instrument, with all credits,
and the indorsements thereon, and to state that there is due him,
on such account or instrument, fr.om the adverse party, a specified
sum, which he claims, with interest. When others than the mak-
ers of a promissory note, or the acceptors of a bill of exchange, are
parties in the action, it shall be necessary to state, also, the kind
of liability of the several parties, and the facts, as they may be,
which fix their liability." 67
"In pleading a private statute, or a right derived therefrom, it
shall be sufficient to refer to such statute by its title, and the day
of its approval, and the court shall thereupon take judicial notice
thereof." 68
SUIT ON ONE OR MORE NOTES, AND TO FORECLOSE A MORTGAGE SECUR-
ING SAME — PARTNERSHIP AGAINST CORPORATION
(Caption.)
Petition
Come now the said plaintiffs, and file their petition against the
said defendant, and state:
That the plaintiffs, A. B., C. D., and E. F., are and continuously
during all the times herein mentioned have been a partnership,
doing business under the firm name of B., D. & Co.
•7 Rev. Laws 1910, § 4774. .««* Rev. Laws 1010, § 4775.
(403)
I 572 PLEADINGS (Ch. 11
That the said defendant, G., H. & Co., is a corporation organized,
existing, and doing business under and by virtue of the laws of
the state of Oklahoma.
First Cause of Action
For their first cause of action against the said defendant, plain-
tiffs allege and state:
That on the day of , 19 — , at , the said de-
fendant, as such corporation, by its agent duly authorized there-
unto, for a good and valuable consideration, made, executed, and
delivered to these plaintiffs, its promissory note in writing, dated
on that day, whereby it promised to oay to the order of plaintiffs,
under their firm name of B., D. & Co., $ , months
after date thereof, together with interest thereon at the rate of
- per cent, per annum from date until paid; that said note
further provided that if the same should be placed in the hands
of an attorney for collection, there should become due thereon the
further sum of $ as attorneys fees.
A copy of said note, together with all indorsements thereon, is
hereto attached, marked "Exhibit A," and made a part hereof as
fully as though set out in full herein.
That no part of said note has been paid, except the sum of
'$ , and that there remains due and unpaid thereon from de-
fendant to plaintiffs, the sum of $ , together with interest
thereon from the day of , 19 — , and $ attor-
ney's fees.
Wherefore plaintiffs pray judgment against the said defendant,
G., H. & Co., on their first cause of action, for the sum of $ ,
together with interest thereon at the rate of per cent, per
annum from the day of , 19 — , and for the further
sum of $ as attorney's fees, and for costs and all other prop-
er relief.
Second Cause of Action.
For their second cause of action against the said defendant,
plaintiffs allege and state:
(Continue as in first cause of action, describing second note.)
(404)
Art. 4) PETITION § 572
Third Cause of Action.
For their third cause of action against the said defendant, plain-
tiffs allege and state:
That at the time of executing and delivering said notes set out
in plaintiffs' first and second causes of action, and to secure the
payment thereof and interest and attorney's fees thereon as men-
tioned in said notes, according to the tenor thereof, the said de-
fendant, as such corporation, by its agent duly authorized there-
unto, duly made, executed, and delivered to these plaintiffs its cer-
tain mortgage in writing, whereby it granted, sold, and conveyed
unto these plaintiffs the following described premises, to wit:
(Fill in description of property.)
That said mortgage contained a proviso in substance the same
as the aforesaid condition of the said notes and with power and
authority, in case of default as aforesaid in the payment of the
said sum of money, or any part thereof, or of the interest thereon,
to sell the said mortgaged premises in due form of law, and out
of the moneys arising from the sale thereof to pay the said sum
of money, and interest, and attorney's fees, with the costs and ex-
penses of the proceedings thereupon, rendering the overplus, if
any, to the said mortgagor.
That the said mortgage was duly recorded in the office of the
county clerk of county, state of Oklahoma, on the
day of , 19 — , in Book , at page .
A copy of said mortgage is hereto attached, marked "Exhibit C,"
and made a part hereof as fully as though set out in full herein.
That the said defendant has failed to comply with the condi-
tion of said notes and mortgage by omitting to pay the same when
it became due and payable, and that there is justly due to the plain-
tiffs upon said notes and mortgage the sum of $ , with inter-
est thereon at the rate of per cent, per annum from the
day of , 19 — , and $ attorney's fees.
Wherefore plaintiffs pray judgment against the said defendant
on their third cause of action, foreclosing plaintiffs' lien upon said
property, and that said defendant may be forever barred and fore-
closed of all right, claim, lien, and equity of redemption in the said
mortgaged premises, to wit: (Fill in description of premises;)
(405)
§§ 572-573 PLEADINGS (Ch. 11
that the said premises may be decreed to be sold according to law;
that the moneys arising from the sale may be brought into court,
and that the plaintiff may be paid the amount due on the said
notes and mortgage, with interest to the time of such payment, at-
torney's fees, the expenses of the sale and the costs and expenses
of this action, so far as the amount of such moneys properly ap-
plicable thereto will pay the same ; and that the defendant may be
adjudged to pay any deficiency which may remain, after applying
all of said moneys so applicable thereto, and that the plaintiff may
have such other and further relief in the premises as shall be just
and equitable.
, Attorneys for Plaintiffs.
(Attach as exhibits copies of notes and 'mortgage.)
AFFIDAVIT CONTRACT NOT USURIOUS
State of Oklahoma/
rss *
Bounty 01
, of lawful age, being first duly sworn, on oath, saysr
That he is the one of the plaintiffs above named ; that he has read
the above and foregoing petition, and knows the contents thereof ;
that the notes and mortgage sued on were not made in violation
of the interest laws of this state, and that a greater rate of interest
than ten per cent, has not been charged, reserved, or collected on
such notes sued on. (Signature.)
Subscribed and sworn to before me this : — day of .
19 — . (Signature.)
Note. — This affidavit is required to be filed with the petition in
suits on contracts of $300 or less, in order to give the court juris-
diction.69
§ 573. Libel or slander — Form
"In an action for libel or slander, it shall be sufficient to state,
generally, that the defamatory matter was published or spoken of
the plaintiff; and if the allegation be denied, the plaintiff must
prove, on the trial, the facts, showing that the defamatory mat-
ter was published or spoken of him." 70
e» Sess. Laws 1916, c. 20, § 4, p. 27; Bunn's 1918 Supp. to Rev. Laws, §
1005c.
TO Rev. Laws 1910, § 4776.
Averments to show that defamatory words not actionable on their face
(406)
Art. 4) PETITION § 573
Where words are libelous per se, an innuendo is unnecessary.71
Where the published article is not libelous per se, plaintiff must
plead facts showing special damages.72
It is not necessary to allege malice in the publication of a slan-
der.73
PETITION IX ACTION FOR LIBEL OR SLANDER
(Caption.)
Comes now the said plaintiff, A. B., and for cause of action
against the defendant, C. D., alleges and states:
1. That plaintiff is a resident and inhabitant of the county of
— , in the state of Oklahoma, living near - — , in said coun-
ty, where he has resided for a number of years last past; that he
derive their defamatory import from extrinsic facts and circumstances must
be applied to plaintiff by a proper colloquium with the intended and under-
stood meaning correctly set out in the innuendoes. Kee v. Armstrong, Byrd
& Co., 75 Old. 84, 182 P. 494, 5 A. L. R. 1349. A "colloquium" only serves to
show that the words were spoken in reference to the matter of the aver-
ment Id.
Averments to show that defamatory words not actionable on their face de-
rive their defamatory import from extrinsic facts and circumstances must be
applied to plaintiff by a proper colloquium with the intended and understood
meaning correctly set out in the innuendoes. Kee v. Armstrong, Byrd & Co.,
75 Okl. 84, 182 P. 494, 5 A. L. R. 1349. An "innuendo" is only explanatory 6f
the subject-matter sufficiently expressed before, and is and can be only ex-
planatory thereof, and cannot extend sense of words beyond their own mean-
ing unless something is put upon the record for it to explain, nor can it make
a thing certain which is in fact uncertain, nor enlarge or restrict the meaning
of words, nor introduce new matter. Id.
If alleged defamatory words are not actionable on their face but derive
their defamatory import from extrinsic facts and circumstances, such facts
and circumstances must be distinctly set forth in the inducement and con-
nected with words charged by a proper averment, and such words may be
made to appear actionable by averring extrinsic facts showing that they were
intended to be slanderous and were so understood. Kee v. Armstrong, Byrd
& Co., 75 Okl. 84, 182 P. 494, 5 A. L. R. 1349. An "inducement" is a state-
ment of facts out of which the charge arises, or which is necessary or useful
to make the charge intelligible, or, in other words, it is intended to state
facts whereby the libel or slander is rendered intelligible, and is shown to
contain an injurious imputation. Id. Where a petition in an action for libel
failed to connect the publication of words not actionable per se with any ex-
trinsic facts and circumstances which would make them libelous, it did not
state a cause of action. Id.
71 Kee v. Armstrong, Byrd & Co. (Okl.) 151 P. 572.
72 McKenney v. Carpenter, 141 P. 779, 42 Okl. 410: Nunnery v. Bailey (Okl.)
166 P. 82, L. R. A. 1917F, 548 ; N. S. Sherman Mach. Co. v. Dun, 114 P. 617,
i>8 Okl. 447.
7s Smith v. Gillis, 51 Okl. 134, 151 P. 869.
(407)
I 673 PLEADINGS '(Ch.II
is a farmer by occupation, but is not the owner of land, but is the
renter of land.
2. That on the day of , 19 — , the said defendant,
wickedly intending- to injure the plaintiff in his good name and
reputation, accosted the said plaintiff in the village of , Ok-
lahoma, in the presence of divers and numerous persons, and in
their hearing falsely and maliciously did speak and publish of and.
concerning the said plaintiff false and defamatory words as fol-
lows: "Say, A. (meaning this plaintiff), do you (meaning this
plaintiff) steal corn?" That when said defendant accosted your
said plaintiff in that manner, your said plaintiff considered that
the said defendant was joking, and that he thereupon jokingly re-
plied: "Yes, I steal corn every day if I can." That the defendant
thereupon continued, and your said plaintiff then observed that
the said defendant was angry, and was not joking nor jesting in
the manner as plaintiff first supposed. That said defendant there-
upon said: "Well, we had some corn stolen (meaning thereby
that he and his brother had had some of their corn stolen)." That
your said plaintiff replied, saying: "Well, you (meaning defend-
ant) don't mean to say that I stole your corn, do you ?" That de-
fendant then replied to said plaintiff, saying: "I mean just what
I say." To which your said plaintiff replied, saying to said de-
fendant: "C. (meaning defendant), you (meaning! defendant)
don't accuse me of that, do you?" That thereupon the said de-
fendant replied, saying: "There is very strong evidence that you
(meaning plaintiff) did." That all of this conversation and false
and defamatory charges were made by said defendant of and con-
cerning plaintiff in a public and angry and insolent manner, in
the presence and hearing of divers persons, who understood the
same, and that by the words aforesaid the said defendant then and
thereby publicly charged the said plaintiff with stealing corn from
their premises. That said charge was wholly false and unfound-
ed, and was so spoken and published by the said defendant to the
great and lasting injury of your said plaintiff.
Wherefore plaintiff prays judgment for the sum of dol-
lars, and for costs of this action, and all other proper relief.
X. Y., Attorney for Plaintiff.74
T< See Thorrnan v. Bryngelson, 87 Neb. 53, 127 N. W. 117.
(408)
Art. 4) PETITION § 574»
§ 574. Construction and operation
The nature of a suit is to be determined in the first instance by
the allegations of the petition, and not from its caption.75
All the facts pleaded will be considered in determining the suf-
ficiency of a petition;78 but the words "a corporation," in the
caption, cannot be construed as an allegation of incorporation.77
Where a petition states a good cause of action for breach of con-
tract, the addition of words or averments appropriate to a cause of
action for a wrong will not change the action from contract to
tort.78
Where it is doubtful whether a petition states a cause of action
€x contractu or ex delicto, £he courts are inclined against constru-
ing it as stating a cause of action ex delicto.79
A corporation, in bringing suit, need not allege its incorporation,
and its legal capacity to sue will be presumed until the contrary ap-
pears.80
In an action founded on either contract or tort, plaintiff is not re-
quired to state on which he relies, and, if he should make such a
statement and be mistaken, the statement would be immaterial.81
75 Dodd-Lear Hardwood Lumber Co. v. Gyr, 44 Okl. 630, 146 P. 16.
TO Where, in ejectment, the plaintiff in setting forth statutory requirements
in addition thereto sets out the source of title of each of the parties, and a
demurrer is filed to such pleading, all of the facts pleaded will be considered
in determining its sufficiency. Jones v. Games, 87 P. 652, 17 Okl. 470.
77 The words "a corporation," appearing in the title of a case after the
name of plaintiff, are descriptive of the plaintiff, and cannot be construed to
be an allegation of incorporation. Boyce v. Augusta Camp. No. 7429, M. W.
A., 78 P. 322, 14 Okl. 642.
78 Missouri, K. & T. Ry. Co. v. Hutchings, Sealy & Co., 78 Kan. 758, 99
P. 230.
7 9 Id.
In determining whether a petition states a cause of action ex contractu or
ex delicto, it must be considered in its entirety, but with special reference
to its prominent and leading allegations. Delaney v. Great Bend Implement
Co., 98 P. 781, 79 Kan. 326. Where the averments make it doubtful whether
the action is on contract or in tort, every intendment must be made in favor
of construing it as an action on contract. Id.
The allegations and prayer of the pleadings should be looked to in deter-
mining whether a claim for damages is based on contract or tort, and every
doubt should be resolved in favor of it being based on contract. Stringer v.
Kessler, 56 Okl. 50, 155 P. 867.
so Leader Printing Co. v. Lowry, 59 P. 242, 9 Okl. 89.
si Cockerell v. Henderson, 105 P. 443, 81 Kan. 335, 50 L. R. A. (N. S.) 1.
(409)
§§ 574-575 PLEADINGS (Ch. 11
Plaintiff need not negative contingencies in a contract sued on, the
happening of which would operate in defendant's favor.82
A petition is sufficient where the facts alleged clearly negative ex-
ceptions by inference alone and not specifically.83
§ 575. Requisites and sufficiency
The rules of pleading become clearer from an examination of the
illustrations contained in the notes, from which it appears that the
courts have passed upon the sufficiency of allegations of numerous
matters involved in actions of various character, such as: Negli-
gence in maintaining bridges,84 railroad embankments,85 streets,80
and nuisances,87 and in providing for the safety of employes; 88 as-
32 Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 48 Okl. 745, 150 P.
712.
ss Midland Valley R. Co. v. Hardesty, 38 Okl. 559, 134 P. 400.
s* A petition stating that a town negligently permitted one of its bridges?
to remain out of repair, in consequence of which an animal was injured, held
to state a cause of action, though it did not state in terms that the city had
actual or implied knowledge of the defects. Town of Sallisaw v. Ritter, 142
P. 391, 42 Okl. 626.
SB A petition which alleges, substantially, that defendant's railway runs
through plaintiff's lands on an embankment, that defendant has failed to es-
tablish and maintain proper openings for the outlet of surface water falling
on and flowing over said lands, and caused to be filled up a natural water
course across said lands, which caused the surface water to stand and back
up on plaintiff's crops growing on said lands, to his damage, states a cause
of action for obstruction of a water course, and not for damage by surface
water only. Chicago, R. I. & P. Ry. Co. v. Maynard, 122 P. 149, 31 Okl. 685.
as Petition, alleging that plaintiff's horses hitched to buggy were frightened
by children on roller skates, that city had permitted street to remain in an
unsafe condition and that buggy fell into hole and injured plaintiff, held to
state cause of action. City of Cushing v. Stanley (Okl.) 172 P. 628.
87 In an action against a city and a private person for damages resulting
from a nuisance in an alley, plaintiff alleged as her cause of action that de-
fendant permitted the nuisance to be constructed and maintained in the alley ;
and that "the defendants and each of them failed, neglected, and refused to
abate such nuisance when notified to do so." Held, that the petition suffi-
ciently alleges notice to the city of the existence of the nuisance, and negli-
gence on its part thereafter in removing same, to be good against a demurrer.
City of Pawhuska v. Rush, 119 P. 239, 29 Okl. 759.
A petition charging that a city's line of sewer extended through plaintiff's
crops, that it negligently permitted surface water to be discharged on the
crops, destroying them, and had disaJ lowed plaintiff's claim for damages,
states a cause of action as against a general demurrer. City of Chickasdia
v. Looney, 128 P. 136, 36 Okl. 155.
ss it was not error to refuse to strike from a petition an allegation of gen-
eral custom among others in the same business as to places for work or uieth-
(410)
Art. 4) PETITION § 575
sumption of risk;89 proximate cause;90 damages in general;81
damages from breach of contract,9- breach of promise,93 or
ods, as bearing on master's exercise of due care. Missouri, O. & G. Ry. Co. v.
Overmyre, 58 Okl. 723, 160 P. 933.
A petition, alleging negligence in the use of defective machinery and the
giving of orders by obeying which the servant received injuries held to state
a cause of action. Enid Electric & Gas Co. v. Decker, 128 P. 70S, 36 Okl. 367.
8° An allegation in a petition for injuries due to tie falling of a water tank
placed by defendant in plaintiff's kitchen held not to amount to a confession
of knowledge of the defective condition of the tank so as to import an as-
sumption of the risk of injury therefrom. Moore v. Johnson, 136 P. 422, 39
Okl. 587.
so In an action by a servant for personal injuries, petition held to allege
that acts of negligence of master were the proximate cause of the accident in
which plaintiff was injured. Ferris v. Shandy (Okl.) 174 P. 1060.
81 A petition alleged that plaintiff was about to commence an action for
alimony against her husband, who was then within the jurisdiction of the
court; that he was possessed of property of the value of $7,000, but did not
state where the property was situated, or that the" defendant was a resident
of the state; that defendant, who was the district judge of the court where
the action was about to be commenced, advised the husband to withdraw from
the jurisdiction of the court, and to dispose of his property ; that subse-
quently she brought her action, and obtained a judgment against him for
$1,500; that the execution issued thereon was returned unsatisfied. Held,
that the petition did not state a cause of action, because of the uncertainty
of plaintiff's damage. Harrison v. Redden, 36 P. 325, 53 Kan. 265.
Petition alleging increased depth of stream caused by obstruction, destroy-
ing use of road across stream and valuable sand beds, with resulting damage,
held not demurrable. Zalaback v. City of Kingfisher, 59 Okl. 222, 158 P. 926.
Where the petition in an action for damages shows that plaintiff has sus-
tained a detriment as defined by Rev. Laws 1910, § 2845, and the amount
thereof, that defendant wrongfully caused same, and that it is a detriment
for which the law affords redress, it states a cause of action. Midland Vallej
R. Co. v. Larson, 138 P. 173", 41 Okl. 360.
A petition in an action by an oil and gas lessor for injuries to the surface
rights held to state a cause of action. Pulaski Oil Co. v. Conner, 62 Okl. 211,
162 P. 464, L. R. A. 1917C, 1190.
»2 Where the petition alleged that making of an enforceable contract foi
the carriage of goods, and alleged defendant's breach resulting in plaintiff's
damage, such petition is good as against general demurrer. St. Louis & S. F.
R. Co. v. Wm. Bondies & Co., 64 Okl. 88, 166 P. 179.
A petition in replevin held not demurrable, though it did not specifically
allege breach of conditions of a chattel mortgage, where the attached copy of
the mortgage showed such breach. Dabney v. Hathaway, 51 Okl. 658, 152
P. 77.
Petition in an action for breach of two builders' contracts, whereby plain-
tiff was forced to pay lien claimants, held to state a cause of action. Antene
v. Jensen, 47 Okl. 352, 148 P. 727.
as A petition in an action for breach of promise to marry held sufficient.
Waddell v. Wallace, 121 P. 245, 32 Okl. 140, Ann. Cas. 1914A, 692.
(411)
§ 575 PLEADINGS (Ch. IT
death;94 personal injuries in general;95 assault;96 injury to pas-
senger,97 or shipment;98 recovery of excessive freight rates;99
94 In an action by a parent to recover for the death of his son, an allega-
tion that he was capable of earning $3 per week, and that by reason of his
death plaintiff had been damaged in the sum of $10,000, is sufficient to sustain
a verdict. Kansas City v. Siese, 80 P. 626, 71 Kan. 283.
Petition held to state a cause of action for damages from death due to a
violation of the Factory Act. Frisco Lumber Co. v. Ethridge, 45 Okl. 566,
146 P. 441.
Petition, in an action for the wrongful death of an employe1, held not de-
murrable, where it clearly charged negligence, though it contained statements
from which contributory negligence might be inferred. Duncan Cotton Oil
Co. v. Cox, 139 P. 270, 41 Okl. 633.
In an action for the death of a boy from falling into a pit at an abandoned
city puinphouse, which pit was filled with water, and covered with a light
layer of straw, petition held demurrable. City of Shawnee v. Cheek, 137 P.
724, 41 Okl. 227, 51 L. R. A. (N. S.) 672, Ann. Cas. 1915C, 290.
95 The allegations of the petition as to plaintiff's injuries held sufficient to
authorize proof of the impairment of his earning capacity. Missouri, O. &
G. Ry. Co. v. Collins, 47 Okl. 761, 150 P. 142.
A petition for personal injury in a crossing accident, alleging that solely
by reason of defendant's negligence, and the negligence of its flagman, sta-
96 A demurrer to a petition which alleges that defendant at a certain time
and place willfully and maliciously beat the plaintiff with a stick or club,
causing her great pain, suffering, and mental anguish, to her damage in the
sum of $1,000, is properly overruled. Long v. McWilliams, 69 P. 882, 11 Okl.
562.
97 The petition, in a passenger's action for injuries due to the derailment
of a train, held to state a cause of action for negligence. Missouri, O. & G.
Ry. Co. v. Vandivere, 141 P. 799, 42 Okl. 427.
A petition stating that the defendant carrier negligently permitted the floor
of a passenger car to become in a dangerous condition, to plaintiff's injury,
held not demurrable, though it did not state that the carrier knew of the
dangerous condition ; proof of actual or imputed notice being admissible un-
der it. Missouri, O. & G. Ry. Co. v. Smith, 55 Okl. 12, 155 P. 233.
»8 An allegation in a petition in an action for injuries to live stock shipped
under a contract requiring suit within a certain time, that the delay in suing
was due to pending negotiations between plaintiff and connecting carriers,
held not to state an implied waiver of the contract limitation by the initial
carrier. Harrington v. Wichita Falls & N. W. Ry. Co., 56 Okl. 729, 156 P. 634.
99 A petition against a carrier to recover excessive freight rates, alleging
the distance from the starting point to destination, that a certain sum was
a reasonable compensation for carrying the commodity over defendant's line
for such distance, that defendant wrongfully charged plaintiff a larger sum
stated, more than a reasonable charge, which plaintiff was compelled to pay
and did pay under protest, and that plaintiff had never consented that the
charge was reasonable, but had demanded the return of the excessive and
unreasonable part thereof, which had been refused, stated a cause of action.
Ft. Smith & W. R. Co. v. Chandler Cotton Oil Co., 106 P. 10, 25 Okl. 82.
(412)
Art. 4) PETITION . § 575
trover; * malicious prosecution ; 2 consideration ; 8 the account sued
on ; 4 rights in replevin of the holder of a chattel mortgage 5 and of
tioned as required by a city ordinance, in being absent from his post and in
failing to- give any warning, relied upon a violation of the ordinance. Lusk
v. Pugh (Okl.) 176 P. 80.
A petition in an action for injuries to a boy alighting from a moving
freight train by order of the fireman held to state a cause of action. Chicago,
R. I. & P. Ry. Co. v. Matukas, 47 Okl. 302, 147 P. 1038, L. R. A. 1917C, 1066.
Petition in employe's action for injuries held to state a cause of action
based on concurring negligence of a fellow servant and of the master. Frisco
Lumber Co. v. Spivey, 140 P. 157, 40 Okl. 633.
Petition, in a fireman's action against a city, held to sufficiently state, as
against a general demurrer, facts from which it could be inferred that the
city had notice of the defects in the street in time to have repaired same
with the exercise of reasonable diligence. City of Ardmore v. Fowler, 54
Okl. 77, 153 P. 1117.
A petition in a pedestrian's action for injuries from a defective sidewalk
held not subject to general demurrer, where it alleged that the city unlaw-
fully and negligently permitted the sidewalk to remain unsafe, open, and
unguarded. City of Woodward v. Bowder, 46 Okl. 505, 149 P. 138.
i A petition in trover states a cause of action when it alleges that plaintiff
was the owner of the property in question, describing it, and alleging its
value, and that defendants wrongfully took and converted it to their own
use. Robinson v. Peru Plow & Wheel Co., 31 P. 988, 1 Okl. 140.
- A petition in an action for malicious prosecution, alleging that a prose-
cution was commenced against plaintiff, that it was instituted by defendants,
that it was malicious and without probable cause, and that it has been finally
terminated in plaintiff's favor, states a cause of action. Schrieber v. Clapp,
74 P. 316, 13 Okl 215.
s The petition in an action for the balance due on an account for material
used in repairs on a building and alleging a novation held to plead a consid-
eration under Rev. Laws 1910, § 926. Martin v. Leeper Bros. Lumber Co., 48
Okl. 219, 149 P. 1140.
* A petition drawn under Rev. Laws 1910, § 4774, authorizing the use of a
short form of an account in an action on account, held to substantially com-
ply with the requirements of such statute, so that it was not error to over-
rule a demurrer and an objection to the introduction of any evidence. Moo-
ney v. First State Bank of Washington, Okl., 48 Okl. 676, 149 P. 1173.
5 A petition which bases the right of plaintiffs' recovery upon their special
ownership in property under a chattel mortgage, and which contains the
usual allegations of such pleading in replevin, and alleges the conditions of
the note so secured have been broken, is not subject to the objection that it
is insufficient to state a cause of action because it does not state that the note
has not been paid, or the amount due thereon. Swope v. Burnham, 52 P. 924,
6 Okl. 736.
A petition in replevin to recover possession of chattels embraced in a chat-
tel mortgage, for the purpose of enabling the mortgagee to enforce his lien,
and which sets out the mortgage and shows by independent averments that
the particular property sought to be recovered is not the property embraced
in a prior chattel mortgage covering some of the property embraced in plain-
(413)
§ 575 PLEADINGS (Ql. 11
the lessee ; * action against stockholders ; 7 interest ; 8 bonds ; 9 in-
tiff's mortgage, is not subject to the objection on demurrer that the petition
does not show right of possession in the plaintiff. Payne v. McCormick Har-
vesting Mach. Co., 66 P. 287, 11 Okl. 318. Where the plaintiff claims the right
to possession of property by virtue of the lien created by a chattel mortgage,
under the general denial the defendant is entitled to show that the mortgage
was obtained by fraud or deception, and thus defeat the lien, and conse-
quently the right of possession in the mortgagee. Id.
In replevin by a mortgagee, the petition is not subject to general demurrer
because it fails to allege condition broken in the mortgages, and that the
notes were due, since the mortgages were attached to the petition and made
a part thereof, and contain copies of the notes showing that they were past
due when suit was brought, and a condition that on default the mortgagee
was entitled to possession. Whiteacre v. Nichols, 87 P. 865, 17 Okl. 387.
e Petition in replevin by lessee held to show that the building in controversy
was personal property, removable under Rev. Laws 1910, § 6749. Welch v.
Church, 55 Okl. 600, 155 P. 620.
7 A petition against a stockholder by a trustee in bankruptcy of a corpora-
tion for par value of stock for which defendant had transferred lease con-
taining covenant against assignment, held insufficient to state a cause of ac-
tion. Chilson v. Cavanagh, 61 Okl. 98, 160 P. 601, L. R. A. 1918D, 1044.
Petition, in a stockholder's action against a corporation and other stock-
holders and officers to rescind a sale of stock formerly owned by plaintiff and
sold to the individual defendants and to secure a reissuance of the stock to
plaintiff, held insufficient to show a right to the relief sought. Checotah
Hardware Co. v. Hensley, 141 P. 422, 42 Okl. 260. Where the directors of a
corporation are guilty of a breach of trust injurious to the corporate assets
and to shareholders and the corporation refuses to sue to redress such in-
juries, one or more shareholders may proceed in their individual names. Id.
Petition in a stockholder's action for redress for breaches of trust injurious
to the corporate assets and plaintiff's right held demurrable, where it did not
clearly show that a demand on the defendant directors to enforce the rights
of the corporation would have been refused. Id.
Amended petition, in action by bank commissioner to recover double lia-
bility, imposed by Rev. Laws 1910, § 265, upon a stockholder of insolvent
state bank, held to state a cause of action. Blackert v. Lankford (Okl.) 176
P. 532.
Complaint in equity where a receiver joined subscribers to the capital stock
of a bank as defendants to recover unpaid subscriptions, which alleges that
the judge who appointed the receiver on application of creditors supported
s Where an itemized account, showing when the several items were pur-
chased, and the time when the purchases were to be paid for, is attached to
and made a part of the complaint, a prayer asking for judgment for the
principal sum, together with interest according as the same may appear to
be due from the account, is sufficient to support a verdict for the principal
sum with interest from the date on which each payment became due to the
date of the verdict. Dunham v. Holloway, 41 P. 140, 3 Okl. 244, judgment
affirmed Holloway v. Dunham, 18 S. Ct. 784, 170 U. S. 615, 42 L. Ed. 1165.
9 See note 9 on following page.
(414)
Art. 4) PETITION § 575
surance;10 money had and received;11 ejectment;12 avoiding
by a showing that the bank was insolvent and without assets entered an or-
der directing the receiver to retain counsel and sue defendants as subscrib-
ers on their unpaid subscriptions, or for the stock issued to them for the
benefit of all the creditors, and that the suit is filed under such order, war-
rants the court to treat such suit as brought by the creditors of the insolvent
bank, over which equity has jurisdiction, and in which all the subscribers
may be joined as defendants. Dill v. Ebey, 112 P. 973, 27 Okl. 584, 46 L. R.
A. (N. S.) 440.
A petition in an action against a stockholder for attorney's fees for serv-
ices rendered in an action instituted by him in a federal court in behalf both
of himself and the corporation construed as- to the relief sought. Colley v.
Sapp, 44 Okl. 16, 142 P. 1193, affirming judgment on rehearing 44 Okl. 16, 142
P. 989.
8 In an action on a constable's bond for a wrongful seizure and sale of '
property under an attachment, a petition alleging that part of the property
levied on, to wit, 500 bushels of wheat, was wasted through the officer's neg-
ligence, and that the attached property was sold at private sale, states a
cause of action. Holdredge v. McCombs, 56 P. 536, 8 Kan. App. 663.
A petition, in an action on the bond of a firm of abstracters to recover
damages by reason of an error in the abstract, stating that plaintiff, relying
on the abstract, covenanted to warrant title to his property against the liens
of all persons whatsoever, and that in order to protect the property purchased
from plaintiff the purchaser was compelled to pay to the clerk of the district
court the sum of $216 to prevent the selling of the property under execution,
whereby the plaintiff became liable to pay to said purchaser the said sum,
does not state facts sufficient to show that plaintiff sustained actual injury.
Walker v. Bowman, 105 P. 649, judgment reversed on rehearing 111 P. 319,
27 Okl. 172, 30 L. R. A. (N. S.) 642, Ann. Gas. 1912B, 839.
Petition in an action on a building contractor's bond held to state a cause
of action. Gorton v. Freeman, 51 Okl. 516, 152 P. 127.
Petition in an action on a receiver's bond held sufficient as against general
demurrer, where it alleged the giving, and facts constituting a breach, of the
bond. Nichols v. Dexter, 52 Okl. 152, 152 P. 817.
In action on a receiver's bond, failure to attach to the petition a copy of
the order appointing the receiver does not render the petition subject to gen-
eral demurrer. Nichols v. Dexter, 52 Okl. 152, 152 P. 817.
10 An allegation in the petition that defendant, a solvent insurance com-
11 Petition held to state a cause of action for money had and received.
Martindale v. Shaha, 51 Okl. 670, 151 P. 1019.
12 A complaint in ejectment under Code 1890, c. 70, art. 32, § 5, is not in-
sufficient in not specifically alleging that plaintiff is entitled to the premises
in suit, where it alleges facts leading to that conclusion. Carson v. Butt,
46 P. 596, 4 Okl. 133.
A description in a petition in ejectment of the land sued for held sufficient
to support a judgment for plaintiffs on failure to answer. State v. Thomas,
126 P. 1082, 87 Kan. 803.
In an action for possession of land, filed prior to the time when Rev. Laws
1910 became operative, where the petition contained all the allegations re-
quired by Snyder's Comp. Laws 1909, § 6122, it is good against a general de-
murrer. Frazier v. Nichols, 50 Okl. 41, 150 P. 711.
(415)
§ 575 PLEADINGS (Cll. 11
pany, had refused to pay the loss on a policy on demand therefor, held equiv-
alent to an allegation that it had denied liability. America.^ Nat. Ins. Co. v.
Donahue, 54 Okl. 294, 153 P. 819.
Petition alleging that defendant received premium for a fidelity bond and
signed it, knowing that principal had not signed, and delivered it to plaintiff
as a completed instrument, sufficiently alleged defendant's waiver of princi-
pal's signature. Oklahoma Sash & Door Co. v. American Bonding Co. (Okl.)
170 P. 511.
Where the petition alleged the property insured was on March 7th located
in the building described, and in another paragraph averred its destruction
<m that day, it will be inferred that the pleader intended to allege the prop-
erty was so located at the time of the fire. German- American Ins. Co. of New
York v. Lee, 51 Okl. 28, 151 P. 642.
Pleadings in action on insurance policy held to sufficiently plead facts con-
stituting waiver by defendant of forfeiture through breach of warranties con-
tained in the policy. Insurance Co. of the State of Pennsylvania v. Harris,
49 Okl. 165, 152 P. 359.
An allegation "that defendant refused payment" held equivalent to an al-
legation "that defendant denied liability," when applied to a solvent insur-
ance company. Continental Ins. Co. v. Chance, 48 Okl. 324, 150 P. 114.
Petition, in an action on a bond guaranteeing against embezzlement by an
employe" held to sufficiently allege the embezzlement. Oklahoma Sash & Door
Co. v. American Bonding Co. (Okl.) 153 P. 1151.
Assured's allegation in his pleading that he failed to perform the condi-
tions of the policy because of ignorance of same held not to excuse him,
where there was no allegation of fraud, misrepresentation, or concealment.
Brown v. Connecticut Fire Ins. Co., of Hartford, Conn., 52 Okl. 392, 153 P.
173. An allegation that the existence of mortgages on the insured property
in violation of a forfeiture clause did not contribute to the loss held not to
state facts relieving plaintiff from violating the policy so as to entitle him
to recover. Id.
Insured claiming right under Rev. Laws 1910, § 984, to rescind contract
substituting policies with separate loan agreement was not required to allege
false representations inducing execution of separate agreement, so that sus-
taining of general demurrer to petition was reversible error. Myler v. Fidel-
ity Mut. Life Ins. Co. of Philadelphia, 64 Okl. 293, 167 P. 601.
Petition by insured to rescind contract substituting insurance policies with
separate loan agreement, alleging that he did not have actual knowledge of
loan agreement until ten years thereafter, did not show such laches as to be
vulnerable to a general demurrer. Myler v. Fidelity Mut. Life Ins. Co. of
Philadelphia, 64 Okl. 293, 167 P. 601.
A petition, alleging that the loss occurred when the policy was not in force,
held demurrable. I. Friedman Co. v. Harn, 48 Okl. 694, 150 P. 680.
Petition in an action on an indemnity bond not signed by the employe" held
not demurrable, where it alleged facts constituting a waiver of a condition
of the bond, requiring the employees signature to the bond. Oklahoma Sash
& Door Co. v. American Bonding Co. (Okl.) 153 P. 1151.
In an action on a fire policy, a petition alleging that the defendant knew
that the fee simple to the land on which the insured building was situated
was in the Choctaw and Chickasaw Tribes of Indians, and that the condition
of the policy as to sole and unconditional ownership was waived, states a
(416)
Art. 4) PETITION § 575
statute of frauds;18 subrogation;1* equity in general;15 fore-
closure; 16 enjoining foreclosure 17 or collection of assessments; 18
grounds for injunction;19 offer to restore;20 rescission and can-
cellation;21 reformation of instruments;22 divorce;23 judg-
ments;24 trusts,25 and specific performance.26
cause of action. Conley v. Northwestern Fire & Marine Ins. Co., 127 P. 424,
34 Old. 749.
The petition in an action on an accident policy held to sufficiently allege
compliance with the terms of the policy so as to authorize the introduction of
evidence thereunder. Continental Casualty Co. v. Wynne, 129 P. 16, 36 Okl. 325.
is Plaintiff's bill of particulars- demanding in the language of Rev. Laws
1910, | 2860, $199.50 as "the excess * * * of the value * * * to the
buyer over the amount which would have been due to the seller under the
contract if it had been fulfilled," and disclosing that defendant had not sub-
scribed any note or memorandum of the contract, as required by statute of
frauds (Rev. Laws 1910, § 941), held to state no cause of action. Altoona
Portland Cement Co. v. Burbank, 44 Okl. 75, 143 P. 845.
A petition alleging, in substance, that defendant is indebted to plaintiff in
a specified sum, the agreed price of a specified quantity of coal, which "coal
was sold and. delivered to- the defendant at the special instance and request
of the defendant, and the same was received by the defendant and used by
him and converted to his own use," is not subject to demurrer on the ground
that the contract was verbal, and within the statute of frauds. Taylor v.
Canadian Coal Co., 122 P. 163, 31 Okl. 601.
Petition held not to fail to state a cause of action under statute of frauds
by reason of alleged contract being in parol. McCoy v. McCoy, 121 P. 176,
30 Okl. 379, Ann. Cas. 1913C, 146.
In an action to recover the contract price of certain machinery, a petition
which states that the same on parol order of defendant was shipped by rail
by plaintiff's principal to a third person at a certain place, and there deliv-
ered as per order for and on behalf of the defendant, and which had been
ordered through and paid for by plaintiff, states a contract void under the
statute of frauds, in that it fails to state that the machinery was accepted
or received by the purchaser. Tinkelpaugh-Kimmel Hardware Co. v. Minne-
apolis Threshing Mach. Co., 95 P. 427, 20 Okl. 187.
14 Petition against contractor by owner for amounts due subcontractors for
which liens might be obtained is demurrable where owner has not been sub-
rogated to rights of subcontractors, and they have taken no steps looking to
establishment of liens. Bunker v. Haskett, 56 Okl. 545, 156 P. 347.
15 A petition, averring defendant claims some right, title, or interest, but
that, if he has any, the same is inferior and subject to plaintiff's lien, states
facts sufficient to constitute a cause of action, and to support a decree against
&-uch defendant. Horton v. Haines, 102 P. 121, 23 Okl. 878.
Where, in an action by a person to be: ad judged the rightful owner of land,
because of a mistake of law .of the land office in deciding adversely to him
in a contest, the court properly sustained a demurrer to a petition which
showed on its face that a patent was not issued. Jordan v. Smith, 73 P. 308,
12 Okl. 703.
16-26 See notes 16 to 26 on pages 418 to 421.
HON. PL. & PBAC.— 27
§ 575 PLEADINGS (Ch. 13
i« A petition, in an action to foreclose a mortgage on an oil and gas lease
in the Osage Nation, held to state a cause of action. Davis v. Moffett, 144
P. 607, 43 Okl. 771.
In suit on note and to foreclose chattel mortgage, petition in intervention,
alleging that mortgagor delivered to intervene!- notes secured by his chattel
mortgage duly acknowledged and recorded, and asking to have its lien de-
clared superior to plaintiffs, stated a cause of action, where the mortgage set
up by plaintiff was void on its face as to intervenes Guarantee State Bank
v. Moore, 63 Okl. 133, 163 P. 272.
The petition, in an action to foreclose a mechanic's lien for material fur-
nished to a builder before his discharge by the lessee and subsequently used
by the lessee in the building, held to state a cause of action entitling plaintiff
to enforce his lien against the lessee the same as though he were an original
contractor with an owner. C. E. Sharp Lumber Oo. v. Kansas Ice Co., 142
P. 1016, 42 Okl. 689.
In action on note secured by maker's individual mortgage upon "all her
interest" in a quarter section, alleging that other defendants claimed some
interest in land, and asldng that they appear and assert their claim, stated
a cause of action. Neil v. Union Nat. Ban* of Chandler (Okl.) 178 P. 659.
Petition in foreclosure held to allege that the interest claimed by certain
defendants extended to all the property and was derived from the mortgagor
since the execution of the mortgage. De Watteville v. Sims, 44 Okl. 708, 146
P. 224.
IT A petition to restrain a sale on foreclosure, on the ground that plaintiffs
had a superior equity in the property because of certain mortgages held by
them on the property, that defendants would not recognize the claims of
plaintiffs and that if defendant sold the property, it would pass into the
hands of innocent purchasers, is subject to demurrer, as plaintiffs could in
the foreclosure suit show that the foreclosure was not in conformity to law,
and had the judgment in such suit been against them, they could have brought
error, and have saved any right that might, in that case, have been taken
away from them. Perdue v. United States Fidelity & Guaranty Co., 39 Okl.
168, 134 P. 438.
Petition in landlord's suit against tenant and his mortgagee to enjoin fore-
closure of chattel mortgage on furniture of hotel, merely alleging lease, ten-
ant's occupation of hotel, and effect of foreclosure, stated no cause of action.
Beane v. Rucker (Okl.) 168 P. 1167.
is Petition, in an action to enjoin the county treasurer from collecting spe-
cial assessment warrants and extending tax rolls, held demurrable under
Rev. Laws 1910, § 644, where it did not show want of jurisdiction to make
the improvements and showed that the action was commenced more than 60
days after the assessment was made. Terry v. Hinton, 52 Okl. 170, 152
P. 851.
Petition, in an action to enjoin a pretended special assessment wrongfully
levied against plaintiff's property, held sufficient to state a cause of action.
Hoehler v. Short, 140 P. 146, 40 Okl. 681.
A petition against city officials to restrain the collection of special assess-
ments for street improvements is insufficient, where the only acts remaining
are to be performed by the county clerk and treasurer. Harn v. Oklahoma
City, 47 Okl. 639, 149 P. 868.
i» Petition in several counts to enjoin county treasurer from selling and
(418)
Art. 4) PETITION § 575
from issuing tax deeds to petitioner's land, alleging his payment of one-half
of taxes levied upon part of land before delinquent, its acceptance, and treas-
urer's refusal to issue a tax receipt and to enter payment, and a tender of
other taxes with same result, etc., held to state facts entitling petitioner to
injunction. Watkins v. Yell (Okl.) 176 P. 390.
A burial place is not per se a nuisance to a person living in its immediate
vicinity, and, if he seeks to enjoin the further use or establishment of a pri-
vate burial ground near his house, it is not sufficient to allege in general
terms probable injury to the health of his family by pollution of the air and
water or other injuries, but he must state facts from which the court can
clearly see that such consequences will most probably result. Clinton Ceme-
tery Ass'n v. McAttee, 111 P. 392, 27 Okl. 160, 31 L. R. A. (N. S.) 945.
Petition, in suit to enjoin sale of refunding bonds, merely alleging that in-
debtedness refunded was incurred in violation of Const, art. 10, § 26, and
Daws 1910-11, c. 80, does not state facts sufficient to constitute a cause of
action. Hume v. Wyand (Okl.) 173 P. 813.
20 In an action for rescission of a deed obtained in consideration of void
corporate stock, an allegation in the petition that plaintiff be charged with
so-called dividends received by him and credited with the value of the rea-
sonable use of the lands conveyed was a sufficient "offer to restore," within
Rev. Laws 1910, § 986, providing how and when a rescission may be accom-
plished. Pruitt v. Oklahoma Steam Baking Co., 39 Okl. 509, 135 P. 730.
In an action for rescission and cancellation of a deed fraudulently obtained,
an allegation that plaintiffs are ready and willing to execute a deed to the
land traded for to defendants is a sufficient offer to restore within Wilson's
Rev. & Ann. St. 1903, § 827. Clark v. O'Toole, 94 P. 547, 20 Okl. 319.
An allegation in a bill to set aside a conveyance for fraud preliminary to
the contest of a will that if it should be found that the consideration received
by plaintiff for execution of the conveyance was not money of testatrix,
whose sole heir plaintiff is, but was money of defendant, plaintiffs are willing
to do equity, and will upon the establishment of such fact repay such money
with interest to defendant, and are willing to have the relief awarded made
subject to such repayment within a time to be fixed by the court, is a suffi-
cient offer to do equity. Gidney v. Chappell, 26 Okl. 737, 110 P. 1099.
21 A petition for decree setting aside transfers of real estate by plaintiff
to defendants held to state a cause of action against both defendants. Jones
v. Tydings, 123 P. 1063, 31 Okl. 763.
Petition for cancellation of signature to an indemnity bond for forgery
held to state a cause of action in equity. National Surety Co. v. Mullen, 50
Okl. 437, 150 P. 873.
In an action to rescind a contract for fraud, a petition showing the acts
of fraud, .and that plaintiff acted upon them, believing them to ue true, and
wherein the acts and pretenses were false, states a cause of action. Shuler
v. Hall, 141 P. 280, 42 Okl. 325.
Petition in an action to set aside a deed held to sufficiently state, as against
a demurrer, that the grantor's mental unsoundness continued from a date
named until his death. Jenkins v. Jenkins, 146 P. 414, 94 Kan. 263. A peti-
tion, filed by heirs of a grantor of unsound mind to set aside a deed, need
not allege fraud other than procurement of the deed, knowing that the gran-
tor was mentally unsound. Id.
A petition alleged that defendant, a woman, by false professions of love
§ 575 PLEADINGS (Ch. 11
and affection, and false pretenses of wealth, and by a promise to marry plain-
tiff, and by pretending that it was necessary to stop the opposition of her
children to the marriage, induced plaintiff to convey his land to her ; that
she never had any intention of marrying plaintiff. Held, that the petition
stated a cause of action for setting aside the conveyance, though it was the
agreement of the parties that after their marriage the land should be con-
veyed to another person. Douthitt v. Applegate, 6 P. 575, 33 Kan. 395, 52
Am. Rep. 533.
Petition to set aside conveyances of full-blood inherited lands, executed by
adult heirs on good consideration October 5, 1909, approved by a proper court,
failing to allege proper grounds for avoiding conveyance, held demurrable.
McCosar v. Chapman, 59 Okl. 78, 157 P. 1059.
Petition for recovery of unallotted lands of Creek Nation, purchased by de-
fendant, alleging actual notice that plaintiff held certificate of purchase un-
der assignment from original purchaser, held to state a cause of actioa.
Smiley v. Scott, 59 Okl. 160, 158 P. 919.
Petition based on fraud in substitution of one policy of life insurance for
another, alleging facts entitling plaintiff to rescission held sufficient, not-
withstanding prayer for punitive damages, costs, etc. Myler v. Fidelity Mut.
Life Ins. Co. of Philadelphia, 64 Okl. 293, 167 P. 601.
22 in an action to reform a deed, the petition alleged that defendant in
measuring the land conveyed used a false measure, so that the description
in the deed did not include all the land which plaintiff intended and ex-
pected to purchase; and that if plaintiff had known of such deficiency he
would not have made the purchase. Held, that the petition states a suffi-
cient ground for the relief sought. Taylor v. Deverell, 23 P. 628, 43 Kan. 469.
A petition containing the usual allegations for judgment on a note, and al-
leging that, at the time of its execution and delivery, it was agreed between
the parties thereto that the interest to become due on the principal indebted-
ness should be paid annually ; that it was the intention of all the parties to
the note that it should be drawn so as to read "with interest payable annu-
ally" ; and that, by mutual mistake of the parties, and by mistake of the
scrivener, there was inserted the clause, "with interest at the rate of 8 per
cent, per annum from date until paid" — states a cause of action for the ref-
ormation of the note. Wendt v. Diemer, 58 P. 1003, 9 Kan. App. 481.
23 it is error by the trial court to overrule a motion to make the petition,
in an action for divorce, more definite and certain, that charges "that during
the time the defendant lived with the plaintiff as his wife he was guilty of
extreme cruelty towards the plaintiff." Callen v. Callen, 24 P. 360, 44 Kan.
370. In a petition for divorce for extreme cruelty, the particular acts com-
plained of, and the dates of their commission, should be stated with reason-
able certainty. Id. In a petition for divorce for gross neglect of duty, the
particular acts complained of, and the dates of their commission, should be
stated with reasonable certainty. Id. It is error by the trial court to over-
rule a motion to make the petition, in an action for divorce, more definite
and certain, that charges "that, during the time the defendant lived with the
plaintiff as his wife, he was guilty of gross neglect of duty" towards the
plaintiff. Id.
A complaint for divorce which alleges "that on or about [a specified date],
and on divers other occasions prior and subsequent thereto, defendant was
guilty of cruel and inhuman treatment to the plaintiff, in this, to wit, slapped
Art. 4) PETITION § 575
said plaintiff; that for a long time past said defendant has cursed and
abused said plaintiff by calling her vile names ; and that defendant fails, re-
fuses, and neglects? to provide for the plaintiff and children according to his
station in life" — held sufficient, in the absence of a motion to make more defi-
nite. Irwin v. Irwin, 37 P. 548, 2 Okl. 180.
A complaint for divorce which charged that the defendant had been guilty
of cruel and inhuman treatment toward plaintiff, and alleged facts showing
that defendant had slapped plaintiff, had violently cursed and abused her,
and had failed and refused to provide for her and her children, was sufficient
to give the probate court jurisdiction to hear the cause upon the statutory
ground of extreme cruelty. TJhl v. Irwin, 41 P. 376, 3 Okl. 388, following Ir-
win v. Same, 37 P. 548, 2 Okl. 180 ; Id., 41 P. 369, 3 Okl. 186.
24 Petition in action on foreign judgment held not subject to demurrer.
Shufeldt v. Bank of Mound City, 61 Okl. 194, 160 P. 923.
25 The petition in a Cherokee Indian's action to establish a trust in land
based on an erroneous action of the department held sufficient to state a cause
of action, where it sets forth with particularity the acts of the department,
including the evidence on which it acted. White v. Starbuck, 41 Okl. 50, 133
P. 223.
Petition, alleging that plaintiffs and defendants were only heirs of a de-N
cedent who owned a school land lease, defendant for use of heirs held lease
in her name and agreed to purchase with money of her own and of all the
heirs for use of herself and other heirs, and by fraud and contrary to her
agreement took title to herself, and for an accounting, stated a cause of ac-
tion. Clark v. Frazier (Okl.) 177 P. 589.
Petition to impress trust in favor of plaintiffs on land patented to defend-
ants held to state cause of action. Bozarth v. Mitchell, 59 Okl. 60, 157 P.
1051.
A pleading sufficient to withstand demurrer under the statute of frauds
is sufficient under the statute of uses and trusts (Comp. Laws 1909, § 7267).
Purcell v. Corder, 124 P. 457, 33 Okl. 68.
26 Petition in action for specific performance of a contract for the con-
veyance of land, based upon letters attached thereto, held not to set up an
enforceable contract of sale. Bowker v. Linton (Okl.) 172 P. 442.
Petition in an action for a specific performance of a contract for the sale
of realty held not to show a completed agreement. Plante v. Fullerton, 46
Okl. 11, 148 P. 87.
A petition which alleges that plaintiff is now, and has been since the 2d
day of August, 1897, the owner in fee and entitled to the possession of cer-
tain land, describing it, and that the defendants, on the 6th day of August,
1897, and on divers other days between that day and the commencement of
the suit, with force and arms, and against the consent of plaintiff, broke and
entered upon said premises, and, with teams of horses and mules and plows,
then and there turned over and plowed, with said teams and plows, about
30 acres of said land, to the damage of plaintiff of $100, does not state a
cause of action for either injury to the possession or for damages to the
real estate; and a demurrer thereto, on the ground that the petition does not
state a cause of action, should be sustained. Casey v. Mason, 59 P. 252, 8
Okl. 665.
(421)
§ 575 PLEADINGS (Ch. 11
In an action on a contract, a petition which is sufficiently ex-
plicit to raise an issue of fact on which plaintiff would be entitled
to recover is not demurrable.27
27 Thompson v. De Long, 140 P. 421, 40 Okl. 718.
Where a contract provides for the maintenance of the thing contracted for
after construction, a petition in an action on the contract to recover the con-
sideration is not demurrable for the reason that the petition states that the
contract has been and is being performed ; the words "is being performed"
having reference to the maintenance of the thing contracted for. Piper v.
Choctaw Northern Townsite & Improvement Co., 85 P. 965, 16 Okl. 436.
Where a petition alleged a contract of employment for the sale of real es-
tate and sets forth a full performance and the accomplishment of all re-
quired by the contract, it is sufficient as against demurrer to show a cause of
action for compensation. Yoder v, Randol, 83 P. 537, 16 Okl. 308, 3 L. R. A.
(N. S.) 576.
A petition, alleging that a person who wrote his name across the back of a
nonnegotiable note indorsed the note with intent to become liable thereon as
indorser, states a cause of action. Steele v. Hudson, 30 Okl. 518, 120 P. 616.
A petition setting forth a cause of action on a note, alleging that it was
executed August 4, 1902, and fell due September 20, 1902, a copy of which is
attached to the petition and reads. "On September 20th we promise to pay,"
the year of maturity being left out, is good as against a general demurrer.
A. Helm & Son v. Briley, 87 P. 595, 17 Okl. 314.
Petition held to state a cause of action against the indorser of a nego-
tiable note executed while Wilson's Rev. & Ann. St. 1903, §§ 3607, 3622, were
in force. Turner v. First Nat. Bank, 139 P. 703, 40 Okl. 498.
Petition held not demurrable for failure to allege delivery to plaintiff, of
a note sued on, or that plaintiff was the owner and holder, where plaintiff
was the payee, and the execution, default in payment, and the amount due
were duly alleged. Western & Southern Fire Ins. Co. v. Murphey, 56 Okl.
702, 156 P. 885.
A petition by a creditor, alleging that a national bank as principal creditor
of an insolvent merchant had taken over the merchant's stock and agreed to
pay all creditors subject to a condition which had been fulfilled, held to state
a cause of action against the bank. Parker Gordon Cigar Co. v. First Nat.
Bank of Claremore, 55 Okl. 468, 154 P. 1153.
Allegations that plaintiffs were the owners of a note, that it was wrong-
fully taken and converted by defendant, and was of the reasonable value
stated, were sufficient, at least against a general demurrer. Capps v. Vasey
Bros., 101 P. 1043, 23 Okl. 554.
Petition in action against a county for services of a detective agency held
not to state a cause of action on- express contract or quantum meruit. Smith
v. Board of Com'rs of Oklahoma County, 56 Okl. 672, 156 P. 186.
A petition, in a railroad company's action on a bonus note, held sufficient
as against objections that it was indefinite and uncertain and failed to state
a cause of action. Coyle v. Arkansas V. & W. Ry. Co., 139 P. 294, 41 Okl.
648.
Petition, in an action for material sold to the defendant board of educa-
tion, held sufficiently definite in its statement that the material was ordered
(422)
Art. 4) PETITION § 576
§ 576. Fraud— Form
The specific facts constituting fraud and illegality must be set
forth.28
A petition attempting to plead cause of action for fraud, must
show damage resulting to plaintiff from such alleged fraudulent
acts,29 and must state that plaintiff believed the fraudulent repre-
sentations if such are alleged, and relied and acted on same to his
i
by the president. Board of Education of City of Clinton v. Houilston, 51
Okl. 329, 151 P. 1035.
28 State v. Williams, 18 P. 727, 39 Kan. 517.
The mere averment that the board did not fully and carefully investigate
and consider all the matters and things relating to the controversy is not
such a charge of fraud as to impeach the award of arbitrators. Washington
Nat. Bank v. Myers, 104 Kan. 526, 180 P. 268.
Where a grantor of land sues to^ set aside the deed on the ground that he
was fraudulently induced to trade for land not worth as much as repre-
sented, but the complaint does not allege the value of the property which he
conveyed, nor state the difference between the value of that conveyed and
that which he received, and also alleges that he was to have one-half of
the property exchanged for a block in which he had a half interest, and that
defendants had fraudulently induced him to accept less than one-half of what
he received, but does not state that the defendants agreed to give him one-
half of what was received, the complaint is defective, in that there is a con-
fusion of theories, and that there are insufficient facts alleged to sustain any
theory. Grentner v. Fehrenschield, 68 P. 619, 64 Kan. 764. Where a grantor
seeks to set aside the deed because of fraud of defendants, based on misrep-
resentations, he must allege and prove what the misrepresentations were,
that they were false, that he believed them to be true, and that he relied and
acted upon them. Id.
Petition in action for fraud held not to state cause of action, so that de-
murrer thereto was properly sustained. Martin v. Ford Motor Co. (Okl.) 167
P. 992.
Petition in action for damages from fraud in connection with an exchange
of properties, held to state a cause of action. Lamb v. Dodson, 139 P. 125,
41 Okl. 639.
In an action for injuries, allegations in the petition of fraud in the pro-
curement of a release from plaintiff held sufficient. St Louis & S. F. K. Co.
v. Reed, 132 r. 355, 37 Okl. 350.
Petition, in action for conspiracy to defraud plaintiff of his stock in' a bank
and oust him from his position as president, held to state a cause of action.
Felt v. Westlake (Okl.) 174 P. 1041.
In an action by a lessor to cancel a gas and oil lease, the petition alleged
the execution of the lease, giving a copy thereof. No facts outside of the
lease indicating fraud or mistake, or that the interests of the lessor would
be injuriously affected by the provisions of the lease, were stated in the peti-
tion. Held, that a demurrer was properly sustained. Eingle v. Quigg, 87 P.
724, 74 Kan. 581.
29 Martin v. Ford Motor Co. (Okl.) 167 P. 992.
(423)
§ 576 PLEADINGS (Ql. 11
damage.30 But in an action to cancel a deed alleged to have been
procured by false and fraudulent promises a specific averment that
the grantee did not intend at the time he made said promise or con-
tract to carry it out is not necessary if from the facts alleged the
existence of his fraudulent intent not to carry out his contract can
be clearly inferred.31
CLAUSE OF PETITION ALLEGING FRAUD
Plaintiff further alleges that the signing of said contract was
obtained from plaintiff by fraud, circumvention and misrepresenta-
tion, as follows : That the said plaintiff had agreed with defend-
ant to employ defendant to act as foreman for plaintiff on certain
properties of plaintiff in county, Oklahoma, at a stipulated
salary of $ per month, and that a written contract covering
said employment should be drawn and executed by said parties,
and afterwards, to wit, on or about the day of , 19 — ,
the said defendant came to the city of , Oklahoma, to the said
plaintiff, for the purpose of having said contract signed, and ex-
hibited to said plaintiff a paper writing, and informed plaintiff
that it contained the contract agreed upon as above alleged, and
that the plaintiff, believing that it was the same contract, signed
the same; and that afterwards plaintiff discovered that, in the
signing of said contract by him and defendant, the defendant had
willfully and fraudulently substituted an entirely different con-
tract from the one agreed upon by the parties ; and that by reason
of such willful and fraudulent substitution said plaintiff at the time,
without any knowledge of the wrongful act on the part of the de-
fendant, and believing that the contract as presented was the one
which had been agreed upon, signed the contract as presented
which contained the provision that (set forth provision fraudu-
lently inserted) ; that the said plaintiff did not intend to make or
deliver said contract, but without negligence on his part, and sole-
ly by reason of the deception, artifice, and fraud of the defendant
in falsely representing that said paper contained the contract
agreed upon between them, as above alleged, and then and there
substituting therefor said contract containing said provision (as
so McCracken v. Cline, 55 Okl. 37, 154 P. 1174.
3i Blackburn v. Morrison, 118 P. 402, 29 Okl. 510, Ann. Gas. 1913A, 523.
(424)
Art. 4) PETITION § 577
above stated), and 'by reason of the trust and confidence placed by
said plaintiff in said defendant the said plaintiff signed said con-
tract.
§ 577. Limitations — Form
Where the petition shows that the cause of action is barred by
the statute of limitations, the burden is on plaintiff to plead facts
relieving such action from the bar of the statute in order to suc-
cessfully defeat a general demurrer to the petition.32
In an action for relief on the ground of fraud, where a discovery
of the fraud must be alleged to avoid the bar of limitations, the cir-
cumstances under which the fraud was discovered need not be
82 Delzell v. Conch (Okl.) 173 P. 361.
Sufficient. — Where plaintiff alleged that he commenced an action on certain
town warrants within due time and had failed in such action otherwise than
on the merits, and it appeared that the new action was commenced within
one year after failure of the former action, defendant's demurrer raising thr
question of laches and limitations was improperly sustained. De Roberts v.
Town of Cross, 101 P. 1114, 23 Okl. 888.
Where more than five years have elapsed from maturity of the note as-
shown by the pleading and the time of bringing action, but facts are alleged
suspending the running of the statute, so that the bar had not expired at the-
commencement of the action, a demurrer on the ground that petition shows
that action is barred by limitations should be overruled. Christie v. Scott.
94 P. 214, 77 Kan. 257.
A petition on an implied contract, disclosing a liability of more than three
years' standing, which alleges that defendant has continuously resided out of
the state since a time prior to the accrual of the cause of action, shows that
limitations may not have run, so as to prevent that defense being raised by
demurrer. Reed v. Humphrey, 76 P. 390, 69 Kan. 155.
An allegation that plaintiff did not discover the falsity of the representa-
tions until a certain date held to negative constructive, as well as actual,
notice within the statute of limitations (Code Civ. Proc. Kan. § 17, subd. 3
[Gen. St. Kan. 1909, § 5610]). Gillies v. Linscott, 146 P. 327, 94 Kan. 217.
In an action against a husband and wife to foreclose a mortgage executed
by both on the wife's property, a payment made by the husband was relied
on to take the note out of the statute of limitations. The wife pleaded that
she was surety, only, on the note, and that the payments were not made by
her or for her, or with her knowltdge or consent. The plaintiff replied that
the money obtained on such note and mortgage went to pay off a valid lien
on the wife's property. Held error for the court to exclude evidence tending
to support such reply. Hawkins v. King, 64 P. 32, 62 Kan. 526.
Plaintiff's allegation to avoid limitations by showing that the relation be-
tween him and defendant is one of trust and confidence, and that the exist-
ence of the debt was fraudulently concealed, held sufficient as against a gen-
eral demurrer. Valley Abstract Co. v. Page, 141 P. 416, 42 Okl. 365.
Insufficient. — A statement in a petition that when a debt accrued defendant
(425)
§ 577 PLEADINGS (Ch. 11
stated ; nor need plaintiff negative the fact that it might have been
discovered earlier.33
However, where plaintiff alleges that the fraud was consummated
more than two years prior to the commencement of the action, but
fails to state when the fraud was discovered, the petition is vulner-
able to demurrer.34 But where a petition in an action to recover for
fraud on its face does not show that the cause of action is barred
by limitations, a demurrer on that ground should be overruled.35
In action on note which on its face shows that it is barred by
resided in another state, which he afterwards left, held insufficient to inter-
rupt the running of limitations, where more than five years have elapsed
since such change of residence. Perry v. Robertson, 150 P. 223, 93 Kan. 703.
Allegations that at the time of the accrual of plaintiff's cause of action she
was a "morphine fiend" afflicted with "morphinomania," and was wholly un-
der defendant's influence, and did not realize her condition or the wrong
done her, held a sufficient pleading of that "legal disability" or "unsound
mind" which will suspend the running of limitations under Code Civ. Proc.
Kan. § 18 (Gen. St. Kan. 1909, § 5611). Gillmore v. Gillmore, 139 P. 386, 91
Kan. 707, 51 L. R. A. (N. S.) 834, modifying judgment on rehearing 137 P.
958, 91 Kan. 293, 295, 51 L. R. A. (N. S.) 838.
ss Ottawa Condensing Co. v. Dawkins, 120 P. 356, 86 Kan. 312.
The petition in an action on fraud, brought more than two years after its
perpetration, need not set out manner of discovery to avoid bar of limita-
tions. Pickens v. Campbell, 159 P. 21, 98 Kan. 518.
S* Doyle v. Doyle, 7 P. 615, 33 Kan. 721.
In action for fraud in exchange of property, where pleading on its face
showed that alleged fraud was more than two years before commencement or
action, pleader, to escape the two years' limitation, must allege discovery of
fraud less than two years before action. Comelssen v. Harman, 103 Kan.
624, 176 P. 141.
Since, under Rev. Laws 1910, § 4657, judgment obtained by fraud is void-
able only if suit of judgment debtor be brought within two years after dis-
covery of fraud, where suit is instituted more than two years after rendition
of judgment, petition failing to show discovery of fraud within two years
prior to suit is subject to general demurrer. Stauffer v. Watts (Okl.) 174
P. 1031.
A petition based on fraud, which shows that the fraudulent transaction
complained of occurred more than two years before the commencement of
suit, but fails to allege that the fraud was discovered within that period,
so as to take the case out of the statute, is insufficient. McCalla v. Daugh-
erty, 46 P. 30, 4 Kan. App. 410, writ of error dismissed Tipton v. McCalla, 54
P. 1054, 59 Kan. 719.
In an action brought May 20, 1911, for fraudulent conversion on April 7.
1908, held that an allegation that plaintiff did not discover the fraud until
October 1, 1910, brought the case within the statute of limitations (Rev. Laws
1910, § 4657). Maddox v. Smith, 46 Okl. 678. 148 P. 842.
SB Shawnee Life Ins. "Co. v. Taylor, 58 Okl. 313, 160 P. 622.
(426)
Art. 4) PETITION § 577
limitations as pleaded, plaintiff must plead facts relieving the ac-
tion fro.m the bar of the statute.36 Thus, in action on Ohio note,
which on its face is barred by pleaded statute of limitations, it is
not enough for plaintiff to plead and prove that action was not
barred in Ohio, where defendant had resided, but he must plead
and prove that defendant has not been in Oklahoma long enough
to bar action under its statute.37
In an action against a resident on a contract executed outside
the territory,* when defendant was a nonresident, plaintiff is not
required to plead or prove facts showing that the obligation is
not barred by the laws of the state where defendant formerly re-
sided, as such question is a matter of defense.38
A party who pleads a shorter period of limitation than the one
applicable to the case waives the benefit of the longer and correct
one, which might have been pleaded.39
Where none but the five-year statute of limitations of the state
is pleaded on foreclosure, the court cannot give the pleader the
benefit of the six-year statute of another state.40
A petition on a policy of insurance which shows that the action
was not commenced within the time limited by the policy is in-
sufficient.41
PETITION — CLAUSE IN AVOIDANCE OP LIMITATIONS
That on the date upon which the cause of action accrued upon
the aforesaid note, the said defendant was out of and absent from
the state of Oklahoma and, ever since said date and up to within
thirty (30) months next preceding the filing of this petition here-
in, the said defendant has remaine'd and been out of and absent
from the state of Oklahoma, and that the said defendant has not
lived in or been in the state of Oklahoma for a period of or for
periods aggregating five (5) years prior to the filing of this peti-
se Shaw v. Dickinson (Okl.) 164 P. 1150.
3? Id. In an action brought after expiration of the limitation period on a
note on which is indorsed a receipt of a payment, the petition must allege
payment by the debtor to remove the bar of the statute. Liphart v. Myers,
156 P. 693, 97 Kan. 686.
ss Keagy v. Wellington Nat. Bank, 69 P. 811, 12 Okl. 33.
39 Downey v. Atchison, T. & S. F. R. Co., 57 P. 101, 60 Kan. 499.
40 Grigsby v. Williams, 89 Kan. 758, 132 P. 1001.
41 Oakland Home Ins. Co. v. Allen, 40 P. 928, 1 Kan. App. 108.
(427)
§ 578 PLEADINGS (Ch. 11
tion herein, and that the cause of action herein stated and alleged
is not barred by the statute of limitations.
§ 578. Matters necessary to be pleaded
Matters which must be proven to entitle plaintiff to recover must
be alleged in the petition. This rule has been applied to local cus-
toms,42 recovery of money on notes43 and otherwise,44 recovery
for necessities,45 money paid,46 insurance,47 loss of business,48 re-
*2 A local custom or usage applying to a special or particular class of busi-
ness may not be proven to explain ambiguous terms of a contract, unless
pleaded. Gilbert v. Citizens' Nat. Bank of Chickasha, 61 Okl. 112, 160 P. 635,
L. R. A. 1917A, 740.
Evidence of a custom of fire insurance agents to'renew policies of insurance
without notifying the insured was inadmissible where not pleaded. School
Dist. No. 22, Love County, v. Culwell, 62 Okl. 283, 162 P. 949.
A local custom or a custom applying to a special class of business may not
be the basis of recovery, unless such custom is pleaded, and the exclusion of
evidence of such custom in the absence of pleading the same is not error.
Smith v. Stewart, 116 P. 182, 29 Okl. 26.
43 In an action by an indorsee against the indorser, the petition must al-
lege notice of dishonor by the maker or facts excusing notice. Grimes v. Tait,
99 P. 810, 21 Okl. 361.
A petition, setting out the payee's special warranty on the transfer of the
note, but not alleging its breach, does not state a cause of action against the
4* A petition by a trustee in bankruptcy to recover money alleged to be a
preferential transfer must show that, if the transfer stands, the creditor will
receive a greater percentage of his debt than other creditors of the same
class. West v. Bank of Lahoma, 85 P. 469, 16 Okl. 328.
45 The petition in a wife's action to recover from her husband sums ex-
pended by her for her own support must show that the expenditures were
involuntarily made for articles necessary to her support when she was en-
titled to pledge her husband's credit therefor. Sodowsky v. Sodowsky, 51 Okl.
689, 152 P. 390.
Where a petition, based on a foreign contract, against a minor for legal
services, sought to recover on an express contract, or .on a quantum meruit,
and did not plead the lex loci contractus, showing that the services were
"necessary," held, that it did not state a cause of action. Marx v. Hefner,
46 Okl. 453, 149 P. 207, Ann. Cas. 1917B, 656.
4« A common count for money paid out and expended at the instance or
request of a third person and for his use, in order to withstand a demurrer,
must aver such facts as will show either an express agreement or an implied
obligation to pay the sum claimed, and should aver not only that the money
was paid at the request of the defendant, but that it was paid for his use
and benefit. Fox v. Easter, 62 P. 283, 10 Okl. 527.
47 See note 47 on following page.
48 Where loss of business is averred, names of the parties withdrawing
their patronage should be given. Kee v. Armstrong, Byrd & Co. (Okl.) 151
P. 572.
(428)
Art. 4) PETITION § 578
payee. Clark v. Sallaska (Okl.) 174 P. 505, 4 A. L. R. 746. In suit to enforce
a liability against the payee, an allegation that on his transfer he represented
that there were no equities between himself and the maker states no cause
of action against the payee, without further alleging setting out existing
equities. Id.
An undertaking indorsed on a note, "For value received, I hereby guaranty
the payment of the within note," waiving demand and protest, is a direct
promise to pay the note, and not a guaranty ; and, in an action on such un-
dertaking, the complaint need not allege the insolvency of the maker of the
note, or an effort by plaintiff to collect the note from the maker. Walter A.
Wood Mowing & Reaping Co. v. Farnham, 33 P. 867, 1 Okl. 375.
47 The petition, in an action on a life insurance policy, held demurrable
where plaintiff declared on the "binder" alone, without setting forth the
policy subsequently issued pursuant to it and declaring thereon. JEtna Life
Ins. Co. v. Bradford, 45 Okl. 70, 145 P. 316, Ann. Cas. 1918C, 373.
Where standard fire insurance policy prescribed by Rev. Laws 1910, § 3482,
covered loss of personal property, while contained in described building, peti-
tion not stating that property was in such building at time of fire, did not
state cause of action. American Cent. Ins. Co. v. Boyle (Okl.) 171 P. 714.
Where a standard fire policy insures against loss while merchandise is con-
tained in a building described and not elsewhere, a petition which failed to
state that at the time of the fire the merchandise was contained in such
building held not to state a cause of action. Miller v. Connecticut Fire Ins.
Co., 47 Okl. 42, 151 P. 605.
Petition, in an action on a fire insurance policy, held demurrabie, where it
failed to allege that the insured building and personalty were located at the
time of the fire as required by the policy. Gerrnania Fire Ins. Co. v. Bar-
ringer, 142 P. 1026, 43 Okl. 279.
Conditions in fire policy prescribing time and method of giving notice of
loss, etc., must be complied with, and petition exhibiting policy containing
such conditions and not averring compliance is subject to demurrer. Shaw-
nee Fire Ins. Co. v. Beaty, 64 Okl. 61, 166 P. 84.
Waiver of proof of loss should be pleaded by person relying thereon. Hart-
ford Fire Ins. Co. v. Ma this, 57 Okl. 332, 157 P. 134.
Under the express provisions of Comp. Laws 1909, § 3784, the plaintiff in
an action on an insurance policy is relieved from alleging the performance
of promissory warranties or conditions subsequent and need allege perform-
ance only of conditions precedent. Great Western Life Ins. Co. v. Sparks, 38
Okl. 395, 132 P. 1092, 49 L. R. A. (N. S.) 724.
To support an action on a policy insured must allege and prove compliance
with conditions precedent, or a waiver thereof. St. Paul Fire & Marine Ins.
Co. v. Mittendorf, 104 P. 354, 24 Okl. 651, 28 L. R. A. (N. S.) 651.
Where a petition in an action on a hail policy set out the policy requiring
a written notice at the home office of the company within 48 hours after
loss, and that suit shall not be maintained unless notice of such loss is given
and the amount ascertained as provided by the policy, it is demurrable where
it contains no allegation of the giving of the notice required or of any facts
excusing the failure to obtain one. Gray v. Reliable Ins. Co., 110 P. 728, 26
Okl. 592.
In an action on a policy of insurance, by the terms of which concurrent in-
surance is allowed, and where it is provided, in substance, that, in case there
is concurrent insurance, the loss shall be prorated between the companies
(429)
§ 578 PLEADINGS (Ch. 11
covery of taxes paid,49 conversion,50 use and occupation,51 actions
on bonds,52 action for prize,53 compromise agreement,54 broker's
issuing the different policies, and that the defendant company shall also be
entitled to the benefits of limiting clauses in the policy issued by the other
company, where the plaintiff in fact takes a policy from another company, it
is not necessary that he should- allege, in his petition, that he holds the other
policy, nor set up its provisions. It is for the defendant, ' by its answer, to
avail itself of any defense it may have by reason of such coinsurance. JEtna
Ins. Co. v. McLead, 45 P. 73, 57 Kan. 95, 57 Am. St. Rep. 320.
In an action on a policy providing that, in case of disagreement as to
amount of loss, appraisers shall be selected to ascertain the same, etc., it is
not necessary that the declaration negative the occurrence of disagreement
requiring an arbitration. Long Island Ins. Co. of Brooklyn v. Hall, 46 P. 47,
4 Kan. App. .641.
49 Petition, in action under Laws 1913, c. 240, art. 1, § 7, to recover illegal
taxes paid, held to state a cause of action. Lusk v. Ryan (Okl.) 171 P. 323.
In action under Laws 1913, c. 24'0, art. 1, § 7, to recover money paid on ac-
count of an illegal tax, it is not necessary that the petition aver that such
payment was made under duress. Id.
Petition, in an action to recover illegal taxes paid under protest, held de-
murrable for failure to sufficiently state a cause of action based on willful
and illegal act of county board of equalization, where it did not charge mal-
feasance, neglect, or misconduct of officers having authority in the premises.
Lusk v. Porter, 53 Okl. 294, 156 P. 224.
so The petition in an action for conversion of personalty must show that
plaintiff has been deprived of possession of such personalty. McCracken v.
Cline, 55 Okl. 37, 154 P. 1174.
si An occupant of lands is, without special contract and though the rela-
tion of landlord and tenant does not exist, liable for the rents to any person
entitled to same ; and hence, in an action therefor, it is not essential to
52 In ward's action on guardian's bond, where guardian's devastavit is suf-
ficiently averred, it is not necessary to allege in the petition that the devas-
tavit has not been paid, that being a matter of defense to be pleaded by the
surety. Southern Surety Co. v. Jefferson (Okl.) 174 P. 563.
In an action on a penal bond, it must be alleged and pi-oved that plaintiff
sustained damages. Kelley v. Seay, 41 P. 615, 3 Okl. 527.
To authorize recovery in action against the sureties on the official bond of
a public officer, plaintiff must allege in his petition and show defaults covered
by and included in the condition of the bond sued on. Board of Education
of City of Alva v. Fulkerson (Okl.) 179 P. 599.
s s in an action for a prize pursuant to an award made by a jury selected
imder stated conditions, the petition must either allege that the prize was
thus awarded, or state facts showing that the award was prevented by de-
fendant's fault. Southwestern Land Co. v. McCallam, 136 P. 1093, 41 Okl.
657.
s* To state a cause of action based on a compromise agreement, the petition
must allege a liability of defendant, an agreement of the amount to be paid,
and an acceptance of this agreement in settlement of original claim or dis-
pute. Gunn v. Fryberger (Okl.) 176 P. 248.
(430)
Art. 4) PETITION § 578
action for commission,55 or consideration ; 56 the basis of recovery
in actions for wrongful death,57 attachment,58 bond to release at-
allege the existence of such relation or contract. Bilby v. Gilliland, 137 P.
690, 41 Okl. 150,
In an action by the owner of real estate, under Comp. Laws 1909, § 4094,
for use and occupation, it is not necessary to allege the relationship of land-
lord and tenant or an agreement to pay rent. Earl v. Tyler, 128 P. 269, 36
Okl. 179. In an action for use and occupation, it is error to quash an attach-
ment or give judgment on the pleadings for failure to charge that the relation
of landlord and tenant existed, or an agreement to pay rent. Id.
so A petition to recover broker's commissions, which shows that plaintiff
acted for both parties, is demurrable unless it also alleges that the dual rela-
tionship was known and assented to by both. Skirvin v. Gardner, 129 P. 729,
36 Okl. 613.
56 Where a party declares on a contract which does not import a considera-
tion, the consideration must be alleged. Gunn v. Fryberger (Okl.) 176 P. 248.
Petition alleging defendant's promise to pay plaintiff's expenses consequent
on personal injury while in defendant's employ, but not alleging a considera-
tion therefor did not state a cause of action. Id.
67 in an action brought under Code Civ. Proc. § 422, providing that an ac-
tion may be maintained for the death of one caused by the wrongful act of
another, the damages recovered to inure to the exclusive benefit of the wid-
ow and children, if any, or next of kin, it is only necessary to allege that
deceased left surviving him as his next of kin the plaintiff, who was his
mother. Missouri Pac. Ry. Co. v. Barber, 24 P. 969, 44 Kan. 612.
Under Code Oiv. Proc. § 422, it is not required that the petition in an action
by parents against a railroad company for the killing of their child by a
train should state how plaintiffs were injured pecuniarily, nor is it necessary
to allege special damages. Erb v. Morasch, 54 P. 323, 8 Kan. App. 61.
In action for damages for the death of plaintiffs wife, caused by the
wrongful act of another, a demurrer to the petition is properly sustained,
where it fails to show there are no children, under Wilson's Rev. & Ann. St.
1903, §§ 4611, 4612, providing that such damages must inure to the benefit of
the widow and children, if any, or next of kin. Bartlett v. Chicago, R. I. &
P. Ry. Co., 96 P. 468, 21 Okl. 415.
Under Rev. Laws 1910, §§ 5281, 5282, permitting action for damages for
wrongful death by widow or next of kin where there is no representative it is
necessary to plead and prove that no representative is or has been appoint-
ed. Sanders v. Chicago, R. I. & P. Ry. Co. (Okl.) 169 P. 891.
Since Gen. St. §§ 2b, 3c, 4d, vest the right of action for death by wrongful
ss Where an 'attachment is levied on real estate as the property of a non-
resident defendant, though title stands in the name of another, the attaching
creditor acquires a lien on any interest the debtor may have in such land
which he may enforce after judgment, in a suit in fhe nature of a creditors
bill, and in such case the petition need not aver execution issued and re-
turned nulla bona; it being sufficient to aver in appropriate language the
lack of any other available assets. Ziska v. Ziska, 95 P. 254, 20 Okl. 634, 23
L. R. A. (N. S.) 1.
(431)
§ 578 PLEADINGS (Ch. 11
tachment,59 judgment,60 usury,61 accord and satisfaction,62 dam-
act in the minor children of deceased, if an action be not brought by the re-
lict within six months after the -death of deceased, a complaint, by a widow
in Kansas, for the death of her husband in Missouri, which alleges that he
left minor children, but fails to show that she sued within six months, is
defective. Hamilton v. Hannibal & St. J. R. Co., 18 P. 57, 39 Kan; 56.
In an action for the death of an infant child, the petition must clearly
show that the action is brought within two years from the date of death, as
required by Gen. St. 1897, c. 95, §§ 418, 419. City of Eureka v. Merrifield,
58 P. 243, 9 Kan. App. 579.
59 In an action on a bond given to release property attached, a prayer to
reform the bond so as to bind the principal and the sureties "to pay any
judgment that might be rendered in the case" instead of "against it," mean-
ing the defendant, will not be granted where, if the property attached ac-
tually belonged to the principal, the bond was in proper form, and if it was
in fact the property of other parties, plaintiff should have so stated in its
original petition. Drovers' Live Stock Commission Co. v. Custer County State
Bank, 91 P. 850, 19 Okl. 302.
60 The petition in an action on a judgment against a decedent's estate, held
not demurrable, though it failed to show that the claim on which the judg-
ment was based, was duly filed with the administrator. Chitty v. Gillett, 46
Okl. 724, 148 P. 1048, L. R. A. 1916A, 1181. Petition in an action on a judg-
ment held not demurrable for failure to state that the judgment was final
and not appealed from, where it alleged facts showing the judgment to be
valid and subsisting. Id.
fii Under Rev. Laws 1910, § 1005, a written demand for a return of usury
must be alleged and proven to authorize a recovery of same. Mitchell v.
Clark, 52 Okl. 628, 152 P. 354.
Petition to recover usurious interest under Rev. Laws 1910, § 1005, failing
to allege that interest has been paid, is demurrable. Oklahoma State Bank of
Altus v. Curzen, 57 Okl. 100, 156 P. 1191.
A written demand for the return of usury is a condition precedent to a
suit therefor under Rev. Laws 1910, § 1005, and must be alleged and proven.
Texmo Cotton Exch. Bank v. Listen, 61 Okl. 33, 160 P. 82.
A petition to recover usurious interest held sufficient where it alleged that
such interest had been paid, and that the taking and receiving of same was
knowingly done. First Nat. Bank v. Ingle, 132 P. 895, 37 Okl. 276.
A petition to 'recover alleged usurious interest by the party contracting for
its payment should allege that it had been paid, and that the receiving of
the interest was knowingly done ; and, where these averments are lacking,
it is error to overrule a general demurrer. First Nat. Bank v. Landis, 113
P. 718, 27 Okl. 710.
A petition to recover alleged usurious interest should allege that it had
been paid and that the receiving of the same was knowingly done. First Nat.
Bank v. Ellis, 114 P. 620, 27 Okl. 699, Ann. Gas. 1912C, 687.
62 TO state a cause of action based on accord and satisfaction, the petition
must allege a liability of defendant, an agreement of amount to be paid, and
an acceptance of this agreement in settlement of original claim or dispute.
Gunn v. Fryberger (Okl.) 176 P. 248.
(432)
Art. 4) PETITION § 578
ages in general,68 injuries to passenger 64 and to shipment,65 breach
of contract,60 malicious prosecution,67 action under federal Ern-
es Where, in an action against a carrier for delay in forwarding plaintiff's
baggage, the petition alleges that by negligence of the company plaintiff was
delayed in carrying on his business, whereby he was damaged in a certain
sum, plaintiff cannot recover for the rental value of the use of butcher's tools
contained in his baggage, without setting forth such claim by amendment to
his petition. Choctaw, O. & G. R. Co. v. Zwirtz, 73 P. 941, 13 Okl. 411.
Where, in an action against a carrier for delay in forwarding plaintiff's bag-
gage, the petition alleges that by negligence of the company plaintiff was de-
layed in carrying on his business, whereby he was damaged in a certain sum,
plaintiff cannot recover for the rental value of the use of butcher's tools con-
tained in his baggage, without setting forth such claim by amendment to his
petition. Id.
Where a petition contained several separately stated causes of action each
for damages "in the sum of $ ," and a concluding paragraph charged
damages in a stated sum, the petition was not demurrable for failure to state
the damages in. each paragraph. Patterson v. Morgan, 53 Okl. 95, 155 P. 694.
In an action to recover damages for personal injuries, the petition must
show that the injuries were the natural and probable consequences of the
negligent act of defendant, and that it should have foreseen such an injury ;
and a petition which fails to show such facts does not state a cause of action.
Mayne v. Chicago, R. I. & P. Ry. Co., 69 P. 933, 12 Okl. 10.
64 Where, in an action for personal injuries sustained by a passenger, the
carrier desires to avail itself of its rules and regulations relating to passen-
gers and a violation thereof by the passenger, the same must be pleaded.
Lane v. Choctaw, O. & G. R. Co., 91 P. 883, 19 Okl. 324.
65 In an action on a contract for loss and injury to live stock during trans-
portation a petition which fails to allege compliance with the conditions of
the contract requiring notice of the claim for damages within a certain time,
or a waiver thereof is insufficient to state a cause of action. Midland Valley
R. Co. v. Ezell, 116 P. 163, 29 Okl. 40.
66 Essential averments of petition to recover for breach of contract of em-
ployment are allegation of contract, breach, performance, or readiness to per-
form on part of plaintiff, and damages. Sharpless Separator Co. v. Gray, 62
Okl. 73, 161 P. 1074. Where petition for damages for breach of employment
contract contains necessary allegations to state cause of action for breach,
fact that damages were denominated salary instead of damages does not ren-
der it fatally defective. Id.
In an action for breach of a written contract to convey land wh«?rein plain-
tiff agreed to buy subject to an option given R. and W. expiring at a certain
date, it must be alleged that defendant failed to sell and convey after R. and
W. failed to exercise their option. Hart v. King, 123 P. 1062, 31 Okl. 761.
°7 A petition, to state a cause of action for malicious prosecution, must
charge that the prosecution was commenced against plaintiff, that it was in-
stituted or instigated by defendant, that it was malicious, that it has been
legally terminated in plaintiff's favor, and that it was without probable
cause. Chicago, R. I. & P. Ry. Co. v. Holliday, 30 Okl. 680, 120 P.. 927, 39 L.
R. A. (N. S.) 205.
While special damages should be averred in the petition in order to notify
HON.PL.& PRAC.— 28 (433)
§ 578 PLEADINGS (Ol. 11
ployers* Liability Act (U. S. Comp. St. §§ 8657-8665), 88 death,69
trespass,70 equity,71 offer to do equity,72 divorce,73 injunction,74
the defendant of the nature of the plaintiff's claims, and to prevent surprise
at the trial, it is not necessary, in an action for malicious prosecution, where
the demand sounds wholly in damages, and there is but a single cause of
action, to state specifically and in separate amounts the different items which
go to make up the total sum of damages, as it is enough to claim so much in
gross for the wrong done. Ten Cate v. Fansler, 65 P. 375, 10 Okl. 7. A com-
plaint for damages for malicious prosecution, averring that by such prosecu-
tion and arrest by defendant plaintiff was deprived of his liberty, oppressed,
degraded, and brought into disrepute among his neighbors ; that his good
name and business standing had been injured ; and that he had been kept
from pursuing his business and had sustained damages in a certain sum, —
is sufficiently particular as to the special allegations to justify a recovery of
damages. Id. A complaint for damages for malicious prosecution, averring
that by such prosecution and arrest plaintiff was deprived of his liberty,
brought into disrepute among his neighbors, his good name and business
standing impaired, and he had been kept from pursuing his business, ade-
quately states the acts constituting the fraud, malice, etc., on which a claim
for punitive. damages can be sustained. Id.
es Where the facts bring the case within the federal Employers' Liability
Act (U. S. Comp. St. §§ 8657-8665), the provisions of that act need not be
expressly referred to in the pleadings. St. Louis & S. F. R. Oo. v. Snowden-,
48 Okl. 115, 149 P. 1083.
6» Petition in a widow's action against a sheriff and his bondsmen for
death of her husband, who was killed by a deputy sheriff, held not demurrable
as failing to show that the deputy was acting under color of office. Meek v.
Tilghman, 55 Okl. 208, 154 P. 1190.
™ One may maintain trespass for injury to his possession, only when he is
in the actual possession and so alleges, or where he is the owner of the fee,
and further shows by his petition that the land is unoccupied, and the plain-
tiff has the constructive possession thereof. Casey v. Mason, 59 P. 252, 8
Okl. 665.
71 Where plaintiff files a bill to set aside a decision of the Land Office on
the ground that it was procured by fraud, but fails to plead such a state of
facts as will enable a court of equity to grant relief, a demurrer will be sus-
tained, though the bill may show a wrong has been done for which plaintiff
has no adequate remedy at law, where it fails to show that equity can, if the
allegations are established, correct the fraud. Estes v. Timmons, 73 P. 303,
12 Okl. 537, judgment affirmed 26 S. Ct 85, 199 U. S. 391, 50 L. Ed. 241.
72 in action by full-blood Choctaw to recover possession of his surplus al-
lotment attempted to be conveyed by him under agreement made void by Act
73 in an ordinary action for divorce and alimony on the ground of abandon-
ment, in order to entitle the court, as a court of equity, to make an allow-
ance for the wife's support, there must be specific allegations of the facts re-
lied on as grounds for such relief, independent of the statute. Birdzell v.
Birdzell, 11 P. 907, 35 Kan. 638, denying rehearing 6 P. 561, 33 Kan. 433, 52
Am. Rep. 539.
74 See note 74 on following page.
(434)
Art. 4) , PETITION § 578
enjoining collection of taxes,78 trusts,76 specific performance,77 re-
Cong. April 26, 1906, § 19, the petition need not allege a tender or offer to re-
turn the consideration. Folsom v. Jones (Okl.) 173 P. 649.
Petition to recover price of realty conveyed to plaintiff because of failure
of title, which fails to allege offer to reconvey, is demurrable. Carson v.
Walker, 57 Okl. 182, 156 P. 1172.
Where purchaser, suing for specific performance, pleads tender of consid-
eration and his ability and willingness to perform, the petition is not defec-
tive on account of a defective plea of proffer of consideration in court. Skid-
more v. Leavitt (Okl.) 175 P. 503.
7 * A petition setting out no portion of a proposed life insurance policy ex-
cept a "war rider," alleging that the Insurance Commissioner with whom a
form of such policy had been filed will, if not enjoined, wrongfully disapprove
such policy because of a provision as to the rights of insured if he dies while
engaged in the military service, "or within six months thereafter," is insuffi-
cient to show, as against a general demurrer, that such commissioner will act
arbitrarily or fraudulently in so doing. Mutual Benefit Life Ins. Co. of New-
ark, N. J., v. Welch (Okl.) 175 P. 45. A petition to enjoin the Insurance Com-
missioner from disapproving a form of life insurance with a "war rider" attach-
ed, to withstand a demurrer should affirmatively show that a threatened disap-
proval by such commissioner will be arbitrary and fraudulent, by a full dis-
closure of all the facts affecting the question. Id.
A petition which has for its purpose the obtaining of an injunction to restrain
persons from interfering with stock running at large in the free range por-
tions of the territory, which fails to aver that all the public school, college,
public building and indemnity lands are leased by the school land board in
the congressional township where it is sought to have such injunction operate,
is fatally defective, and it is not error to sustain a demurrer to such petition,
as stock is only permitted to run at large in the free range portion of the ter-
ritory id those congressional townships and at such periods as all and the
whole of the public school, college, public building, and indemnity lands of
such township are held under lease as provided by law. Addington v. Canfield,
66 P. 355, 11 Okl. 204.
75 A petition to enjoin the collection of taxes pursuant to a raise by the
board of equalization, where the only ground for equitable relief is that the
property is assessed beyond its fair cash value, and which fact is not alleged,
is subject to demurrer. Caldwell v. Board of Com'rs of Noble County, 125 P.
467, 34 Okl. 265.
Where petition for injunction shows that complaining party has failed to
bring himself within Rev. Laws 1910, § 7354, by showing that his property has
been assessed more than once in the same year, or has been assessed for taxes
to which it was not subject, the petition is bad on demurrer. Higgins, Ne-
ville & Boddy v. Wood, 143 P. 662, 43 Okl. 554.
7 « A petition to declare a resulting trust in lands in the Cherokee Nation
does not state facts sufficient to constitute a cause of action, where it does
not show that an allotment certificate has been issued to the land. Thomp-
son v. Hill, 48 Okl. 304, 150 P. 203.
77 In an action by a vendor to enforce the specific performance of a con-
tract for the sale of lands, where fraud, misconduct, or mistake is relied on
(435)
§ 578 PLEADING^ (Ch. 11
scission and cancellation,78 reformation of instruments,79 altera-
tion of instruments,80 foreclosure,81 contest of allotment,82 capaci-
as the ground for setting aside an appraisal of the lands duly made by ap-
praisers selected in accordance with the agreement of the parties, it must be
pleaded. Guild v. Atchison, T. & S. F. R. Co., 45 P. 82, 57 Kan. 70, 57 Am. St.
Rep. 312, 33 L. R. A. 77.
78 in an action to cancel a deed, it is unnecessary to allege the want of an
adequate remedy at law, but the facts should be pleaded from which that con-
clusion can be drawn. Mosier v. Walter, 87 P. 877, 17 Okl. 305. In an ac-
tion to cancel a deed, where the acts of defendant pleaded are such as to create
a reasonable belief that he had abandoned the contract involved, the vendor
may rescind and bring an action to cancel the deed without pleading notice of
disaffirmance in his petition. Id.
A petition for the rescission of a contract for the exchange of real estate
need not Jallege a tender of the property received in the exchange, it being
sufficient to offer to return the same, under St. 1890, § 894. Day v. Mooney,
41 P. 142, 3 Okl. 608.
In an action for rescission of a contract and for damages, it is not neces-
sary to aver a return or offer to return a machine which the defendant had
agreed to furnish and install, but which had not been accepted by plaintiffs,
and was not in their possession when the action was commenced. King Bros,
v. Perfection Block Mach. Co., 106 P. 1071, 81 Kan. 809.
The petition in an action to rescind a contract for fraud must charge that
a material misrepresentation known by defendant to be false was made by
him with intent to induce plaintiff to contract, and that plaintiff relied upon
and was deceived and damaged by such misrepresentations. Sipes v. Dickin-
son, 136 P. 761, 39 Okl. 740. A petition in an action to cancel a conveyance
for fraud in its procurement held sufficient. Id.
Pleading and proof that the lands conveyed were a homestead within Wil-
liams' Const, art. 12, §§ 1, 2, and the statute, held essential to a successful at-
tack on a wife's deed in which her husband did not join. Norton v. Kelley.
57 Okl. 222, 156 P. 1164.
7» In an action for reformation and specific performance of a written con-
tract, and for compensation for improvements made under a subsequent parol
agreement, plaintiff, in order to recover on the parol agreement, must allege
the terms thereof in such language as to enable the court to form some con-
clusions as to what the agreement was. Mehlin v. Superior Oil & Gas Co.,
136 P. 581, 39 Okl. 565.
so Ratification by maker of instrument materially altered, to be available,
must be pleaded. Wayne County Nat. Bank v. Kneeland, 61 Okl. 265, 161 P.
193.
si Petition in action to foreclose mechanic's lien, that does not contain an
allegation that the material furnished was actually used in the construction
of the building, is defective. Ryndak v. Seawell, 76 P. 170, 13 Okl. 737.
Where it did not appear that a mortgage contained a provision accelerating
an unmatured indebtedness or authorizing plaintiff to foreclose on default in
payment of any one of the notes or interest, .held, that no cause of action
was stated. Griffin v. Jones, 45 Okl. 305, 147 P. 1024.
The petition in foreclosure need not specify with particularity the charac-
82 See note 82 on following page.
(436)
Art. 4) PETITION § 578
ty in which plaintiff sues,88 act of bankruptcy,84 and condemnation
proceedings.85
Foreign laws relied on in an action on contract must be plead-
ed,86 but it is not necessary to plead the statutes in force in the In-
dian Territory.87
ter of title held by an adverse party in the mortgaged premises. Davis v. Mof-
fett, 144 P. 607, 43 Okl. 771.
The plaintiff in foreclosure need not set forth with particularity the char-
acter of an adverse party's title in the mortgaged premises. Ashcraft v. Mof-
fett, 44 Okl. 386, 144 P. 1041.
Where a petition to enforce a landlord's lien against a tenant's crops under
Rev. Laws 1910, §§ 3809, 3810, fails to allege any contract with the tenant, or
to show anything due, or that the tenant was obligated to pay the portion of
the crop claimed, it does not state facts sufficient to constitute such a lien.
Lee v. Lowery, 140 P. 1175, 42 Okl. 148.
sa Petition attacking decision of Secretary of Interior in deciding contest
of an allotment, and in awarding a patent, not showing that he made "a gross
mistake of facts," or a material error of law, or that fraud was practiced on
him by successful party, failed to state a cause of action. Hill v. Burnett
(Okl.) 169 P. 1120. Petition attacking decision of Secretary of Interior in con-
test of allotment, and in awarding a patent, held not to state facts sufficient to
constitute a cause of action against defendant to whom patent issued. Id.
Where sales contract gave buyer right to return certain goods at cost with-
in 30 days after cancellation, petition to recover for such parts should allege
their return, and, failing to do so, was subject to demurrer. Ford Motorcar
Co. v. Rackley (Okl.) 166 P. 427.
ss On an averment in a petition that plaintiff is the duly qualified and act-
ing assignee of a bank in the state of Missouri not denied by the answer, it
will be presumed that the necessary steps have been taken under the laws of
Kansas to authorize him to sue in that state as assignee. Rogers v. Coates,
16 P. 463, 38 Kan. 232.
84 Under Bankr. Act July 1, 1898, §§ 60a, 60b, as amended by Act Feb. 5,
1903, § 13 (U. S. Comp. St. § 9644), petition failing to charge that creditor had
reasonable cause to believe that preference was intended held insufficient to
state a cause of action. Rodolf v. First Nat. Bank, 121 P. 629, 30 Okl. 631, 41
L. R, A. (N. S.) 204.
85 Petition to condemn a right of way for a road held sufficient, though it
did not allege J:hat the petition filed with the board pursuant to Rev. Laws
1910, § 7553, was signed by a majority of the voters of the township. Board
of Com'rs of Harper County v. Day, 46 Okl. 83, 147 P. 1045.
so Marx v. Hefner, 46 Okl. 453, 149 P. 207, Ann. Cas. 1917B, 656.
87 The laws of Arkansas, which were extended over the Indian Territory,
being in force in Oklahoma under Const. Schedule, § 1, as to rights under In-
dian Territory contracts, need not be pleaded. Marx v. Hefner, 46 Okl. 453,
149 P. 207, Ann. Cas. 1917B, 656.
Under Const. Schedule, § 1, held unnecessary to plead and prove the stat-
ute of Arkansas relating to contract executed before statehood ; the court tak-
(437)
§ 578 PLEADINGS (Ol. 11
A complaint for negligence must show injury to plaintiff from
violation of duty by defendant.88
It is not necessary for a plaintiff corporation to allege in its pe-
tition that it is a corporation.89 Hence, where a company doing '
business under a corporate name contracts for the sale of nursery
stock, and assigns the contract to a third person, who sues to re-
cover the amount due thereon, the petition is not fatally defective,
as against an objection to evidence, because it fails to describe
the assignor by stating whether it was a corporation, a partnership,
an unincorporated association, or an individual transacting busi-
ness under a corporate name.90
A foreign corporation need not allege in its petition compliance
with the laws as to doing business in the state.91
It is not necessary to a sufficiency of a cause of action on a con-
tract to set out the fact that the instrument was stamped.92
The petition in a suit to cancel a deed for fraud need not allege
an offer to do equity.93
The plaintiff in an action to recover real estate need not deraign
his title with particularity.94
ing judicial notice of the same. Barnes v. American Soda Fountain Co., 121
P. 250, 32 Okl. 81.
In an action brought since statehood on an infant's contract made in the
Indian Territory prior t;o statehood, it was unnecessary for plaintiff to plead
and prove the statutes of Arkansas, since Const. Schedule, § 1, requires that
judicial notice be taken of same. Carroll v. Durant Nat. Bank, 38 Okl. 267,
133 P. 179.
ss Lisle v. Anderson, 61 Okl. 68, 159 P. 278, L. R. A. 1917A, 128.
sojantzen v. Emanuel German Baptist Church, 112 P. 1127, 27 Okl. 473,
Ann. Cas. 1912C, 659.
»o Strong v. Moore, 89 P. 895, 75 Kan. 437.
9i White Sewing Mach. Co. v. Peterson, 100 P. 513, 23 Okl. 361.
A complaint by a foreign corporation is not demurrable because it fails to
allege compliance with Laws 1890, c. 18, art. 20, prescribing conditions on
which foreign corporations may do business in the state. Keokuk Falls Imp.
Co. v. Kingsland & Douglas Manuf'g Co., 47 P. 484, 5 Okl. 32.
92Baumhoff v. Oklahoma City Electric & Gas & Power Co., 77 P. 40, 14
Okl. 127.
93 Washington v. Colvin, 55 Okl. 774, 155 P. 251; Harris-Lipsitz Co. v. Old-
ham, 56 Okl. 124, 155 P. 865.
»•* Shellenbarger v. Fewel, 124 P. 617, 34 Okl. 79.
(438)
Art. 4) PETITION § 579
§ 579. Forms — Petitions
SUIT TO CANCEL CONVEYANCES
(Caption.)
Come now the plaintiffs and complain of the defendants and
each of them, and for cause of action state and allege :
That the plaintiffs, A. M. and B. M., are husband and wife,
and were at all the times hereinafter mentioned, and now reside in
— county, Oklahoma. •
That the said plaintiff A. M. is a member of the Creek Nation of
Indians, and as such member of said Nation of Indians there was
allotted to him the following described land : Lots 3 and 4 in sec-
tion 7 and the east half of the southwest quarter of section 7, other-
wise described as the southwest quarter of section 7, township 18,
and range 7 east, in Creek county, Oklahoma.
That the said defendants, J. D., F. S., R. H., and F. E. are res-
idents of county, Oklahoma.
That said allotment became very valuable, which fact was known
to the defendant J. D., but which was not known to the plain-
tiffs.
That the said plaintiff A. M. was at all times hereinafter men-
tioned and had been for many years prior thereto a confirmed
drunkard.
That the said above-named allotment had become very valuable,
but through the long use of intoxicating liquors the mind of the said
plaintiff A. M. had become so weakened that he did not realize that
said allotment had become valuable, and did not appreciate the
value of money or the value of property; that the said plaintiff A.
M. had gotten to that stage where he would do anything, or sign
any paper or anything, for any one in whom he had confidence or
to get money or whisky; that he did not have sufficient mind to
know or appreciate the value of said land.
That said above described land was at all the times hereinafter
mentioned of the actual value of not less than $500,000.
That the said defendant J. D. had throughly investigated said
above described land and knew its value, and knew what it was
worth, and, knowing the weakness of said A. M., had gained his
confidence; that after learning the value of said land the said de-
fendant J. D. did, on or about July 2, 1914, through drink and in-
(439)
§ 579 PLEADINGS (Cll. 11
toxicating liquors, secure a six months' option to buy an un-
divided one-half interest in said above described land at a price
of $30,000, a copy of which said option contract is hereto attached
as Exhibit A and made a part hereof, the same as if copied herein
in full ; that after the said J. D. had procured said option to buy
a well of large capacity was brought in on or near said above land.
That for the purpose of securing the land for nothing the said
J. D. entered into an agreement with said defendant F. S., the
family physician of plaintiffs, to procure from plaintiffs an undi-
vided one-fourth interest in said above described land without any
consideration whatever, and in order to carry out said design did
procure the signature of plaintiffs to a deed and a contract on an
undivided one-fourth of the above described land, and which
said instruments were signed by plaintiff A. M. while in an intox-
icated condition and at a time when his mind and mtellect was so
weakened by me use of intoxicating liquor that he did not know
what he was doing or what he was about. A copy of said deed and
said contract, dated November 7, 1914, are hereto attached as Ex-
hibits B and C and made a part hereof the same as if copied herein
in full. That the said A. M. was induced to sign said papers by the
said defendant F. S., in whom he had confidence at the time, and
under whose influence and treatment he then was and had been
for a long time, and who pursuant to the conspiracy aforesaid
and as a part of the same transaction, secured for himself, F.
S., at the same time without consideration a deed and contract to
an undivided one-fourth interest in said above described land,
worth at least $125,000. A copy of said deed and said contract of
November 10, 1914, are hereto attached as Exhibits D and E and
made a part hereof, the same as if copied herein in full. That dur-
ing all the time the negotiations were carried on the plaintiff A.
M. had no understanding, all of which was known to the said J. D
and his agent, ,F. S., and the plaintiff B. M., during all of said time
was in fear of her life at the hands of plaintiff A. M. and thus signed
all of said above named instruments.
That plaintiff A. M., after making of said instrument aforesaid,
was inadvertently sent to a hospital for inebriates by F. S., the
agent of J. D., and remained in said hospital and other hospitals for
a long time, and was never fully recovered from his enfeebled con-
dition of his mind as a result of the use of intoxicating liquors, and
(440)
Art. 4) PETITION § 579
has recently discovered the facts in this case, and the fraudulent
conduct of J. D. and his said agents, F. S. and P. S., in the procuring
of the various contracts from plaintiffs aforesaid. That the said
J. D. procured said contracts and said deed from plaintiffs with-
out any consideration whatsoever, other than the $100 paid plaintiff
at the time of securing the option of July 2, 1914, all of which has
been repaid the said J. D. That said defendants have possession of
and exercise control over the said property described in the peti-
tion.
That the said J. D. has drawn all the royalty from said land de-
scribed in said contract of November 7, 1914, and said contract of
July 2, 1914, and of which royalty he has retaine'd $7,500; that the
said J. D. is now drawing the royalty from said property, all of
which in equity and good conscience belongs to this plaintiff. That
in order to preserve the fund and prevent it from being dissipated
it will be necessary to appoint a receiver for this property, to take
charge of same, and manage, conduct, and hold same until the trial
of this said cause. That large quantities of oil are now being run
and paid to said J. D., and unless a receiver be appointed said roy-
alties will in the future, as in the past, be paid to the said J. D.,
and thus lost to this plaintiff.
That said instruments aforesaid have been placed of record in the
office of the register of deeds, county clerk's office of Creek county,
Oklahoma, and by reason of the inequitable conduct of the said
J. D. and his said agents, F. S. and P. S., and because of the entire
want of consideration, and because of the mental condition of said
A. M. at the time said instruments were signed, the said deeds and
contracts held by the defendants J. D., R. H., and F. E. should be
set aside and held for naught, and an accounting should be had
between the parties, plaintiffs and defendants, of the proceeds re-
ceived from said land.
That the said defendants R. H. and F. E. were particeps crim-
inis with J. D. in putting over said fraudulent transaction, and
fraudulently assisted the defendant J. D. in securing said deed and
said contracts aforesaid. That the said defendants R. H. and F. E.,
and each of them, knew all the facts and circumstances above set
forth, and knew or had reason to know, or with due diligence
could have known, that said plaintiff A. M. signed said deeds and
(441)
§ 579 PLEADINGS (Cll. 11
said contracts at a time when he was in an intoxicated condition,
and at a time when his mind was so weakened by the use of in-
toxicating liquor that he, A. M., did not know what he was doing"
or what he was about, or the value of money or the value of his
property. That the said defendants R. H. and F. E., and each
of them, knew or had reasons to know, or with due diligence could
have known, that the said defendant J. D. paid, and that the plain-
tiffs, A. M. and B. M., received, no consideration for said convey-
ance, or for said deeds or said contracts, or for said property ; and
plaintiffs further state, as a part of said conspiracy between the said
defendants, and in pursuance of said conspiracy, and at the same
time or soon thereafter, and on or about the 15th day of December,
1914, the defendant J. D. executed a conveyance to the defendants
R. H. and F. K. on a part of said land, and that the said J. D. has
without consideration and fraudulently conveyed to said defendants
R. H. and F. E. one-sixteenth interest in the above described land.
That neither the said defendant R. H. nor the said defendant F. E.
paid any consideration for said conveyance or said one-sixteenth.
A copy of said instrument is hereto attached as Exhibit F, and
made a part hereof, the same as if copied herein in full.
That defendant F. S. claims some right, title, interest, or estate
under or by virtue of the said J. D.'s deed, a copy of which is hereto-
attached, but same is null and void; that defendant F. S. should
be required to set forth what right, title, interest, or estate, if any,
he claims under or by virtue of the said J. D.'s deed aforesaid, and
that same should be decreed null and void.
Wherefore plaintiffs pray that the said contract, dated July
2, 1914, and attached as Exhibit A, and the deed and contract ex-
ecuted by plaintiffs to said defendant J. D., and which said con-
tract bears date of November 7, 1914, and that the deed dated De-
cember 15, 1914, by J. D. to R. H. and F. E. be canceled, set aside,
and held for naught, and that the said defendants and each of them
be required to state and set forth what interest, if any, they have or
claim to said land, and that the same be ordered delivered up, can-
celed, and held for naught. Plaintiffs further pray for an ac-
counting between the parties, and for the appointment of a receiver,,
and for such other and further relief as this court may in equity
and good conscience deem plaintiffs entitled to, and that plaintiffs
(442)
Art. 4) PETITION § 579
be given possession of and control over the said property described
in the petition.
A. M.,
B. M.,
Plaintiffs.
, Attorneys for Plaintiffs.
(Attach as exhibits, copies of deeds, conveyances, etc., sought to
be canceled.)
t
PETITION TO ESTABLISH RESULTING TRUST
(Caption.)
Comes now the plaintiff, A. B., and for his cause of action against
the defendant, C. D., alleges and states:
1. That on or about the day of — — , 19 — , plaintiff was
desirous of purchasing, and had been and was negotiating for the
purchase of, certain real estate in - county, Oklahoma, de-
scribed as follows: Lot 1, etc.; that said tract of land was then
owned by one G. H.
2. That on or about said date, the defendant, being well aware of
the fact that plaintiff was desirous of purchasing said land and
that he was negotiating for the purchase of the same, came to this
plaintiff and represented to him that he, the defendant, was also
desirous of purchasing said tract.
3. That defendant further falsely and fraudulently represented
to this plaintiff that he, the defendant in addition to the aboVe
described tract of land, also desired to purchase another tract of
land which .adjoined the same, and described as follows: Lot 2,
etc. ; and that defendant further falsely and fraudulently repre-
sented to this plaintiff that said tract of land was also then owned
by the said G. H. ; that defendant further falsely and fraudulently
represented to plaintiff that of the two above described tracts he
was particularly desirous of purchasing the last named, being said
lot 2, etc.
4. That defendant further falsely and fraudulently represented
to this plaintiff that, if plaintiff would refrain from making any
further attempts to purchase the said lot 1, etc., the defendant
would carry on negotiations with the said G. H., and that he
would purchase said lot 2, etc., for himself, and that he would pur-
chase the said lot 1, etc., for this plaintiff.
(443)
§ 579 PLEADINGS (Ch. 11
5. That plaintiff was well aware of the fact that said lot 1, etc.,
had been owned by the said G. H. at a date shortly prior to said
— day of , 19 — , but that, as a matter of fact, defendant
had already purchased the same from the said G. H. prior to said
day of , 19 — , without the knowledge of this plain-
tiff.
6. That plaintiff, relying on such false and fraudulent represen-
tations of defendant, was induced to and did, on or about the
day of , 19 — , make and* enter into an agreement with de-
fendant, whereby it was understood and agreed by and between
plaintiff and defendant that defendant should and would carry on
negotiations with the said G. H. for the purchase of the two above
described tracts of land; that by the terms of such agreement it
was understood and agreed that defendant would purchase said
lot 2, etc., for himself, and that he would purchase the said lot 1,
etc., for this plaintiff, and that the purchase price of each of said
tracts was to be one-half of the total amount paid for the entire
lots 1 and 2, etc. ; that it was further understood and agreed by and
between plaintiff and defendant that defendant would advance the
purchase price of the said lot 1, etc., for this plaintiff, and that as
security for the repayment thereof defendant should take the legal
title of said tract in his own name, and hold the same until this
plaintiff should repay him for such sum so advanced for the plain-
tiff, and that upon such repayment defendant should convey the le-
gal title to said tract to this plaintiff; and that plaintiff thereby
bound and obligated himself to repay to defendant the said sum so
advanced and to be advanced by defendant for plaintiff.
7. That at the time of entering into said agreemerjt with this
plaintiff, defendant made such false and fraudulent representations
aforesaid to this plaintiff, for the purpose of inducing plaintiff to
withdraw negotiations for the purchase of said lot 1, etc., and that
defendant did not intend at the time of making such agreement to
carry out the same, but that he intended to purchase said tract of
land for himself.
8. That, at the time of entering into said agreement with defend-
ant, plaintiff believed and relied on such false and fraudulent rep-
resentations of defendant, and that plaintiff did not know that de-
fendant had already at that time purchased the said lot 2, etc., and
(444)
Art. 4) PETITION § 579
that plaintiff did not learn of the same until long afterwards, when
making preparations to bring this suit.
9. That plaintiff, relying on such agreement and promises of de-
fendant so made that he would purchase said tract of land for the
plaintiff and advance the purchase price thereof for plaintiff, re-
frained from carrying on any further negotiations for the purchase
of said land himself, and did not make any further attempts to
purchase the same himself, as he otherwise would have done, except
for such promises of defendant.
10. That, in pursuance to said contract and agreement, defendant
thereafter, and on the day of , 19 — , did so purchase
and obtain the legal title to said southwest quarter of the said lot
1, etc., from the said G. H. and that defendant did so advance the
'purchase price therefor, and did so take the legal title thereof in
his own name ; but that plaintiff does not know and has been un-
able to ascertain the amount so advanced and paid by defendant
for the purchase price of said land.
11. That, on numerous occasions after entering into said agree-
ment with defendant, plaintiff inquired of the defendant whether
he had purchased said premises or not, but that at all times prior
to the day of , 19 — , defendant falsely and fraudu-
lently informed this plaintiff that he had not yet been able to obtain
the same.
12. That on or about the day of , 19 — , defendant
informed this plaintiff that he had purchased said premises, and
that immediately thereafter plaintiff sold his home, so as to obtain
money with which to carry out his part of the agreement, and
with which to repay defendant for the amount of the purchase price
of said tract of land advanced by defendant, and that plaintiff has
been at all times since entering into said agreement, and still is,
ready, able, and willing so to do.
13. That immediately thereafter, and on numerous occasions
up to the present time, plaintiff has requested defendant to inform
him as to the amount so advanced and paid for plaintiff for said
tract of land, and has requested defendant to accept repayment of
such amount and to convey the legal title to said lot 1, etc., to this
plaintiff, in accordance with their said contract and agreement, but
that, in violation thereof, defendant has refused, and still refuses, so
to do.
(445)
§ 579 PLEADINGS (Cll. 11
14. That thereafter, on the day 01 , 19 — , said de-
fendant sold and conveyed an undivided one-half interest in said
lot 2, etc., and in the said lot 1, etc., to one E. F., in violation of said
contract and agreement between plaintiff and defendant; that said
E. F. is now the owner and holder thereof; that this plaintiff does
not know and has been unable to ascertain the amount of the con-
sideration which defendant received from said E. F. for such one-
half interest in said tract of land; that plaintiff did not learn of
such sale until long afterwards.
15. That the* reasonable value of said lot 1, etc., at the time same
was purchased by defendant, was the sum of • — dollars,
($ ) ; that the reasonable value of the same at this time is
the sum of dollars ($ ), and that the reasonable value
of a one-half interest in the same at this time is the sum of
dollars ($ ) ; that the value oS the use of said land from the
day of -, 19 — , up to the present time is reasonably
worth the sum of dollars ($ ).
Wherefore the plaintiff prays that the court shall ascertain the
amount which defendant paid for the purchase price of said lot 1,
etc., so that plaintiff may tender into court one-half of such sum
for the undivided one-half interest to which defendant still holds
the legal title, and so that the court may ascertain and determine
the amount which the plaintiff should pay defendant, and that upon
such tender and payment that the court by its decree adjudge the
plaintiff to be the owner of an undivided one-half interest in said
premises, free and clear of all liens and incumbrances, and that the
defendant be required to convey said premises to plaintiff by a
good and sufficient deed, and that, upon his failure to do so by the
time to be fixed by the court, the decree herein shall stand in lieu
of said conveyance, and that the plaintiff have judgment against
the defendant for the sum of dollars ($ — — ), the dif-
ference between the market value of such one-half interest which
defendant is unable to convey to plaintiff, at the time said prem-
ises were purchased by defendant, and the present market value
thereof, or that he have judgment against the defendant for the dif-
ference between one-half of the purchase price of the same paid by
the defendant, to be determined by the court, and the present market
value of an undivided one-half interest in said premises, and that
the plaintiff have judgment against defendant for the further sum
(446)
Art. 4) PETITION § 579
of dollars ($ ), the value of the use of said premises
from , 19 — , to date ; and the plaintiff prays for such other
relief as may be just and equitable, and for costs of this suit.
X. Y., Attorneys for Plaintiff.
(Verification.)
PETITION TO FORECLOSE MECHANIC'S LIEN
(Caption.)
Said plaintiff, for his cause of action against the said defend-
ants C. D. and E. F., and against the said defendants G. H. Com-
pany and J. K. Company, alleges and states :
1. That on or about the day of , 19 — , the said
plaintiff entered into a contract with the said defendants C. D. and
E. F., by and through their duly authorized architect and agent,
M. N., by which said plaintiff was to furnish certain material and
supplies and to do and furnish certain work and labor for the con-
struction of a certain building for the said defendants, upon the
following described property, to wit: (Describe same) of which
said defendants were then and there the owners.
2. That said plaintiff further alleges that he furnished said ma-
terial and supplies, and performed and furnished said work and
labor, in accordance with the terms and conditions of said con-
tract, and that there remains due and payable from said defend-
ants to this plaintiff the sum of dollars ($ ). Said
plaintiff alleges that material was last furnished under said con-
tract on the day of , 19 — , and that labor was last fur-
nished and performed under said contract on the day of
10
, i y .
3. Said plaintiff further alleges that, in order to obtain a lien
upon said premises, on the day of , 19 — , within less
than four months after said material and labor was last furnished,
he filed a verified statement in the office of the court clerk of
county, state of Oklahoma, containing the amount due him
from said defendants for said material and labor furnished and
performed, which said statement further showed the name of the
owner of said property, the names of the claimant, and a descrip-
tion of the property upon which said work was done and material
furnished subject to said lien, and that due notice thereof was
served on the owners C. D. and E. F. A copy of said statement,
(447)
§ 579 PLEADINGS (Ch. 11
together with the itemized exhibit therein contained, is hereto at-
tached, marked Exhibit A, and made a part of this petition.
4. And the said plaintiff alleges that he has performed all the con-
ditions and requirements contained in said contract in accordance
with the terms thereof; that the itemized account shown in said
Exhibit A is correct, and that there is due to this plaintiff from the
said defendant the sum of dollars ($ -), with inter-
est thereon at the rate of per cent, per annum from the
- day of , 19—.
5: The said plaintiff further alleges that the said defendants G.
H. Company and J. K. Company claim some lien on said premises,
but that their claims or liens, if any, are inferior and junior to the
interest and lien of this plaintiff, and that there are no other
claims or other parties claiming any lien upon said premises, or
any incumbrances thereon, other than hereinbefore stated.
Wherefore, the said plaintiff demands judgment against said
defendants, C. D. and E. F., for the sum of dollars ($ ),
with interest thereon at the rate of per cent, per annum
from the day of , 19 — , and for a reasonable attorney's
fee for his attorneys herein, and that upon the hearing of this cause
the judgment herein be declared a first and prior lien upon said
premises, and that said lien be foreclosed, and that the said prem-
ises be ordered sold, according to law, and the proceeds of said
sale be applied, first, to the payment of the judgment in favor of
this plaintiff, together with the interest thereon and the costs of
this action and said attorney's fee ; the residue, if any, to be applied
as the court may direct; and for such other and further relief as
the plaintiff may in equity be entitled to.
X. Y., Attorneys for Plaintiff.
(Attach copy of verified lien statement.)
PETITION IN ACTION ON VERIFIED ACCOUNT — PLAINTIFF SUING AS
ADMINISTRATOR
(Caption.)
Comes now the plaintiff, A. B., as administrator of the estate of
C. D., deceased, and for cause of action against the defendant, E. F.,
alleges:
That defendant is indebted to the plaintiff in the sum of
dollars, on an account for goods sold and delivered by the said
(448)
Art. 4) PETITION § 579
C. D. to the defendant at his request, between the day of
, 19 — , and the day of , 19 — , at , for
which he promised to pay said sura of dollars.
An itemized and verified statement of said account is hereto at-
tached, marked Exhibit A, and made a part of this petition, and
said account is true and correct.
That no part of said sum of dollars has been paid, ex-
cept the sum of dollars, and that the balance thereof of
dollars is clue and payable to plaintiff from defendant.
That thereafter on or about the day of , 19 — , said
C. D. died intestate in the city of , county of , state of
Oklahoma, and a resident of said county; that on or about the
day of , 19 — , letters of administration upon the es-
tate of said C. D., deceased, were duly issued and granted to plain-
tiff by the county court of - county, appointing him admin-
istrator of the estate of said deceased, and that plaintiff thereupon
duly qualified and entered upon his duties as such administrator,
and is now such administrator.
Wherefore plaintiff prays judgment against the said defendant
for the sum of — — dollars, with interest thereon at the rate of
6 per cent, per annum from the day of , 19 — , and
for his costs.
(Signatures,).
Attorneys for Plaintiff.
(Attach itemized statement of account as Exhibit A.)
State of Oklahoma, 1
L gg •
County of . J "
, being duly sworn, says : That he is the plaintiff above
named, and that the above and foregoing account is true and correct
in every particular, and that there is due and unpaid thereon from
said E. F. to said C. D., deceased, the sum of dollars, with
interest thereon at the rate of per cent, per annum, from the
day of — , 19 — , as set forth in said account.
(Signature.)
Subscribed and sworn to before me, this day of ,
19—.
(Signature,)
(Seal.) Notary Public.
My commission expires .
HON.PL.& PRAC.— 29 (449)
§ 579 PLEADINGS (Ch. 11
*
PETITION IN DAMAGE SUIT — PERSONAL INJURY
(Caption.)
Comes now the said plaintiff, A. B., and for her cause of action
against the defendants, C. D. and E. D., and each of them, alleges
and states :
1. That plaintiff is the mother of F. B., a minor of the age of
years, and that the defendants herein at all times mentioned
were husband and wife, and were the owners of a certain auto-
mobile, and in the use and operation of said automobile as herein-
after alleged they were acting as the agents of each other and within
the general scope of their employment as such.
2. That heretofore, to wit, on or about the day of ,
19 — , at or about the hour of , M., of said day, plain-
tiff's said son, F. B., was riding a bicycle southward in the alley
between and streets in the city of ,
county, Oklahoma, and that as plaintiff's said son emerged from the
said alley into street in a southerly direction, the said de-
fendant E. D. was operating defendants' said automobile westward
on street, and that at said time the said defendant E. D.
was operating said automobile at a high, dangerous, and excessive
rate of speed, to wit, more than miles per hour.
3. That as said automobile of said defendants approached the
point hereinbefore referred to where plaintiff's son rode his said
bicycle into street, the said defendants, and each of them,
failed and neglected to give any notice or warning whatever of
the approach of said car, and failed and neglected to keep a proper
lookout for persons who might be in the street immediately in front
of them at said time, and failed and neglected to have their said
automobile under proper control, and that the said defendants, and
each of them, moved and propelled, or caused their said automo-
bile to be moved and propelled, over the person of plaintiff's son,
and inflicted upon him painful, permanent, and serious injuries as
hereinafter alleged.
4. That the acts of the said defendants, and each of them, in
driving and causing to be driven the said automobile as aforesaid,
were in direct, open, and notorious violation and contravention of
certain sections of the ordinances of the city of , for the
year , v^hlch ordinances were in full force and effect on the
(450)
Art. 4) PETITION § 579
said day of , 19 — , being sections and ,
and being in words and figures as follows, to wit : (Set forth sec-
tions of ordinances violated).
5. That the injuries hereinafter referred to, which were sustained
by plaintiff's son, were not caused by any fault or neglect of his
or any fault or neglect of this plaintiff's, but were caused, wholly,
directly, and proximately by and on account of the negligence of
the defendants, and each of them, as hereinbefore set out.
6. Plaintiff further states that when her son was struck by said
automobile as aforesaid, the skin covering his body was broken in
a number of places, the flesh severely bruised, and he immediately
became sick, sore,' lame, and disabled ; that the bones in plaintiff's
son's right leg at the knee joint, and both below and above the
knee joint, were crushed, fractured, and broken, and the nerves, ten-
dons, ligaments, and muscles surrounding said knee cap, both above
and below were severely strained, torn, and injured, and that on
account thereof plaintiff's said son has become permanently injured,
and his right leg has become shortened and stiffened, and he has
been permanently scarred, crippled, and disfigured for life, and that
said limb has greatly impaired plaintiff's son's earning capacity and
his power of locomotion.
7. Plaintiff further states that, on account of said injuries to her
said son, she was forced to procure for him a physician and medical
aid, and has become liable and bound to pay for such services, in-
cluding the hospital bill, the sum of $ , which amount is a
reasonable charge therefor, and plaintiff further states that at the
time her said son was injured, as aforesaid, he was a strong, robust,
healthy, able-bodied boy, years of age, and was employed by
, and was earning from his employment the sum of $
per week, all of which plaintiff's son contributed to her support,
health, and comfort.
8. Plaintiff further states that since her said son was injured, as
aforesaid, he has been wholly incapacitated to do or perform any
work or labor, has contributed nothing whatever to her support,
and she verily believes that it will be a long time before plaintiff's
son, F. B., will again be able to work and earn money and contribute
to the plaintiff herein, and that she has been deprived of his earn-
ings and services until he becomes twenty-one years of age on ac-
count of said injuries, and on account of the loss of the services of
(451)
§ 579 PLEADINGS (Ch. 11
her said son, as aforesaid, and the amount she has become liable and
bound to pay for medical expenses and services, she has sustained
damages in the sum of dollars, no part of which has ever
been paid.
Wherefore plaintiff prays that she have and recover of and from
the defendants, and each of them, the sum of — dollars, and
for her costs of this action. , Attorneys for Plaintiff.
PETITION IN ACTION FOR WRONGFUL DEATH
(Caption.)
Comes now the plaintiff, A. B., administrator of the estate of C.
D., deceased, and for his cause of action against the defendant, E.
F. & Co., a corporation existing under and by virtue of the laws
of the state of , states :
That on the day of — : , 19 — , defendant owned, main-
tained, and operated in the city of , Oklahoma, a system of
electric lights, and that by means of wires the electric current was
carried over, upon, and along the street of said city of , from
the power house to the various points of service in said city; that
during the night of the day of , 19 — , or early on the
morning of the day of , 19 — , said company's wires be-
came disabled and out of repair, and, being either broken, or disen-
gaged from their fastenings, fell to the ground, upon the sidewalk
and crossing in the said city of , at the intersection of —
street and avenue in said city, and said defendant negligently
permitted said wire to remain so grounded and lying upon said
street crossing from about o'clock M. until after day-
light in the morning, when said street was thronged with passers-by;
that the defendant, C. D., while passing along said street about or
a little after daylight, had his attention called to said obstruction
lying upon said crossing, and being ignorant of the character of
said wire, and presuming, and having a right to presume, that de-
fendant would not permit a live wire to remain under the feet of
passers-by upon so crowded a thoroughfare, took hold of same,
to cast it aside, out of the way of pedestrians, and was .killed by
the powerful current with which said wire was at the time charged.
And plaintiff alleges that said C. D., deceased, came to his death
by the gross negligence and wanton misconduct of defendant, its
agents and employees, and that deceased came to his death without
(452)
Art. 4) PETITION § 579
fault on his part, and to the damage of his estate in the sum of
dollars.
Wherefore plaintiff prays judgment in the sum of — - dol-
lars, and his costs herein expended.
, Attorneys for Plaintiff.
MONEY DUE FOR SERVICES PERFORMED
Petition
(Caption.)
Comes now the plaintiff, A. B., and for his cause of action against
the said defendants alleges and states :
1. That said defendants, C. F. and D. F., are, and were at all
times hereinafter mentioned, copartners, doing business under the
firm name of F. Brothers, which firm is and was composed of C.
F. and D. F.
2. That on or about the day of , 19 — , under such
firm name and style, defendants made and entered into an oral
contract with this plaintiff, duly accepted by both plaintiff and de-
fendants, whereby plaintiff was employed as general manager and
buyer of defendants' shoe stores in the city of ,
county, Oklahoma ; that for and in consideration of plaintiff's
services, as such general manager and buyer, he was, under and
by the terms of said contract, to receive from defendants the
sum of dollars ($ ) per week as salary, and in ad-
dition thereto a bonus or commission of five per cent. (5%) of the
increase in business of defendants said shoe stores during the period
that plaintiff should continue in the employ of defendants; that
under the terms of said contract, it was agreed that settlement of
said bonus or commission was to be made every six months, or
the part thereof that plaintiff continued in the employ of said de-
fendants ; that under the terms of said contract, and in accordance
with the uniform custom of determining increase in business, the
increase in business of defendants' said shoe stores was to be de-
termined by comparing the business of each calendar month with
the business done in the same calendar month of the preceding
year.
3. That in accordance with said contract plaintiff, on or about the
day of , 19 — , entered upon the duties as the general
(453)
§§ 579-580 PLEADINGS (Ch. 11
manager and buyer of defendants' shoe stores in the city of ,
Oklahoma, and so continued up to on or about the day of
, 19 — , that the increase in business of defendants' said shoe
stores in the city of , Oklahoma, during said period while
plaintiff so continued in the employ of defendants as such general
manager and buyer, amounted to a total of dollars ($ -. — ) ;
that an itemized schedule showing the said increase by calendar
months for said period is hereto attached, marked Exhibit A and
made a part hereof; that under the terms of said contract plaintiff
became and is entitled to a five per cent. (5%) bonus or commis-
sion of such increase for said period, or the sum of dol-
lars ($ ).
4. That defendants have taken and received the full benefits of
said contract and of plaintiff's work thereunder, but have failed and
refused to pay the plaintiff for his work and services in carrying out
said contract, though often requested so to do, except the sum of
$ per week, and have failed and refused to pay the plaintiff
his said five per cent. (5%} bonus or commission on the increase in
business of defendants' said shoe stores during the time which
plaintiff continued in the employ of defendants, though often re-
quested to pay the same, and that there is now due plaintiff for
said work and services under said contract the sum of dol-
lars ($ ).
Wherefore plaintiff prays judgment against the said defendants
for the sum of dollars ($ ), together with interest
thereon at the rate of six per cent. (6%) per annum from the
day of , 19 — , and for his costs herein expended.
X. Y., Attorney for Plaintiff.
(Verification.)
(Attach exhibit.)
DIVISION III. — JOINDER, SPLITTING, CONSOLIDATION, AND
SEVERANCE
§ 580. Joinder — Forms of motions
"The plaintiff may unite several causes of action in the same
petition, whether they be such as have heretofore been denomi-
nated legal or equitable, or both, where they all arise out of any one
of the following classes :
(454)
Art. 4) PETITION § 580
"First. The same transaction, or transactions, connected with the
same subject of action.
"Second. Contracts, express or implied.
"Third. Injuries, with or without force, to person and property,
or either.
"Fourth. Injuries to character.
"Fifth. Claims to recover the possession of personal property,
with or without damages for the withholding thereof.
"Sixth. Claims to recover real property, with or without damag-
es for the withholding thereof, and the rents and profits of the same.
"Seventh. Claims against a trustee, by virtue of a contract, or
by operation of law.,
"But the causes of action so united must all belong to one of the
classes, and must affect all the parties to the action, except in ac-
tion to enforce mortgages or other liens.95
85 Rev. Laws 1910, § 4738.
An action in the name of vendees purchasing by separate deeds the undi-
vided interest of certain heirs, and also in the name of such heirs, to de-
clare a purchaser of the same land from another a trustee, held not a mis-
joinder of causes of action. Smith v. Kennedy, 46 Okl. 493, 149 P. 197.
Action by a client against his attorney, his attorney's wife, and a third
person to have a trust declared and recover damages, where attorney fraud-
ulently procured conveyance of client's property to his wife and by the wife
to the third person, was not an improper joinder' of causes of action. Maloy
v. Johnson, 121 P. 257, 32 Okl. 92.
Causes of action under the mining act and under the common law may be
joined. Cheek v. Missouri, K. & T. Ry. Co., 131 P. 617, 89 Kan. 247.
Under Code Civ. Proc. § 83, providing that causes of action arising out of
the same transaction may be joined, and that causes of action so united "must
affect all the parties to the action," an action against an assessment insur-
ance association and the holder of an insurance certificate to enforce an at-
torney's lien for services to the holder of the certificate cannot be joined with
an action on a bond given under Sess. Laws 1885, c. 131, requiring the officers
of each such association to give bond for the proper payment and disburse-
ment of all moneys which come into their hands and for the faithful per-
formance of all contracts made with certificate holders. . Hentig v. South-
western Mut. Benevolent Ass'n, 25 P. 878, 45 Kan. 462.
In an action under the mutual demurrage act (Laws 1905, c. 345), it is
proper to unite all claims for damages directly flowing from one transaction,
whether they be such as are determined in amount by the statute and are
generally designated as penalties or as are not so designated. Star Grain &
Lumber Co. v. Atchison, T. & S. F. Ry. Co., 116 P. 906, 85 Kan. 281.
Where a treasurer of the board of education gives an ordinary official
bond, and afterwards, upon the order of the board, gives an additional bond
with substantially the same condition as the first, but with different sure-
(455)
§ 580 PLEADINGS (Ch. 11
In this section the term "cause of action" means a redressible
wrong; its elements being the wrong and the relief provided.
The "subject of action" is a primary right and its infringement.
The term "transaction" is used in the first clause as expressing all
the acts, or groups of related acts, which go to make up one en-
tire project, system, or deal, and in the latter clause it includes only
such acts, or groups of acts, as in themselves constitute separate,
ties, and he fails to deliver to his successor in office the balance of the school
fund due to the school corporation, and the board commences an action
therefor on both bonds, two causes of action are not improperly joined. Gil-
bert v. Board of Education, 25 P. 226, 45 Kan. 31, 23 Am. St. Rep. 700.
A petition declaring on a purchaser's promise to pay in cash, instead of in
stock, if within a certain time a cement plant had not been established, has
been held not demurrable for misjoinder, though it alleged bad faith and
sought a receivership. Delgarno v. Middle West Portland Cement Co., 145 P
823, 93 Kan. 654.
In an action by one holding a tax title to land, an answer setting up a gen-
eral denial, facts showing plaintiff's title in the land to be invalid, and a
third count alleging that after judgment was first rendered in the case, and
subsequently set aside, but before the vacation, plaintiff sold the land, and
appropriated the proceeds to his own use, with a prayer for recovery of
the value of the land, did not show a misjoinder of causes. Flint v. Dulany,
15 P. 208, 37 Kan. 332.
There was no misjoinder of causes of action in a petition by co-owners of
property destroyed by fire set by sparks from defendant's locomotive, to re-
cover the value of the property, wherein were joined, as plaintiffs, insurance
companies which had paid losses on the property, and which sought to be
subrogated to the rights of the owners under such judgment as might be ren-
dered in favor of the latter. Atchison, T. & S- F. B. Co. v. Huitt, 41 P. 1051,
1 Kan. App. 788.
A married woman deposited notes, secured by a mortgage on her land, as
collateral security for her husband's debt to a bank. Interest was after-
wards paid on the notes. The mortgage was foreclosed, and the land bid in
by the mortgagee, who took possession, and received the rents and profite.
The husband afterwards paid the debt in full. No part of the interest paid,
or of the proceeds of the land, had been applied to the debt. The wife sues
the bank to obtain an accounting, a reconveyance of her land, and a can-
cellation of the personal judgment rendered against her in the foreclosure
suit. Held to state only one cause of action. Washington Nat. Bank v.
Woodrum, 55 P. 330, 60 Kan. 34.
Guardian. — Where a guardian gave two additional bonds, conditioned the
same as his guardianship bond, the sureties on the several bonds could be
joined in one suit, for the amount due from the guardian to his successor.
People's Bank & Trust Co. v. Nelson, 132 P. 493, 37 Okl. 500.
In an action against a former guardian of certain minors for an account-
ing, allegations of fraud, waste, mismanagement, and wrongful appropriation
of the minors' property did not render the petition objectionable for mis-
joinder of causes of action. Charles v. Witt, 129 P. 140, 88 Kan. 484.
(456)
Art. 4) PETITION § 580
redressible wrongs; and they are connected with the subject of
action whenever they affect, grow out of, or constitute separate in-
fringements of, the same right.96
All the rights of the parties, both legal and equitable, so far as
they are consistent with one another and affect the rights of the
same parties, may be united in one action.97
Causes of action in tort may be joined in separate counts with
causes of action in contract, where they arise out of the same trans-
action, connected with the same subject, and affect all parties.98
9
06 Stone v. Case, 124 P. .060, 34 Okl. 5, 43 'L. R. A. (N. S.) 1168.
97 Tootle v. Kent, 73 P. 310, 12 Okl. 674; Huey v. Starr, 101 P. 1075, 79
Kan. 781, rehearing denied 104 P. 1135, 79 Kan. 781.
In action for damages from mortgagee's breach of contract to make re-
leases to purchasers from mortgagor, and to enjoin a foreclosure sale and
to quiet title, there was no misjoinder of causes. Nelson v. Hoskinson, 172
P. 993, 103 Kan. 46.
Where proof showed mutual mistake of fact as to description of block on
which insured property was, cause of action to* reform policy was properly
joined with action to recover for loss due thereunder. State Mut. Ins. Co. v-
Green, 62 Okl. 214, 166 P. 105, L. R. A. 1917F, 663.
A cause of action for damages may be joined with one to abate the source
of the injury as a nuisance. Drinkwater v. Sauble, 26 P. 433, 46 Kan. 170.
Under Rev. Laws 1910, § 4738, a party may unite a cause of action to re-
cover real property and a cause of action for the value of the rents and-
profits thereof. Rodman v. Davis, 127 P. 411, 34 Okl. 766. In ejectment, the
plaintiff may sue for rent due and foreclose his statutory landlord's lien by
attachment proceedings. Id.
An action for the partition of real estate can be joined with an action for
the recovery of the rents and profits thereof. Edde v. Pash-pah-o, 48 P. S84,
5 Kan. App. 115.
Where a petition seeks to dissolve a partnership and secure an accounting
and the appointment of a receiver and distribution of the proceeds, and also
seeks to recover damages for depreciation of a stock of goods and for loss of
profits by reason of the closing of plaintiff's business and for the destruc-
tion of his financial standing, the causes are properly joined in the same
petition, for the reason that all arise out of the same transaction connected
with the same subject-matter. Tootle v. Kent, 73 P. 310, 12 Okl. 674.
98 Summers v. Gates, 55 Okl. 96, 154 P. 1159.
Causes of action in tort may be joined in separate counts with causes of
action in contract, when all arise out of the same transaction or transactions
connected with the same subject-matter and affect all the parties. Aylesbury
Mercantile Co. v. Fitch, 99 P. 1089, 22 Okl. 475, 23 L. R. A. (N. S.) 573.
A petition setting up several causes of action, which are all alleged to have
resulted from defendant's failure to perform his duties as manager of a cor-
poration, purchasing, selling, shipping, and handling grain, live stock, and
other farm products, is not subject to demurrer on the ground of misjoinder
of causes of action sounding in tort and on contract. Hoffman v. Farmers'
Co-op. Shipping Ass'n, 97 P. 440, 78 Kan. 561.
(457)
§ 580 PLEADINGS (Cll. 11
Where the causes of action joined in one petition are all of the
same class, and arose under the same statutory provisions, and the
parties are the same, and the venue the same, and allegations, de-
fenses, and relief sought are similar or the same, the only differ-
ence being in time and amount, such causes are properly joined."
Where a course of wrongful conduct results in separate injuries,
the injured party need not bring separate suits, but may recover all
the damages in one suit.1
In an action for personal injuries, all the acts of negligence which
caused the injury may be alleged in the same paragraph without
constituting a misjoinder of causes of actidn.2
Causes of action to recover usury paid at different times on
different loans may be joined in one petition, when separately stat-
ed and numbered.3
Causes of action for reformation and specific performance of the
reformed instrument may be joined.4
That several persons, each of whom has a special interest in hav-
ing a street kept open for travel, join in an action for that purpose,
does not involve a misjoinder of causes of action.5
In a suit for commission, a real estate broker may join a count
for reasonable value of his services with a count on a contract to
pay a stated commission.6
A cause of action against a constable for a breach of the con-
dition of his official bond, which is joint and several, may be joined
in the same action with a cause of action against the sureties on
such bo'nd, for the same breach of the condition thereof.7
A bill by the widow of a deceased grantor as administratrix, and
for herself, to declare a mortgage, purporting to be executed by her
99 First Nat. Bank of Tishoiningo v. Ingle, 132 P. 895, 37 Okl. 276.
Causes of action to recover usury paid at different times on different loans
of the same class, and affecting the same parties, may properly be joined in
one petition when separately stated and numbered (following State Bank of
Paden v. Lanam, 34 Okl. 485, 126 Pac. 220). First Nat. Bank of Tishomingo
v. Latham, 132 P. 891, 37 Okl. 286.
1 Harrell v. Scott, 51 Okl. 373, 151 P. 1169.
2 Enid Electric & Gas Co. v. Decker, 128 P. 708, 36 Okl. 367.
s State Bank of Paden v. Lanam, 126 P. 220, 34 Okl. 485.
* Painter v. Fletcher, 81 Kan. 195, 105 P. 500.
6 Bissey v. City of Marion, 104 Kan. 311, 178 P. 611,
6 Berry v. Craig, 91 P. 913, 76 Kan. 345.
7 Schilling v. Black, 31 P. 143, 49 Kan. 552.
(458)
Art. 4) PETITION § 580
husband and herself, and recorded before their general warranty
deed, a forgery, and that it was not a lien on the land, and for oth-
er relief, does not misjoin causes of action.8
A cause of action by a husband for fraud inducing exchange of
land for corporate stock may properly be joined with his wife's
cause of action for fraud in being induced to execute a mortgage on
her separate property to secure her husband's obligations.9
An action against a sheriff for failing and refusing to levy an
attachment, and an action for failing and refusing to levy an execu-
tion in the same case, after judgment, may be joined in the same
petition.10
In an action against a warehouseman for loss of goods it is com-
petent for the owner to set up his cause of action in two counts,
one upon an express agreement as to the character of the storage
building and the care exercised, and the other on the implied un-
dertaking to provide a safe place.11
Except in actions to foreclose liens, several causes of action can-
not be united in one petition, unless they all arise out of the same
transaction, and are connected with the same subject of action, and
affect all the parties.12
Several causes of action cannot be joined in one suit except in
actions to enforce liens, unless each cause affects each party to the
suit.13
In a chattel mortgagee's action against several for conversion of
mortgaged property, a proposed amendment charging one defend-
ant as a trustee of the proceeds of a sale did not affect all parties to^
8 Keys v. Mathes, 16 P. 436, 38 Kan. 212.
9 Phillips v. Mitchell (Okl.) 172 P. 85, writ of error dismissed 248 U. S.
531, 39 S. Ct. 7, 63 L. Ed. 405.
10 Chittenden v. Crosby, 48 P. 209, 5 Kan. App. 534.
11 Locke v. Wiley, 105 P. 11, 81 Kan. 143, 24 L. R. A. (N. S.) 1117, 19 Ann.
Cas. 241.
12 Harrod v. Farrar, 74 P. 624, 68 Kan. 153; Gardner v. Board of Com'rs
of City of Leavenworth, 94 Kan. 509, 146 P. 1000.
13 Bryan v. Sullivan, 55 Okl. 109, 154 P. 1167.
Except in cases to enforce liens, it is a prerequisite to the joinder of
causes of action in a pleading that all the causes should affect all the par-
ties to the action. Benson v. Battey, 78 P. 844, 70 Kan. 288, 3 Ann. Cas. 283.
Under Code, § S3, permitting the joinder in the same petition of several
causes of action affecting all the parties to the action, the petition is de-
murrable, the allegations as to one cause of action warranting relief to only
one plaintiff. New v. Smith, 74 P. 610, 68 Kan. 807.
(459)
§ 580 PLEADINGS (Ch. 11
the action, an$, as the two causes could not be united in one petition,
was properly refused.14
Where, in mechanic's lien proceedings, plaintiff alleged in his
petition a cause of action against the contractors, entitling him to
a judgment upon their account for material furnished, and to a
decree foreclosing his lien against the buildings of the owners, and
also endeavored to allege and recover on a contract between him
.and the owners of the buildings, alleging that the owners agreed
that they would pay the account of the contractors for the ma-
terial furnished, there was a misjoinder of causes of action, and the
court properly sustained a motion to strike out that part of the
petition seeking to recover personal judgment against the owners.15
Claims affecting several defendants, which might have been
14 First Nat. Bank v* City Nat. Bank of Wellington, Tex. (Okl.) 175 P.
253.
15 Jones v. Balsley, 111 P. 942, 27 Okl. 220.
The joinder of civil actions, whether legal or equitable, is governed by
Code Civ. Proc- § 83, and the test whether such causes of action fall within
any of the classes specified in such section is to be determined by the pro-
vision that the causes of action so united must all belong to one of these
classes and affect all the parties to the action, except in actions to enforce
mortgages or other liens, and does not justify an action on notes given to
secure loans made by a corporation for building a creamery, where plaintiff
and one of the defendants signed all of the notes, and two of the defendants
signed for the notes, and one signed three of the notes, and some of them
were given in renewal. Mentzer v. Burlingame, 81 P. 196, 71 Kan. 581.
A cause of action against one party on a lease and one on a separate and
distinct writing, wherein another party guaranties that a certain part of
the rent will be paid, cannot be joined in a single action. Marshall v. Saline
*River Land & Mineral Co., 89 P. 905, 75 Kan. 445.
Two persons could not join in one action causes on an insurance policy for
the loss of property part of which was owned by them jointly and part by
each separately. State Ins- Co. of Des Moines, Iowa, v. Belford, 42 P. 409,
2 Kan. App. 280-
Where a cause of action arising out of a partnership transaction is joined
with one arising out of an individual transaction, there is a misjoinder.
Citizens' State Bank v. Frazee, 56 P. 506, 8 Kan. App. 638.
When the territorial board of equalization, in equalizing the returns of the
several counties, raise a certain county 65 per cent, above its true value, and
450 persons join in a suit to restrain such raise as to their individual prop-
erties, there is an improper joinder; the causes of action being several, and
not joint. Weber v. Dillon, 54 P. 894, 7 Okl. 568.
A cause of action against a board of county commissioners in favor of an
ex-treasurer thereof, for an accounting and settlement of his accounts as such
treasurer, cannot be joined with a cause of action in his favor against the
sureties on his official bond, for wrongfully converting property deeded by
(460)
Art. 4) PETITION § 580
brought in a single suit in equity, may be regarded as one cause of
action ; but, when there is more than one primary right to be en-
forced, the petition is demurrable.16
The question whether more than one cause of action is stated
sometimes presents difficulties, but, of course, a petition cannot be
objectionable for misjoinder, if only one cause of action is stated.17
That there was a common grantor to deeds of different tracts of
him in trust for their protection as sureties. Riger v. Board of Com'rs of
Davis County, 29 P. 595, 48 Kan. 389.
Where a grantor executes two separate deeds about the same time, one
conveying land to one] person, and the other conveying another tract to a
different person, and the grantor's heirs bring proceedings against both gran-
tees to( set aside the deeds and partition the lands, there is an improper
joinder of causes of action. Griffith v. Griffith, 81 P. 178, 71 Kari. 547.
In an action for partition of land in this state, amended petition making
stranger to title a party, alleging that he claimed title and wrongfully ex-
cluded plaintiff from possession of land in another state, is demurrable on
ground of misjoinder of causes of action. Caldwell v. Newton, 163 P. 163,
99 Kan. 846.
A petition in quo warranto by a private person, in the name of the state,
averring a cause of action against the mayor, councilmen, and assessor of
the city to disorganize the municipality, and one against the county clerk
and county treasurer to enjoin the collection of a tax levied against plaintiff's
property, contains two causes of action, which, are improperly joined. State
v. Shufford, 94 P. 137, 77 Kan. 263.
An owner of stock in a corporation secured the appointment of a receiver,
and subsequently he and such receiver, who had been removed and another
person appointed in his stead, sued the company and others, charging that
the latter had conspired together to defraud the company of its property and
such stockholder of his interest, and prayed that certain "-nlgments be set
aside, that all deeds executed by the substitute receiver a-d the other de-
fendants be canceled, and that certain orders be vacated. Held, that such
petition was multifarious, in uniting disconnected causes of action and in
joining parties without a common interest. Fry v. Rush, 65 P. 701, 63 Kan.
429.
A cause of action in favor of plaintiff, and against one defendant, cannot
be united with another cause of action in favor of the same plaintiff against
another defendant, where neither defendant is interested in the cause of
action alleged against the other. Atchison, T. & S. F. R. Co. v. Board Corn'rs
Sumner County, 33 P. 312, 51 Kan. 617.
An action; by an executor against a coexecutor, asking for his removal,
cannot be joined with an action for an accounting of a partnership in which
the estate has an interest with another person not connected with the estate.
Insley v. Shire, 39 P. 713, 54 Kan. 793, 45 Am. St. Rep. 308.
16 Coody v. Coody, 136 P. 754, 39 Okl. 719, L. R, A. 1915E, 465.
IT Only one cause of action stated. — A petition in replevin by the mortgagor
and mortgagees of the property, although setting out different interests
(461)
§ 580 PLEADINGS (Ch. 11
antagonistic to the possession of defendant, states but one cause of action.
First Nat. Bank of Russell v. Knoll, 52 P. 619, 7 Kan. App. 352.
A petition to recover for breach of promise of marriage and seduction
states but one cause of action. Bowes v. Sly, 152 P. 17, 96 Kan. 388.
An action to reform a written contract so as to conform to the contract
actually made, and to enforce said contract as reformed, constitutes but one
cause of action. German Ins. Co. of Freeport v. Davis, 51 P. 60, 6 Kan. App.
268.
In an action for damages for an unlawful attachment, the petition charg-
ing that the attachment was wrongfully and maliciously obtained, states
but one cause of action, and it is error to require plaintiff to elect whether
he will proceed for the wrongful or for the malicious taking. Schwartzberg
v. Central Ave. State Bank, 115 P. 110, 84 Kan. 581.
A petition alleging a verbal agreement to sell land without alleging or ask-
ing damages was held to state but one cause of action under which per-
formance or, in default thereof, damages could be recovered. Naugle v.
Naugle, 132 P. 164, 89 Kan. 622.
A petition, alleging the loss of a piano valued at $400, caused by failure to
have it insured and by negligence causing fire, in which it was destroyed, and
asking judgment for $400, stated but one cause of action. Stone v. Case, 124
P. 960, 34 Okl. 5, 43 L. R. A. (N. S.) 1168.
Appropriate allegations of execution of a guaranty of the performance of
a contract, the default of the principal obligor and of guarantors state es-
sentially but one cause of action against the principal and guarantors, and
as against a demurrer there is no misjoinder of causes of action. Furst v.
Buss, 104 Kan. 245, 178 P. 411.
In an action to quiet title involving validity of a conveyance of oil and
gas, a petition alleging abandonment, and also that the instrument was
fraudulently altered, and is void because not recorded within 90 days after
execution, and not listed for taxation, states but one cause of action. Hor-
ville v. Lehigh Portland Cement Co-, 105 Kan. 305, 182 P. 548.
A petition, in an action to set aside a deed as procured from an insane per-
son by one with knowledge of his insanity, alleging that the deed was void
because of the mental weakness of the grantor, and the undue influence ex-
ercised upon him while in that condition, and asking to have the deed ad-
judged void, states but a single cause of action. Bethany Hospital Co. v.
Philippi, 107 P. 530, 82 Kan. 64, 30 L. R. A. (N. S-) 194.
Where the executors of an estate, who were also devisees under the will,
together with certain other devisees, executed a mortgage on the estate,
and the mortgage was subsequently twice renewed by new mortgages, and
an extension of the last mortgage was granted, an action against the mort-
gagors personally to foreclose their interest in the estate was not subject to
demurrer for misjoinder of causes of action. Shrigley v. Black, 53 P. 477,
59 Kan. 487.
A petition* on a note executed by one defendant, which alleges the deposit
of stock as collateral by another defendant, a sale and application of the
proceeds, and a dispute as to the validity of the sale, and asks judgment for
the balance due and barring defendants from any claim to the security,
states but one cause of action. Hopkins v. Kuhn, 72 P. 270, 66 Kan. 619.
Where a lessee of gas lands drills wells on adjoining land, and through
them drains the gas from the leased land, the fact that he wrongfully took
the gas through the wells on the adjoining land does not prevent the re-
(462)
Art. 4) PETITION § 580
land to different grantees does not render an action to set aside both
deeds and recover the land a single cause of action.18
A petition which alleges that defendant is indebted to plaintiff
"to balance due, as per settlement," and also on an open, itemized
account, states two separate causes of action.19
When the petition states three separate demands, the first two
on promissory notes past due, and the third on an account not due,
there is a misjoinder of actions.20
An action to recover damages against a number of defendants
for a fraudulent conspiracy cannot be joined with an action to ob-
tain a cancellation of a certificate of deposit owned and held by one
of said defendants alone, even though such certificate was obtained
as one of the fruits of the conspiracy.21
An action upon promissory notes cannot be properly joined with
an action of replevin.22
Where two notes were given, each secured by a separate mort-
gage, and a third given to secure any deficiency there might be, it
was not necessary, or even proper, to include such third mortgage
in actions to foreclose the first two mortgages.23
An action for rent or damages, although arising out of the same
transaction, cannot be joined in an action of forcible or unlawful
detainer.24
There is a misjoinder in an alternative writ of mandamus, com-
manding the board of commissioners to canvass the petition of tax-
covery of all the royalties due in a single action. Culbertson v. lola Port1
land Cement Co., 125 P. 81, 87 Kan. 529, Ann. Cas. 1914A, 610.
The petition, in -an action against a physician for negligent treatment in
an obstetrical case, has been held to state a single cause of action, though it
alleged negligence of defendant both before and after the birth of the child.
Yard v. Gibbons, 149 P. 422, 95 Kan. 802.
18 Griffith v. Griffith, 81 P. ITS, 71 Kan. 547.
19 Eisenhouer v. Stein, 15 P. 167, 37 Kan. 281.
20 Wurlitzer v. Suppe, 15 P. 863, 38 Kan. 31.
21 Haskell County Bank v. Bank of Santa Fg, 32 P. 624, 51 Kan. 39.
22 Galbreath v. Mayo (Okl.) 174 P. 517.
23 Conklin v. Stackfleth, 69 P. 194, 65 Kan. 310.
24 Hart v. Ferguson (Okl.) 176 P. 396.
An action of forcible entry and detainer, brought before a justice of the
peace, cannot be joined with a claim for damages growing out of the same
transaction, the proceeding being a summary one. Ow v. Wickham, 16 P. 335,
38 Kan. 225.
(463)
§§ 580-581 PLEADINGS (Ch. 11
payers of one township with an order to fix the date of election for
several other townships.25
MOTION TO CONSOLIDATE
(Caption to include title of both cases.)
Comes now the defendant in the above entitled actions, C. D.,
and respectfully shows to the court that both of said actions affect
the same parties, and all of the same parties, both being brought by
the plaintiff, A. B., against the defendant, C. D., and that the causes
of action alleged in the petitions filed in said actions both belong to
the same class and for that reason might be joined in one action.
Wherefore defendant moves the court that the plaintiff be re-
quired to show cause, if any there be, why said actions and causes
of action should not be consolidated in one case, and that if no cause
be shown, that said actions shall be consolidated.
X. Y., Attorney for Defendant.
(Notice of the above motion should be given to adverse party.)
MOTION TO REQUIRE SEVERANCE
(Caption.)
Comes now the defendant E. F., and moves the court to grant
this defendant a severance herein and a separate trial of the issues
between plaintiff and this defendant, for the reason that this is an
action by plaintiff, A. B., against the defendants, C. D. and E. F.,
seeking to quiet title and to cancel a deed given by A. B. to C. D. ;
that this defendant, E. F., claims to be an innocent purchaser of a
portion of the premises covered by said deed from the defendant,
C. D. ; and that in the event the issues between the plaintiff and the
defendant C. D., should be found in favor of the defendant C. D., it
would not be necessary to try the issues between the plaintiff and
this defendant.
X. Y., Attorney for Defendant E. F.
§ 581. Separately stating and numbering
"Where the petition contains more than one cause of action, each
shall be separately stated and numbered." 28
25 State v. Commissioners of Reno County, 16 P. 337, 38 Kan. 317.
26 Rev. Laws 1910, § 4739.
For form of motion, see post, § 699.
(4G4)
An. 4) PETITION § 581
That is, each of several causes of action set out in one petition
should be separately stated and numbered, and proceed upon a sin-
gle definite theory, and of itself present a complete cause of action
distinct from the others.27
Plaintiff may number the paragraphs of his petition though it
contains but a single count, or may number the paragraphs of each
count where it contains one or more counts.28
Where he has two or more distinct and separate reasons for ob-
taining the relief asked, and there is some uncertainty as to the
grounds of recovery, the complaint may set forth a single claim, or
ask for the same relief in several distinct counts.29
He may, in separate counts, properly state his case in different
ways, so as to meet each of the various aspects in which the evi-
dence at the trial may possibly leave it.30
27 First Nat. Bank of Tishomingo v. Ingle, 132 P. 895, 37 Okl. 276.
Under this section, each of several causes of action in the same petition
should constitute a separate count or paragraph, separately stated and
numbered, proceeding on a single definite theory, and presenting a complete
cause of action. Chupco v. Chapman (Okl.) 160 P. 88.
28 Burton v. Doyle, 48 Okl. 755, 150 P. 711.
29 Carter Oil Co. v. Garr (Okl.) 174 P. 498; Harris v. Warren-Smith
Hardware Co., 44 Okl. 477, 144 P. 1050.
Where the chief aim of a petition by tenants in common against a cotenant,
is partition, allegations asserting right to accounting and to rents need not
be separately stated and numbered unless so required by trial court. Cribb
v. Hudson, 160 P. 1019, 99 Kan. 65.
In an action against a milling company and a railroad company for joint
obstruction of a river to plaintiff's damage, caused by separate works of
the defendants, it was error to require plaintiff to separately state and num-
ber his causes of action against the two defendants, since, if two or more par-
ties, acting jointly, injure another, they are jointly and severally liable,
and the injured party may at his option sue one or all of those contributing
to the injury. Arnold v. C. Hoffman & Son Mill Co., 86 Kan. 12, 119 P. 373.
It is not improper to join, in the same count, an allegation that defendant
took possession of personalty belonging to plaintiff and converted it to his
own use with an allegation that he entered a hotel which plaintiff was carry-
ing on, took possession of the building, closed same, and thereby destroyed
plaintiff's business, where the goods alleged to have been converted were tak-
en from the 'building at the same time and the entering of the building and
the taking of personalty are parts of the same transaction. Wellington v-
Spencer, 132 P. 675, 37 Okl. 461, 46 L. R. A. (N. S.) 469.
30 Edwards v. Hartshorn, 82 P. 520, 72 Kan. 19, 1 L. R. A. (N. S.) 1050.
Plaintiffs may allege in one count a right to recover on a contract, and in
another for money had and received, though both claims are founded on the
same transaction. Van Arsdale-Osborne Brokerage Co. v. Foster, 100 P. 480,
79 Kan. 669.
HON.PL.& PBAC.— 30 (465)
§§ 582-583 PLEADINGS (Ch. 11
§ 582. Where demurrer sustained
"When a demurrer is sustained, on the ground of misjoinder of
several causes of action, the court, on motion of the plaintiff, shall
allow him, with or without costs, in its discretion, to file several
petitions, each including- such of said causes of action as might have
been joined; and an action shall be docketed for each of said peti-
tions, and the same shall be proceeded in without further serv-
ice." 81
Where a demurrer containing several grounds is sustained gen-
erally, the filing of separate petitions may properly be permitted
even without motion therefor.32
§ 583. Splitting
A single cause of action cannot be divided into several claims,
and separate actions maintained thereon.33
An action for a tort is single and indivisible, and gives rise to but
one liability.3*
A balance due on an account running for more than two years
constitutes only one cause of action.33
All the separate breaches of a single and entire contract after
such breach has actually occurred constitute only one cause of ac-
tion, and this although an action might be maintained upon each
31 Rev. Laws 1910, § 4743.
32 Weber v. Dillon, 7 Okl. 568, 54 P. 894, appeal dismissed 22 S. Ct. 931, 46
L. Ed. 1262.
33 Tootle v. Kent, 73 P. 310, 12 Okl. 674; Akin v. Bonfils (Okl.) 169 P. 899.
A creditor who has a single cause of action for a sum of money cannot by
assignment split up the cause of action, and thereby subject the debtor to a
number of suits. German Fire Ins. Co. v. Bullene, 33 P. 467, 51 Kan. 764.
In an action by a plate glass insurer who had paid a loss from explosion
of gas which defendant allowed to escape, held that a demurrer to insurer's
evidence could not be sustained on the ground that there was a splitting of
causes of action because insured had another right of action for injuries to
floors, etc., from the explosion for such action could be consolidated or the
parties brought in. Maryland Casualty Co. v. Cherryvale Gas Light & Pow-
er Co., 162 P. 313, 99 Kan. 563, L. R. A. 1917C, 487.
34 Kansas City, M. & O. Ry. Co. v. Shutt, 104 P. 61, 24 Okl. 96, 138 Am. St.
Rep. 870, 20 Ann. Cas. 255.
An entire claim arising from a single wrong cannot be divided and made the
subject of several suits, however numerous the items of damages may be.
Wichita & W. R. Co. v. Beebe, 18 P. 502, 39 Kan. 465.
35 Tootle v. Wells, 18 P. 692, 39 Kan. 452.
(466)
Art. 4) PETITION §§ 583-584
of such breaches as it occurred, and before any subsequent breach
occurred.36
Injury to a riparian owner from a municipal sewer system pollut-
ing a water course so as to constitute a nuisance, there being no
negligence charged in its construction or operation, is a permanent .
injury for which but a single action may be maintained.37
An action to enjoin a trespass on one tract in plaintiff's posses-
sion, and a subsequent action for possession of another tract in de-
fendant's possession before the commencement of the former ac-
tion, were not upon a single cause of action within rule against
splitting causes of action.38
A cause of action for construction and maintenance of railroad
bridge and embankment, where the negligent condition is not per-
manent, arises at actual injury, and successive actions may be
maintained for successive injuries.39
«t:
§ 584. Consolidation
"Whenever two or more actions are pending in the same
court, which might have been joined, the defendant may, on mo-
tion and notice to the adverse party, require him to show cause
why the same shall not be consolidated, and if no cause be shown,
the said several actions shall be consolidated." 40
Where plaintiffs, on bringing an action for the specific perform-
ance of a contract for the exchange of property, also brought replev-
in for personal property covered by the contract, the court may
properly consolidate the two actions.41
36 Whitaker v. Hawley, 1 P. 508, 30 Kan. 317.
37 City of Mangum v. Sun Set Field (Okl.) 174 P. 501.
38 Akin v. Bonfils (Okl.) 169 P. 899.
In suit for overflow caused by railroad bridge and embankment, negligent
condition will not be held permanent if abatable by either labor or money,
consistent with rightful use and maintenance of the structure. Pahlka v.
Chicago, R. I. & P. Ry. Co-, 62 Okl. 223, 161 P. 544.
s9 Pahlka v. Chicago, R. I. & P. Ry. Co., 62 Okl. 223, 161 P. 544.
40 Rev. Laws 1910, § 4796.
Where two mechanics' liens were filed upon an entire tract, and other
mechanics' liens were filed and mortgages were executed upon specific sub-
divisions of the same tract, and several actions were commenced in the dis-
trict court to foreclose the mechanics' liens and the mortgages, it was held,
that under Civ. Code, §§83, 636, it was proper to consolidate them for the
purpose of trial. Van Laer v. Kansas Trip-Hammer Brick Works, 43 P. 1134,
56 Kan. 545.
" Akins v. Holmes, 133 P. 849, 89 Kan. 812.
(467)
§§ 584-585 PLEADINGS (Ch. 11
The refusal to permit the consolidation of an action with another
action in which another party is impleaded is within the discre-
tion of the trial court.42
Where cases cannot be consolidated under the provisions of the
statute, several cases upon the same general subject cannot be con-
sidered and determined by the same jury at the same time, if the
parties object.43
Where parties consent to the consolidation of two separate ac-
tions and agree that they may be tried together, the jurisdiction of
the court is the same as if one action containing all the issues of
the consolidated case had been brought.4*
§ 585. Order— Forms
"The order for consolidation may be made by the court, or by
a judge thereof, in vacation." 45
ORDER OF CONSOLIDATION
(Caption, to include titles of both cases.)
Now, on this day of , 19 — , this cause coming on to
be heard on the motion of the defendant in the above entitled ac-
tions, C. D., that said actions be consolidated, the plaintiff being
present by his attorney, G. H., and the defendant being present
by his attorney, X. Y., and the court having heard the argument
of counsel, and being fully advised in the premises, and it appear-
ing to the court that at the time of filing said motion, the defendant
gave notice thereof to said plaintiff, and notified the plaintiff to
show cause why said actions should not be consolidated, if any
there be, and no cause being shown, and it further appearing to the
court that the causes of action alleged in the petitions filed in said
actions both belong to the same class and for that reason might be
joined in one action, and that both of said actions effect the same
parties, and all of the same parties :
It is therefore by the court ordered that said actions be and the
same are hereby consolidated and merged in one action, and that
42 McCullough v. S. J. Hayde Contracting Co., 109 P.. 176, 82 Kan. 734.
43 Ortman v. Union Pac. Ry. Co., 4 P. 858, 32 Kan. 419.
44 Phillips v. Mitchell (Okl.) 172 P. 85, writ of error dismissed 39 S. Ct. 7,
248 U. S. 531, 63 L. Ed. 405.
*5 Rev. Laws 1910, § 4797.
(468)
Art. 4) PETITION §§ 585-586
said action shall proceed as cause No. in this court. It is
further ordered that the pleadings be reconstructed, so that all of
the plaintiff's causes of action shall be stated in one petition, and
the answer of defendant present all the issues raised in the orig-
inal suits. Itls further ordered that the plaintiff pay the costs here-
tofore accrued in cause No. . , Judge.
• ORDEJR TO SEPARATELY STATE AND NUMBER
(Caption.)
Now, on this - — day of , 19 — , this cause coming on
to be heard on the motion of defendant to require the plaintiff to
separately state and number the various causes of action alleged in
his petition, the plaintiff being present by G. H., his attorney, and
the defendant being present by X. Y., his attorney, the court,
having heard the argument of counsel and being fully advised in
the premises, finds that said petition alleges more than one cause of
action, and that said causes are not separately stated and numbered.
It is therefore by the court ordered that said plaintiff be and he
is hereby ordered and required to separately state and number the
various causes of action alleged in his petition, and that said plain-
tiff be given days from and after this date in which to file
his amended petition herein, to which ruling of the court the plain-
tiff duly excepted, which exceptions were by the court allowed.
, Judge.
DIVISION IV. — EXHIBITS AND PRAYER
§ 586. Exhibits
"If the action, counterclaim or set-off be founded on account or
on a note, bill, or other written instrument as evidence of indebt-
edness, a copy thereof must be attached to and filed with the plead-
ing. If not so attached and filed, the reason thereof must be stated
in the pleading. But if the action, counterclaim or set-off be
founded on a series of written instruments executed by the same
person, it shall be sufficient to attach and file a copy of one only,
and in succeeding causes of actions or defenses, to set forth in
general terms descriptions of the several instruments respective-
ly." 46
W Rev. Laws 1910, § 4769.
For form of exhibits, see ante, § 579.
(469)
§ 586 PLEADINGS (Cll. 11
When an exhibit is made a part of the petition, reference may
be had to the exhibit to determine whether a cause of action has
been stated, so as to withstand a general demurrer.47
47 Long v. Shepard, 130 P. 131, 35 Okl. 489; State v. School Dist No. 3, 8
P. 208, 34 Kan. 237; Grimes v. Cullison, 41 P. 355, 3 Okl. 268.
In suit on instrument in writing for payment of money, where copy of
instrument is attached to petition, such copy should be considered when con-
struing allegations of pleading on demurrer. Davis v. Board • of Com'rs of
Choctaw County, 58 Okl. 77, 158 P. 294, L. R. A. 1916F, 873.
Where, in an action on a life policy, a copy of the policy is attached to
the petition and made a part thereof, it should be considered when construing
the petition on demurrer. Friend v. Southern States Life Ins. Co., 58 Okl. 448,
160 P. 457, L. R. A. 1917B, 208.
Where a life policy provides that it shall be incontestable after two years
from date of issue, such provision is not a waiver, but a condition, and is
sufficiently pleaded where' a copy of the policy is attached to the petition
as an exhibit. Mutual Life Ins. Co. of New York v. Buford, 61 Okl. 158, 16O
P. 928.
Where employe1, after injury, delivered to his employer a sworn state-
ment of the circumstances, and brought an action for damages, and attached
the sworn statement to his petition as an exhibit and made it a part thereof,
and it clearly showed that plaintiff was guilty of contributory negligence,
the pleading was insufficient to sustain a recovery. Atchison, T. & S. F. Ry.
Co- v. Schroll, 92 P. 596, 76 Kan. 572.
A cross-petition, alleging an agreement between decedent and wife and the
cross-petitioner's father for her benefit, "evidenced by a written instrument"
attached to cross-petition, showing that it was executed only by the father,
was properly construed as stating cause of action founded on parol agree-
ment. Jacks v. Masterson, 160 P. 1002, 99 Kan. 89.
Where a petition for a writ of habeas corpus had attached to it a parole
granted to petitioner and accepted by him and a revocation thereof which
recited that the Governor was within the state when the parole was grant-
ed by the Lieutenant Governor, the petitioner was bound by such recital.
Ex parte Hawkins, 136 P. 991, 10 Okl. Cr. R. 396.
In an action on a supersedeas bond, a petition which recites the execution
of the bond, the action in which it was given, the condition, and the liability
thence arising, and then refers to a copy of the bond which is attached to,
and made a part of, the petition, is sufficient, under Comp. Laws, c. 80, &
118, providing that a copy of the written instrument upon which an action is
founded, as an evidence of indebtedness, must be attached to, and filed with,
the petition. Walburn v. Chenaqlt, 23 P. 657, 43 Kan. 352.
A petition alleged the negligent adoption by the. board of county commis-
sioners of defective plans for a bridge, in consequence of which plaintiffs
husband, while working under the bridge while it was building, was killed
by the fall of the structure. The verdict of the coroner's jury was attached
to the petition, in which the cause of death was found to be an "accidental
falling of a stone-arch bridge." Held, that the finding of the coroner's jury,
made a part of the petition, did not narrow the alleged cause of the death so
as to confine it to an unforeseen and fortuitous circumstance. Board of
Com'rs of Cloud County v. Vickers, 61 P. 391, 62 Kan. 25.
(470) '
Art. 4) PETITION § 586
It is not good practice to make a mere exhibit a part of the peti-
tion, the better mode being to make a direct statement of the
facts.48
That is, the substance of the terms of a written instrument sued
on should be set out in the petition, and not merely attached by
copy.40
In an action on a note, the original note, or a copy thereof, with
the indorsements, if any, must be filed as a part of the complaint.50
But a complaint which seeks only to foreclose a mortgage and not
judgment on the note secured need not exhibit it.51
In an action on a note by an indorsee, where the copy of the note
set out in the complaint does not show the indorsement by the
payee to plaintiff, the complaint is bad on demurrer, though such in-
dorsement is alleged.52
A judgment is such an instrument as is required to be set out by
copy.53
A written demand for the return of usury is not a "written in-
strument as evidence of indebtedness." 64
A copy of a bill of lading is not required to be attached to the
petition in an action for injuries to a shipment of live stock.55
It is not error to strike out exhibits to an answer containing al-
legations permitting the introduction of evidence in support of the
proposition contained in., the exhibit, which are merely cumulative,
and the striking out of which does not deprive the pleader of any
substantial right, or prevent him from making any proper defense
which he may have.66
The allegations of a petition must be construed in connection
with the exhibits attached and referred to therein.57
Letters attached to petition in action for specific performance
48 Long v. Shepard, 130 P. 131, 35 Okl. 489-
40 Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 48 Okl. 745, 150 P.
712.
50 First Nat. Bank v. Jones, 37 P. 824, 2 Okl. 353.
51 Tracey v. Crepin, 138 P. 142, 40 Okl. 297.
62 First Nat. Bank v. Jones, 37 P. 824, 2 Okl. 353.
53 Oberlin Loan, Trust & Banking Co. v. Kitchen, 57 P. 494, 8 Kan. App. 445.
54 Texmo Cotton Exch. Bank v. Listen, 61 Okl. 33, 160 P. 82.
53 Chicago, R. I. & P. Ry. Co. v. Harrington. 44 Okl. 41, 143 P. 325.
56 Deming Inv. Co. v. McLaughlin, 30 Okl. 20, 118 P. 380.
57 Southern Surety Co. v. Chambers (Okl.) 180 P. 711.
In an action on a contract, an exhibit was attached to the petition, show-
(471)
§§ 586-587 PLEADINGS (Ch. 11
of a contract for conveyance of land showing the alleged contract,
if in conflict with petition, must control in determining whether an
enforceable contract was made.58
A copy of the mortgage involved attached to and made a part
of the petition in a foreclosure suit controls all general recitals
of the petition at variance with the copy, and if the land affected
be misdescribed in the petition a correct description in the copy
governs.59
An answer alleging that a contract was "made and entered into,"
and having attached a copy thereof, sufficiently alleges that it was
"executed," so as to require a verified denial.60
§ 587. Prayer
Prayer for relief is not conclusive as to character of petition,
nor as to relief that plaintiffs may be allowed.61 But it may be con-
sidered in determining the relief actually sought by the pleader.62
In actions for the specific performance of a contract, it is the
well-established practice to ask, in the alternative, for money dam-
ages if the court finds it inequitable or impossible to compel spe-
cific performance.63
wig that some of the items were furnished outside of the contract. No ob-
jection was made before trial. Held that, since the defect could have been
remedied by amendment, there was no objectionable variance in rendering
judgment on the contract, and also on a quantum meruit. El Reno Electric
Light & Telephone Co. v. Jennison, 50 P. 144, 5 Okl. 759.
58Bowker v. Lin ton (Okl.) 172 P. 442.
59 Sharp v. McColm, 101 P. 659, 79 Kan. 772.
60 Limerick v. Barrett, 43 P. 853, 3 Kan. App. 573.
61 Myler v. Fidelity Mut. Life Ins. Co. of Philadelphia, 64 Okl. 293, 167 P.
601.
Where petition states facts constituting a cause of action for maintaining
a public nuisance, held immaterial that plaintiff did not demand the precise
relief to which he was entitled, or the true rule of damages. Colbert v. City
of Ardmore, 122 P. 508, 31 Okl. 537.
The prayer of a petition forms no part of it, and relief may be granted in
accordance with the facts stated in the petition rather than pursuant to the
prayer. Smith v. Smith, 73 P. 56, 67 Kan. 841.
62 Rochester v. Wells Fargo & Co. .Express, 123 P. 729, 87 Kan. 164, 40 L.
R. A. (N. S.) 1095.
63 Brush v. Boyer, 104 Kan. 168. 178 P. 445.
For form of prayers in petitions, see ante, § 579.
(472)
Art. 5) ANSWER
ARTICLE V
ANSWER
DIVISION I. — ANSWER IN GENERAL
Sections
588. Contents — Forms.
589. Construction.
590. Joinder.
591. Matters necessary to plead.
592. Affirmative defenses — Forms.
593. Fraud — Form.
594. Limitations — Form.
595. Pleading defenses in action on note.
596. Pleading attachment or garnishment.
597. Defenses in replevin.
598. Adverse possession.
599. Inconsistent defenses.
600- Negative pregnant.
601. Defense in libel and slander.
602. Supplemental answer.
DIVISION II.— GENERAL DENIAL
603. Effect and sufficiency.
604. Disclaimer — Form.
605. Must be entered for whom.
606. Effect — By guardian ad litem.
DIVISION III. — VERIFIED DENIAL
607. Verification in general.
608. Who may verify.
609. How made— On belief.
610. Execution of written instruments — Indorsement.
611- Appointment or authority.
612. Account.
613. Corporation and partnership.
614. Waiver.
615. Forms.
DIVISION IV.— COUNTERCLAIM AND SET-OFF
616. Counterclaim — Nature — Right to interpose — Set-off — Limitations.
617. Set-off— Right to interpose.
618. Defined and distinguished — Statute applied.
619. Subsisting right-
620- Equity.
621. Cross-bill or cross-petition.
622. Landlord and tenant.
623. Action against United States.
624. Cross-demands — Deprivation.
625. Assignments.
(473)
§ 588 PLEADINGS (Ch. 11
Sections
626. Definition.
627. Parties and mutuality.
628- New party — Counterclaim.
629. New party— Set-off.
630. Form and requisites.
631. Notice.
632. Waiver.
633. Withdrawal.
634. Neglect to claim— Cost
635. Forms.
DIVISION V.— UNAUTHOBIZED PLEAS
636. Plea in abatement.
637. Plea in bar.
DIVISION I. — ANSWER IN GENERAL
§ 588. Contents — Forms
"The answer shall contain:
"First. A general or specific denial of each material allegation
of the petition controverted by the defendant.
"Second. A statement of any new matter constituting a de-
fense, counterclaim or set-off, or a right to relief concerning the
subject of the action, in ordinary and concise language, and with-
out repetition.
"Third. When relief is sought, the nature of the relief to which
the defendant supposes himself entitled. The defendant may set
forth, in his answer, as many grounds of defense, counterclaim,
set-off, and for relief, as he may have, whether they be such as have
been heretofore denominated legal, or equitable, or both. Each
must be separately stated and numbered, and they must refer, in
an intelligible manner, to the causes of action which they are in-
tended to answer." 6*
*
e* Rev. Laws 1910, § 4745.
The defendant may plead all grounds of defense, whether legal or equitable,
and need not elect between them. Garfield Oil Co. v. Champlin, 78 Okl. 91, 189
P. 514.
Where there was no agreement that the award should be made a rule of
court, the objection that the award exceeded the power of the arbitrators, or
omitted to decide a matter submitted, could be made by answer in an action
on the award. Clark v. Goit, 41 P. 214, 1 Kan. App. 345.
Sufficiency of answers. — An answer setting up a bar to a former action
showing that the suit was for the same cause of action between the same par-
ties, and that judgment was rendered on the merits by the court having ju-
(474)
Art. 5) ANSWER § 588
ANSWER IN SUIT TO CANCEL CONVEYANCES
(Caption.)
Come now the said defendants, J. D., R. H., and F. E., by ,
their attorneys, and for their joint and several answers to the peti-
tion of the plaintiffs, as amended by interlineation and insertions,
allege and state:
risdictlon of the parties and the subject-matter, and that the judgment had
not been appealed from, is good. Cowan v. Maxwell, 111 P. 388, 27 Okl. 87.
Answer in an action against an indorser held to present a good defense,
where usury was pleaded. Ladd v. Ardmore State Bank, 143 P. 170, 43 Okl.
502.
In an action for the price of trees, an answer alleging that plaintiff's agent
informed defendant that it would take 5,000 trees to plant defendant's tract,
that thereupon he signed an order for such number, and that a much smaller
number was required than estimated, stated a good defense. Mt. Hope Nur-
series Co. v. Jackson, 128 P. 250, 36 Okl. 273, 45 L. R. A. (N. S.) 243.
Allegation in answer that if defendant was liable for plaintiff's injuries, his
right and defendant's liability were regulated by federal Employers' Liability
Act (U. S. Comp. St. §§ 8657-8665), stated proposition of law and did not con-
trovert allegations of petition nor raise any issue. Wichita Falls & N. W. By.
€o. v. Puckett, 53 Okl. 463, 157 P. 112.
Where defendant in a suit by a foreign corporation answers to the merits,
he admits the capacity of plaintiff to sue, and where defendant filed a supple-
mental answer alleging that plaintiff had not complied with the Statutes of
Oklahoma, a demurrer to such supplemental answer was properly sustained.
Kibby v. Cubie, Heimann & Co., 137 P. 352, 41 Okl. 116.
Where defendant in a suit on a foreign judgment answered that he had not
been served with summons, and attached a copy of the judgment showing want
of service and that he had not appeared, the answer was not demurrable.
Rogers v. Presnall, 124 P. 37, 32 Okl. 834.
Ejectment. — Where plaintiff in ejectment alleged that he owned the land
and was entitled to possession thereof, and that defendant was unlawfully
keeping him out of possession, an answer denying generally the averments on
the petition was sufficient. Wiggins v. Powell, 152 P. 765, 96 Kan. 478.
Equity. — In an action for the reformation of a deed of a deceased minor
Cherokee freedman, neither an allegation that the allotment was generally
understood to be* a new acquisition and would descend as such, nor an allega-
tion that the grantor's interest in the decedent's property was considered and
recognized by all parties concerned as a life estate only, constituted a suffi-
cient plea of mistake in the execution of the deed. Thraves v. Greenlees, 142
P. 1021, 42 Okl. 764.
In an action to enforce specific performance of a contract to exchange real-
ty, held, that an indefinite plea supported by no evidence that plaintiff's title
was incumbered so that the title was unmerchantable presented no defense.
Spaeth v. Kouns, 148 P. 651, 95 Kan. 320, L. R. A. 1915E, 271.
Answer in suit to foreclose mortgage setting up extension of time of pay-
ment held not subject to demurrer. Roe v. Fleming, 122 P. 496, 32 Okl. 259.
An answer, alleging that a grantor intended to convey, and the grantee to
take, only a life estate under a deed purporting to convey in fee simple, held
(475)
§ 588 PLEADINGS (Ch. 11
That said defendants admit that the said plaintiffs are husband
and wife and that they were such at all the times mentioned in
said petition and that they reside in — county, Oklahoma.
That said defendants admit that the said plaintiff A. M. is a
member of the Creek Nation, and allege that he is duly enrolled
on the official Indian rolls as an adult Creek Indian of one-eighth
to state no defense to an action by the grantee or his assigns to quiet title
against a defendant claiming title to the remainder, where it did not allege
fraud or mistake in the execution of the deed. Bell v. Bancroft, 55 Okl. 306,
155 P. 594.
Bonds. — Answer pleading defense to action on redelivery bond in attach-
ment held sufficient against motion for judgment. Fritts v. Reidel, 165 P.
671, 101 Kan. 68.
Where by a bond given the sheriff in attachment it appeared that
the obligor sought to save such officer as against persons claiming the prop-
erty seized, and in an action thereon it was alleged that in a suit against
the sheriff judgment was rendered against him, which he has been compelled
to pay, the petition will be sustained as against a general demurrer. Tuck-
er v. Smith, 68 P. 40, 65 Kan. 551.
In an action to recover upon an undertaking given to secure the discharge
of attached property and the restoration of such property to the defendant,
the condition of which is "that the defendant will perform the judgment of
the court in said action," it is a sufficient allegation of a breach of the condi-
tions of the undertaking to aver that the plaintiff obtained a judgment against
the defendant in such action, what the amount of such judgment was, and
that said judgment was unpaid, in whole or in part. Winton v. Myers, 58 P.
634, 8 Okl. 421.
In an action on a forthcoming bond an unverified general denial admits the
execution of the bond, but puts in issue an allegation in the petition that the
property was delivered to the defendant when the bond was approved, and
an allegation that defendant had removed the attached property from the ter-
ritory and failed to surrender it to satisfy the judgment pursuant to the terms
of the bond. Dunn v. Claunch, 78 P. 388, 15 Okl. 27.
In an action on an undertaking given in an attachment case, under St. 1893,
§ 4107, to secure the release of the attached property, it is necessary to aver
and show by the evidence that the attached property was restored to the de-
fendant, or there can be no-recovery. Drovers' Live Stock Commission Co. v.
Custer County State Bank, 91 P. 850, 19 Okl. 302. .
Insurance. — In an action on a mutual benefit certificate, an answer alleging
generally that assured complied with all requirements to effect a change of
beneficiary held to state a defense as against a general demurrer. Janeway
v. Norton, 61 Okl. 185, 160 P. 908.
Answer, in an action on a fire policy authorizing cancellation for the taking
out of additional insurance without permission, held demurrable. St. Paul
Fire & Marine Co. v. Bragg, 137 P. 715, 41 Okl. 146.
A breach of a provision of a fire policy that the insured will keep a faithful
record of all cotton received and taken away, being defensive matter, is prop-
erly set up by answer and issue joined thereon by reply. Scottish Union &
National Ins. Co. v. Moore Mill & Gin Co., 143 P. 12, 43 Okl. 370.
Art. 5) ANSWER § 588
Indian blood, a.nd they admit that the lands described in said
petition were duly allotted and conveyed to him as a member of
said Creek Nation, but they further allege and state that the re-
strictions upon the alienation of all of said lands expired or were
long before the transactions set out in said petition.
The said defendants admit that all the defendants in the above
entitled action are residents of - county, Oklahoma.
The said defendants admit that, on or about July 2, 1914, the
said defendant J. D. did secure from the said plaintiffs a six
months' option to buy an undivided one-half (%) interest in the
said lands described in the said petition at a price of $30,000, and
that Exhibit A to said petition is a true and correct copy of said
option contract; but said defendants allege and state that the said
lands were chiefly valuable for oil and gas, and that it is provided in
said option contract that any conveyance of said lands that might
be made thereunder should be subject to a prior oil and gas lease
covering said lands and then owned by C. B. S.
The said defendants admit that, on or about November 7, 1914,
the said defendant J. D. did procure from the said plaintiffs a war-
ranty deed conveying to the said defendant J. D. an undivided
one-fourth (y±) interest in and to the lands describe'd in said peti-
tion, and they admit that Exhibit B to said petition is a true and
correct copy of said deed, and that Exhibit C to said petition is a
true copy of said contract executed by the said defendant J. D.
to the said plaintiffs, in connection with said deed ; but said defend-
ants allege and state that, at the time of the execution of said war-
ranty deed, C. B. S. held a valid, legal, and subsisting oil and gas
lease upon said lands, which lease was, in said deed, expressly ex-
cepted from the covenant of warranty therein, and that said lands
were chiefly valuable for oil and gas.
The said defendants deny that the said defendant J. D. has drawn
all the royalty from the lands described in said contract of No-
vember 7, 1914, and said contract of July 2, 1914, and they allege
and state the truth to be that, up to date of March 28, 1916, the
said J. D. drew only one-eighth (%) of said royalties, and that, up
to said date, the full one-eighth (%) of said royalties was paid to
the said plaintiffs, in accordance with his said contract with them,
a copy of which is attached to the said petition herein as Exhibit C,
and that, after said date of March 28, 1916, the said defendant, J.
D., at the special request of said plaintiff A. M. drew the full one-
(477)
588 PLEADINGS (Ch. 11
fourth (14) part of said royalties, and, in accordance with his said
contract, promptly and regularly paid over to the said plaintiffs
one-half of the said royalties so received by the said J. D. ; and
the said defendants admit that, up to the bringing of the action
herein, the said J. D. had received and retained for himself and
these answering defendants, of said royalties, about the sum of
$7,300, and they state that a like amount of said royalties had been
paid to and received by the said plaintiffs.
The said defendants admit that the said defendant J. D. duly
conveyed to the said defendants R. H. and F. E. an undivided
one-sixteenth (V16) interest in and to the lands described in said
petition, by warranty deed, a true and correct copy of which is
attached to said petition as Exhibit F.
The said defendants deny each and every allegation contained in
said petition, except the allegations thereof which they have herein
above expressly admitted, and they further especially deny that, in
any of the transactions set out in said petition, the said P. C. or
the said defendant F. S. ever acted as the agent of the said defend-
ant J. D., or as the agent of any of these answering defendants.
They deny that the said defendant J. D., or any of these answering
defendants, ever entered into any conspiracy with the said F. S.
or P. C., or with any other person or persons, to procure the execu-
tion of the contracts and warranty deed mentioned above. They
expressly deny that any of said instruments were procured with-
out consideration or through fraud, or by the exercise of any un-
due influence upon the said plaintiffs or upon either of them ; and
they further especially deny 'that, by reason of the long use of
intoxicating liquors or for any other reason, the mind of the said
plaintiff A. M. was so weakened that he did not fully compre-
hend the effect of his said contracts with and deed to the said de-
fendant J. D.; but, on the contrary, the said defendants allege and
state the truth to be that the said plaintiff A. M. clearly com-
prehended and understood the full import and force and effect
of said contracts and deed at the dates of their execution, and
has at all times, since the execution thereof, fully comprehended
and understood the full import and force and effect of said in-
struments.
For their further answer to said petition, the said defendants
deny that the said plaintiff, A. M., or that either of said plaintiffs,
(478)
Art. 5) ANSWER § 588
has only recently discovered the facts attending the execution and
delivery to the said defendant J. D. of the said option contract and
the said warranty deed, and of the said contract executed in con-
nection with said deed, and true and correct copies of which are
attached to the petition of said plaintiffs as Exhibits A, B and C ;
but said defendants state the truth to be that the said plaintiff A.
M. and his said coplaintiff knew and fully understood all the facts
and circumstances in relation thereto at the time of the execution
of same, and have ever since fully known and understood all said
facts and circumstances; and the said defendants allege and state
that said plaintiffs have been guilty of such laches that they are
no longer entitled to maintain the action herein, and the said de-
fendants expressly plead that the said action herein of the said
plaintiffs is barred by their said laches.
These answering defendants, and each of them, specifically deny
every allegation of new matter contained in the plaintiffs' petition,
as amended by interlineation and insertion in accordance with the
order of this court granting leave to the plaintiffs to so amend,
made and entered on the 4th day of September, 1917, and further
specifically deny any conspiracy between these defendants, or any
of them, or any fraudulent transactions or dealings of any kind on
their part with the said plaintiffs, or either of them.
Premises considered, the said defendants pray judgment that
they be hence dismissed with their costs, and that they may have
all other and further relief. ,
By , Attorneys.
State of Oklahoma,!
I gs •
County of ,J
J. D., of lawful age, being first duly sworn, upon oath states:
That he is one of the defendants named in the above and fore-
going answer; that he has read said answer and knows the con-
tents thereof ; and that the statements and matters therein set out
are true and correct, except such matters and statements as are
made on information and belief, and those he believes to be true.
J. D.
Subscribed and sworn to before me this day of ,
19—.
(Seal.) , Notary Public.
My commission expires January 5, 1920.
(479)
§ 588 PLEADINGS (Ql. 11
ANSWER IN DAMAGE SUIT — PERSONAL INJURY
(Caption.)
Separate Answer of Defendant
Comes now the defendant C. D., and for his separate answer to
plaintiff's petition filed herein says:
1. The said defendant denies generally and specifically each,
all, and every of the allegations in said petition contained, except such
as are hereinafter specifically admitted.
2. Further answering, and for further defense, the said defend-
ant alleges that, if any injuries were sustained by the said F. B.,
they were due to his own negligence and want of care, in this, to
wit:
That on or about , 19 — , while his codefendant was driving
and operating her automobile in a proper and careful manner west-
ward on street, between street and street, east
of the alley, in - , Oklahoma, the said F. B., riding a bicycle,
emerged from a point between two automobiles parked on the north
side of street in front of the X. Y. Apartments ; that as the
said automobile approached the said point the said F. B. suddenly,
and without giving notice or warning of his approach, and with-
out keeping a lookout for any person or vehicle which might be
approaching, negligently and carelessly rode his bicyclfe from the
north side of street from the point aforesaid, in a southeast-
erly direction, to a point directly in front of and against the said
automobile; that the said negligent and careless act of the said
F. B. was the proximate and contributing cause of the alleged oc-
currence, accident, or injury, without which act the same would
not have occurred.
3. This defendant further alleges that the acts of the said F. B.
in riding his bicycle as aforesaid were in violation of the follow-
ing ordinances of the city of , which were in force on - ,
19 — , to wit: (Here set forth ordinances violated.)
The defendant, therefore, prays judgment that he be dismissed,
and for his costs and all other proper relief.
, Attorneys for Defendant C. D.
(480)
Art. 5) ANSWER §§ 589-591
§ 589. Construction
The answer should be construed liberally, with a view to sub-
stantial justice.65
§ 590. Joinder
A defendant may join in his answer as many grounds of defense,
counterclaim, or set-off as he may have, whether they are such as
have heretofore been denominated legal or equitable or both, when
they arise out of the contract or transaction set forth in the peti-
tion, or are connected with the subject of the action, and when the
relief asked for is necessary for the complete determination of the
question involved in the action.60
§ 591. Matters necessary to plead
The filing of a demurrer or other plea does not preclude setting
up in the answer the failure of a foreign corporation to comply with
the statute before doing business in the state.67
In fact such failure should be pleaded in the answer.68
Where a former adjudication is relied on as a defense, it should
be made to appear by the pleadings.69
es Rev. Laws 1910, § 4766.
Answer in action for personal injuries, which only denies that injury was
caused by negligence of defendant, and alleges that it was wholly caused by
negligence of plaintiff, does not plead contributory negligence. Colonial Re-
fining Co. v. Lathrop, 64 Old. 47, 166 P. 747, L. R. A. 1917F, 890.
The answer in an action to establish a parol trust in land conveyed by deed
absolute in form put in issue the existence of the written instrument relied on
by plaintiff, as well as the fact of the trust. Chandler v. Roe, 46 Okl. 349,
148 P. 1026.
In action for death of cattle from negligence of carrier in dipping them
held, in view of allegations of answer, that defendant could not urge that
shipment was an interstate one, governed by federal law. Missouri, K. & T.
Ry. Co. v. Williamson, 75 Okl. 36, 180 P. 961.
66 Minneapolis Threshing Mach. Co. v. Currey, 89 P. 688, 75 Kan. 365.
or Bailey v. Parry Mfg. Co., 59 Okl. 152, 158 P. 581.
es Bailey v. Parry Mfg. Co., 59 Okl. 152, 158 P. 581.
69 James McCord Co. v'. Johnson Grocery Co. (Okl.) 172 P. 438.
Sufficiency. — In a second action against minor children of a deceased Choc-
taw allottee to quiet title to a life estate and to enjoin execution of judgment
in former action, pica of res adjudicata held good. Sweeney v. Coleman
(Okl.) 169 P. 495.
In an action to enjoin the taxation, as personal property, of the grantor's
right under his deed to receive an annual payment from grantee, prior adju-
HON.PL.& PEAC.— 31 (481)
§§ 591-592 PLEADINGS (Ch. 11
Where the statute directs a mine foreman to do certain things,
and his nonperformance thereof is relied on by mine company as
a defense to his action for damages, the answer should allege and
show that he was within class of persons contemplated by stat-
ute.70
Where a sheriff is sued for taking and carrying away plaintiff's
property, and disposing of it, under an execution and judgment,
he must plead that the property was taken under a valid execution
and judgment, and must show that the property was taken under a
valid writ, issued by a court of competent jurisdiction, and de-
scribing the property taken with sufficient certainty to identify
it.71
In an action on a bond guaranteeing an employer against lar-
ceny or embezzlement by an employe, payment of the amount of
a defalcation by the employe is a defense which must be pleaded
to be available.72
In proceedings in bankruptcy, brought by creditors of the al-
leged bankrupt, the alleged bankrupt must deny the allegation
in the petition of insolvency, and on his failure so to do the allega-
tion is admitted.73
§ 592. Affirmative defenses — Forms
Defenses which assume or admit the original cause of action al-
leged, but which are based on subsequent matters qualifying or
defeating it, must ordinarily be pleaded.74
•
dication against its taxability held sufficiently pleaded. Phillips v. Springer,
172 P. 1017. 103 Kan. 108.
A plea of res judicata, showing the pleadings, findings of fact, conclusions
of law, and judgment in the former action, shows thereby the issues and facts
determined in such suit, and in whose favor they were determined, without
further allegations for that purpose. Dixon v. Caster, 70 P. 871, 65 Kan. 739.
TO Sandals v. Mizpah Mining Co. (Okl.) 168 P. 808.
71 Masters v. Teller, 56 P. 1067, 7 Okl. 668, 8 Okl. 271.
72 Oklahoma Sash & Door Co. v. American Bonding Co., 153 P. 1151.
73 in re American Pub. Co., 79 P. 762, 15 Okl. 177; Appeal of Western Pa-
per Co., Id.
74 Continental Gin Co. v. Arnold, 52 Okl. 569, 153 P. 160.
In an action for the value of material furnished to the defendant board of
education, held that, if the material was ordered without the approval of the
board, such fact constituted an affirmative defense which must be pleaded by
defendant. Board of Education of City of Clinton v. Houilston, 51 Okl. 329,
151 P. 1035.
(482)
Art. 5) ANSWER § 592
Accord and satisfaction and transactions allied thereto to be
available as defenses must be specifically pleaded.75
The defense of contributory negligence, in an action against a city
for personal injury from alleged unsafe condition of street or side-
walk, is an affirmative defense, which must be pleaded and proved.76
The defense of an "act of God" in actions of negligence must be
pleaded, being a special defense.77
Payment is a matter of defense and must be pleaded and proved
by him who claims it.78
The defense of usury is waived unless specifically pleaded.79
It cannot be raised by demurrer to a petition which declares on an
usurious contract.80
Clauses of Answers — Affirmative Defenses — Accord and Satisfaction —
Contributory Negligence — Act of God — Payment — Forms
ACCORD AND SATISFACTION
That after the sale and delivery of said goods the plaintiff agreed
to accept, in full satisfaction and discharge of the claim of plaintiff
alleged in his petition herein, the promissory note of the defend-
ant for the sum of $ , payable on or before the day of
, 19 — , and that thereupon the defendant executed and deliv-
ered said note to the plaintiff, and that the plaintiff then and there
accepted and received the same in full satisfaction and discharge of
the claim sued upon herein.
CONTRIBUTORY NEGLIGENCE
That at the time the plaintiff received said injuries of which he
complains in said petition, and immediately prior thereto, he, said
plaintiff, was guilty of contributory negligence whereby the said
7 5 Continental Gin Co. v. Arnold. 52 Okl. 569, 153 P. 160.
76 City of Gushing v. Bowdlear (Okl.) 177 P. 561.
TT Sand Springs By. Co. v. Baldridge, 60 Okl. 102, 159 P. 487.
78 ince Nursery Co. v. Sams (Okl.) 177 P. 370; Standard Fashion Co. v.
Joels, 60 Okl. 195, 159 P. 846.
7» Stockyards State Bank v. Johnston, 52 Okl. 32, 152 P. 585.
so id. Usury must be specially pleaded, and, where the defense is waived
by defendant setting up other matters of defense, that the contract sued on
provides for interest in excess of the legal rate will not justify the court in
finding the same usurious, requiring the forfeiture of all interest.
Building & Loan Ass'n v. Ptandall, 99 P. 655, 23 Okl. 45.
(483)
§§ 592-593 PLEADINGS (Ch. 11
alleged injuries were caused and occasioned, and at said time the
said plaintiff so placed himself upon the train and car, and so moved
thereon, and remained in such position, when he knew or by the
exercise of ordinary care might have known, that upon the coupling
of said cars the same would be jarred and suddenly moved, and
while in said position, and so negligent as aforesaid, and in disre-
gard of all precautions on his part for his own safety, the said plain-
tiff received the injuries aforesaid by reason of his negligence
aforesaid.81
ACT OF GOD
For further answer to said petition, defendant says that the
death of plaintiff's husband, at the time and place stated in her peti-
tion, was solely the result of a sudden, unusual, unprecedented,
unforeseen, and extraordinary storm then and there prevailing on
the line of the railroad of defendant, which rendered it impossible
to prevent said injury and death.
PAYMENT
That before the commencement of this action, the defendant fully
satisfied the plaintiff's claim and demand sued on in this action, by
payment thereof on the day of , 19 — , and the plain-
tiff received and accepted the same in full satisfaction of his said
claim.
§ 593. Fraud— Form
Fraud, as a defense to an action on contract, cannot be pleaded
in general terms; the specific acts constituting the fraud must.be
set forth.82
FRAUD AS AFFIRMATIVE DEFENSE IN ANSWER
That at the time of the execution of said instrument in writing
said plaintiff' falsely and fraudulently represented to defendant that
si Form in K. C. M. & O. Ry. v. Loosley, 76 Kan. 103, 90 Pac. 990.
82 Fire Extinguisher Mfg. Co. v. City of Perry, 58 P. 635, 8 Okl. 429.
In an action on a note and to foreclose a chattel mortgage, an answer alleg-
ing that they were procured by fraud, and setting forth the fraudulent acts
which were the sole inducement to their execution, and that plaintiff, who pur-
chased before maturity, had knowledge of the fraud, states a sufficient de-
fense. Hankins v. Farmers' & Merchants' Bank, 141 P. 272, 42 Okl. 330.
(484)
Art. 5) ANSWER § 594
said plaintiff wished to borrow money for his own use, and that,
if defendant would execute said instrument in writing, he, plaintiff,
could borrow money thereon ; that plaintiff falsely and fraudulently
stated and represented to the defendant that he, defendant, would
never be called upon to pay said money, or any part thereof, but
that defendant's signature was to be used solely for the accommo-
dation of the plaintiff ; that plaintiff at said time was friendly and
intimate with the defendant, and that, induced by such statements
and representations, and believing the same to be true, the defend-
ant signed said instrument and delivered the same to the plaintiff ;
that there was and is not any other consideration therefor.
§ 594. Limitations — Form
The statute of limitations is an affirmative defense, that must
be pleaded by the party asserting or claiming it.83
Where defendant pleads only the statute of limitations of one
state, he cannot rely upon or prove the statute of -another state.84
To avail himself of the statute of limitations he must show when the
action was commenced.85
Where the action is barred by limitations, but the allegations
of the petition are too broad to be met by demurrer, the defendant
ss Torrey v. Campbell (Okl.) 175 P. 524.
Where the pleadings on their face do not show that the cause is barred by
limitations, the statute is not available as a defense unless specially pleaded.
Betz v. Wilson, 87 P. 844, 17 Qkl. 383.
Where defendant answers by general denial, and does not demur at any
stage of the proceedings, the defense of limitations cannot be raised in an ac-
tion for breach of a covenant of warranty. Buchner v. Baker (Okl.) 164 P.
659.
Where it did not appear on the face of the petition that the cause of action
was barred, and the statute was not pleaded, and the question whether the
cause of action was barred was not otherwise raised, the defense of the stat-
ute was waived. Baker v. Sears, 42 P. 501, 2 Kan. App. 617.
The statute of limitations, if relied on as a defense, must be pleaded, un-
less the complaint shows affirmatively that plaintiff's action is barred. Chel-
lis v. Coble, 15 P. 505, 37 Kan. 558; Mitchell v. Ripley, 49 P. 153, 5 Kan. App.
818.
The bar of the statute of limitations is a matter of defense, and, unless
claimed, is waived. Reaves v. Turner, 94 P. 543, 20 Okl. 492 ; St. Louis & S.
F. R. Co. v. Bloom, 39 Okl. 78, 134 P. 432; Groan v. Baden, 85 P. 532, 73 Kan.
364.
84 Hays Land & Investment Co. v. Bassett, 116 P. 475, 85 Kan. 48.
ss Pracht v. McNee, 18 P. 925, 40 Kan. 1.
(485)
§§ 594-595 PLEADINGS (Ch. 11
may enter a general denial and await a failure of proof, so that the
pertinency of the statute becomes apparent, and may then inter-
pose a demurrer to the evidence.86
In an action on an open account, defendant must allege that he has
been present in person within the state three years since the date
of the last item in such account before the commencement of the
action.87
An answer, in a suit to recover land, averring that the plaintiff's
cause of action, if he had any, had not accrued within 15 years, is
a sufficient plea of limitations.88
Where plaintiff, to remove 'the bar of limitations, pleads a pay-
ment, a general denial puts the burden on him, and defendant need
not specially plead the bar of the statute.89
LIMITATION AS AN AFFIRMATIVE DEFENSE IN ANSWER
For further answer and defense to the petition of plaintiff here,
defendant states that the alleged cause of action therein stated did
not accrue within years next before the commencement of
this action, and that the same is barred by the statute of limitations
of this state, to wit, by (citing section of statute).
§ 595. Pleading defenses in action on note
In an action on a note, the burden is upon defendant, admitting
execution and delivery of the note, to plead affirmative matter by
way of defense ; 90 but where the petition or plaintiff's proof shows
illegal consideration, it is available without pleading it.91 ,
Failure of consideration for the note in suit is good defense as
between original or immediate parties.92
*« Arnold v. Earner, 163 P. 805, 100 Kan. 36.
ST Conlon v. Lanphear, 15 P. 600, 37 Kan. 431.
ss Anderson v. Canter, 63 P. 285, 10 Kan. App. 167.
as Good v. Ehrlick, 72 P. 545, 67 Kan. 94.
Where the complaint in an action brought in 1887 on a note given in 1861
alleges a payment thereon in 1883, a denial under oath of such payment is
sufficient to present the issue of the statute of limitations; the note being
barred upon its face unless such payment is proved. Lemon v. Dryden, 23 P.
641, 43 Kan. 477.
90 Maston v. Glen Lumber Co. (Okl.) 163 P. 128.
»i Chandler v. Lack (Okl.) 170 P. 516.
»2 Zebold v. Hurst (Okl.) 166 P. 99, L. R. A. 1917F, 579.
(486) ,
Art. 5) ANSWER § 595
Partial failure of consideration is a good defense pro tanto to an
action on a note, except as against an innocent holder in due
course.93
An answer pleading usury, no consideration, agency between
present payee and cashier of former payee, and present payee's
knowledge of usury, was good, and the striking of such answer was
error.94
An answer averring generally, without stating further facts, that
note is without consideration, is good against demurrer;95 but
it is not error to sustain the demurrer to an answer in an action on a
note which alleges want of consideration and pleads the specific
facts from which such conclusion is deduced, when the facts al-
leged do not support the conclusion.96
A paragraph of the answer stating that "the defendant denies
that he is indebted to plaintiffs in any sum whatever" states no de-
fense.97
93 Deming Inv. Co. v. Shannon, 62 Old. 277, 162 P. 471.
The maker may plead that amount of note was greater than balance for
which the note was given, and that to extent of excess note is without con-
sideration. Holland Banking Co. v. Dicks (Okl.) 170 P. 253.
In action on collateral note indorsed to seller of threshing machine, defend-
ant's claim that buyer had agreed to thresh his crop, and was attempting to do
so when machine, which was of inferior quality, broke down and caused dam-
ages to him in excess of note, constituted no defense, as if machine was not
as represented, or if seller breached warranty, buyer could alone complain.
M.,Rumley Co. v. Koetter (Okl.) 178 P. 116. In action on collateral note in-
dorsed to seller of threshing machine, defendant's claim that buyer had agreed
to thresh his crop and was attempting to do so when machine, which was of
inferior quality, broke down and caused damages to him in excess of note, was
no defense, as, if buyer damaged defendant in performance of contract, his
remedy was against buyer. Id. In action on collateral note indorsed to sell-
er of threshing machine, defendant's claim that buyer had agreed to thresh his
crop and was attempting to do so when machine, which was of inferior quali-
ty, broke down and caused damages to him in excess of note, was no defense,
as there was no privity between defendant and seller regarding buyer's breach
of oral contract to thresh wheat. Id.
The maker of a note is entitled to make the same defenses against it in the
hands of one not a holder in due course that he would be entitled to make if
it were in the hands of the original payee. Douglass v. Brown, 56 Okl. 6, 155
P. 887.
94 Callaham v. Thurmond (Okl.) 172 P. 798.
95 Zebold v. Hurst (Okl.) 166 P. 99, L. R. A. 1917F, 579.
so Metz v. Winne, 79 P. 223, 15 Okl. 1.
»7 Spencer v. Turney, 49 P. 1012, 5 Okl. 6S3.
(487)
§ 595 PLEADINGS (Ch. 11
An answer admitting the execution, but denying that the plaintiff
is the owner of the note, and that it has been transferred before
maturity, without notice, and alleging that the note is void for
fraud and deceit on the part of the original payee in obtaining the
execution of the same, states a good defense.98
A plea of nonperformance of a condition precedent as a bar to a
recovery on a note which on its face shows no privity, but which
avers that the contract was made by one of the parties thereto as
the special agent of defendant for the purpose of making the con-
tract, is good as showing such privity in defendant as will enable
him to take advantage of its terms."
The answer, in an action on a purchase-money note, was not
demurrable, where it alleged that the property was unsound, and
that the buyer's admission of soundness and of release from war-
ranty was the result of mutual mistake.1
A note founded on a consideration against public policy will not
be enforced, even though the defense is not pleaded.2
Where the answer in an action on purchase-money notes sets up
failure of title, it must contain an offer to reconvey.8
Where, on execution of a note payable to a person named, or his
order, the maker fails, to pay it, and the payee files a petition recit-
ing the execution of a note for a valuable consideration and the
default of defendant, ownership is presumed in the plaintiff, and
it is not absolutely necessary for him to allege that he is still the
owner and holder of such note, and an answer denying that he is the
owner and holder states no defense, so that plaintiff is entitled to
judgment on the pleadings.4
In the absence of any allegation that the signer of a note is unable
to read, an answer admitting the execution of a note sued on, but
alleging that the person procuring the note misrepresented its con-
as Edwards v. Miller, 30 Okl. 442, 120 P. 996.
99 Cooper v. Ft. Smith & W. R. Co., 99 P. 785, 23 Okl. 139.
1 McDonald v. McKinney Nursery Co., 44 Okl. 62, 143 P. 191.
2 McGuffin v. Coyle & Guss, 85 P. 954, 16 Okl. 648, 6 L. R. A. (N. S.) 524; Id.,
16 Okl. 648, 86 P. 962, 6 L. R. A. (N. S.) 524.
3 Herron v. Haurbour, 57 Okl. 71, 155 P. 506 ; Rev. Laws 1910, § 986.
Where the defense in an action for price is failure of warranty an offer to
restore the goods should be alleged in the answer. Barber Medicine Co. v.
Bradley, 48 Okl. 82, 150 P. 127.
* Berry v. Barton, 71 P. 1074, 12 Okl. 221, 66 L. R. A. 513.
(488)
Art. 5) ANSWER §§ 596-599
ditions and defendant's liability, does not constitute a defense,
where the note is unambiguous in its terms.5
§ 596. Pleading attachment or garnishment
In pleading a pending attachment or garnishment as a defense,
the defendant should show what portion of the debt has been at-
tached or garnished.6
§ 597. Defenses in replevin
In action for possession of a note or for its value in the alterna-
tive, an answer, pleading that since commencement of suit the note
had been delivered by defendant and accepted by plaintiff, set up
'a valid defense, and a demurrer thereto was properly overruled.7
§ 598. Adverse possession
Where the entry of defendant on land is permissive and in privity
with the owner's title, to show adverse possession he must plead
such specific acts of disloyalty to the title or acts of dominion giving
adverse character to his possession as will preclude all want of
knowledge on the part of the owner.8
§ 599. Inconsistent defenses
A defendant may set out in his answer inconsistent defenses ; 8
but where the answer sets up repugnant or inconsistent defenses,
a denial of a fact alleged in the complaint in one part of the answer
is modified by an admission thereof in another part of the answer,
and such admission will be taken as true.10
However, an admission in an adversary's pleading, to be avail-
s Guthrie & W. B. Co. v. Rhodes, 91 P. 1119, 19 Okl. 21, 21 L. R. A. (N. S.)
490.
6 Clark v. Marbourg, 6 P. 548, 33 Kan. 471.
7 Harn v. Security Nat. Bank of Oklahoma City (Okl.) 177 P. 598.
s Acton v. Culbertson, 38 Okl. 280, 132 P. 812.
o Bilby v. Owen (Okl.) 181 P. 724 ; Metcalf v. Glaze (Okl.) 173 P. 446 ; Emer-
sou-Brantingham Implement Co. v. Ware (Okl.) 174 P. 1066.
Where defendant claims title by purchase and also claims right to posses-
sion from having paid incumbrances placed on the property by plaintiff, the
defenses are not inconsistent. New v. Smith, 145 P. 880, 94 Kan. 6, L. R. A.
1915F, 771, Ann. Cas. 1917B, 362.
10 Conwill v. Eldridge (Okl.) 177 P. 79.
A defendant, sued on a contract to accept and pay for a life insurance pol-
icy) by defending on the ground that plaintiffs had broken their promise to
pay for him a loan commission less in amount than the premium, held not to
(489)
§§ 599-601 PLEADINGS (Ch. 11
able, must be taken with all the qualifying clauses included in it; 1X
and where facts are alleged in a pleading in connection with an
admission which nullifies it, the effect as an admission is de-
stroyed.12
In action for damages from obstruction to channel of water
course, defendant may deny the existence of the channel and plead
that he had placed an embankment on his own land, and not in the
channel, and had acquired the right to maintain it by prescrip-
tion.13
In action for cancellation of deed, the sole defense of a purchase
for a valuable and paid consideration excludes a defense that the
lands in question passed by gift.1* »
§ 600. Negative pregnant
In a suit on a note wherein plaintiffs alleged the execution and
delivery of the note, a paragraph of the answer alleging that de-
fendant did not execute and deliver it is a negative pregnant, which
admits the execution of the note.15
§ 601. Defense in libel and slander
In actions of libel or slander "the defendant may allege the truth
of the matter charged as defamatory, and may prove the same, and
any mitigating circumstances, to reduce the amount of damages, or
he may prove either." 16
have admitted a liability for the difference. Woodell v. Gibson, 140 P. 107, 92
Kan. 118.
In an action to quiet title, a special answer, alleging that, when plaintiff
purchased the outstanding ad-verse title, he did it as the agent of defendant,
and that defendant was entitled to have the court decree him to be the legal
owner, modified the general denial so as to admit without further proof that
plaintiff held the legal title when the action was commenced. Elliott v. Hud-
son, 113 P. 307, 84 Kan. 7.
Estoppel. — In an action to recover money paid on the price of land for fail-
ure of defendant to comply with a contract, where defendant alleges full com-
pliance and asks for specific performance, a judgment for the balance of the
price, and offers proof of execution by himself and wife of the deed conveying
the land, he is estopped to claim in the same action that the contract for the
sale of land is void on the ground that it comprises a homestead and that the
wife failed to join in the contract. McNutt v. Nellaus, 108 P. 834, 82 Kan. 424.
11 Oklahoma Moline Plow Co. v. Smith, 139 P. 285, 41 Okl. 498.
12 Id.
is Metcalf v. Glaze (Okl.) 173 P. 446.
i* Marshall v. Grayson, 62 Okl. 45, 166 P. 86.
is Spencer v. Turney, 49 P. 1012, 5 Okl. 683.
i« Rev. Laws 1910, § 4777.
(490)
Art. 5) ANSWER . § 601
A plea of justification must justify the sting of the very charge
alleged.17
Defendant may set up as a defense bpth a general denial and that
the defamatory language used by him is true.18
Where defendant's answer admits the publication and pleads
the truth, it also admits use of the words with the meaning as-
signed to them in the petition.19
ANSWER IN LIBEL OR SLANDER SUIT
(Caption.)
Comes now the said defendant, and for his answer to the plain-
tiff's petition filed herein alleges and states :
1. That he denies each and every allegation of fact therein con-
tained.
2. That he specifically denies that on or about the day
of , 19 — , or at any other time, he spoke or published the
words as alleged in plaintiff's petition, or that he at any time spoke
or published any false or defamatory words with intent to injure
the plaintiff.
3. That the said supposed false and defamatory words, as alleged
in plaintiff's petition, are true.
4. And for a partial defense, and by way of mitigation of dam-
ages, the defendant alleges that the plaintiff had been, prior to the
time alleged in the petition, employed by defendant, and one A. B.,
being desirous of employing the plaintiff, inquired of the defendant
as to the character of the plaintiff, and the defendant then stated to
him the following matters and things : (Setting forth statements
made;) that the defendant had reasonable cause to believe, and
did believe, that said statements were true, and did not in any
other way publish the same ; that said statements were made by
defendant without malice on his part.
(Conclusion.)
17 Yorhees v. Toney, 122 P. 552, 32 Okl. 570.
For a plea of justification to be a defense to libel it must possess great cer-
tainty of averment and must justify the sting of the very charge alleged, and
it is not permissible to set up a charge of the same general nature but dis-
tinct as to the particular subject. Bodine v. Times-Journal Pub. Co., 110 P.
1096, 26 Okl. 135, 31 L. R, A. (N. S.) 147.
is Wallace v. Kopenbrink, 31 Okl. 26, 119 P. 579; Vorliees v. Toney, 122 P.
552, 32 Okl. 570.
i» Spencer v. Minnick, 139 P. 103, 41 Okl. 613.
(491)
§§ 602-603 PLEADINGS (Ch. 11
§ 602. Supplemental answer
On proper showing, leave should be granted to file a supple-
mental answer on such terms as may be just.20
SUPPLEMENTAL ANSWER
(Caption.)
Comes now the said defendant, C. D., leave of court having first
been obtained, and files this his supplemental answer to plaintiff's
petition herein, and alleges and states:
That since the filing of the defendant's answer herein, the fol-
lowing facts, material to this action and in further defense to said
petition, have arisen: ^Setting forth additional facts which it is
desired to plead.)
(Conclusion.)
DIVISION II. — GENERAL DENIAL
§ 603. Effect and sufficiency
A general denial is equivalent to a plea of nul tiel record at com-
mon law.21
An answer, which denies each and every allegation of the peti-
tion of plaintiff, is sufficient as a general denial,22 and is the usual
form; but an answer in which defendant "denies each and every
allegation in the second amended petition herein that is prejudicial
to defendant" lias been held sufficient.28
A general denial raises the question of the statute of frauds.2*
20 In ejectment, defendant, to support the title and possession claimed by
him, asked leave to file a supplemental answer setting up a title acquired sub-
sequent to the action, and offered in evidence proofs of such title. Held, that
permission to file a supplemental answer should have been granted on terms.
Peterson v. Albach, 32 P. 917, 51 Kan. 150.
21 Oliver v. Gimbel, 38 Okl. 50, 132 P. 144.
For form of general denial, see post, § 615.
22 Nix v. Gilmer, 50 P. 131, 5 Okl. 740.
23 Prunty v. Consolidated Fuel & Light Co., 108 P. 802, 82 Kan. 541. '
24 Render v. Lillard, 61 Okl. 206, 160 P. 705, L. R. A. 1917B, 1061.
A general denial has been held sufficient to raise the issue of the invalidity
of a contract under the statute of frauds. Altoona Portland Cement Co. v.
Burbank, 44 Okl. 75, 143 P. 845.
Where a party pleads an exception to toll the statutes, a general denial puts
him on proof of such allegation. Theis v. Board of County Com'rs of Beaver
County, 97 P. 973, 22 Okl. 333.
(492)
Art. 5) ANSWER §§ 603-606
In an action for conversion, a general denial puts in issue the
ownership of the property.26
§ 604. Disclaimer — Form
An unqualified general denial by defendants, who are strangers
to the mortgage, will ordinarily, in the absence of other defenses
be construed as a disclaimer.28 A general denial followed by pleas
of res judicata held not a disclaimer, where the petition did not de-
mand of such defendants a foreclosure of other interests, but alleg-
ed that they subsequently acquired an inferior interest.27 An an-
swer will not be construed as a disclaimer of interest in mortgaged
property, unless it shows an unequivocal intent to disclaim.28
DISCLAIMER
Comes now the defendant, F. S., and hereby disclaims any right,
title, interest, or estate in the real estate set out in plaintiff's peti-
tion under and by virtue of a deed or contract made by the plaintiffs
to the said J. D.
Wherefore, this defendant prays that he may go hence without
day and recover his costs herein expended.
O. B. & M.,
Attorneys for Defendant, F. S.
§ 605. Must be entered for whom
"The guardian of an infant or person of unsound mind, or at-
torney for a person in prison, shall deny, in the answer, all the
material allegations of the petition prejudicial to such defendant." 29
§ 606. Effect — By guardian ad litem
A general denial, filed by the guardian ad litem of a minor, puts
in issue every allegation of a petition, including allegations of the
execution of written instruments and other allegations which an
adult must deny under oath.30 .
25 Hopkins v. Dipert, 69 P. 883, 11 Okl. 630; Robinson v. Peru Plow & Wheel
Co., 31 P. 998, 1 Okl. 140.
26 De Watteville v. Sims, 44 Okl. 708, 146 P. 224.
27 Id.
28 Id.
2» Rev. Laws 1910, § 4752.
so Sims v. Hedges, 123 P. 155, 32 Okl. 683; Rev. Laws 1910, §§ 4752, 4760.
(493)
§§ 606-607 PLEADINGS (Ch. 11
A guardian ad litem of an infant defendant should urge every de-
fense available under the law.31
DIVISION III. — VERIFIED DENIAL,
§ 607. Verification in general
"In all actions, allegations of the execution of written instru-
ments, and endorsements thereon, of the existence of a corporation
or partnership, or of any appointment of authority, or the correct-
ness of any account duly verified by the affidavit of the party, his
agent or attorney, shall be taken as true unless the denial of the
same be verified by the affidavit of the party, his agent or attor-
ney." 82
"The verification mentioned in the last section shall not be re-
quired to the answer of a guardian defending for an infant or
person of unsound mind, or a person imprisoned." 3S
It is within the discretion of the court to permit pleadings to be
verified at the commencement of, or during the trial.34
si Iowa Laud & Trust Co. v. Dawson, 134 P. 39, 37 Okl. 593.
No presumption can be permitted against infant, but every presumption
must be indulged in his favor, and guardian ad litem or other representative
of infant must urge every question available in infant's behalf and on his
failure to do so court must see that his rights are protected. In re Sanders'
Estate (Okl.) 168 P. 197.
32 Rev. Laws 1910, § 4759.
Under the Kansas Code, providing that in cases of transfer or interest the
action may be prosecuted in the name of the original party, an averment in
the answer that plaintiff had conveyed his interest in the land since the com-
mencement of the action, which was not denied under oath was not sufficient
to bar a recovery by the plaintiff. Douglas v. Muse, 61 P. 413, 62 Kan. 865.
33 Rev. Laws 1910, § 4760.
Rev. Laws 1910, § 4760, expressly exempts the guardian of an infant or per-
son of unsound mind from the requirements of section 4759, declaring that al-
legations as to the execution of a written instrument and indorsements duly
verified shall be taken as true, unless the denial thereof is verified in like
manner. Kaufman v. Boismier, 105 P. 326, 25 Okl. 252.
Where an answer is filed jointly by the administrator and the guardian of
certain minors denying the execution of the instrument sued on, the verifica-
tion of the administrator's answer verifying his belief that the facts therein
stated are true, as authorized by Rev. Laws 1910, § 4762, is sufficient ; the ad-
ministrator not being required to verify the answer in the form required by
section 4765. Kaufman v. Boismier, 105 P. 326, 25 Okl. 252.
34 Permission to defendant at opening of trial to verify a general denial,
previously verified by his counsel, was not an abuse of discretion. State Bank
of Downs v. Abbott, 104 Kan. 344, 179 P. 326.
Where a verification of plaintiff's reply did not affect or change issues, de-
(494)
Art. 5) ANSWER § 608
§ 608. Who may verify
"If there be several persons united in interest and pleading to-
gether, the affidavit may be made by any one of such parties.
When a municipal or other corporation is a party, the verification
may be made by an officer thereof, its agent or attorney." 30
"In all cases where the party pleading is a nonresident of the
county in which the action is brought, or if he shall be absent from
the county in which the pleading is filed, an affidavit, made be-
fore filing the pleading, stating the substance of the facts after-
wards inserted in the pleading, shall be a sufficient verification.
Such affidavit shall be filed with the pleading intended to be veri-
fied thereby." 36
"Where the affidavit is made by the agent or attorney, it must
set forth the reason why it is not made by the party himself. It
can be made by the agent or attorney only :
"First. When the facts are within the personal knowledge of
the agent or attorney.
"Second. When the plaintiff is an infant or of unsound mind
or imprisoned.
"Third. When the pleading to be verified is founded upon a
written instrument for the payment of money only, and such in-
strument is in the possession of the agent or attorney.
fendant was not prejudiced by court's permission that reply be verified during
the trial. Kuykendall v. Lambert (Okl.) 173 P. 657.
Where an action is on a written contract not in the possession of plaintiff,
and the substance only is set up in the petition, and defendant by an unveri-
fied answer dtnies the averments of the petition, and the case is tried on the
theory that the terms of the contract are in issue, and afterwards, on a second
trial, where plaintiff himself attaches a copy of the contract which was, in
fact, executed, to his deposition, and swears that his action is founded on
such contract, • it is an abuse of discretion for the court to refuse to permit de-
fendant to verify its answer, and to exclude proof of the contract in fact
made, and of facts tending to, defeat plaintiff's cause of action under it. Na-
tional Mortgage & Debenture Co. v. Lash, 55 P. 846, 60 Kan. 141.
35 Rev. Laws 1910, § 4761.
3* Rev. Laws 1910, § 4763.
Gen. St. c. 95, § 112, provides that an affidavit verifying a pleading shall be
filed with the pleading intended to be verified thereby. Held, that an affidavit'
which was filed December 21, 1893, in support of a motion to dissolve an at-
tachment, cannot be considered as verifying an answer filed in the attachment
proceedings on January 6, 1894. Johnson v. Woodbury Trust Co., 64 P. 1030,
63 Kan. 880.
(495)
§ 608 PLEADINGS (Ql. 11
"Fourth. When the party is not a resident of, or is absent from
the county." 37
Under the statute providing four different grounds upon which
the required affidavit of denial can be made by the attorney or
agent, any one of the grounds is sufficient to authorize the attor-
ney to make the affidavit.88
The verification must set forth why it was not made by the party
by showing some of the grounds specified in such section ; 39 and
ST Rev. Laws 1910, § 4765.
Where allegations of a petition set up authority of an agent, a plea deny-
ing this authority, when verified by affidavit of an agent or attorney, must,
under Rev. Laws 1910, § 4765, set forfch the reasons why it is not made by the
party, and, when it does not bring the plea within any of the grounds there-
in provided, it is insufficient to raise the authority of the agent Chicago, R.
I. & P. Ey. Co. v. Mitchell, 101 P. 850, 19 Old. 579. The word "party," as used
in Rev. Laws 1910, § 4765, providing when affidavit is made by agent or attor-
ney it must set forth why it is not made by the party himself, means party to
the suit, whether a natural person or a corporation. Id.
Rev. Laws 1910, § 4759, provides that the correctness of any account duly
verified by the affidavit of the party, his agent or attorney, shall be taken as
true, unless the denial of the same shall be verified by the affidavit of the
party, his agent or attorney; and section 4765 provides that, when made by
the agent or attorney, it must set forth the reasons why it is not made by the
party himself. Held, that an affidavit denying the correctness of an account,
when made by an attorney, without setting forth the reasons why it is not
made by the party himself, is insufficient to question the correctness of the ac-
count. Board of Com'rs of Garfield Bounty v. Isenberg, 61 P. 1067, 10 Okl. 378.
Where defendant does not put in issue an allegation of the petition that
defendant is a foreign corporation, a subsequent affidavit attached to the an-
swer and sworn to by an attorney is not insufficient for failure to comply with
Rev. Laws 1910, § 4765, by showing that defendant is a foreign corporation.
St. Paul Fire & Marine Ins. Co., of St. Paul, Minn., v. Earl, 54 Okl. 305, 153
P. 867.
A verification by an attorney, which states "that he is familiar with all the
facts set out in the * * * answer, and knows the contents thereof," and
that said answer, and all the facts and allegations contained therein, are true
and correct, according to his belief, is a sufficient verification, under Code Civ.
Proc. § 114, providing that a verification can be made by an attorney, inter
alia, when the facts are within his personal knowledge. Johnson v. Wood-
bury Trust Co., 57 P. 134, 8 Kan. App. 860.
as Gibson v. Shorb, 52 P. 579, 7 Kan. App. 732.
so Aldred v. Ray, 54 Okl. 154, 153 P. 664, 7 A. L. R. 1.
The plaintiff corporation sued as the assignee of a lease executed by de-
fendant, and the answer consisted of a general denial and a special denial,
and was verified by R. as attorney and agent of the defendant. R. alleged in
his affidavit that he was familiar with all facts in the answer, and that it
was true and correct, as he verily believed. Held, that neither tne answer nor
the affidavit showed a state of facts which, under the Code, authorized R. to
(496)
Art. 5) ANSWER §§ 608-609
it should show that affiant has some personal knowledge of the
facts stated in the pleading.40
An affidavit which states that the affiant is attorney for a de-
fendant who "is a nonresident or absent from the county, and that
affiant is informed and believes that the allegations of the answer
are true, is a sufficient verification.*1
§ 609. How made — On belief
"The affidavit verifying pleadings may be made before any per-
son before whom a deposition might be taken, and must be signed
by the party making the same; and the officer before whom the
same was taken shall certify that it was sworn to or affirmed be-
fore him, and signed in his presence. The certificate of such offi-
cer signed officially by him, shall be evidence that the affidavit
was duly made, that the name of the officer was written by himself,
and that he was such officer." 42 *
In an action on a written obligation, the execution of which is
put in issue by a verified denial, the burden of proof is on the plain-
tiff, and, in the absence of any proof thereof, a demurrer to his evi-
dence should be sustained.43
Where a verified denial is filed, the execution of a written instru-
ment must be proved before the instrument can be introduced in
evidence.44
verify the answer as t !ie agent or attorney of defendant. Johnson v. Wood-
bury Trust Co., 64 P. 1030, 63 Kan. 880.
*o Aiken v. Franz, 43 P. 306, 2 Kan. App. 75.
41 Gibson v. Shorb, 52 P. 579, 7 Kan. App. 732.
42 Rev. Laws 1910, § 4764.
43 Correll v. Morgan (Okl.) 174 P. 509.
44 Moore v. Leigh-Head & Co., 48 Okl. 228, 149 P. 1129.
Civ. Code Kan. § 108, provides that in all actions allegations of the execu-
tion of written instruments and indorsements thereon shall be taken as true
unless the denial of the same be verified by affidavit. Held, in an action on
a note, that since, on a verified general denial, it devolved on plaintiff jto
prove the execution of the instrument as alleged in the petition, defendant
could show an alteration by the insertion of the figure 8 in the interest clause.
J. I. Case Threshing Mach. Co. v. Peterson, 33 P. 470, 51 Kan. 713.
Where plaintiff in replevin, in his petition, claims a special ownership in the
goods sued for by virtue of a chattel mortgage executed and delivered
to him by other parties than defendant, and defendant pleads by general de-
nial, Under oath, an issue is formed as to the execution of the mortgage, and
it is error to permit the mortgage to be introduced in evidence without proof
of its execution. Lilly v. Russell & Co., 44 P. 212, 4 Okl. 94.
HON. PL. & PRAC.— 32 (497)
§§ 609-610 PLEADINGS (Ch. 11
On a verified denial of the petition a sworn itemized statement
on which plaintiff relies is inadmissible over objection.43
Where the defendant denies under oath the execution of a poli-
cy, the burden is on the plaintiff to make prima facie' proof of exe-
cution thereof before introducing the policy in evidence.46
"The affidavit shall be sufficient if it state that the affiant be-
lieves the facts stated in the pleadings to be true." 4T
§ 610. Execution of written instruments — Indorsement
Where a petition alleges a written contract, a general denial,
which is not verified, admits the written agreement and its purport
as pleaded, as an allegation of the execution of a written instru-
ment is to be taken as true, unless denied under oath.48
This rule applies to the denial of the execution of the instrument
only, and not to a denial of the authority of the person by whom
48 Walker v. West Pub. Co., 55 Okl. 221, 154 P. 1189.
46 St. Paul Fire & Marine Ins. Co., of St. Paul, Minn., v. Earl, 54 Okl. 305,
153 P. 867.
47 Rev. Laws 1910, § 4762.
Though a positive affidavit to the correctness of an account is necessary, in
order that it may be regarded as duly verified, denial thereof is sufficient, if
supported by the oath of the affiant that he believes it to be true. Orendorff
v. Brown Bed Mfg. Co., 173 P. 281, 103 Kan. 183, Rev. Laws 1910, § 4762.
48 Atchison, T. & S. F. R. Co. v. Bell, 34 P. 350, 52 Kan. 134; St. Louis & S.
F. R. Co. v. Driggers (Okl.) 166 P. 703 ; City of Eufaula v. Oklahoma Corrugat-
ed Steel & Iron Co. (Okl.) 166 P. 881; Twist v. Colonial Trust Co., 53 Okh 800,
158 P. 938; Ince Nursery Co. v. Sams (Okl.) 177 P. 370; Owen v. United States
Surety Co., 38 Okl. 123, 131 P. 1091; Continental Ins. Co. v. Pratt, 55 P. 671, 8
Kan. App. 424.
Where an instrument not required by statute to be attached as an exhibit i>>
attached to a petition, and its execution is alleged and its substance pleaded,
its execution will be taken as admitted, if not denied under oath on trial.
Long v. Shepard, 130 P. 131, 35 Okl. 489.
In an action on a note by the assignee under a written indorsement execut-
ed before maturity and indorsed on the note, where a copy of the note and
indorsement thereon is attached to the petition as an exhibit, and the original
note and indorsement is introduced in evidence and the answer is not verified
by defendant's affidavit, the execution of the note and the indorsement is ad-
mitted. Commonwealth Nat. Bank of Dallas, Tex., v. Baughman, 111 P. 332,
27 Okl. 175.
In an action on written contracts binding defendant, among other things,
to make an unconditional payment of money, an unverified answer leaves de-
fendant practically in default. Read v. Dodsworth, 147 P. 799, 95 Kan. 117.
Under Code Civ. Proc. § 110 (Gen. St. 1909, § 5703), the omission to verify
the denial of a statement in a petition that owner of mortgaged realty had
conveyed it to defendant by deed whereby grantee assumed incumbrauce was
(498)
Art. 5) ANSWER § 610
it was executed.49 It has been held that, where the execution of a
chattel mortgage is properly alleged in a petition, and is not denied
under oath, it is not material error for the court to admit a copy
thereof in evidence, though it may not be duly authenticated.50
The statute providing that allegations of the execution of writ-
ten instruments shall be taken as true unless there is a verified
denial does not preclude defendant from pleading in an unverified
answer and proving that he signed the contract, but that his signa-
ture was procured by the fraud of plaintiff;51 nor that the mort-
gage under which plaintiff claims is void, for the reason that one
of the parties thereto was insane at the time it was executed,52 nor
does it preclude him from establishing that the chattel mortgage
sued on was fully paid prior to the commencement of the action
to replevin property therein named.53
It has been held that the validity of a tax deed, good upon its
face, may be put in issue by an unverified pleading.54 But where,
in an action for a breach of warranty in a deed, the petition sets
out that, at the date of such deed, there were outstanding valid tax
certificates against the premises, that such certificates were duly
assigned and taxes paid thereon, and tax deeds issued, and pur-
chased by plaintiff, an unverified general denial does not put in
issue the regularity of such tax proceedings, but admits it.55
When the allegations of the execution of a contract of agency
are not denied, but the illegality of the contract is pleaded, a veri-
fication is unnecessary.56
equivalent to an admission that such deed was executed. McAndrew v. Sowell,
163 P. 653, 100 Kan. 47.
Verified answer held not to join issue of fact as to execution of note and
mortgage, so that it was not error to admit them without first proving their
execution. Garnett v. Storm, 64 Okl. 137, 166 P. 401; Pine v. Western Nat.
Bank, 65 P. 690, 63 Kan. 462.
49 Hilsmeyer v. Blake, 125 P. 1129, 34 Okl. 477; Flesher v. Callahan, 122 P.
489, 32 Okl. 283.
BO Handley v. Harris, 29 P. 1145, 48 Kan. 606, 30 Am. St. Rep. 322, 17 L. R.
A. 703.
si St. Louis Jewelry Co. v. Bennett, 90 P. 246, 75 Kan. 743.
B2 State Bank of St. John v. Norduff, 43 P. 312, 2 Kan. App. 55.
ss Nutt v. Humphrey, 3 P. 787, 32 Kan. 100.
B* Curtis v. Schmehr, 76 P. 434, 69 Kau. 124.
5:- Walker v. Fleming, 14 P. 470, 37 Kan. 171.
56 Alexander v. Barker, 67 P. 829, 64 Kan. 396.
Where a petition sets forth a. cause of action upon a verbal contract, and
the answer denies the same, and properly alleges a written contract, and the
(499)
§ 610 PLEADINGS (Ch. 11
In an action to rescind a contract made under duress for the
purchase of land and for cancellation of a note, the issue of duress
and illegality of the note raised by the pleadings and established
prima facie by plaintiff's evidence makes a judgment for defendant
on his cross-petition improper, although plaintiff's answer there-
to is not verified.57
Failure to deny the execution of an administrator's deed under
oath does not admit the validity o£ the proceedings on which it is
based.58 An allegation that a party is the owner of real property
under a valid and legal deed of conveyance duly executed describes
no written instrument whose execution is to be held admitted un-
less denied under oath.59
When the answer alleges the execution of a written contract con-
cerning the matters in difference between the parties, and no de-
nial thereof is made under oath by plaintiff, the execution of such
contract is admitted, together with all natural inferences to be
made therefrom.00
Allegations as to the execution of written instruments and in-
dorsements thereon are taken as true, unless the denial is verified
by affidavit.61 Unless the indorsements of written instruments
are specifically alleged in the petition, issues may be raised there-
on by an unverified denial.62
reply thereto is not verified, but contains an allegation that the execution of
the written contract was procured by fraud and misrepresentation, an ob-
jection to the introduction of evidence, made by the defendant, is properly
overruled, as an issue was raised by the reply. Missouri Pac. Ry. Co. v.
McGrath, 44 P. 39, 3 Kan. App. 220.
57 Bushey v. Coffman, 173 P. 341, 103 Kan. 209.
68 Q'Keefe v. Behrens, 85 P. 555, 73 Kan. 469, 8 L. R. A. (N. S.) 354, 9 Ann
Gas. 867.
r»Id.
eo Chicago, B. & Q. R. Co. v. Imhoff, 45 P. 627, 3 Kan. App. 765.
Where written document is pleaded as defense, unverified reply does not
put in issue execution of such instrument, and there is no necessity for proving
it on trial. St. Louis & S. F. R. Co. v. Driggers (Okl.) 166 P. 703.
Under Rev. Laws 1910, § 4759, allegations of the execution of a written re-
lease set up in the answer will be taken as true, unless denied by verified
reply. St. Louis & S. F. R. Co. v. Brunei-, 52 LOkl. 349, 152 P. 1103.
61 J. I. Case Threshing Mach. Co. v. Rennie (Okl.) 177 P. 548.
62 Berry v. Oklahoma State Bank, 50 Okl. 484, 151 P. 210, L. R. A. 1916A,
731.
In an action on a guaranty of payment of a note and interest coupons by
one other than the payee, where the petition alleged that the plaintiff was
(500)
Art. 5) ANSWER §§ 610-611
Rev. Laws 1910, § 4759, requires a specific allegation, independ-
ent of exhibits, of the indorsements on written instruments, be-
fore defendant is required to deny same under oath.
An allegation of indorsement of bills of exchange is not put in
issue by a verified allegation in the answer denying that the bills
were transferred and indorsed to plaintiff for value before ma-
turity.63 There is no presumption of want of authority to indorse
the name of a payee on a bill of acceptance, by means of a rub-
ber stamp, where the indorsee suing thereon alleges due indorse-
ment ; such allegations being taken as true, unless a denial there-
of is duly verified.6*
§ 611. Appointment or authority •
An allegation of an agency in a pleading must be taken as true
unless denied under oath; but, if no objection is made to the in-
troduction of evidence to prove or disprove agency, then this stat-
utory requirement is waived, and in such a case it is the duty of
the court to submit the issue of agency as though the pleading
denying agency was verified ; 65 and failure to deny under oath al-
legations of the appointment or authority of a public officer is an
admission of the title of the officer to the office as alleged and of
his power and authority to perform the duties and functions there-
of.66
the owner and holder of the note and coupons, but did not allege the execu-
tion of a written indorsement of the same, an unverified general denial puts
the ownership of the paper in issue. Southern Kansas Farm Loan & Trust
Co. v. Barnes, 66 P. 638, 63 Kan. 548.
es Metropolitan Discount Co. v. Davis (Okl.) 170 P. 707, 7 A. L. R. 670.
e* Metropolitan Discount Co. v. Davis (Okl.) 170 P. 707, 7 A. L. R. 670.
65 Burford v. Hughes, 75 Okl. 150, 182 P. 689; Knudson v. Fenimore (Okl.)
169 P. 478, L. R. A. 1918C, 18.1; Ince Nursery Co. v. Sams (Okl.) 177 P. 370;
Hughes v. Carlton, 48 P. 444, 5 Kan. App. 386; Arkansas City Bank v. Mc-
Dowell, 52 P. 56, 7 Kan. App. 568; Terry v. Anderson, 51 P. 800, 6 Kan. App.
921; Ft. Smith & W. R. Co. v. Solsherger, 38 Okl. 40, 131 P. 1078; McCabe &
Steen Const. Co. v. Wilson, 87 P. 320, 17 Okl. 355, judgment affirmed 28 S. Ct.
558, 209 U. S. 275, 52 L. Ed. 788.
A general allegation of agency, when not denied under oath, will be pre-
sumed without proof to be an agency with such authority as is- charged in
the pleading. Gaar, Scott & Co. v. Rogers, 46 Okl. 67, 148 P. 161.
ee City of Ardmore v. Sayre, 54 Okl. 779, 154 P. 356.
Under Rev. Laws 1910, § 5427, an allegation of the bill of particulars that
plaintiff was employed by the defendant city as "secretary to the mayor" will
be taken as true when not denied by affidavit. Oklahoma City v. Saunders,
46 Okl. 1, 147 P. 1191.
(501)
§ 611 PLEADINGS (Ch. 11
Where a petition avers that plaintiff is the duly appointed, acting
guardian of certain minors, an unverified answer admits such
guardianship.67
In an action by a widow to recover for the death of her husband,
who was a resident of the state, an allegation that no personal rep-
resentative of his estate had been appointed is put in issue by the
unverified denial, and without proof of such fact a demurrer to
the evidence is rightfully sustained; such right to sue not being
an "appointment,"1 or an "authority." 68 But a failure to deny un-
der oath an allegation of plaintiff that defendant, through an agent,
did a certain act, is not admission that defendant did the act com-
plained of.69 Nor is an allegation in a pleading of the nonexist-
ence of authority to be taken as true because the denial of the same
is not verified.70
In an action against a corporation for personal injuries in being
struck by defendant's automobile, allegations in the petition that
the automobile was under the care of defendant's servant who con-
trolled it, together with defendant's failure to verify the answer,
would not constitute an admission of the truthfulness of the alle-
gations of the petition.71
An allegation that one had full authority to act for himself is
not to be taken as true when not denied under oath.72
An allegation that plaintiff is the holder of the note sued on may
be put in issue by an unverified answer, where the note does not
show plaintiff's ownership.73
6T Kerr v. McKinney (.Okl.) 170 P. 685; Tate v. Stone, 130 P. 296, 35 OkL
369.
es Vaughn v. Kansas City N. W. R. Co., 70 P. 602, 65 Kan. 685.
69 Leavenworth Light & Heating Co. v. Waller, 70 P. 365, 65 Kan. 514, re-
versing judgment Waller v. Leavenworth Light & Heating Co., 61 P. 327, 9 Kan.
App. 301; Missouri Pac. Ry. Co. v. Finley, 16 P. 951, 38 Kan. 550; Swofford
Bros. Dry Goods Co. v. Berkowitz, 51 P. 796, 7 Kan. App. 24.
To.winfield Land & Trust Co. v. Burger, 30 P. 476, 49 Kan. 233; Atchison, T,
& S..F. R. Co. v. Walz, 19 P. 787, 40 Kan. 433.
71 Oklahoma Automobile Co. v. Benner (Okl.) 174 P. 567.
A petition in action for injury by defendant's automobile driven by .his
daughter, alleging her general authority to use it for herself and friends, and
that she was then acting under such authority held not to allege her agency,
so as to require a denial under oath. Stafford v. Noble, 105 Kan. 219, 182 P.
650.
72 Washbon v. State Bank of Holton, 121 P. 515, 86 Kan. 468.
73 Shipman v. Porter, 48 Okl. 265, 149 P. 901, 902.
In action on note by one other than the payee, where nothing appears by in-
(502)
Art. 5) ANSWER §§ 611-612
However, in the payee's action against the maker, an unverified
answer admitting execution and delivery of the note sued on, but
alleging that the payee is not the owner and holder thereof, states
no defense.7*
§ 612. Account
To relieve plaintiff from proving an open account as against a
general denial, it is essential, not only that a properly verified copy
of the account be attached to the petition, but that the petition al-
lege its correctness.75
Failure to deny under oath a verified account admits only its ac-
curacy, and not its legality.76
Defendant need not deny under oath an unintelligible verified
statement of account.77
Where a plaintiff attaches a duly verified account to his petition,
but does not specifically allege in the petition that the account is
correct, the defendant is not required to deny the correctness of
the account under oath, but may raise the issue by a general de-
nial.78 The statute requires, not only that a verified account be
dorsement, etc., to indicate the ownership of the note, an allegation that plain-
tiff is the owner and holder may be put in issue Jt>y an unverified answer.
Southwest General Electric Co. v. Eiddle (Okl.) 168 P. 436.
7* Burling v. Stinnett, 46 Okl. 159, 148 P. 140.
75 El Reno Vitrified Brick & Tile Co. v. C. W. Raymond Co., 46 Okl. 3S8, 148
P. 1000.
The petition must allege the correctness of the verified account attached.
A verification of the petition which includes a statement of the account is
not sufficient. Myers v. First Presbyterian Church of Perry, 69 P. 874, 11 Okl.
544.
Where there is no allegation in a pleading of the correctness of a verified
account attached thereto, there can be no denial thereof, and the account is at
issue under the general denial. Haldeman v. Johnson, 54 P. 507, 8 Kan. App.
473.
76 Hill v. Board of Com'rs of Republic County, 160 P. 9S7, 99 Kan. 49.
Under Gen. St. 1889, par. 4191, which provides that "in all actions allega:
tions of * * * the correctness of any account duly verified * * *
ehall be taken as true, unless the denial of the same be verified," etc., it is
not necessary that an answer should be verified in order to raise the
issue of the maturity of the account; and, where its correctness is not de-
nied, evidence may be introduced to show it is not due, though the petition
is verified, and the answer is not. Johnston v. Johnson, 44 Kan. 666, 24 P.
1098.
77 Continental Gin Co. v. Sullivan, 48 Okl. 332, 150 P. 209.
78 Miners' Supply Co. v. Chesnutt-Gibbons Grocer Co., 50 Okl. 151, 150 P. 686.
(503)
§§ 612-613 PLEADINGS (Ch. 11
attached to a petition, but that the petition specifically allege its
correctness before defendant is required to deny it under oath,
otherwise a general denial is sufficient.79
An answer which does not question the correctness of a verified
account as set forth in the petition, but which sets up an affirma-
tive defense, need not be verified.80
§ 613. Corporation and partnership
"In all civil actions brought by or against a corporation, it shall
not be necessary to prove on the trial of the cause the existence
of such corporation, unless the defendant shall in his answer ex-
pressly aver under oath that the plaintiff or defendant is not a
corporation." 81
79 Id.
The correctness of plaintiff's account is not admitted by defendant's failure
to deny it under oath when the petition contains no allegation of its correct-
ness, though a verified account is attached to the petition. Dewey v. Burton,
46 P. 321, 4 Kan. App. 582.
Under Wilson's Rev. & Ann. St. 1903, § 4312, providing that, where the
correctness of accounts is duly verified, it shall be taken as true unless the
denial is verified, where the verification of an account contains no allegation
of its correctness, it does not require the answer to be verified. Sawyer & Aus-
tin Lumber Co. v. Champlain Lumber Co., 84 P. 1093, 16 Okl. 90.
Under Civ. Code, § 108, providing that the correctness of an account verified
by affidavit of the party or -his attorney shall be taken as true, unless the
denial of the same be verified in a similar manner, the correctness of an ac-
count set up_by defendant as a counterclaim is not admitted by the failure of
plaintiff to deny the same under oath, when the correctness thereof is not al-
leged in the answer. McMath v. Beal, 45 P. 1103, 4 Kan. App. 565.
A verified counterclaim by defendant in trespass alleged that defendant was
to have one-half the crops raised by plaintiff on the premises, and that plain-
tiff converted the whole of such crops to his own use. The amount of the
crops which defendant would have received was itemized. Held, that the
counterclaim was not a statement of account, to be taken as true unless the
denial thereof was verified. Kauter v. Fritz, 47 P. 187, 5 Kan. App. 756.
. so Sawyer & Austin Lumber Co. v. Champlain Lumber Co., 16 Okl. 90, 84 P.
1093.
The fact that a verified account sued on is not denied by a verified affida-
vit does not preclude defendant J rom interposing any defense pleaded which
does not involve a denial of the reasonableness of the amounts 'charged or
the correctness of the items; but defendant may show that plaintiff agreed
to charge nothing for the work, or that the account was paid. Lucas v. Board
of Com'rs of Ford County, 73 P. 56, 67 Kan. 418.
si Rev. Laws 1910, § 12SO.
Unless it is alleged in the answer under oath that plaintiff is not a corpora-
tion, plaintiff need not prove that it is a corporation. Marshall Mfg. Co. v.
(504)
Art. 5) ANSWER §§ 613-615
"Whenever any suit shall be instituted by an incorporated town
it shall not be required to show its compliance with any of the
provisions of law as to its organization or publication of by-laws
or ordinances, unless the same is controverted by affidavit." 82'
Where the petition alleges that a third person wa? the agent of
defendant, and such allegation is not denied, it will be treated as
admitted.83
Where petition alleges sale of goods to defendants as partners,
one defendant's denial under oath that she owed plaintiff anything,
and of existence of partnership, admits correctness of account, but
not her indebtedness thereon, and, to recover, plaintiff will be re-
quired to show either a personal or partnership liability.84
An unverified denial of an allegation of existence of a partner-
ship is ineffectual, and presents no defense to an action against
such partnership.86
•
§ 614. Waiver
The provision that allegation of indorsement on written instru-
ments, not met by a verified denial, shall be taken as true, may be
waived by the pleader's introducing evidence thereon.89
§ 615.- Forms
GENERAL DENIAL- — VERIFIED DENIAL OF NOTE SUED ON
(Caption.)
Comes now the said defendant, G. H. & Co., a corporation, and
files its answer to the petition of plaintiffs filed herein, and states :
1. The defendant, answering the first alleged cause of action
set forth in the petition herein, denies each and every allegation
Dickerson, 65 Okl. 188, 155 P. 224; First Nat. Bank of Tishomingo v. Latham,
132 P. 891, 37 Okl. 286.
82 Rev. Laws 1910, § 676.
ss j. j. Case Threshing Mach. Co. v. Mbsley (Okl.) 173 P. 208.
s* Watson-Durand-Kasper Grocery Co. v. Scheetz, 163 P. 168, 99 Kan. 772.
ss Miles v. Grosman Co. (Okl.) 173 P. 808.
se Spaulding v. Thompson, 60 Old. 136, 159 P. 509.
Verification of the answer in an action on a written instrument is waived,
notwithstanding Code Civ. Proc. § 110 (Gen. St. 1909, § 5703), where plaintiff
joins issue, introduces evidence contradicting the defense, and asks instruc-
tions relative thereto. Emery v. Bennett, 155 P. 1075, 97 Kan. 490, Ann. Cas.
1918D, 437.
(505)
§ 615 PLEADINGS (Cll. 11
therein contained, except such as are hereinafter specifically ad-
mitted.
2. The said defendant admits that it is a corporation organized,
existing, and doing business under and by virtue of the laws of
the state of Oklahoma.
3. The defendant, answering the second alleged cause of action
set forth in the petition herein, denies each and every allegation
therein contained, except such as are hereinbefore specifically ad-
mitted.
4. Further answering the second alleged cause of action set
forth in the petition herein, defendant specifically denies that it
made, executed, or delivered the promissory note and mortgage al-
leged in said second alleged cause of action, or that the authorized
agent of defendant made, executed and delivered the same.
(Signature) Attorney for Defendant.
State of Oklahoma, ]
County of
X. Y., being first duly sworn, says : That he is an officer, to wit,
the president, of the defendant corporation; that he has read the
foregoing answer and knows the contents thereof; and that the
same is true of his own knowledge.
(Signature.)
Subscribed and sworn to before me this day of ,
19—.
(Seal.) (Signature) Notary Public.
My commission expires , 19 — .
VERIFIED DENIAL OF THE CORRECTNESS OF THE ACCOUNT SUED ON
(Caption.)
Comes now the said defendant, E. F., and for his answer to the
petition of plaintiff filed herein denies each and every allegation
therein contained, and specifically denies the correctness of the
verified account sued on,
(Signature) Attorney for Defendant.
State of Oklahoma,
County of
-, being first duly sworn, states: That he is the defendant
(or attorney or agent for the defendant^ in the above entitled ac-
(506)
Art. 5) ANSWER §§ 615-617
tion, and that the above and foregoing statements in denial are
true. (Signature.)
Subscribed and sworn to before me this day of ,
19—. .
(Seal.) (Signature) Notary Public.
My commission expires , 19 — .
DIVISION IV. — COUNTERCLAIM AND SET-OFF
§ 616. Counterclaim — Nature — Right to interpose — Set-off — Lim-
itations
"The counterclaim mentioned in the last section must be one
existing in favor of a defendant and against a plaintiff, between
whom a several judgment might be had in the action, and arising
out of the contract or transaction set forth in the petition as the
foundation of the plaintiff's claim or connected with the subject of
the action or on account of a wrongful attachment or garnishment
issued and levied in said action after the same has been set aside.
The right to relief concerning the subject of the action mentioned
in the same section must be a right to relief necessarily or properly
involved in the action for a complete determination thereof, or set-
tlement of the question involved therein. Provided, that either
party can plead and prove a set-off or counterclaim of the proper
nature, in defense of the liability sought to be enforced by the other
party, and it shall not be necessary that such set-off shall exist as
between all parties plaintiff and defendant in such suit, but any
party may enforce his set-off or counterclaim against the liability
sought to be enforced against him. Such set-off or counterclaim
shall not be barred by the statutes of limitations until the claim of
the plaintiff is so barred." 87
§ 617. Set-off — Right to interpose
"A set-off can only be pleaded in an action founded on contract,
and must be a cause of action arising upon contract or ascertained
by the decision of a court." 88
ST Eev. Laws 1910, § 4746.
ss Rev. Laws 1910, § 4747.
. Contract and tort. — In an action on a contract defendant may set off or
plead as a defense thereto any claim arising to him by virtue of any contract
with plaintiff. Mowatt v. Shidler (Okl.) 168 P. 1169. In suit for price of
(507)
§ 617 PLEADINGS (Ch. 11
While the principal debtor may set ©ff a debt due from the maker
to him in an action against him and his surety jointly, his surety
cannot do so on his own motion, unless he shows the insolvency of
•
land and to establish a vendor's lien, where defendant pleaded as a set-off an
indebtedness from plaintiff, evidenced by a note and account, instruction that
he could not set it off unless there was an agreement that debt should be set
off as part of consideration for property, held error. Id.
In an action on a note given for the price of machinery, where the property
was returned under the contract, defendant Was entitled to a credit for the
reasonable value of the property when it was returned to plaintiff. Wade v.
Ray, 139 P. 116, 41 Okl. 641.
A claim on an implied contract is not allowable to defendant as a set-off
in an action sounding in tort. Nation v. Planters' & Mechanics' Bank, 119
P. 977, 29 Okl. 819.
Where plaintiff states such facts as are necessary to sustain an action to
recover chattels on the implied contract, and none showing a purpose to rely
on the tort, except in using the words, "did convert the same to her own use
and benefit," and alleges that he is the owner, the character of ownership,
the taking of the chattels for defendant's benefit, and their value, a demand
for the value, a refusal, and a prayer for recovery of the alleged value, there
being no specific allegation of fraud, wrong, or injury to plaintiff by reason
of the tort, but the amount claimed being confined to the alleged value, de-
fendant may treat the action as ex contractu, and where defendant pleads
set-off, and plaintiff replies, evidence of set-off is properly admitted. Smith
v. McCarthy, 18 P. 204, 39 Kan. 308.
A railroad company sued its former treasurer for moneys alleged to be-
long to the company, and to have been received by him as treasurer, and
wrongfully appropriated by him to his own use. It appeared that he appro-
priated the same in payment of certain claims which he held against the com-
pany, the claims being founded on contract. Held, that he might set off such
claims against the claim of the railroad company so far as they were legal
and valid. St. Louis, Ft. S. & W. R. Co. v. Chenault, 12 P. 303, 36 Kan. 51.
Damages arising out of an actionable tort in a land trade cannot be set off
or counterclaimed in an action on a contract which was distinct from the
transaction in which the tort was committed. Hazlett v. Wilkin, 140 P. 410,
42 Okl. 20.
A cause of action accruing to defendant for damages resulting from a con-
spiracy between plaintiff and another to bring an unjustifiable suit against
him, and the bringing of such suit in pursuance of the conspiracy, cannot be
set up as a counterclaim in answer to plaintiff's demand, as it does not arise
out of the contract which is the foundation of plaintiff's claim. First Nat.
Bank v. Hasie, 48 P. 22, 57 Kan. 754.
Waiver of tort. — In an action on a note by the payee, the maker, who
alleges that his employs owns the real interest 4n the note, may set off a claim
against such employe for goods embezzled by the latter, such claim being one
on implied contract, since the employer could waive the tort and sue the agent
on contract. Challiss v. Wylie, 11 P. 438, 35 Kan. 506.
A railroad company sued its former treasurer for moneys alleged to belong
to the company, and to have been received by him as treasurer, and wrong-
(508)
Art. 5) ANSWER § 618
his principal and his inability to obtain relief either in an action
against him or as a defense to an action on the note.89
§ 618. Defined and distinguished — Statute applied
A counterclaim is a cause of action existing in favor of a defend-
ant and against a plaintiff, between whom a several judgment
might be had in the action, and arising out of the contract or trans-
action set forth in the petition as the foundation of plaintiff's claim,
or connected with the subject of the action.90
A set-off is a cause of action arising upon contract or ascertained
by 'the decision of a court, and can only be pleaded in an action
founded on contract. It must be independent of, and not connected
with, the contract made the foundation of the cause of action in the
petition, and can only be pleaded where there is mutuality of par-
ties. The cause of action sought to be pleaded as a set-off must
exist in favor of all the defendants against the plaintiff.91
fully appropriated by him fully delayed a train, for the purpose of injuring
it, was founded on contract; nor could the company waive the torts for the
purpose of recovering as for breach of contracts. Atchison, T. & S. F. R. Co.
v. Phelps, 46 P. 183, 4 Kan. App. 139.
as Willoughby v. Ball, 90 P. 1017, 18 Okl. 535.
so Richardson v. Penny, 61 P. 584, 10 Okl. 32.
9i Id.
Counterclaim,. — A "counterclaim" is the claim of a defendant to recover
from a plaintiff by setting up and establishing any cross-demand which may
exist in his favor as against plaintiff. Drovers' State Bank v. Elliott, 154 P.
255, 97 Kan. 64.
Defendant may prove counterclaim arising out of contract or transaction
alleged as foundation of claim, or connected with subject of action. Cooper
v. Gibson (Okl.) 170 P. 220.
A counterclaim need not simply defeat plaintiff's recovery or reduce the
amount thereof, but, is something of a legal or equitable nature arising out of
the contracts or transactions set forth in the petition giving defendant a right
to relief necessarily or properly involved in a complete determination of the
action. Hodge v. Bishop, 151 P. 1105, 96 Kan. 419.
In an action on a contract, defendant may plead as a counterclaim any
cause of action arising on contract which he may have against plaintiff. Orr
v. Gerrold, 57 P. 48, 8 Kan. App. 441.
A counterclaim secures to defendant full relief, which a separate action at
law or a bill in chancery or a cross-bill would have secured for him on an
allegation and proof of the facts, but relates only to such causes of action as
exist against plaintiff and which might be basis of an action against him by
defendant. Mathews v. Sniggs, 75 Okl. 108, 182 P. 703.
It is not necessary that a counterclaim should be founded in or arise out of
the contract set forth in the petition; it being sufficient if it arises out of
(509)
§ 618 PLEADINGS (Ch. 11
the transaction set forth in the petition, or is connected with the subject of
the action. Wyman v. Herard, 59 P. 1009, 9 Okl. 35.
In an action for plastering a house, where defendant pleaded a counter-
claim, alleging damages on account of plaintiff's unskillful workmanship in
constructing a foundation for the house, it must be shown by defendant that
the contract for building such foundation was a part of the same contract or
transaction under which the plastering of the house was done. Allison v.
Shinner, 54 P. 471, 7 Okl. 272.
The answer, in an action for rent, held to present a proper counterclaim,
where it asked that defendant's wife be made a party and be adjudged to
have an equitable title to the land, and that plaintiff be required to carry out
the contract in which the title originated. Hodge v. Bishop, 151 P. 1105, 96
Kan. 419.
In action on building contract, defendant may elect to counterclaim against
contractor for damages from failure to perform contract, instead of defend-
ing against any recovery because of such failure to perform. Brown v. Tull
(Okl.) 164 P. 785.
A chattel mortgagor may counterclaim, in replevin to recover the goods un-
der the mortgage securing the purchase p^rice, for damages for fraud in the
sale. Miller v. Thayer, 150 P. 537, 96 Kan. 278.
Where the answer of defendant in ejectment alleged that he had a lease
for a term of years, and that plaintiff was in unlawful possession and un-
lawfully withholding the premises from defendant, and prayed judgment for
possession and for damages, that part of the answer claiming interest in the
land and asking affirmative relief was a counterclaim. Long v. Bagwell, 38
Okl. 312, 133 P. 50.
Where a plaintiff files a petition in ejectment, and defendant in his answer,
in addition to a general denial, states he is in possession of the same land, and
claims to be the owner thereof by virtue of a tax deed, and asks that his title
thereto may be quieted against plaintiff, that part of his answer claiming title
in himself, and asking affirmative relief, is a counterclaim, within Code, § 95,
defining a counterclaim as> a demand existing in favor of defendant and
against plaintiff arising out of the transaction sued on. Venable v. Dutch, 15
P. 520, 37 Kan. 515, 1 Am. St. Rep. 260.
A mortgagor may, in replevin by the mortgagee, plead as a counterclaim
the breach of a contract by the mortgagee to buy the goods and pay the dif-
ference between the amount of the mortgage and the agreed price of the goods.
Deford v. Hutchison, 25 P. 641, 45 Kan. 318, 11 L. R. A. 257, judgment modi-
fied, 26 P. 60, 45 Kan. 332.
In an action to recover damages for the removal of a house from real es-
tate upon which plaintiff claimed a mortgage, defendants answered by a
general denial, and set up a counterclaim, alleging that they had been pre-
vented from making a loan by reason of the bringing of such action, and had
been thereby damaged. Plaintiff failed to reply or appear, and the court ren-
dered judgment in favor of defendants upon such answer. Held error, as
the answer did not set up facts sufficient to constitute a counterclaim, the facts
having arisen, not from the same transaction involved in the action, but from
the bringing of the action. Kansas Loan & Investment Co. v. Hutto, 29 P.
558, 48 Kan. 166.
In an action by a mortgagee against the mortgagor for possession of a
traction engine and other chattels, the mortgagor cannot recover on a coun-
(510)
Art. 5) ANSWER § 619
§ 619. Subsisting right
The validity of a counterclaim or set-off is determined by whether
it would constitute a cause of action by defendant against plaintiff,
had plaintiff not sued.92
terclaini for damages resulting from failure of the mortgagee to deliver the
engine at the time agreed upon, where the mortgage and the notes secured
thereby were given by the mortgagor after the delivery of the engine for
which the same were executed, without objection on account of the delay in
its delivery. Frick Co. v. Stephens, 53 P. 378, 7 Kan. App. 745.
In suit on supersedeas bond, defendant's damages from an unlawful at-
tachment in the action in which bond was executed were not proper subject
for counterclaim within Rev. Laws 1910, § 4746. Brisley v. Mahaffey, 64 Okl.
319, 167 P. 984.
Under Rev. St. 1910, § 4746, limiting the use of a counterclaim, a note from
plaintiff to a stranger to the suit, and assigned to defendant, cannot be used
as a counterclaim where it is in no way connected with, and has no relation
to, the contract or transaction made the basis of plaintiff's suit. First Nat.
Bank v. Thompson, 137 P. 668, 41 Okl. 88.
In an action for installing a plumbing system and for extras held that mat-
ter arising out of a contract, distinct from that sued on, did not constitute a
proper counterclaim under Rev. Laws 1910. §§ 4745, 4746. Harris V. Warren-
Smith Hardware Co., 44 Okl. 477, 144 P. 1050.
Under Rev. Laws 1910, § 4746, plaintiff cannot plead as counterclaim in ac-
tion on notes unliquidated damages from unlawful suing out of attachment in
former suit in settlement of which notes were executed. Phillips v. Har-
gadine-McKittrick Dry Goods Co., 59 Okl. 294, 159 P. 320.
S&t-off. — A "set-off" is a demand which a defendant makes against the
plaintiff in a suit to liquidate the whole or a part of his claim. Drovers' State
Bank v. Elliott, 154 P. 255, 97 Kan. 64.
Where a person agrees on certain conditions to be performed by a bank to
indorse all notes held by the bank, to 55 per cent, thereof, and makes a spe-
cial deposit in the bank to secure performance, he is entitled, on failure of
the bank to comply with the conditions, to any part of such deposit which has
not been properly applied under the agreement, and may set off same in an
action against him by the bank on a note. First State Bank of Indiahoma v.
Menasco, 55 Okl. 748, 155 P. 261.
Under the statute limiting the use of a set-off (Rev. St. 1910, § 4746), a de-
fendant, in an action for conversion, cannot set off a note given by plaintiff
to a stranger to the suit, and assigned to him. First Nat. Bank v. Thomp-
son, 137 P. 668, 41 Okl. 88.
In an action on a contract, a defendant may plead as a set-off any cause
of action arising on contract which he may have against plaintiff. Orr v.
Gerrold, 57 P. 48, 8 Kan. App. 441.
In an action on a note, held permissible to set up a cross-demand for dam-
ages for the wrongful taking and injury by plaintiff of a horse belonging to
defendants. Ontjes v. Rhodenbaugh, 132 P. 211, 89 Kan. 533.
92 Johnson v. Acme Harvesting Mach. Co., 103 P. 638, 24 Okl. 468.
(511)
§§ 619-620 PLEADINGS (Ch. 11
There must be a subsisting right in defendant.98
An unadjudicated sum due on open account cannot be set off
against a judgment.94
§ 620. Equity
Equity can allow a set-off of debts independently of statute where
grounds of equitable interposition are shown, such as fraud, insol-
vency, or nonresidence, rendering it probable that party will lose
his demand and be compelled to pay other demand.95
A counterclaim may likewise be allowed.96
os in a purchaser's action against real estate brokers for purchase money
paid for land which proved deficient in quantity, the brokers could not offset
a sum paid by them to an occupant of the premises to place themselves in po-
sition to deliver possession, where such payment was made, not for plaintiff's
benefit, but to secure the profit they expected to make on the transaction. Hur-
ford v. Norvall, 39 Okl. 496, 135 P. 1060.
In a carrier's action to recover an undercharge, held, that a set-off could not
be allowed for damages on another shipment, where such other shipment was
made under a contract prescribing conditions precedent to the allowance of
damages, and such conditions had been disregarded. Chicago, R. I. & P. Ry.
Co. v. Theis, 152 P. 619, 96 Kan. 494.
Where a defendant did not intend to charge the plaintiff anything for va-
rious items when they were furnished, and so testified, he cannot after an ac-
tion has been commenced, make charges for them, and recover thereon. Col-
lins v. Martin, 23 P. 95, 43 Kan. 182.
In an action on an order to let F. have meat from the 1st of May until fur-
ther orders, an item of $63.25 which one of plaintiffs, on cross-examination,
admits was for meat sold to F.'s husband before the 1st of May, should not
be offset against a bill which plaintiffs owe defendant. McNeely v. Duff, 31
P. 1061, 50 Kan. 488.
»4 Colcord v. Conger, 62 P. 276, 10 Okl. 458.
95 Caldwell v. Stevens, 64 Okl. 287, 167 P. 610, I>. R. A. 1918B, 421.
Equity may allow set-offs of mutual demands where such relief is necessary
to enable party claiming it to collect his claims, and, where other equitable
grounds exist, the insolvency of the party against whom the relief is sought
will authorize such equitable remedy. Scrivner v. McClelland, 75 Okl. 239,
182 P. 503.
In suit to recover upon notes and to foreclose mortgage on realty, fourth
paragraph of defendant's answer held to state facts sufficient for exercise of
jurisdiction in equity to decree set-off. Caldwell v. Stevens, 64 Okl. 287, 167
P. 610, L. R. A. 1918B, 421.
as In action to restrain unfair competition, a counterclaim for damages for
plaintiff's unlawful use of defendant's trade-name and seeking an injunction
is proper, and, if the allegations thereof are sustained, defendant is entitled
to the relief. O K Bus & Baggage Co. v. O K Transfer & Storage Co., 63 Okl.
311, 165 P. 136, L. R. A. 1918A, 956.
(512)
Art. 5) ANSWER §§ 620-621
In an action by the trustee of a trust mortgage to recover the
value of certain trust property sold to defendant, a holder by as-
signment of a note secured by the mortgage, a counterclaim may be
properly pleaded, asserting an interest in the application of the pro-
ceeds of mortgaged property, and asking an accounting.97
In an action to recover money defendant cannot avail himself of
an equitable counterclaim involving the foreclosure of a mortgage
and the sale of the real estate described therein, which the court
has no power to hear, because the premises described in the mort-
gage are situated in another county, and beyond the jurisdiction of
the court where such counterclaim is filed.98
§ 621. Cross-bill or cross-petition
In foreclosure the defendant cannot by cross-bill set up new mat-
ter not maintainable as a counterclaim, unless such matter is in-
volved in a proper determination of the subject-matter of the origi-
nal suit.99
A cause of action set up in a cross-bill against a party made co-
defendant on motion of original defendant must be germane to orig-
inal controversy, and a cross-bill wherein such defendant seeks to
litigate a new controversy between himself and a codefendant is
not maintainable as a counterclaim or cross-bill, but must be litigat-
ed against codefendant by a separate action.1
In a suit for breach of a contract to exchange realty, defendant
may set up a cross-petition, alleging breach by plaintiff, and ask spe-
cific performance with prayer in the alternative for damages,
though he knows that plaintiff cannot perform.2
97 Wyman v. Herard, 59 P. 1009, 9 Okl. 35.
»8 Lyman v. Stan ton, 20 P. 510, 40 Kan. 727.
99 Tracey'v. Crepin, 138 P. 142, 40 Okl. 297.
In foreclosure, a grantee of the mortgagor under a warranty deed could not
set up by cross-petition damages against the mortgagor for breach of the
covenants in the deed ; such matter not being germane to the original action.
Id.
1 Patterson v. Central State Bank, 175 Okl. 147, 182 P. 678.
In an action on a note wherein defendant has additional parties made co-
defendants, his cross-bill, attempting to litigate a controversy between himself
and such co-defendants not germane to the subject matter of the original suit,
was properly dismissed. Id.
2 Stramel v. Hawes, 154 P. 232, 97 Kan. 120.
HON.PL.&PBAC.— 33 (513)
§§ 621-622 PLEADINGS (Ch. 11
In the absence of objection, an answer, containing the requisite
allegations, may be treated as cross-petition, though not so named
by the pleader.3
Where defendant, by cross-petition, alleged ownership of per-
sonal property and prayed equitable relief, and it appeared that
bill of sale under which he claimed, although in his own name, was
taken for use of his principal and had been delivered to principal,
by which a trust resulted, the proof failed to sustain cause of action
alleged, and he could not recover, notwithstanding the statute pro-
viding that a trustee, etc., may sue without joining the person
beneficially interested.4
Where a resident of the state for the statutory time files her pe-
tition for divorce, defendant may file a cross-petition and ob-
tain a decree of divorce without alleging that he has resided con-
tinually in the state for the year next before his application for
divorce.5
§ 622. Landlord and tenant
In a landlord's attachment, the tenant may counterclaim for labor
performed and money expended in improving the premises under
authority from the landlord.6 The amount of a tenant's counter-
claim for work and labor authorized by the landlord is to be deter-
mined by the reasonable value of same, and the amount allowable,
for money expended is actual expenditure.7
Since damages resulting from a breach of the covenant of quiet
enjoyment arise out of the lease, they may be recovered by way
of counterclaim in an action for rent.8
A lessee on discovering fraudulent representations by the lessor
of a material fact is not compelled to give up the premises and
rescind the contract, but may set off any damage caused thereby
on suit for the rent.9
In an action for damages for breach of a farm lease contract, a
s Miller v. Oklahoma State Bank of Altus, 53 Okl. 616, 157 P. 767.
•t Frisco Lumber Co. v. Waldock (Okl.) 176 P. 220 ; Rev. Laws 1910, § 4683.
s Newman v. Newman, 112 P. 1007, 27 Okl. 381.
e Ratcliff v. Sharrock, 44 Okl. 592, 145 P. 802.
7 Id.
s Hanley v. Banks, 51 P. 664, 6 Okl. 79.
» Myers v. Fear, 96 P. 642, 21 Okl. 498, 129 Am. St. Rep. 795.
(514)
Art. 5) ANSWER §§ 623-625
counterclaim for personal property taken by the tenant must al-
lege ownership thereof in the landlord at the taking.10
§ 623. Action against United States
While no affirmative judgment can be rendered against the
United States on a set-off in favor of defendant, yet, when the Unit-
ed States sues, it waives its exemption so far as to allow a presen-
tation by defendant of a legal and equitable set-off to the extent
of the demand made, but no judgment can be rendered against the
United States for any balance found due.11
§ 624. Cross-demands — Deprivation
"When cross-demands have existed between persons under such
circumstances that, if one had brought an action against the other,
a counterclaim or set-off could have been set up, neither can
be deprived of the benefit thereof by the assignment or death of
the other; but the two demands must be deemed compensated so
far as they equal each other." 12
§ 625. •" . Assignments
When cross-demands have existed between persons under such
circumstances that if one had brought an action against the other a
set-off could have been set up, neither can be deprived of the benefit
of such set-off by the assignment of the other.13 '
10 Hill v. White,«50 Okl. 573, 150 P. 1051.
11 United States v. Warren, 71 P. 685, 12 Okl. 350.
12 Rev. Laws 1910, § 4751.
is Gardner v. Risher, 10 P. 584, 35 Kan. 93.
The fact that defendant gave verbal directions to a member of a firm which
was indebted to him for his share in the profits on a contract to apply such
profits to the payment of a debt due from defendant to such party, and of a
note due to plaintiffs assignor who was also a member of such firm, where
nothing was ever done under such directions, but the whole of such profits
were included in securities afterwards transferred by the firm to secure its
own indebtedness, does not affect the right of defendant to set off his share of
such profits against a claim prosecuted against him by an assignee of such
note, who purchased after maturity thereof, and after the right to such set-
off had accrued. Davies v. Stevenson, 54 P. 679, 59 Kan. 648.
Where a building contractor assigns the money due him under the contract
to one who has furnished materials for the building, and the assignee sues
the owner thereon, the owner can set off against the claim his damages for
the wrongful institution of an action formerly brought against him, and pros-
ecuted to final judgment, by such assignee on his claim for material, without
making the contractor a party. Tracy v. Kerr, 28 P. 707, 47 Kan. 656.
(515)
§§ 625-627 PLEADINGS (Ch. 11
>
Where a corporation, through its president, asks that an account
owing to him personally by the holder of its note be credited there-
on, it amounts to a transfer of the account from the president to
the corporation; and in an action on the note plaintiff cannot ob-
ject to the account being used as a set-off because no formal as-
signment was made.1*
§ 626. Definition
A "cross-demand" is a demand which is preferred by one party to
an action in opposition to a demand already preferred against him
by his adversary.15
§ 627. Parties and mutuality
It is not necessary that counterclaim arising out of contract or
transaction alleged as foundation of claim, or connected with sub-
ject of action, exist as between all the parties and the defendant; 16
i* Kansas City Paper House v. Foley Ry. Printing Co., 118 P. 1056, 85 Kan.
678, 39 L. R. A. (N. S.) 747, Ann. Cas. 1913A, 294.
is Drovers' State Bank v. Elliott, 154 P. 255, 97 Kan. 64.
IB Cooper v. Gibson (Okl.) 170 P. 220; Robertson v. Howerton, 56 Okl. 555,
156 P. 329.
Under the direct provisions of Acts Ter. Leg. Okl. 1905, p. 328, c. 28, art.
7, § 3, it is not necessary that a set-off or counterclaim shall exist as between
all parties to the suit ; but any party may enforce his set-off or counterclaim
against the liability sought to be enforced against him. Loeb v. Loeb, 103 P.
570, 24 Okl. 384.
One joint maker of a note can set off against it an indebtedness from the
payee due him individually. McKay v. H. A. Hall & Co., 30 Okl. 773, 120 P.
1108, 39 L. R. A. (N. S.) 658 ; Curlee v. Ruland, 56 Okl. 329, 155 P. 1182.
Where a purchaser of merchandise from a firm agreed to pay certain notes
and account owed by the firm, and gave his note to the partners, who owned
all the property, and in suit thereon counterclaimed on the notes and ac-
count which had been assigned to him, the plaintiff is entitled to the benefit
of the promise to the firm to pay such notes and account. Danielson v. Scott,
129 P. 1190, 88 Kan. 789.
E. transferred cattle and other property to defendants under a contract by
which the latter undertook, inter alia, to assume the payment of damages due
to plaintiff on account of his cattle having become infected with a fever prev-
alent among such cattle of E., by reason of E.'s negligence. Plaintiff there-
upon brought suit on the contract, as the party for whose benefit it was made,
to recover such damages. Held, that defendants are entitled to set off against
this claim an indebtedness of plaintiff to them, existing before the contract
with E. was made. Clay v. Woodrum, 25 P. 619, 45 Kan. 116.
Under the express provisions of Comp. Laws 1909, § 5635, a defendant may
plead and prove a set-off or counterclaim of a proper nature in defense of the
liability sought to be enforced by the plaintiff; and it is not necessary that
(516)
Art 5) ANSWER §§ 628-630
but there must be privity of parties to entitle defendant to plead
a set-off, and defendant cannot plead a set-off in favor of himself
and against one not a party to the suit.17
§ 628. New party — Counterclaim
"When it appears that a new party is necessary to a final deci-
sion upon a counterclaim, the court may either permit the new
party to be made by a summons to reply to the counterclaim, or
may direct the counterclaim to be stricken out of the answer, and
made the subject of a separate action." 18
§ 629. New party— Set-off
"When it appears that a new party is necessary to a final deci-
sion upon the set-off, the court shall permit the new party to be
made, if it also appear that, owing to the insolvency or non-res-
idence of the plaintiff, or other cause, the defendant will be in dan-
ger of losing his claim, unless permitted to use it as a set-off." 19
§ 630. Form and requisites
A counterclaim must be pleaded as fully and distinctly and with
the same substantial requisites as an original cause of action, must
be sufficient within itself without recourse to the pleadings, unless
by express reference,20 should be separately stated, and must show
with certainty the character of claim, how it accrued, and the facts
making it a proper subject of counterclaim or cross-petition.21
the same shall exist as between all parties plaintiff and defendant in such ac-
tion. Stauffer v. Campbell, 30 Okl. 76, 118 P. 391.
17 Van Arsdale v. Edwards, 101 P. 1123, 24 Okl. 41.
An overpayment to the president and secretary of a corporation could not
be set off as against an amount due the corporation in an action to which the
^resident and secretary were not parties. Peck- Williamson Heating & Ven-
tilating Co. v. Board of Education, Oklahoma City, 50 P. 236, 6 Okl. 279.
is Rev. Laws 1910, § 4749.
19 Rev. Laws 1910, § 4750.
20 Mathews v. Sniggs, 75 Okl. 108, 182 P. 703.
21 Id.
In action for breach of contract to purchase plants, plea setting up as set-
off breach of another contract to plant seed and ship to defendant any fit
roots held subject to demurrer for failure to show that plaintiff produced roots
fit for defendant's purposes. Barteldes Seed Co. v. Mitchell, 59 Okl. 65, 157
P. 935.
(517)
§§ 631-634 PLEADINGS (Ch. 11
§ 631. Notice
Where a judgment is set aside and an answer asking for affirma-
tive relief filed, notice of the same must be given to the parties af-
fected thereby.22
§ 632. Waiver
The right of set-off existing between parties owing each other
may, on valuable consideration, be waived.23
In suit on supersedeas bond, with counterclaim for damages from
unlawful attachment in action in which bond was executed, plaintiff,
by replying and joining issue of former adjudication, waived ob-
jection that such damages were not proper subject for a coun-
terclaim.24
§ 633. Withdrawal
"The court, at any time before the final submission of the
cause, on motion of the defendant, may allow a counterclaim or
set-off, set up in the answer, to be withdrawn, and the same may
become the subject of another action; on motion of either par-
ty, to be made at the time such counterclaim or set-off is with-
drawn, an action on the same shall be docketed and proceeded
in as in like cases after process served; and the court shall direct
the time and manner of pleading therein. If an action b'e not so
docketed, it may afterwards be commenced in the ordinary way." 25
§ 634. Neglect to claim — Cost
"If the defendant omit to set up a counterclaim or set-off, he can-
not recover costs against the plaintiff in any subsequent action
thereon ; but this section shall not apply to causes of action which
22 One of several defendants procured the judgment rendered in the case
to be set aside as to him, upon the ground that no sufficient service of sum-
mons was ever made upon him. Afterwards, he filed an answer in the action
setting up new matter and grounds for affirmative relief, which affected the
rights and interests of several of the other parties and other persons, with-
out giving such other parties or persons any notice or any opportunity to ap-
pear and defend. Held, that the court might, upon the hearing on such an-
swer, refuse to grant the relief prayed for in such answer, and dismiss this
new proceeding without prejudice. Clay v. Hildebrand, 24 P. 962, 44 Kan.
481.
23 Stacy v. Cook, 61 P. 399. 62 Kan. 50.
24 Brisley v. Mahaffey, 64 Okl. 319, 167 P. 984.
25 Rev. Laws 1910, § 4771.
(518)
Art. 5) ANSWER §§ 635-637
are stricken out of, or withdrawn from the answer, as in sections
4749 and 4771." 26
§ 635. Forms
ANSWER SETTING UP COUNTERCLAIM OR SET-OFF
(Caption.)
Comes now the defendant, and in answer to the plaintiff's petition
filed herein states:
1. ^hat he denies each and every material allegation made by
plaintiff in his petition, except (here state matters not denied).
2. That he has a counterclaim (or set-off) against plaintiff as fol-
lows: (State in similar manner as though defendant were plain-
tiff, stating his cause of action in his petition.)
Wherefore defendant prays that judgment for plaintiff be denied,
and that judgment be rendered for defendant against the plaintiff
for the sum of dollars, and for his costs.
(Signature) Attorneys for Defendant.
DIVISION V. — UNAUTHORIZED PLEAS •
§ 636. Plea in abatement
There is no provision for a plea in abatement, and such a plead-
ing, if sustained, must be treated as a demurrer or an answer.27
§ 637. Plea in bar
Under the statute providing that the pleadings authorized are
petition by plaintiff, answer or demurrer by defendant, demurrer
or reply by plaintiff, and demurrer by defendant to reply, a plea in
bar is unauthorized.28
se Rev. Laws 1910, § 4748.
27 Patterson v. Choate, 50 Okl. 761, 151 P. 620; Maxia v. Oklahoma Port-
land Cement Co. (Okl.) 176 P. 907 ; Sweet v. Crane, 39 Okl. 248, 134 P. 1112.
In a suit for damages from the levy of an attachment, a defendant's motion
to abate, alleging that it was necessary to maintenance of suit that it be final-
ly adjudicated that attachment was wrongfully obtained, would be regard-
ed as an answer to the petition. Nation v. Savely (Okl.) 176 P. 937.
The court was probably incautious in the use of terms in holding in 1899
that the point that plaintiff is not a corporation should be raised by a special
plea in the nature of a plea in abatement. Leader Printing Co. v. Lowry, 59
P. 242, 9 Okl. 89.
28 Anderson v. State, 140 P. 1142, 42 Okl. 151; Rev. Laws 1910, § 4736.
(519)
§§ 638-639 PLEADINGS (Ch. 11
ARTICLE VI
REPLY
Section*
638. Reply or demurrer.
639. When reply necessary.
640. Counterclaim or set-off in reply.
, 641. Demurrer or reply to answer by codefendant.
642. Construction and effect.
643. Requisites and sufficiency — Forms.
644. Departure.
645- Waiver of objections.
§ 638. Reply or demurrer
"When the answer contains new matter, the plaintiff may reply
to such new matter, denying, generally or specifically, each allega-
tion controverted by him ; and he may allege, in ordinary and con-
cise language, and without repetition, any new matter not incon-
sistent with the petition, constituting a defense to such new matter
in the answer ; or he may demur to the same for insufficiency, stat-
ing, in his demurrer, the grounds thereof; and he may demur to
one or more of such defenses set up in the answer, and reply to the
residue." 29
§ 639. When reply necessary
Where the answer contains no new matter and amounts to no
more than a denial of the petition, no reply is necessary.30'
29 Rev. Laws 1910, § 4753.
so Wichita Falls & N. W. Ry. Co. v. Puckett, 53 Okl. 463, 157 P. 112.
In suit on contract and bond, a verified general denial did not constitute
"new matter," entitling plaintiff to a reply thereto. Detroit Automatic Scale
Co. v. Taylor (Okl.) 169 P. 908.
No reply need be filed where the answer does not set up new matter, but
merely evidentiary facts by way of denial. Denman v. Brennamen, 48 Okl.
566, 149 P. 1105, L. R. A. 1915E, 1047.
In an action upon a forfeited recognizance, the defendant, by a verified an-
swer, averred that he signed the instrument when it was yet incomplete and
what is known commonly as a blank recognizance, the blank spaces left there-
in for the name of the county, the offense charged, the amount in which the
prisoner was held and the court before which he was required to appear, be-
ing left unfilled, and that he attached his name to it upon the condition that an-
other person should join him in signing the recognizance, and, when so signed,
the blanks should be filled out by the co-surety and the instrument delivered,
and that unless it was so executed he was not to become liable thereon. He
also alleged that the recognizance was not signed or completed by the other
(520)
Art. 6) REPLY § 639
New matter in an answer which does not constitute a defense to
plaintiff's petition, does not require a reply.31
A set-off or counterclaim in an answer requires a reply;32 but
defendant need file no reply to such reply.33
The plaintiff in an action against a carrier of live stock, in order
to avoid a valid limitation of liability set up in the answer, must
plead any deceit or fraud practiced upon him in obtaining his as-
sent to the contract.34
party, and therefore that he was not liable thereon. Held, that this answer
was in substance and effect a denial that the recognizance sued on had been
executed by him, and a verified reply by the plaintiff denying the allegations
of the answer was unnecessary. Madden v. State, 10 P. 469, 35 Kan. 146.
A general denial was filed to the original answer of defendants, and after-
wards a supplemental petition was filed. Defendants answered again fully
to the merits of the action, but did not set forth any new matter. Held, that
another reply was unnecessary. Dreiling v. First Nat. Bank, 23 P. 94, 43
Kan. 197, 19 Am. St. Rep. 126.
A reply is unnecessary where it would merely repeat, in effect, the allega-
tions off the petition. Muskogee Vitrified Brick Co. v. Napier, 126 P. 792,
34 Okl. 618.
An answer which, after a general denial of the negligence charged, alleges
that any injuries sustained were the result of plaintiff's own negligence does
not call for a reply. Chicago, R. I. & P. Ry. Co. v. Pitchford, 44 Okl. 197, 143.
P. 1146.
Where answer to plea of intervention contains a general denial, and affirm-
ative matter amounting to a denial only of the matters set up in the plea, in-
tervener need not file a denial of such affirmative matter. Farmers' State
Bank of Ada v. Keen (Okl.) 167 P. 207.
The answer, in a suit to cancel a deed as a forgery, held to be in effect a
general denial of the allegation of forgery, to which no reply was necessary
in order to render admissible evidence offered to establish forgery. Cox v.
Gettys, 53 Okl. 58, 156 P. 892.
si West v. Cameron, 18 P. 894, 39 Kan. 736, judgment affirmed on rehear-
ing, 19 P. 616 ; Owens v. Farmers' & Merchants' Bank of Duke, 54 Okl. 387,
154 P. 355.
32 Where the petition set out an agreement with an itemized account there-
under showing a balance due plaintiff, and defendant, after controverting part
of the allegations, set up the agreement, but alleged a different result grow-
ing out thereof, and set up an itemized account as a counterclaim, showing a
balance due him, it constituted a counterclaim, which required a reply. Aiken
v. Franz, 43 P. 306, 2 Kan. App. 75.
33 When a defendant in an action to foreclose a mortgage sets up in his
answer a note and mortgage executed by a codefendant, on which judgment
is asked, the reply thereto filed by such codefendant is the final pleading, and
any allegation of new matter in such reply is deemed controverted. Hughes
v. Durein, 44 P. 434, 3 Kan. App. 63.
s* St. Louis & S. F. R. Co. v. Zickafoose, 39 Okl. 302, 135 P. 406.
(521)
§§ 640-642 PLEADINGS (Ch. 11
§ 640. Counterclaim or set-off in reply
Where defendant in a civil action files an answer, which, in
addition to a defense, alleges facts constituting a new cause of
action by way of set-off, and prays for judgment, plaintiff may not
in his reply aver new matter constituting a counterclaim or set-off
on which he asks for affirmative relief, but his statements must be
confined to facts constituting a defense to the answer.35
§ 641. Demurrer or reply to answer by codefendant
"Where the answer contains new matter constituting a right
to relief against a codefendant concerning the subject of the action,
such codefendant may demur or reply to such matter in the same
manner as if he were plaintiff, and subject to the same rules, as far
as applicable." 36
§ 642. Construction and effect
An allegation in an answer is to be taken as true when the plain-
tiff, in reply, pleads in confession and avoidance.37
An unverified reply to an answer setting up a written contract
does not admit defendant's construction of the contract so as to au-
thorize a judgment on the pleadings;38 but a mere general denial
admits that the contract is as alleged.39
ss Beakey v. Vander Meerschen, 78 Kan. 538, 97 P. 478.
se Rev. Laws 1910, § 4755 ; Long v. Harris, 132 P. 473, 37 Okl. 472.
37 Meeh v. Missouri Pac. Ry. Co., 60 P. 319, 61 Kan. 630.
In an action by officers of grand lodge for moneys paid defendant by the
treasurer of the lodge, admission in reply held sufficient, in absence of evi-
dence to sustain matter in avoidance, to sustain a verdict for defendant.
Washbon v. Hixon, 121 P. 518, 86 Kan. 406.
ss McKnight v. Strasburger Bldg. Co., 150 P. 542, 96 Kan. 118.
39 Plaintiff sued defendant carrier for the deterioration of a shipment of
live stock, alleging shipment under a written contract which could not be
produced because it was in the hands of the defendant. Defendant attached
the alleged contract to its answer, which contained a stipulation requiring
notice of damage to be served on the railroad company's agent within one
day after the delivery of the stock at destination, and declaring that a failure
to comply therewith should bar any recovery. The answer alleged that such
requirement had not been complied with, after which plaintiff filed a reply
setting up only a general denial. Held, that the written contract was there-
by admitted as alleged. St. Louis & S. F. R. Co. v. Cake, 105 P. 322, 25 Okl.
227.
(522)
Art. 6) REPLY § 643
§ 643. Requisites and sufficiency — Forms
Where the answer alleges that the note sued on is ultra vires, a
demurrer to a reply containing a general denial is properly over-
ruled.40
Failure to file a reply controverting the allegations of the answer
in an action on notes setting up the illegality of the contract in
connection with which the notes were given operates as an ad-
mission of the facts alleged relative thereto.41
Where a railroad employe was killed, and after a settlement with
the widow a son was born and the widow qualified as administratrix
and set up the son's rights as a beneficiary, and the railroad plead-
ed the settlement, a reply that the settlement was only of the wi-
dow's individual rights, or that, if it embraced the rights of the
child, it did not express the true contract, was not demurrable.42
In an action by the vendor for the specific performance of a
contract for the sale of real property, an allegation in the answer
that the plaintiff has never tendered a deed executed by himself is
met by allegations in the reply that no previous objection had been
made upon that ground to the deed which he had tendered, and
that he had at all times been and was still able and willing to furnish
such a deed.43
Allegations of new matter in an answer may call for a .verified
denial, where the same allegations in a petition would do so.4*
REPLY — SUIT TO CANCEL CONVEYANCES
(Caption.)
Come now the plaintiffs and for reply say that the land in ques-
tion was worth for agricultural purposes at least fifty dollars per
*o Western & Southern Fire Ins. Co. v. Murphey, 56 Okl. 702, 156 P. 885.
41 Howard v. Farrar, 114 P. 695, 28 Okl. 490.
42 Herndon v. St. Louis & S. F. R. Co., 128 P. 727, 37 Okl. 256.
43 Geo. H. Paul Co. v. Shaw, 119 P. 546, 86 Kan. 136, 37 L. R. A. (N. S.) 1123,
Ann. Gas. 1913B, 956.
441 Defendant in ejectment claimed title under certain tax deeds, and in his
answer alleged their due execution and the validity of all proceedings anterior
thereto; but it appeared on the face of such deeds, which were exhibited as
part of the answer, that they were void. Plaintiff's reply was a general de-
nial, unverified. Held, that the reply is not sufficient to put in issue the va-
lidity of the tax deeds and proceedings. Tweedell v. Warner, 23 P. 603, 43
Kan. 597.
(523)
§ 643 PLEADINGS (Ch. 11
acre. They say that the option relied on as the foundation of de-
fendant's claim was purchased by F. S. and P. C. for one thousand
dollars with money procured from plaintiffs, furnished by O. R. ;
that said O. R., as a part of the trade made with defendants, and
with the help of defendants, and by the help of F. S. and P. C.,
who pretended to act as the agent of plaintiffs, procured a half in-
terest in the property jointly with defendants ; that P. C. acted as
the agent of plaintiffs in making the O. R. deed, and the deal with
defendants, and proceeded to sell one-half to said O. R. as said
agent for a consideration of twenty-eight thousand dollars, and
was paid a commission by plaintiffs of five per cent., and said
O. R. paid said P. C. four thousand five hundred dollars as a com-
mission for making the deal with him and defendant; that these
facts developed for the first time on the trial of a case against said
O. R. held in this court February 25, 1918, to cancel his deed.
That the contract of F. S. and P. C. with reference to securing a
conveyance to F. S. developed fully for the first time in this trial
on June 19, 1917, on a suit of plaintiffs to set aside a conveyance
to said P. C. of one-fourth of the land, made at the same time said
defendant procured his deed herein attacked; that the O. R. deal,
the P. C. deal, and defendants' deal were all part of one transaction,
and the making of each depended and was conditioned on the mak-
ing of the other; that said O. R. and his agents and said P. C. and
F. S. and the defendants and their agents acted in concert, and
with a design to get plaintiffs' property for less than its value and pro-
ceeded to incumber it as much as possible, and also to render it diffi-
cult for plaintiffs to clear the title thereto and with a design of
imposing on the plaintiffs, and to take advantage of said 's
needs of money and his spendthrift propensities ; that the conduct
of said O. R. in bribing his agent were unknown to plaintiffs until
the trial of the O. R. suit, and all the details are yet unknown. They
say that they do not now know and understand all the material
facts connected with the execution of said deeds, and they say that
there are no innocent purchasers from said defendant, and defend-
ants F. E. and R. H. paid nothing and knew all the facts. They say
that as soon as they learned of the fraudulent conduct of defendant
and his co-conspirators they began this suit to set aside defendants'
deed. They say that there never was any consideration for de-
fendants' deed, and defendants have been fully paid for anything
(524)
Art. 6) REPLY §§ 643-644
that he had parted with. They say they deny all allegations of
new matter in the amended answer not herein admitted, and pray as
in their petition.
State of Oklahoma, 1
L SS. I
County of . J "
A. M. and B. M., of lawful age, being first duly sworn, on oath
states: That they are the plaintiffs in the above entitled cause,
that they have read the within and foregoing, and that the same is
true and correct, as they verily believe.
Subscribed and sworn to before me this — day of ,
19—.
(Seal.) -.
REPLY — DEFENSE TO COUNTERCLAIM
(Caption.)
Comes now the above named plaintiff, and for its reply to the an-
swer of defendant to plaintiff's amended petition, filed herein, al-
leges and states:
1. That it denies each and every allegation therein contained,
except such as are hereinafter specifically admitted.
2. For further reply and defense to such answer, and to the alleg-
ed set-off, plaintiff alleges and states : (Set forth defense to counter-
claim in similar manner as though plaintiff were defendant, stating
his defense and answer to petition filed against him.)
Wherefore plaintiff prays that defendant take nothing by reason
of his alleged counterclaim, and that plaintiff have judgment as
prayed for in plaintiff's amended petition filed herein.
(Signatures) Attorneys for Plaintiff.
§ 644. Departure
Where the plaintiff alleges performance of all the conditions of
a contract, and defendant charges various breaches, a reply admit-
ting failure to perform, and pleading estoppel and waiver, consti-
tutes a departure.45
*s Gage v. Connecticut Fire Ins. Co. of Hartford, Conn., 127 P. 407, 34 Okl.
744 ; Springfield Fire & Marine Ins. Co. v. Halsey, 126 P. 237, 34 Okl. 383 ;
(525)
§ 644 PLEADINGS (Ch. 11
In an action of ejectment it is improper to permit plaintiff, over
objection, to file a reply setting up a cause of action to quiet title,
since the claim of plaintiff is substantially changed.46
Where the petition alleges ownership generally, but the reply
admits the ownership to be special, as that of a mortgagee, such
change of allegations constitutes a departure.47
Where allegations in a reply are mere repetition, in a slightly
changed form of matter already alleged in the amended petition, and
are not contradictory thereof, the reply is not objectionable as a
departure.48
New matter in the reply which plaintiff is forced to plead in or-
der to meet the allegations of the answer will not constitute de-
•parture if it does not contradict the facts stated in the petition, and
if it is not adopted for a new basis for relief in place of the cause
of action presented by the petition.49
Merchants' & Planters' Ins. Co. v. Marsh, 125 P. 1100, 34 Okl. 453, 42 L. R..
A. (N. S.) 996 1 Union Casualty & Surety Co. v. Bragg, 65 P. 272, 63 Kan. 291;'
St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 99 P. 647,
23 Okl. 79.
46 Bear v. Cutler, 86 Kan. 66, 119 P. 713.
•47 Johnson v. State Bank of Seneca, 52 P. 860, 59 Kan. 250.
4-s Landon v. Morehead, 126 P. 1027, 34 Okl. 701.
4» Hunter Milling Co. v. Allen, 88 P. 252, 74 Kan. 679, 8 L. R. A. (N. S.)
291.
In action on school warrants, with answer that they were unlawfully is-
sued, without consideration, and are void, reply setting up estoppel held not
a departure. Home State Bank v. School. Dist. No. 17, 102 Kan. 98, 169 P. 202.
Where petition set forth certain letters constituting contract of agency, and
the answer was a denial and an allegation of want of authority, and the re-
ply pleaded other correspondence to support the contract, it did not constitute
a departure. Sturgeon v. Culver, 124 P. 419, 87 Kan. 404, Ann. Gas. 1913E, 341.
Plaintiff pleaded that an oral contract had been violated by defendant, who
alleged that the contract was in writing and set up a brief memorandum.
The reply admitted the signing of the memorandum, but alleged that it was
only a part of the contract, and set forth the remaining stipulations which
were oral. Held not to constitute a departure. Heskett v. Border Queen Mill
& Elevator Co., 105 P. 432, 81 Kan. 356.
Allegation of the answer that insurer had fraudulently misrepresented in
her proof of loss the value of the property was put in issue by general de-
nial; and further allegations in the reply, as to waiver of conditions of the.
policy, were surplusage, and did not constitute a material variance. Ameri-
can Ins. Co. of Newark, N. J., v. Rodenhouse, 128 P. 502, 36 Okl. 211 ; Roches-
ter German Ins. Co. of Rochester, N. Y., v. Rodenhouse, 128 P. 508, 36 Okl.
378 ; Georgia Home Ins. Co. v. Halsey, 133 P. 202, 37 Okl. 678.
A reply, admitting that suit was commenced after expiration of the limi-
(526)
Art. 6) REPLY §§ 644-645
Where breach of condition subsequent has been pleaded as a
defense, a reply alleging a waiver or estoppel is not a departure.50
§ 645. Waiver of objections
The fact that a denial in the reply is pregnant with one or more
admissions is immaterial, where the parties are compelled to resort
to their pfoof as if the reply were of good character.51
Failing to move to strike a reply, constituting a departure and
going to trial, waives the defect.52
tation period prescribed by the Indian Territory policy sued on, but pleading
facts which, if true, would estop defendant from taking advantage of such
clause as a defense, held not a departure. Northwestern Nat. Life Ins. Co.
Ward, 56 Okl. 188, 155 P. 524.
In action on benefit certificate, where petition pleaded full performance of
all conditions precedent, and answer alleged a breach of warranty, a reply
pleading waiver and estoppel was not such a departure as to warrant a re-
versal of judgment for plaintiff. Miller v. National Council of Knights and
Ladies of Security, 103 Kan. 579. 175 P. 397.
so Springfield Fire & Marine Ins. Co. v. Null, 133 P. 235, 37 Okl. 665; West-
ern Reciprocal Underwriters' Exchange v. Coon. 38 Okl. 453, 184 P. 22 ; Queen
Ins. Co. of America v. Dalrymple, 60 Okl. 28, 158 P. 1154 ; German- American
Ins. Co. of New York v. Lee, 51 Okl. 28, 151 P. 642.
Quieting title. — Where defendants, in an action to quiet title, plead facts
showing that they are tenants in common as to a one-third interest, a reply
admitting that they hold the naked legal title to the extent of that interest,
and alleging that they have soFd and received the consideration for such in-
terest, and that a deed was given therefor with their consent by one supposed
by all parties to have authority as trustee to convey the Jand, does not con-
stitute a departure. Neve v. Allen, 41 P. 966, 55 Kan. 638.
In an action to quiet title and to cancel a contract purporting to have been
made by plaintiff's agent with defendant for the exchange of lands on the
ground that the execution thereof was not authorized, and to cancel a deed
conveying the land on the ground that it had not been delivered where the an-
swer avers the due execution of the contract and its subsequent ratification
and the performance of the agreement by defendant and the delivery of the*
deed, and prayed for judgment for possession, a reply, containing a general
denial, and pleading, after the alleged agreement, that defendant and the
owners of the land to be exchanged with plaintiff had incumbered it by grant-
ing a telephone right of way and had leased the land, and that defendant had
no title to the premises, does not set up a new cause of action, but pleads de-
fense that the contract was not in force and is not a departure. Snyder v.
Wheeler, 106 P. 462, 81 Kan. 508.
oiDanielson v. Scott, 129 P. 1190. 88 Kan. 789.
o2 Wampler v. Stemen, 80 Okl. 240, 195 P. 764.
(527)
§ 646 PLEADINGS (Ch. 11
ARTICLE VII
FILING AND SUBSCRIBING
Sections
646. Time for filing.
647. Additional time — Withdrawal — Service of amendment-
648. Signing.
§ 646. Time for filing
"The answer or demurrer, by the defendant, shall be filed within
twenty days after the day on which the summons is returnable ; the
reply or demurrer shall be filed within thirty days after the day on
which the summons was made returnable; the demurrer to the
reply shall be filed within forty days after the day on which the
summons was made returnable." 53
Where there has been a service of summons by publication, a
subsequent personal service on defendant voluntarily within the
jurisdiction supersedes the former service and fixes the answer
date.54
A pleading filed out of time without permission or agreement is a
nullity.55
It has been the policy of the court to discourage the practice of
refusing to permit defendants to file an answer out of time and to
give litigants their day in court, and to protect parties having a
valid defense, especially where they are ignorant Indians.56
After a defendant in default has been allowed to answer, and
instead of doing so has filed a motion to make more definite and
certain, which has been stricken from the files, and the case called
for trial, it is not an abuse of the court's discretion to refuse to al-
low him to answer then.57
Where defendant's demurrer is overruled, and time given him to
ss Rev. Laws 1910, § 4756.
s* Where plaintiff, a resident, sued defendant, a resident of Texas, and
caused service of summons on defendant in Texas, requiring answer to peti-
tion' on or before April 14, 1914, such service being, under Rev. Laws 1910, §
4727, a service by publication, a subsequent personal service on defendant vol-
untarily within the trial court's jurisdiction superseded the former summons
and fixed the answer date. Dickinson v. Foot (Okl.) 173 P. 522.
as State Nat. Bank v. Lowenstein, 52 Okl. 259, 155 P. 1127.
ss McCoy v. Mayo (Okl.) 174 P. 491.
57 Missouri Pac. Ry. Co. v. Linson, 18 P. 498, 39 Kan. 416.
(528)
Art. 7) FILING AND SUBSCRIBING §§ 646~647
file his answer, but he does not file it in time, and he afterwards
makes application for further time, on the ground that papers
necessary to drawing the answer had only been procured a few days
before, but no answer is presented with the application, it is
within the discretion of the trial court to deny such application.58
Defendant cannot complain that on the day of trial plaintiff was
allowed to file a reply to the answer.89
§ 647. Additional time — Withdrawal — Service of amendment
"The court, or any judge thereof in vacation, may, in his discre-
tion, and upon such terms as may be just, allow an answer or reply
to be made, or other act to be done, after the time limited by this
article, or by an order enlarge such time." 60
The granting or refusal of an application to file pleadings out of
time is largely in discretion of trial court.61
This discretion is dependent upon all the circumstances and
must not be used arbitrarily or capriciously.62
While .laches in filing pleadings should not be encouraged, the
court should grant permission to file at all times when justice re-
quires it.63
It is not error for a trial court to permit a party to withdraw an
interplea.64
Where statements or admissions in a pleading against his interest
were made by a party or his counsel under an honest mistake as to
the facts, and he desires to be relieved of the effects thereof, he
should apply to the trial court for leave to withdraw such admis-
sion and make a showing of good faith in support of his applica-
tion.65
Where an action was brought by two coplaintiffs and on demurrer
the court ordered separate actions to be brought in their names, and
68 Merten v. Newforth, 25 P. 204, 44 Kan. 705.
59 Sulzberger & Sons Co. of Oklahoma v. Strickland, 60 Okl. 158, 159 P. 833.
«o Rev. Laws 1910, § 4757.
61 City of Lawton v. Kelley, 62 Okl. 291, 162 P. 1081.
Permission to file pleadings out of time rests tinder Comp. Laws 1909, §
5646, in the discretion of the court, to be exercised in the light of the circum-
stances. Long v. Harris, 132 P. 473, 37 Okl. 472.
62 Checotah Hardware Co. v. Hensley, 141 P. 422, 42 Okl. 260.
es Peck v. First Nat. Bank of Claremore, 50 Okl. 252, 150 P. 1039.
e* Jackson v. Glaze, 41 P. 79, 3 Okl. 143.
«s Rogers v. Brown, 86 P. 443, 15 Okl. 524.
HON.PX.& PRAC.— 34 (529)
§§ 648-649 PLEADINGS (Ch. 11
in filing them the name of one plaintiff was omitted, an amendment
to supply such name was a compliance with the order that separate
actions be filed in the name of both plaintiffs, and service of amend-
ment on defendant is unnecessary before judgment of default may
be rendered.66
§ 648. Signing
"Every pleading, in a court of record, must be subscribed by the
party or his attorney." 67
ARTICLE VIII
AMENDED AND SUPPLEMENTAL PLEADINGS
Sections
649. Amendment before answer.
650. Formal defects.
651. Allowance of amendment — Discretion — Forms.
652. Variance.
653. Failure of proof.
654. Amendment on demurrer.
655. Continuance after amendment.
656. Notice of amendment-
657. Interlineation.
658. Subject-matter of amendment.
659- Supplemental pleadings.
660. Lost pleadings.
§ 649. Amendment before answer
"The plaintiff may amend his petition without leave, at any time
before the answer is filed, without prejudice to the proceedings;
but notice of such amendment shall be served upon the defendant
or his attorney, and the defendant shall have the same time to an-
swer or demur thereto as to the original petition." 6S
The provision for notice, applies only to voluntary amendments,
and not to those made by order of court upon motion or demurrer.69
ee National Surety Co. v. Oklahoma Presbyterian College for Girls, 38 Okl.
429, 132 P. 652.
67 Rev. Laws 1910, § 4758.
68 Rev. Laws 1910, § 4787.
Under Code Civ. Proc. § 137 (Gen. St. 1915, § 7029), plaintiff, before an an-
swer is filed, may amend his petition as to subject-matter and parties without
leave of court. Wagler v. Tobin, 104 Kan. 211, 178 P. 751.
69 Harn v. Missouri State Life Ins. Co. (Okl.) 173 P. 214.
(530)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS § 650
§ 650. Formal defects
"The court may, before or after judgment, in furtherance of jus-
tice, and on such terms as may be proper, amend any pleading, pro-
cess or proceeding by adding or striking out the name of any par-
ty, or correcting a mistake in the name of a party, or a mistake in
any other respect, or by inserting other allegations material to
the case, or conform the pleading or proceeding to the facts proved,
when such amendment does not change substantially the claim or
defense ; and when any proceeding fails to conform, in any respect,
to the provisions of this Code, the court may permit the same to
be made conformable thereto by amendment." 70
Amendments to pleadings may be allowed in furtherance of jus-
tice when they do not substantially change the cause of action or
defense; this change not referring to the form of the remedy, but
to the general identity of the transaction.71
TO Rev. Laws 1910, | 4790.
71 Snider v. Windsor, 93 P. 600, 77 Kan. 67; Ma thews v. Sniggs, 75 Okl.
108, 182 P. 703; Bdmondston v. Porter (Okl.) 162 P. 692; Merchants' & Plant-
ers' Ins. Co. v. Crane, 128 P. 260, 36 Okl. 160; Trower v. Roberts, 30 Okl.
215, 120 P. 617.
Amendments may he allowed before or after judgment by inserting allega-
tions material to case not changing substantially plaintiff's case. Elliott v.
Coggswell, 56 Okl. 239, 155 P. 1146.
Where, in an action against a city to recover damages caused by a defec-
tive sidewalk, an objection is made at the trial to evidence on the ground that
the petition did not show where the injury complained of occurred, and it
appears that the action was against the city, and the petition charged that
the accident occurred on North Fifth street between W. and N. streets, with-
out stating the name of the city, it was not error to permit plaintiff to add
by way of amendment, when the objection was raised, "in the city of Guthrie.
Logan county, O. T." City of Guthrie v. Finch, 75 P. 288, 13 Okl. 496.
In an action for the death of cattle claimed to have been poisoned by drink-
ing compound escaping from poison vats maintained by defendant railroad,
the allowance of an amended petition after the close of the evidence held not
error. Midland Valley R. Co. v. Rippe, 61 Okl. 314, 161 P. 233.
In an action by a broker for commission, held not error to permit plaintiff
during the trial to amend his petition by inserting an allegation that the
amount agreed to be paid was the usual and reasonable commission custo-
marily paid to real estate agents. Lowenstein v. Holmes, 40 Okl. 33, 135
P. 727.
When an action to enjoin the doing of an act which, it is alleged, would
cause irreparable injury to plaintiff, has been pending in the district court
for three years, it is not error to refuse plaintiff leave to so amend his peti-
tion as to change the action from one for injunction to one for damages sus-
(531)
§ 650 PLEADINGS (Ch. 11
tained since the commencement of the action. Dever v. City of Junction City,
47 P. 152, 5 Kan. App. 180.
There is no error in permitting plaintiff to amend his petition by striking
out allegation that deceased employs was engaged in interstate commerce at
time of injury. Lusk v. Phelps (Okl.) 175 P. 756.
An amended and supplemental petition in an action for damages for breach
of contract, which alleged that since commencement of the suit the matters
in controversy had been submitted to arbitration, and defendant had been
found indebted to plaintiff in a certain sum in a written award on which
plaintiff prayed judgment, held properly allowed in view of Rev. Laws 1910,
§ 4795. Wynnewood Cotton Oil Co. v. Moore, 54 Okl. 163, 153 Pi 633. Under
Rev. Laws 1910, § 4795, amendments are liberally allowed in the furtherance
of justice, even though they change the cause of action, provided they do not
substantially change plaintiff's claim. Id.
Where a petition in an action against a railroad company for damages re-
sulting from fire alleges that the fire was negligently communicated from
one of defendant's engines to the grass growing along the track, it is not
error to permit an amendment, more than seven years after the filing of the
original petition, by adding that the company was negligent in permitting
dry vegetation to accumulate and remain on the right of way where the fire
was set out, as such an amendment does not constitute a separate and dis-
tinct cause of action. St. Louis & S. F. Ry. Co. v. Ludlum, 66 P. 1045, 63
Kan. 719.
In an action against a city for injuries caused by a defective sewer, an
amendment to the petition showing that one of the plaintiffs, originally al-
leged to be an owner, had no interest in the property, was not material, and
did not change the cause of action, as under the Code judgment could be
rendered for or against one of several plaintiffs. Kansas City v. King, 68 P.
1093, 65 Kan. 64.
Plaintiffs sued to recover damages from a purchase of potatoes sold under
a guaranty that they were sound, whereas a great portion was unmerchanta-
ble. They amended their petition to allege that defendant so loaded the car
that plaintiff could inspect only the top before they were compelled to pay,
and that defendant, fraudulently to deceive plaintiff, had placed on top of
the car sound potatoes and at the bottom unmerchantable potatoes. Held,
that the amendment was properly allowed under X3omp. Laws 1909, §. 5679, as
it did not change substantially the claim of plaintiff. Z. J. Fort Produce Co.
v. Southwestern Grain & Produce Co., 108 P. 386, 26 Okl. 13.
Where the petition originally alleged that plaintiff was working and digging
in a ditch, and engaged in dressing the bottom of the ditch, which was about
20 inches wide and 15 feet deep, and the ditch and banks, or side walls, were
composed of loam, sand, and dirt, which was of such a character as to be
predisposed to cave in and slide when without restraint, and that defendants
had carelessly failed to shore up the walls to prevent it from caving in, and
that the plaintiff was inexperienced and ignorant of the dangerous character
of the employment and of the inexperience and incompetency of his employ-
ers and their employes, and at the time of the injuries complained of, he was
pursuing his employment in the usual way when, without fault on his part,
the banks of the ditch caved in on him, there was no error in permitting an
amendment by inserting allegations that the condition of the embankment, at
the time of the injuries, and the accumulated dirt and other substance thrown
thereon, was predisposed to slide and cave in; and the failure of the defend-
(532)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS § 651
§ 651. Allowance of amendment — Discretion — Forms
The allowance of amendments to pleadings is within the sound
discretion of the trial court,72 whether before or at commencement
ants to remove and clear away the same, so as to prevent its falling into the
ditch and injuring the employe's, concurred with the other careless acts al-
leged to bring about the injuries to the plaintiff. Chas. T. Derr Const. Co. v.
Gelruth, 120 P. 253, 29 Okl. 538.
Under Rev. Laws 1910, § 4790, allowing amendments not substantially
changing the claim or defense, a petition alleging failure of the defendant
city treasurer to pay over money belonging to the city may be amended to
set out that defendant converted the money to his own use. Shipley v. City
of Lawton, 51 Okl. 575, 152 P. 119 ; Missouri Pac. Ry. Co. v. Henrie, 65 P.
665, 63 Kan. 330.
In a suit on a written contract for the construction of a building, the plain-
tiff may be allowed to amend at the trial by adding a quantum meruit count
for labor and materials furnished. School Dist. No. 2 in Wabaunsee County
v. Boyer, 26 P. 484, 46 Kan. 54.
An amendment to a petition by inserting an allegation affecting plaintiff's
eligibility to hold the office is properly allowed, where it is in furtherance
of justice, and does not substantially change plaintiff's claim. Lewis v.
Bandy, 45 Okl. 45, 144 P. 624.
An amendment, stating definitely a ground of negligence which was stated
in the original petition in general terms, does not state a new cause of action.
Ballard v. Kansas City, M. & O. Ry. Co., 148 P. 764, 95 Kan. 343.
Where the petition sets forth a contract, alleges part performance by plain-
tiff and breach by defendant, and demands judgment for services performed
by plaintiff, etc., it is not error to permit an amendment, alleging usual price
for such services and praying judgment for reasonable value thereof. Elwood
Oil & Gas Co. v. McCoy (Okl.) 179 P. 2.
One who seeks to cancel a mortgage as obtained from him fraudulently and
as having been fraudulently altered by mortgagee to include property not de-
scribed therein when executed does not change his cause of action by amend-
ing his petition so as to charge that the mortgage is a forgery and a substi-
tution for the mortgage read to him and which he was asked to sign. Looka-
baugh v. Bowmaker, 96 P. 651, 21 Okl. 489.
72Cohee v. Turner & Wiggins, 132 P. 1082, 37 Okl. 778; Joines v. Combs,
132 P. 1115, 38 Okl. 380; Offutt v. Wagoner, 120 P. 1018, 30 Okl. 458; Her-
ron v. M. Rumley Co., 116 P. 952, 29 Okl. 317 ; Trower v. Roberts, 120 P. 617,
30 Okl. 215 ; Alcorn v. Dennis; 105 P. 1012, 25 Okl. 135 ; Kuchler v. Weaver,
100 P. 915, 23 Okl. 420, 18 Ann. Cas. 462 ; Rogers v. Hodgson, 26 P. 732, 46
Kan. 276; Mitchell v. Ripley, 49 P. 153, 5 Kan. App. 818; Brokaw v. Bartley,
€1 P. 320, 9 Kan. App. 318 ; Jantzen v. Emanuel German Baptist Church, 112
P. 1127, 27 Okl. 473, Ann. Cas. 1912C, 659 ; Underwood v. Fosha, 133 P. 866,
89 Kan. 768; Shawnee-Tecumseh Traction Co. v. Wollard, 153 P. 1189, 54
Okl. 432 ; Wetmore State Bank v. Courter, 155 P. 27, 97 Kan. 178 ; Scott v.
King, 152 P. 653, 96 Kan. 561; Abmeyer v. German-American State Bank,
179 P. 368, 103 Kan. 356; Elliott v. Coggswell, 155 P. 1146, 56 Okl. 239.
The granting of permission to amend petition to ask for additional attor-
ney's fees is within the sound discretion of the trial court. State v. Glass,
160 P. 1145, 99 Kan. 159.
(533)
§ 651 PLEADINGS (Ch. 11
of trial,73 during trial,74 or before or after judgment, in the fur-
therance of justice, where they do not change substantially the
claim or defense, is in the discretion of the trial court.76
73 McKee v. Jolly (Okl.) 178 P. 656; St. Louis & S. F. R. Co. v. Long, 137
P. 1156, 41 Okl. 177, Ann. Gas. 1915C, 432 ; Long v. Kansas City, M. & O. R.
Co., 164 P. 175, 100 Kan. 361.
Allowance of amendment of pleading at opening of trial, setting forth ele-
ment of damages from facts already pleaded, is not abuse of discretion, espe-
cially where court offered continuance to make preparation to meet new mat-
ter. Western Silo Co. v. Carter, 158 P. 71, 98 Kan. 279.
7*Maston v. Glen Lumber Co. (Okl.) 163 P. 128; American Warehouse Co.
v. Gordon, 139 P. 123, 41 Okl. 618 ; Jones v. Phoenix Ins. Co., 146 P. 354, 94
Kan. 235; Jones v. S. H. Kress & Co., 153 P. 655, 54 Okl. 194; McCullough
v. S. J. Hayde Contracting Co., 109 P. 176, 82 Kan. 734.
In a proceeding to settle the priorities of judgment liens, where the creditor
whose judgment was first rendered does not aver that a levy was made under
his judgment within a year from its rendition, it is not an abuse of discre-
tion to allow an amendment at the trial. Excelsior Mfg. Co. v. Boyle, 26 P.
408, 46 Kan. 202.
An application to make amendments to a petition after the evidence has
been closed is addressed to the discretion of the court. Matson v. Chicago,
R. I. & P. Ry. Co., 102 P. 254, 80 Kan. 272. The refusal of an application,
after the evidence is closed, to amend a petition for the purpose of alleging
an additional element of damages, was not an abuse of discretion, where
plaintiff had knowledge of such facts when his petition was filed, and no rea-
sonable excuse was given for not including them. Id.
70 City of Shawnee v. Slankard, 116 P. 803, 29 Okl. 133; Merchants' &
Planters' Ins. Co. v. Crane, 128 P. 260, 36 Okl. 160; Smith v. Rockett, 192
P. 691, 79 Okl. 244: Doty v. Shepard, 139 P. 1183, 92 Kan. 122, rehearing
denied 141 P. 1013, 92 Kan. 1041 ; Keil v. Evans, 161 P. 639, 99 Kan. 273.
While court under Rev. Laws 1910, § 4790, may, before or after judgment,
in furtherance of justice, amend any pleading to conform to proof, yet as a
general rule the allowance of such amendments is in court's sound judicial
discretion. Mackenzie v. City of Anadarko (Okl.) 178 P. 483.
Held not an abuse of discretion. — It is not an abuse of discretion to per-
mit, after the close of the evidence, an amended petition to be filed which
does not substantially change the cause of action or its defense. Midland
Valley R. Co. v. Rippe, 61 Okl. 314, 161 P. 233.
It was not an abuse of discretion to permit the plaintiff in a divorce suit to
amend his petition so as to allege adultery in addition to cruelty and gross
neglect of duty. Penn v. Penn, 133 P. 207, 37 Okl. 650.
Where corporation is properly before court to answer petition naming it
correctly, but wrongly alleging state of its incorporation, amendment to prop-
erly describe such corporation is justified. Bishop-Babcock-Becker Co. v.
Hyde,, 61 Okl. 250, 161 P. 172.
In an action for divorce and alimony, the refusal of leave to file a third
amended plea three years after the first amended petition, which was filed
when plaintiff knew all the facts as to the title to property sought to be
(534)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS § 651
Amendments may be allowed to defeat a motion for judgment
on the pleadings.76 '
An amendment of a petition, introducing a new and distinct
cause of action, after the issues have been joined and the trial be-
gun, is not permissible for the purpose of conforming the plead-
ings to the facts proved, as it would "change substantially" the
claim of the plaintiff.77
Where the evidence to refute plaintiff's theory would sustain a
judgment against defendant on a theory which might have been
presented by plaintiff in another count, an amendment introduc-
ing such other theory ought to be allowed.78
Though ordinarily a pleading cannot be amended after verdict
to conform to proof admitted over objection, an amendment may
be allowed to prevent a final judgment against a party because of
a defect in his pleading which has been supplied by evidence.79
reached, was not an abuse of the discretion of the trial court. Lake v.
Winslow, 129 P. 863, 36 Okl. 679.
Where the petition, in an action for wrongful death, alleges that defendant
committed acts amounting to wantonness, but characterized such acts simply
as "negligence," it is not error to permit an amendment charging wanton
misconduct in express terms, even after the limitation period has expired.
Harbert v. Kansas City Elevated Ry. Co., 138 P. 641, 91 Kan. 605, 50 L. R. A.
(N. S.) 850.
76 Mires v. Hogan, 79 Okl. 233, 192 P. 811.
77 State v. Krause, 50 P. 882, 58 Kan. 651.
Where plaintiff in ejectment alleged that he was the owner of the legal and
equitable title, he does not allege a different cause of action in an amended
petition, alleging that he was the owner of the legal title, but that the deed
to him was executed as a mortgage, and that the condition has been broken.
Maddin v. Robertson, 38 Okl. 526, 133 P. 1128.
Plaintiff, whose daughter was killed through the alleged negligence of de-
fendants, brought an action in which he stated a common-law liability for
loss of services of his daughter, but the averments were wholly insufficient
to constitute a statutory liability for her death. More than two years after
the negligent injury, he asked and obtained leave to amend his petition, so
as to state a cause of action for the recovery of damages for death under
Civ. Code, § 422. Held, that the amendment constituted a new cause of action
which did not relate back to the commencement of the action, so that the
cause of action set up in the amendment was barred by limitations. City of
Kansas City v. Hart, 57 P. 938, 60 Kan. 684 ; Simpson v. Same, Id.
78Harn v. Patterson, 58 Okl. 694, 160 P. 924.
73 Sutter v. International Harvester Co. of America, 106 P. 29, 81 Kan. 452.
In an action on a policy for the loss sustained by the destruction of the
property insured, where the petition alleges the value of said property, and
the jury find a verdict for a larger sum, it Is error for the court, after ver-
(535)
§ 651 PLEADINGS (Ch. 11
Amendments should ordinarily be allowed on request therefor
at the first opportunity after the necessity appears.80
The allowance or refusal of a belated amendment to pleadings
is within the discretion of the trial court.81
Refusal to permit a party to amend after one trial had is not an
abuse of the court's discretion ; 82 but the allowance of an amend-
ment after trial to conform the petition to the facts proved is equiv-
alent to a finding of fact by the court, and the order will not be re-
versed on appeal because apparently against the weight of evi-
dence, there being some evidence to support it.83
When a petition omits an averment necessary to show a right of
action in plaintiff, and defendant at every opportunity throughout
the trial objects to it, and to the reception of evidence under it be-
cause of such omission, it is too late, after verdict in plaintiff's fa-
vor and the filing of a motion for a new trial by defendant, to cure
the defective petition by amending it to conform to the facts
proved.84
An agreement between the parties as to the amount of recovery
will support a judgment for such amount, though the pleadings
were not amended to correspond with the agreement.85
diet, to allow plaintiff to amend his allegations of value so as to cover the
amount of the verdict. Home Ins. Co. of New York v. Wagner, 57 P. 1049,
9 Kan. App. 93.
so Southwestern Broom & Warehouse Co. v. City Nat. Bank, 52 Okl. 422,
153 P. 204. 4
The allowing of an amendment after a full trial of a declaration seeking
recovery of the entire amount due on a contract for the purchase of cattle
and feed, so as to claim recovery for the portion shown to have been deliv-
ered should not be denied on the ground of surprise. Snyder v. Rosenbaum,
215 U. S. 261, 30 S. Ct. 73, 54 L. Ed. 186, aflfcrming 18 Okl. 168, 89 P. 222.
si German-American State Bank v. Badders, 152 P. 651, 96 Kan. 533 ; State
Bank of Eudora v. Brecheisen, 157 P. 259, 98 Kan. 193 ; Pittman & Harrison
Co. v. Hayes, 157 P. 1193, 98 Kan. 273.
Where the petition has been once amended and there has been considerable
delay before the case came to trial, and a demurrer is sustained to plaintiff's
evidence, it is not an abuse of discretion to then refuse to permit plaintiff
to amend by changing the cause of action from one to recover a forfeit from
a stakeholder to one for damages for breach of contract. Benfield v. Croson,
136 P. 262, 90 Kan. 661.
82Atchison Sav. Bank v. Means, 58 P. 989, 61 Kan. 857; Cornelssen v.
Harman, 103 Kan. 624, 176 P. 141.
83 Missouri Pac. Ry. Co. v. McCally, 21 P. 574, 41 Kan. 639, 655.'
s* Walker v. O'Connell, 52 P. 894, 59 Kan. 306.
so Wilson v. Panne, 41 P. 984, 1 Kan, App. 721.
(536)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS § 651
Allowance of amendment to answer after a motion to reopen case
has been overruled, in order to plead new issues, is within trial
court's discretion.88
Where defendant's answer admits a fact essential to plaintiff's
right to recover, and after defendant has made his opening state-
ment not inconsistent with such admission, and after motion for
peremptory instruction against him, the court may in its discre-
tion refuse to permit him to amend the answer by denying the facts
admitted.87
It is not abuse of discretion to refuse, after impaneling of jury,
to allow answer alleging personal contributory negligence to be
amended so as to charge also imputed negligence.88
It is within the court's discretion to refuse permission to file a
second amended answer.89
It is not an abuse of discretion to refuse during the trial of a
cause an amendment to an answer which sets up a new defense,
where no reason is given therefor other than that the trial court
refused to allow the evidence to be introduced under a general
denial.90
An answer cannot be amended to conform to the proof, where
the proof supporting the amendment was immaterial, incompetent,
and introduced over plaintiff's objection.91
Where a civil action is tried before a district judge without a
jury, and special findings are made and filed by the judge, even
if there be a variance between the allegations of the answer and
the facts proven upon the trial, yet if it be a case where an amend-
ment of the answer ought to have been allowed to conform to the
facts proved, the judgment will not be reversed on account of such
variance; but, instead thereof, the answer will be considered as
amended to conform to the facts proved and found.92
se Randall v. Randall, 166 P. 516, 101 Kan. 341.
ST First State Bank of Keota v. Bridges, 39 Okl. 355, 135 P. 378.
SB Angell v. Chicago, R. I. & P. Ry. Co., 156 P. 763, 97 Kan. 688, rehearing
denied 157 P. 1196, 98 Kan. 268.
8» St. Francis Land & Abstract Co. v. Rathburn, 114 P. 862, 84 Kan. 664.
90 Piper v. Choctaw Northern Townsite & Improvement Co., 85 P. 965, 16
Okl. 436.
»i Northwest Thresher Co. v. McNinch, 140 P. 1170, 42 Okl. 155; Same v.
Pruitt, 140 P. 1173, 42 Okl. 163 ; Same v. Bell, 140 P. 1174, 42 Okl. 164 ; Same
v. Long, 141 P. 4, 42 Okl. 165; Same v. Washichek, 141 P. 4, 42 Okl. 166;
Same v. Minium, 141 P. 5, 42 Okl. 168 ; Same v. Basey, 141 P. 5, 42 Okl. 169.
92 Wilcox & White Organ Co. v. Lasley, 20 P. 228, 40 Kan. 521.
(537) '
§ 651 PLEADINGS (Ch. 11
Imposition of terms on granting leave to amend is a matter rest-
ing in the sound discretion of the court.83
Permitting defendant to amend to allege mutual mistake of
law, after the evidence was closed, witnesses were discharged, the
jury instructed, and counsel for defendant had made his opening
argument, plaintiff not being granted a continuance, is an abuse of
the discretion vested in the court.94
It is no abuse of discretion to permit an amended reply, which
does not change issues, to be filed before final judgment.95
It is error to allow a pleading to be amended in a material re-
spect and render judgment thereon without notice to, and in the
absence of, the adverse party.96
In order to take advantage of a ruling on a demurrer when such
demurrer is sustained, the party must stand upon his pleading
held to be defective, and not amend.97
MOTION FOR LEAVE TO AMEND PETITION
(Caption.)
Come now the plaintiffs and ask leave of court to amend their
petition by interlineation or by attaching to the bottom of page
of said petition the following paragraph, to wit: (Here
set forth amendments desired.)
Wherefore plaintiffs pray that they be permitted to amend said
petition as above stated.
, Attorneys for Plaintiffs.
ORDER ALLOWING AMENDMENT TO PETITION
(Caption.)
Now on this 4th day of September, 1917, this cause coming on
for hearing on the motion of plaintiffs to amend the petition filed
»3 Pappe v. Post, 101 P. 1055, 23 Okl. 581.
94 Northwest Thresher Co. v. McNinch, 140 P. 1170, 42 Okl. 155 ; Same v.
Pruitt, 140 P. 1173, 42 Okl. 163; Same v. Bell, 140 P. 1174, 42 Okl. 164;
Same v. Long, 141 P. 4, 42 Okl. 165; Same v. Washichek, 141 P. 4, 42 Okl.
166; Same v. Minium, 141 P. 5, 42 Okl. 168; Same v. Basey, 141 P. 5, 42
Okl. 169.
as Ely v. Pool, 60 Okl. 77, 159 P. 511.
so Kansas City, L. & S. R. Co. v. Richolson, 1 P. 138, 31 Kan. 28; Kansas
City, L. & S. R. Co. v. Richolson, 1 P. 138, 31 Kan. 28.
97 Berry v. Barton, 71 P. 1074, 12 Okl. 221, 66 L. R. A. 513.
(538)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS §§ 651-652
herein, after due consideration the court finds that plaintiffs ace
entitled to amend said petition as stated in said motion.
It is therefore ordered and decreed that plaintiffs be and they
are hereby given authority to amend their petition as stated in
their motion, by (here set out amendments to be made).
Said amendments to be made not later than , and defend-
ants given days to file amended answer.
, Judge.
§ 652. Variance
"No variance between the allegations, in a pleading, and the
proof, is to be deemed material, unless it has actually misled the
adverse party, to his prejudice, in maintaining his action or de-
fense upon the merits. Whenever it is alleged that a party has
been so misled, that fact must be proved to the satisfaction of the
court, and it must also be shown in what respect he has been mis-
led, and thereupon the court may order the pleading to be amended,
upon such terms as may be just."98
Plaintiff before judgment may properly be permitted to amend
his declaration to conform to the facts proved, where such amend-
ment does not substantially change the cause of action."
as Rev. Laws 1910, § 4784.
Giving of instruction to find for defendant if the evidence showed that the
date of the conversion was different from that alleged in bill of particulars
held error in view of Rev. Laws 1910, § 4784 et seq. Missouri, O. & G. Ry.
Co. v. Diamond, 48 Okl. 424, 150 P. 175.
»»Lookabaugh v. Bowmaker, 96 P. 651, 21 Okl. 489; Elwood Oil & Gas
Co. v. Gano, 76 Okl. 287, 185 P. 443 ; Fitzgerald v. Hollan, 24 P. 957, 44 Kan.
499 ; Fulsom-Morris Coal & Mining Co. v. Mitchell, 132 P. 1103, 37 Okl. 575 ;
Binion v. Lyle, 114 P. 618, 28 Okl. 430; St. Louis, I. M. & S. Ry. Co. v. Hard-
wick, 115 P. 471, 28 Okl. 577.
In action for amount due for drilling an oil well under an oral contract
to pay $1.50 per foot, an amendment, alleging that defendant agreed to pay
the customary price for drilling such well in the locality, which was $1.50
per foot, simply pleading more specifically the contract alleged to have been
made did not contravene the rule against pleading a special contract and at-
tempting a recovery upon a quantum meruit. Elwood Oil & Gas Co. v. Gano,
76 Okl. 287, 185 P. 443.
Amendment of pleading to correspond with the proof will not be reversed,
where no prejudice is shown. Coley v. Johnson, 121 P. 271, 32 Okl. 102.
In an action for personal injuries, the plaintiff offered evidence as to the
expenses incurred for medical attention, medicines, etc. This was objected
to on the ground that such issue was not raised by the pleadings. The
pleadings were then permitted to be so amended, when the evidence was ad-
(539)
§ 652 PLEADINGS (Ch. 11
Defendant may likewise be permitted to amend.1'
"When the variance is not material, * * * the court may di-
rect the fact to be found, according to the evidence, and may or-
der an immediate amendment without cost." 2
mitted. Held, not to be an abuse of discretion. Chas. T. Derr Const. Co. v.
Gelruth, 120 P. 253, 29 Okl. 538.
Where a petition, intended to state a caus-e of action for false imprison-
ment, fails to do so, but sufficiently states a cause of action for malicious
prosecution, and the evidence clearly shows false imprisonment, and the de-
fendant is not misled, held, that the petition might be amended at any time
during the trial so as to state a cause of action for false imprisonment.
Atchison, T. & S. F. R. Co. v. Rice, 14 P. 229, 36 Kan. 593.
In action for agreed price of drilling an oil well, with counterclaim for
plaintiff's negligence in destroying well, wherein defendant's pleading was not
explicitly in conflict with the evidence, but was merely ambiguous and indefi-
nite, and where plaintiff was not taken by surprise, an amendment should
have been allowed. Gates v. Little Fay Oil Co., 105 Kan. 46, 181 P. 570.
Where petition alleged note's transfer to plaintiff in due course but copy
of note showed no written indorsement, and where evidence of transfer by
indorsement before maturity was received without objection, court, on objec-
tion to sufficiency of petition, should have allowed amendment to conform to
proof. Stevens v. Vermillion, 102 Kan. 408, 170 P. 807.
A trial amendment in an action for recovery of rents due on farm land,
1 Plaintiff commenced an action to recover judgment on three promissory
notes. The defendants pleaded, in substance, a failure of consideration, and
asked that the notes be canceled. After the evidence was closed, defendants
were permitted to amend their answer by an averment that sis other promis-
sory notes were given with those mentioned in the petition, for the same
purpose, and as a part of the same transaction, and praying that they be
canceled also. Held not error to permit such amendment ; it clearly appear-
ing from the undisputed evidence given in the case that such averments were
true. Minneapolis Threshing Mach. Co. v. Currey, 89 Jf! 688, 75 Kan. 365.
Where the answer, in an action for damages from eating tainted meat, ad-
mitted that plaintiff was employed by the "defendants," and the uncontra-
dicted evidence showed that he was employed by only one, defendants should
have been permitted to amend their answer to conform to the proof. Malone
v. Jones, 139 P. 387, 91 Kan. 815, L. R. A. 1915A, 328, rehearing granted 139
P. 1199, and judgment affirmed on rehearing 142 P. 274, 92 Kan. 708, L. R. A.
1915A, 331.
Where, in an action for conversion, the answer was a general denial, and
evidence tending to show purchase and payment was excluded because not
within the issues, an application for permission to amend to plead purchase
and payment was improperly denied. American Warehouse Co. v. Gordon,
139 P. 123, 41 Okl. 618.
2 Rev. Laws 1910, § 4785.
Where a petition on a fire policy alleges a written settlement, oral proof
of a parol settlement is not a total failure of proof within Comp. Laws 1909,
§ 5675, but a variance within sections 5673 and 5674, permitting amendments.
Merchants' & Planters' Ins. Co. v. Crane, 128 P. 260, 36 Okl. 160.
(540)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS §§ 653~654
§ 653. Failure of proof
"When, however, the allegation of the claim or defense, to
which the proof is directed, is unproved, not in some particular
or particulars only, but in its general scope and meaning, it is not to
be deemed a case of variance, * * * but a failure of proof." *
§ 654. Amendment on demurrer
"At any time within ten days after the demurrer is filed, the ad-
verse party may amend, of course, on payment of costs since filing
which was in the furtherance of justice to conform allegation to proof, is
properly allowed, particularly where not excepted to. Fruitt v. Carter, 52
Okl. 284, 152 P. 1081.
In an action on a fire insurance policy, where, after several months' de-
fault, defendant, on leave of court, files an answer, on which trial is had
nearly two years after the loss, and while plaintiff's testimony is being taken
defendant asks leave to amend its answer and introduce a new defense, but
makes no showing as to the truth of such defense, nor explains its delay,
such leave may be properly refused. Kansas larmers' Mut. Fire Ins. Co.
v. Amick, 14 P. 454, 37 Kan. 73.
Where, on foreclosure of subcontractors' liens, it appeared that the con-
tractor was really the owners' agent, the court properly permitted amend-
ments to the petition to conform to such proof. Southwestern Paint & Wall
Paper Co. v. Perkins, 136 P. 324, 90 Kan. 725.
Where plaintiff in replevin alleged ownership and right of possession under
a chattel mortgage and the court found that plaintiff had the right of pos-
session, though not under the chattel mortgage, held that plaintiff's motion
to amend its petition, under Gen. St. 1909, § 5733 (Code Civ. Proc. § 140), to
conform to the evidence, and for judgment, should have been sustained.
Phillips County Bank v. Lowe, 137 P. 930, 91 Kan. 338.
In an action to foreclose a mortgage in which a defendant claimed that the
mortgage was part of the assets of a partnership composed of himself and
plaintiff, and the evidence showed that the owner was an innocent purchaser
who had given a mortgage to such defendant, and that such defendant was
not entitled to the mortgage, an amendment to conform the petition to such
situation and to pray that plaintiff be subrogated to such defendant's rights
in the mortgage was properly allowed after judgment. Winfrey v. Clapp,
122 P. 1055, 86 Kan. 887.
When a petition claiming damages is not demurrable for insufficiency in its
statements of fact to constitute a cause of action, but is only subject to a
motion to make it more definite and certain as to the allegations ef damage
sustained, and upon it a first trial is had, in the course of which the plaintiff
makes a full disclosure of the several items constituting his demand, it is
not error upon a second trial, and at the close of the plaintiff's evidence,
during which the same disclosures were made, to allow the petition to be
amended by setting out the various items of damages claimed so as to con-
form to the evidence given. Walker v. O'Connell, 52 P. 894, 59 Kan. 306,
distinguished. Tullock v. Mulvane, 60 P. 749, 61 Kan. 650, judgment reversed
22 S. Ct. 372, 184 U.- S. 497, 46 L. Ed. 657.
s Rev. Laws 1910, § 4786.
(541)
§§ 654-656 PLEADINGS (Ch. 11
the defective pleading. Notice of the filing of an amended plead-
ing shall be forthwith served upo? the other party or his attor-
ney, who shall have the same time thereafter to answer or reply
thereto, as to an original pleading." *
"Upon a demurrer being overruled the party who demurred may
answer or reply, if the court be satisfied that he has a meritorious
claim or defense, and did not demur for delay." 5
x "If the demurrer be sustained, the adverse party may amend,
if the defect can be remedied by way of amendment, with or with-
out costs, as the court, in its discretion, shall direct." 6
§ 655. Continuance after amendment
"When either party shall amend any pleading or proceeding, and
the court shall be satisfied, by affidavit or otherwise, that the ad-
verse party could not be ready for trial, in consequence thereof, a
continuance may be granted to some day in term, or to another
term of the court." 7
§ 656. Notice of amendment
Where the filing of an amended petition is an abandonment of
the original petition and sets out a new cause of action, and seeks
relief not prayed for in the original petition, notice to defendant or
his attorney is essential to give the court jurisdiction to render
judgment thereon.8
* Rev. Laws 1910, § 4788.
Under Comp. Laws 1909, § 5677 (St. 1893, § 4015), providing that at any
time within 10 days after a demurrer is filed the adverse party may amend
of course on payment of costs accrued since filing the defective pleading,
and Comp. Laws 1909, § 5679 (St. 1893, § 4017), authorizing the court, on
such terms as may be proper, to amend any pleading, when the amendment
does not substantially change the claim on defense, the court is not only
authorized to permit an amendment, but may require the payment of accrued
costs as a condition thereto. Herron v. M. Rumsley Co., 116 P. 952, 29 Okl.
317.
5 Rev. Laws 1910, § 4789.
e Rev. Laws 1910, § 4792.
7 Rev. Laws 1910, § 4793.
s Lausten v. Lausten, 55 Okl. 518, 154 P. 1182.
(542)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS §§ 657~658
§ 657. Interlineation
It is not error to permit amendment of petition by interlineation,
where it does not substantially change plaintiff's claim and no ap-
parent prejudice results to defendant.9
§ 658. Subject-matter of amendment
Amendments of pleadings may be allowed in furtherance of jus-
tice, when they do not substantially change cause of action or
defense, regardless of change in form of remedy.10
An amended pleading containing a definite statement of facts
concerning a material matter not in conflict with the general aver-
ment respecting the same subject contained in the original petition
does not state a new cause of action, but is only an amplification
of the facts constituting the first one pleaded.11
A petition which fails to state a cause of action may be amend-
ed, though some of the defendants reside outside the county and
are attacking the court's jurisdiction.12
It is not error -to permit an amendment which pleads an addition-
al cause of action growing out of the same transaction, but does not
substantially change the claim.13
Whether the cause of action sued on originally is the same as
»McKee v. Jolly (Okl.) 178 P. 656.
Under Civ. Code Kan. § 140 (Gen. St. Kan. 1915, § 7032), granting permission
to amend petition during trial by interlineation, increasing sum sued for,
where defendant objected, but requested no delay, and proceeded with trial,
has been held no error. Ring v. Phoenix Assur. Co., Limited, of London, 164
P. 303, 100 Kan. 341.
10 B. Van Winkle Gin & Machine Works v. Brooks, 53 Okl. 411, 156 P. 1152.
Plaintiffs sued defendant for damages for false representations in the
sale to them by him of a horse. At the trial, after all the evidence had been'
introduced, but before argument, the court gave plaintiffs leave to amend
the petition, and granted a continuance, imposing on plaintiffs aU the costs
up to the time of the amendment. The amended petition alleged that de-
fendant expressly warranted, the horse. Held, that allowing the amend-
ment was not error, under Civ. Code, § 139, providing that the court may
allow an amendment "in furtherance of justice, and on such terms as may
be proper," when the amendment does "not change substantially the claim
or defense." Culp v. Steere, 28 P. 987, 47 Kan. 746.
11 Wilbers v. Ronnau, 107 P. 772, 82 Kan. 171.
12 Wells v. Hansen, 154 P. 1033, 97 Kan. 305, L. R. A. 1916F, 566, Ann. Cas.
1918D, 230.
is St. Louis & S. F. Ry. Co. v. Keiffer, 48 Okl. 434, 150 P. 102fi.
(543)
§ 658 PLEADINGS (Ch. 11
that set out in an amended petition is to be determined by the
averments of the pleadings, and not by testimony of what the
pleader intended the pleadings should contain.14
Amendments to correct mistakes or defects in pleadings should
be liberally allowed, where they will promote justice and not sub-
stantially change the claims or defenses.15 But an application to
amend a petition made when the case is called for trial may be
properly denied where the materiality of the proposed amendments
is not made to appear, nor the reasonable necessity thereof.18
Where personal service is made on one defendant, and another,
against whom no personal judgment is asked, is served by publica-
tion, and the latter makes a general appearance, it is proper to al-
low the original petition to be amended so* as to charge such defend-
ant personally.17
The filing of a complete amended petition after service or at-
tempted service and before answer, is an abandonment of the orig-
inal petition.18
Where an amended petition is filed, and no part of the original
petition is referred to or adopted therein, such original petition is
superseded and is no part of the record, and while it may be in-
troduced in evidence by the adverse party the same as any other
writing signed by the party, subject to be explained, its contents
cannot be considered on the trial either as part of the record or as
admissions of plaintiff, unless introduced in evidence.19
Plaintiff may amend his petition at any time before answer is
filed to increase his demand for relief,20 or by reducing claim for
i* City of Kansas City v. Hart, 57 P. 938, 60 Kan. 684 ; Simpson v. Same, Id.
is Woods v. Nicholas, 140 P. 862, 92 Kan. 258.
ie Federal Betterment Co. v. Reeves, 93 P. 627, 77 Kan. Ill, 15 Ann. Cas.
796.
i? Beebe v. Carter, 38 P. 278, 54 Kan. 261.
is Lausten v. Lausten, 55 Okl. 518, 154 P. 1182.
The filing of an amended pleading takes from the record the original plead-
ing. Brown v. Galena Mining & Smelting Co., 4 P. 1013, 32 Kan. 528.
is Lane v. Choctaw, O. & G. R. Co., 91 P. 883, 19 Okl. 324; Territory v.
Woolsey, 130 P. 934, 35 Okl. 545; Gaar, Scott & Co. v. Rogers, 46 Okl. 67,
148 P. 161.
20 Willis v. Cochran (Okl.) 168 P. 658.
In an action against a prior guardian and his sureties, plaintiff praying
for the amount of the bond, he was entitled to amend to conform to evidence
(544)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS § 658
damages,21 or by striking out a claim for judgment against one of
the defendants.22
The right to amend a petition by increasing ad damnum and
joining a party plaintiff is absolute, and it is reversible error to
strike such an amended petition from the files.28
Amendments which substantially change the claim previously
relied on will not be permitted.2*
One who seeks to rescind a contract for the exchange of land,
by an action in the county in which the land is situated, against
persons who reside elsewhere, cannot, after they have been sum-
moned and appear, amend his petition by adding a second cause of
action for damages for breach of covenant of warranty and thus
blend a local with a transitory cause of action, but must be confin-
ed to the cause of action that authorizes the service made.25
The amendment of a petition by striking out certain words from
the title of plaintiff, and making the same amendment in the peti-
tion, does not change substantially the cause of action, and will
relate back to the date of the original petition.26
The rule permitting amendments permits amendment of an ex-
hibit to a pleading,27 of the reference in the pleading to the ex-
supporting a finding for a larger sum found to be due. Charles v. Witt, 129
P. 140, 88 Kan. 484.
Plaintiffs alleged that defendants engaged to sell plaintiffs' land at $4,000
for a commission of $125, but that if only $3,900 could be obtained, the com-
mission should be $100. The land sold for $4,000, but defendants fraudulent-
ly represented that only $3,900 was obtained, that plaintiffs paid the defend-
ants a commission of $100, and that they fraudulently converted $100 of the
price paid for the land, and asked judgment for $75. Later plaintiffs were
permitted to amend their petition by alleging that defendants through their
fraud forfeited all rights to commission, and asked for recovery of commis-
sion paid and the remainder of the price. Held, that the amendment was
properly allowed. Deter v. Jackson, 92 P. 546, 76 Kan. 568.
21 Lusk v. Phelps (Okl.) 175 P. 756.
22 Mulvane v. Sedgley, 61 P. 971, 10 Kan. App. 574, judgment affirmed 64
P. 1038, 63 Kan. 105, 55 L. R. A. 552.
23 Willis v. Cochran (Okl.) 168 P. 658.
24 Jewett v. Malott, 57 P. 100, 60 Kan. 509.
25 Neal v. Reynolds, 16 P. 785, 38 Kan. 432.
26 American Bonding Co. of Baltimore v. Dickey, 88 P. 66, 74 Kan. 791.
27 Where it appeared at trial that there was some slight variation between
original mortgage and copy attached to plaintiff's petition, amendment by at-
taching correct copy as exhibit was permitted by Rev. Laws 1910, § 4784.
Chase v. Cable Co. '(Okl.) 170 P. 1172.
(545)
§ 658 PLEADINGS (Ch. 11
hibit,28 of words descriptive of plaintiff,29 of the description of
the property involved in the suit,30 and of the name of the court
and the county in the caption to the petition where the summons
was properly entitled.31 An amendment may be allowed in am-
plification of plaintiff's claim.32
An amendment of a petition to correct a mistake of the pleader,
which merely substitutes one party for another as plaintiff, does not
change the cause of action.33
In a mother's action for death of a minor son, an amendment
ss Where a petition on a note recited that a copy of the note was attached,
marked "Exhibit A," but by mistake the original note instead of a copy was
attached, plaintiff after answer was entitled to amend by striking the ref-
erence to a copy and inserting a recital that the original note was attached.
Bradley v. Pinney, 93 P. 585, 77 Kan. 763.
29 Where words descriptive of plaintiff are by mistake used in the title of
the action, and an allegation is also by mistake inserted in the petition, aver-
ring that such plaintiff is a corporation, the petition may be amended. Amer-
ican Bonding Co. of Baltimore v. Dickey, 88 P. 66, 74 Kan. 791.
30 Where a suit is brought to recover the purchase price of a possessory
right to and improvements upon a claim on which plaintiff held the home-
stead entry, it is proper for the court to allow an amendment to the petition
changing the description of the land from the S. W. *4 of section No. 23, to
the S. W. % of section No. 25. Lookabaugh v. La Vance, 49 P. 65, 6 Okl. 358.
In an action brought for a conversion of certain cattle, and in the trial of
which it appears that the defendant did not in fact sell the cattle in question,
but that they were sold by .another under the direction of defendant, who
knowingly received the proceeds of sale, and converted the same, it is not
error for the district court, before another trial of the cause is had, to per-
mit the plaintiff to so amend his petition as to charge defendant with a con-
version of the proceeds of such sale. Emporia Nat. Bank v. Layfeth, 64 P.
973, 63 Kan. 17.
si A petition did not in its caption recite the name of the court and county
in which the action was brought, as required by Code Civ. Proc. § 87. A
prsecipe for summons, properly entitled, was filed and the summons in due
form was served. Held, that the court had jurisdiction of the action and of
the parties, and properly allowed the petition to be amended by inserting
the name of the court and the county. Hastie v. Burrage, 77 P. 268, 69
.Kan. 560.
32 Amendment to a petition in an action for defendant's fraudulent repre-
sentations as to the value of notes exchanged by him for plaintiff's property
merely amplifies the averments of the original petition and states a cause of
action for deceit and fraud. Woods v. Nicholas, 140 P. 862, 92 Kan. 258.
Where an amended petition does not substantially change plaintiff's original
claim, it is not error to permit it to be filed, though it sets out the original
claim more in detail. West & Russell v. Rawdon, 130 P. 1160, 33 Okl. 399.
as Harlan v. Loomis, 140 P. 845, 92 Kan. 398.
(546)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS § 658
permitting- the adding of the brothers and sisters as plaintiffs does
not change the cause of action.8*
Where cause of action did not exist at the time of filing a peti-
tion, it cannot be aided by an allegation in an amended petition
of an occurrence subsequent to the filing of the original petition.85
An amendment, changing an action on a promissory note into an
action on an implied trust, will not be permitted.36
That a fifth amended petition sets up a different cause from the
fourth does not render erroneous its allowance, where it does not
set up a cause different from that in the petitions prior to the
fourth.37
In an action for slander, it is not error to permit filing of amend-
ment charging the utterance of other slanderous words from those
alleged, where the new cause of action is of the same general char-
acter as that contained in the original petition, and where defend-
ant has ample time to meet such amendment; it not substantially
changing the cause of action.38
It is not error to permit a petition in a suit to quiet title to be
amended before answer, so as to change the action to one in eject-
ment, where no prejudice is shown.39
An amendment in ejectment may be properly allowed to unite
a cause of action for partition.40
In an action for material furnished and services rendered for the
recovery of the contract price, it is proper to permit plaintiff to
amend his petition, stating no new facts constituting a cause of
action, but seeking to recover the value of the material and work
upon a quantum meruit.41
34 Moteenbocker v. Shawnee Gas & Electric Co., 49 Okl. 304, 152 P. 82, L.
R. A. 1916B, 910.
ss Brown v. Galena Mining & Smelting Co., 4 P. 1013, 32 Kan. 528.
36 Jewett v. Malott, 57 P. 100, 60 Kan. 509.
37 Ray v. Navarre, 47 Okl. 438, 147 P. 1019.
«8 Trower v. Roberts, 30 Okl. 215, 120 P. 617.
38 Curtis v. Schmehr, 76 P. 434, 69 Kan. 124.
Where the petition in an action for partition shows the defendant to be in
the exclusive occupancy of the premises involved, the court of the county to
which the case is transferred on change of venue may permit it to be amended
so as to state also a cause of action in ejectment. Young v. McWilliains, 89
P. 12, 75 Kan. 243.
40 Hanson v. Hanson, 122 P. 100, 86 Kan. 622.
*i Limerick v. Lee, 87 P. 859, 17 Okl. 165.
(547)
§ 658 PLEADINGS (Ch. 11
A petition for money had and received may be amended by stat-
ing that "defendant wrongfully, knowingly, fraudulently, and un-
lawfully appropriated and converted the money to his own use,"
without changing the nature of the action, when it is evident that
the amended petition is concerning the same transaction set forth
in the original one.42
The petition in action by a copartnership to recover for conver-
sion of its property cannot be amended, so as to state a cause of ac-
tion in favor of one of the members of the dissolved firm for an
accounting of the partnership business between such member and
such defendant.43
Filing an amended petition by leave waives all error in the pro-
ceedings prior thereto.44
When a demurrer to a petition has been overruled, and the de-
fendant answers, and the plaintiff is then permitted to amend the
petition, and to this amended petition the defendant answers, and
after a trial is had on the amended pleadings, the defendant brings
the case up for review, the appellate court will not consider the
sufficiency of the original petition.45
Where an amendment allowed after trial does not substantially
change the issues, and there is no showing of surprise,40 or where
the court permits plaintiff to amend her petition by simply increas-
ing the amount of damages asked for, it is not error to refuse to
allow a defendant time to file an amended answer.47
Where defendant has knowledge of misjoinder before trial, he
cannot after trial, amend his answer, so as to allege such mis-
joinder.48
42 Bogle v. Gordon, 17 P. 857, 39 Kan. 31.
43 Thompson v. Beel'er, 77 P. 100, 69 Kan. 462.
44 Garanflo v. Cooley, 5 P. 766, 33 Kan. 137; Long v. Hubbard, 50 P. 968,
6 Kan. App. 878. An amended petition becomes and must be treated as the
original petition. A summons, order of arrest, and subsequent judgment
must be considered the same as if the amended petition had been filed at the
time the original petition was filed. Id.
45 Union Pac. By. Co. v. Estes, 15 P. 157, 37 Kan. 229.
46 Dixon v. Helena Society of Free Methodist Church of North America
(Okl.) 166 P. 114.
47 City of Topeka v. Sherwood, 18 P. 933, 39 Kan. 690.
4 s Where plaintiffs sued on a policy covering real and personal property,
and the trial showed that one had no interest in the personalty and the
(548)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS § 658
An answer, defective for failure to allege failure of warranty, is
cured when amended during trial by inserting the omitted allega-
tions.49
It is not error for the court, in an action on a note, to refuse to
allow defendant to amend his answer by adding a new defense aft-
er the cause has been partly tried.50
An answer may be amended where the amendment does not sub-
stantially change the defense.51
Where issues have been joined, and plaintiff has filed an amend-
ed petition by leave of court, which does not change the cause of
action, it is not error to refuse defendant leave to file an amended
answer, where he can prove all the defenses under his original an-
swer.52
It is not error to deny an application to amend the answer during
trial, where the proposed amendment is inconsistent with the al-
legations of the answer.53
Defendants may be permitted to amend their answer by pleading
more fully failure of consideration, which they had imperfectly
pleaded.54
Refusal of amendment to answer to permit introduction of evi-
dence establishing custom contravening written contract sued on
is not error.55
A pleading may generally be amended by the addition of matters
arising or discovered after the original pleading was filed.56
A party ought not to be permitted, after having selected his
other no interest in the real estate, which the insurance company knew be-
fore the action was brought, an application after the evidence had all been
introduced by defendant to amend its answer and plead misjoinder was prop-
erly denied. Phenix Ins. Co. v. Washington, 81 P. 461, 71 Kan. 777.
40 Barber Medicine Co. v. Bradley, 48 Old. 82, 150 P. 127.
so Russell v. Gregg, 30 P. 185, 49 Kan. 89.
si Robertson v. Lombard Liquidation Co., 85 P. 528, 73 Kan. 779.
52 Cherokee & P. Coal & Mining Co. v. Britton, 45 P. 100, 3 Kan. App. 292.
ss Engle v. Legg, 39 Okl. 475, 135 P. 1058.
54 Campbell v. Newton & Driskill, 52 Okl. 518, 152 P. 841.
66 Drennan v. Warburton, 122 P. 179, 33 Okl. 561.
56 in an action on a nonnegotiable note, refusal to permit defendant to amend
his pleadings, so as to show that the collection of the note has been enjoined
in a suit between the original parties, is reversible error. Randolph v. Hud-
son, 74 P. 946, 12 Okl. 516.
(549)
§ 658 PLEADINGS (Ch. 11
ground of defense, when he finds himself defeated thereon, to shift
it, so as to court the hazard of another battle.57
In view of Rev. Laws 1910, § 4790, precluding defendant from
amending to change his defense, it is not the duty of trial court to
consider the answer as amended to conform to proof.58
In an action for damages, an amendment of defendant's answer
by incorporating therein a general denial in addition to the mat-
ter formerly set up as a defense does not change substantially such
defense, where the former answer did not contain a specific admis-
sion of the amount of damages claimed in plaintiff's petition.59
In a suit on a contract for the sale of land, the purchaser hav-
ing pleaded that the contract was induced by fraud and had been
rescinded therefor, it is not an abuse of discretion to allow the
purchaser, on paying the costs and submitting to a continuance, to
amend his answer so as to affirm the contract and claim damages
for the fraud.60
An amended answer and cross-petition, filed in an action by the
defendant, supersedes the first answer; and the plaintiff is preclud-
ed from insisting that the defenses set" up in the original answer
and cross-petition are inconsistent with each other.61
A deniurrer to an amended answer does not raise the question
whether the pleader had a right to make the amendment.62
After an amended answer has twice been held good when at-
tacked by the plaintiff, it is error to refuse defendant leave to amend
after the demurrer to his amended answer had been sustained.63
Where a cross-complaint is filed by defendant he is entitled to the
same rights as plaintiff, so far as amending his pleading is con-
cerned.64
67 Barrett v. Kansas & T. Coal Co., 79 P. 150, 70 Kan. 649.
The granting or refusal of permission to amend is within trial court's
discretion, which is not abused by refusal to permit trial amendment to answer
substantially changing the defense. Dill v. Malot (Okl.) 167 P. 219.
s s Springfield Fire & Marine Ins. Co. v. Griffin, 64 Okl. 131, 166 P. 431.
so Smock v. Carter, 50 P. 262, 6 Okl. 300.
eo Stevens v. Matthewson, 26 P. 38, 45 Kan. 594.
«iReihl v. Likowski, 6 P. 886, 33 Kan. 515.
«2Tecumseh State Bank v. Maddox, 46 P. 563, 4 Okl. 583.
63 Leitz v. Rayner, 15 P. 571, 37 Kan. 470.
e* Venable v. Dutch. 15 P. 520, 37 Kan. 515, 1 Am. St. Rep. 260.
Where a. cross-petition alleged that by written contract plaintiff was to
pay for certain party walls, it was not error to permit an amendment at the
(550)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS § 658
After a trial, a reply should not be permitted to be amended, ex-
cept in the interests of justice.65
The fact that a petition is not subscribed by the party or his at-
torney is a technical defect, which may be corrected by amend-
ment.66
Where amended petition recites that all allegations of original
petition are made a part thereof, demurrer is properly overruled,
if facts stated in either or both pleadings constitute cause of ac-
tion.67
When it is important that an answer should be verified, the
court should allow it to be done by the affidavit of the defendant,
his agent or attorney, even during the trial, under such terms as
are proper.68
Where an unverified answer denying the execution of a note was
not questioned by either party throughout the trial, an amendment
by adding a verification may be allowed in furtherance of justice
before or after judgment.69
trial alleging that the plaintiff agreed to pay for the party walls, but that
by mutual mistake the written contract did not express the real agreement,
and praying for its reformation. Gross Const. Co. v. Hales, -129 P. 28, 37
Okl. 131. Where a cross-petition alleged that by written contract plaintiff
agreed to pay for party walls, an amendment, alleging that plaintiff agreed
to pay for the party walls, but that by mistake the written contract did not
express the real agreement, did not change substantially the claim or de-
fense. Id.
e s In an action for the wrongful seizure and conversion of personal prop-
erty, the defendant, a United States marshal, attempted to justify under an
order of attachment directed to him. Subsequent to the filing of the reply
in the case the court, granting the order of attachment, upon motion dis-
charged the attachment proceedings. Thereafter the plaintiff, with leave of
the court, filed an amended or supplemental reply, setting up the dissolu-
tion of the attachment. Held, that the court committed no error in allow-
ing the reply to be filed, as it alleged facts material to the case occurring
after the former reply. Simpson v. Voss, 1 P. 601, 31 Kan. 227.
In an action on a note, the defense was failure of consideration. After a
verdict against plaintiff was returned by the jury, and after their motion for
a new trial was overruled, plaintiffs asked leave to amend their replies to the
separate answers of defendants, in order to allege that the said defense had
been waived by defendants. Held, that the request to amend came too late,
and was properly overruled. Dunham v. Brown, 58 P. 232, 9 Kan. App. 889.
ee Manspeaker v. Bank of Topeka, 46 P. 1012, 4 Kan. App. 768.
67 Dashiell v. McGuire, 157 P. 409, 98 Kan. 177.
es Chinberg v. Gale Sulky Harrow Mfg. Co., 16 P. 462, 3S Kan. 228.
«» Jones v. Citizens' State Bank, 39 Okl. 393, 135 P. 373.
(551)
§ 658 PLEADINGS (Ch. 11
Where an answer is filed purporting to be defendant's answer,
but entirely unsigned, and the case is tried as if the answer had
been signed, and the court's attention is not called to such defect
until after judgment, the answer may then be amended by adding
the signature.70
A court may, on objection made at the trial to an unverified in-
terplea, permit its verification.71
Generally, the same rules will apply to the amendment of bills
of particulars, on appeal from a justice to the district court, as
those in reference to the amendment of pleadings in general.72
On appeal from a justice, the district court may, in the further-
ance of justice, after evidence submitted, permit plaintiff, on pay-
ment of all costs, to amend his bill of particulars so as to show that
he is seeking to recover as an administrator, and not as an indi-
vidual.73
Permitting a plaintiff to amend the bill of particulars the second
time, so as to charge defendant as a copartnership instead of a cor-
7oyUrann v. Hamilton, 108 P. 822, 82 Kan. 528.
71 Hargrove v. Woolf, 8 P. 192, 34 Kan. 101.
72 Where a bill of particulars alleged that defendant contracted to take
good care of the horse and colt of plaintiff entrusted to his keeping, it will
be held that such pleading states a contract for ordinary care, and, where
said bill of particulars further states that said horse and colt sickened and
died for want of proper care and attention, it is error to admit evidence
over the objection of defendant of a contract for special and extra care.
Ransom v. Getty, 14 P. 487, 37 Kan. 75.
A written claim presented to a railway company, accompanied by a letter
explaining the full particulars of the transaction, charging the company with
the loss of 50 per cent, of a certain number of boxes of oranges, and for
the return of freight paid it thereon, is sufficient to notify the company of
a, claim against it for damages caused by its negligence in transporting the
oranges; and hence such claim, after being filed before a justice of the peace
as a bill of particulars, could be amended by setting out the damages and
negligence. St. Louis & S. F. Ry. Co. v. Bryan Fruit Co., 42 P. 267, 1 Kan.
App. 551.
Where the bill of particulars in an action against a railroad company for
a fire set by a locomotive shows that the company on a designated date ran a
passenger train from one station to another so negligently as to permit fire
to escape from the engine and destroy plaintiff's property, a motion to re-
quire the setting forth the number of the engine was properly refused, there
being nothing to indicate that the company was operating so many passenger
trains as to make it difficult to ascertain from the statement the particular
engine. Missouri, K. & T. Ry. Co. v. Traxon, 92 P. 580, 77 Kan. 821.
78 Reed v. Cooper, 1 P. 822, 30 Kan. 574.
(552)
Art. 8) AMENDED AND SUPPLEMENTAL PLEADINGS §§ 658~659
poration as originally alleged, being within the discretion of the
trial court, is not ground of reversal.74
A bill of particulars on two promissory note's may be amended
so as to show the cause of action to be on a judgment rendered on
such notes.75
§ 659. Supplemental pleadings
"Either party may be allowed, on notice, and on such terms, as
to costs, as the court may prescribe, to file a supplemental petition,
answer or reply, alleging facts material to the case, occurring after
the former petition, answer or reply." 76
It is the function of a supplemental petition to supply the facts
which may be necessary to a complete determination of the rights
of plaintiff and defendant touching the subject-matter of the suit,
on the facts existing at the time of the rendition of the judgment,
and which would vary the relief to which plaintiff would have been
entitled at the commencement of the action.77
The filing of an amendatory or supplemental pleading rests in
the discretion of the trial court, and must be on notice.78
A plaintiff, with the consent of the court, may file a supplemental
petition, alleging facts material to the case occurring after the fil-
ing of his original petition.79
Where the application is made 'after several trials of the action
and the facts constituting the new defense are not fully and defi-
nitely stated, and no satisfactory reason is given for the delay in
presenting the application, its refusal is not error.80
Where a petition for unlawful conversion fails to state definitely
the date of such conversion, and a motion by defendant to compel"
T* Farmers' & Merchants' Bank v. Bank of Glen Elder, 26 P. 680, 46
Kan. 376.
7&Teberg v. Swenson, 4 P. S3, 32 Kan. 224.
76 Rev. Laws 1910, § 4795; Prince v. Gosnell, 47 Okl. 570, 149 P. 1162.
77 Wade v. Gould, 59 P. 11, 8 Okl. 690.
78Brokaw v. Bartley, 61 P. 320, 9 Kan. App. 318; Kingfisher Improvement
Co. v. Talley, 51 Okl. 226, 151 P. 873 ; Alexander v. Clarkson, 150 P. 576, 96
Kan. 174; Rogers v. Hodgson, 26 P. 732, 46 Kan. 276; Goodacre v. Skinner,
28 P. 705, 47 Kan. 575; Wade v. Gould, 59 P. 11, 8 Okl. 690; Stith v. Ful-
linwider, 19 P. 314, 40 Kan. 73; Alexander v. Clarkson, 150 P. 576, 96 Kan. 174,
79 Williams v. Moorehead, 7 P. 226, 33 Kan. 609.
so Central Branch Union Pac. R. Co. v. Andrews, 21 P. 276, 41 Kan. 370.
(553)
§ 659 PLEADINGS (CIl. 11
plaintiff to give the exact date is overruled, and both parties try
the case as though the statute of limitations were involved, it is
error to refuse to permit defendant, at the close of plaintiff's tes-
timony, to file a supplemental answer raising question of limita-
tions.81
A plaintiff cannot file a supplemental petition after a judgment
determining in his favor the issues presented by his original peti-
tion, where the purpose of such supplemental petition is merely to
join a new party as codefendant in the original action upon facts
arising since the commencement of the action and not growing out
of issues involved therein and presenting matters distinct from any
issue in the original action.82 The facts embodied in a supplemen-
tal petition must relate to the cause of action set forth in the orig-
inal petition and be in aid thereof.83 A supplemental petition can-
not set out facts which have arisen since the commencement of the
action and which by themselves constitute a new and independent
cause of action without reference to the facts alleged in the original
pleading.84
Where the petition states no cause of action, the statute does not
authorize the filing of a supplemental petition setting up subse-
quently occurring facts.85 A defect in the original petition in that
it states a cause of action not existing when the action was brought
cannot be cured by setting up in a supplemental petition matters
subsequently occurring.86
It is no objection to a supplemental answer and cross-petition
that it alleges matters which have arisen, or have become known,
subsequent to the filing of the original answer, if the facts are ma-
terial.87
In a suit to cancel a deed, plaintiff's application, at the close of
the testimony, to file a supplemental reply, alleging that the deed
si Ament v. Lowenthall, 35 P. 804, 52 Kan. 706; Austin v. Jones, 28 P. 621,
47 Kan. 565.
s 2 National Bank of Anadarko v. First Nat. Bank, 39 Okl. 225, 134 P. 866.
83 Id.
s* Id.
so Reader v. Farriss, 49 Okl. 459, 153 P. 678, L. R. A. 1916D, 672; Farriss v.
Reader, 49 Okl. 492, 153 P. 682.
sa id; Gardner v. City of Leavenworth, 146 P. 1000, 94 Kan. 509.
si Atkinson v. Kirkpatrick, 135 P. 579, 90 Kan. 515; Robertson v. Christen-
son, 135 P. 567, 90 Kan. 555.
(554)
Art. 9) DEFECTS AND OBJECTIONS §§659~662
had been obtained by fraud, is properly denied, where the evidence
does not support such allegation.88
A demurrer to a supplemental petition runs to the allegations of
both the original and supplemental petitions.80
A petition pleading a specific title as the foundation for relief
is not enlarged by an amended answer which, besides pleading
specific defenses, states in general terms that the plaintiff has no
title, and in order to secure the benefit of a new title acquired sub-
sequent to the institution of the suit the plaintiff should obtain
leave to file a supplemental petition setting up such title.90
§ 660. Lost pleadings
"If an original pleading be lost, or withheld by any person, the
court may allow a copy thereof to be substituted." 81
ARTICLE IX
DEFECTS AND OBJECTIONS
Sections
661. Immaterial errors.
662. Cure of error.
663. Waiver.
664. Objection to introduction of any evidence — Form.
§ 661. Immaterial errors
"The court, in every stage of action, must disregard any errof
or defect in the pleadings or proceedings which does not affect the
substantial rights of the adverse party ; and no judgment shall be
reversed or affected by reason of such error or defect." 92
§ 662. Cure of error
Omission of material allegations in a petition or complaint may
be supplied by the allegations of the answer.83
s 8 Lewis v. Allen, 142 P. 384, 42 Okl. 584.
s» Reynolds v. Hill, 114 P. 1108, 28 Okl. 533.
90 Robertson v. Board of Com'rs of Rawlins County, 113 P. 413, 84 Kan.
52, judgment affirmed on rehearing 119 P. 316, 86 Kan. 10.
»i Rev. Laws 1910, § 4783.
92 Rev. Laws 1910, § 4791; Blackwell v. Hatch, 73 P. 933, 13 Okl. 169.
93 Loyal Mystic Legion of America v. Brewer, 90 P. 247, 75 Kan. 729;
St. Louis & S. F. R. Co. v. Keller, 62 P. 905, 10 Kan. App. 480.
Where the holder of a note and mortgage brings suit to foreclose, making
the mortgagees and others defendants, and states as to such others that the
§ 662 PLEADINGS (Ch. 11
Where the allegations of an answer explicitly set forth matters
defectively set forth in the petition, such defects in the petition
are cured.94
The objection that the petition of plaintiff contained two causes
of action which were not separately stated and numbered, one be-
ing to reform a deed, became immaterial when the defendant in
his pleading and proof showed that the mistake in that deed had
been cured by the making and delivery of a subsequent deed.93
Defects in the petition caused from incomplete allegations as to
malice and probable cause are cured by an answer admitting the
imprisonment, setting out all the facts, and attempting a justifica-
tion.96
In an action to recover under an agreement to deliver seed vital
and fit for seed purposes, a failure to allege in the petition that the
seed furnished were vital and fit for seed purposes is remedied by
an answer averring that they were unfit for seed purposes and
were not vital.97
"defendants, and each of them, have or claim some interest in and to the
premises above described," and W., one of such others, without objection, files
a full answer, setting up all his claims and interests in the premises, and a
trial is had on such pleadings, and both plaintiff and W. introduce evidence,
and findings are made and judgment rendered, though plaintiff's petition as
against W. is defective, yet W., by his answer and other acts, waives the de-
fects. Clay v. Hildebrand, 9 P. 466, 34 Kan. 694.
Under Gen. St. 1889, par. 4223, directing that errors not affecting the mer-
its be disregarded, a defect in a petition in an action to vacate a judgment,
arising from failure to set forth the judgment, was cured by an answer ad-
mitting rendition of the judgment, and evidence, containing the petition,
summons, and judgment in full, where the question of the sufficiency of the
petition was raised only by objection to evidence because it failed to state a
cause of action. Schnitzler v. Fourth Nat. Bank, 42 P. 496, 1 Kan. App. 674.
Appointment of receiver to protect property and hold revenues pending final
result or suit to cancel a guardian's lease and quiet title, held not error,
though the ancillary petition was not verified, where a verified answer ad-
mitted facts alleged in the petition authorizing appointment of receiver.
Ward v. Inter-Ocean Oil & Gas Co., 52 Okl. 490, 153 P. 115.
84 Bierer v. Fretz, 4 P. 284, 32 Kan. 329.
Where a petition inferentially states a fact, and the answer admits the
fact, and the defendant objects to the introduction of any evidence under the
petition because it does not state such fact, and the court overrules the objec-
tion, held not error. Atchison, T. & S. F. R. Co. v. Gabbert, 8 P. 218, 34 Kan.
132.
»» Knight v. Dal ton, 83 P. 124, 72 Kan. 131.
96 Arkansas City Bank v. McDowell, 52 P. 56, 7 Kan. App. 568.
97 D. M. Ferry & Co. v. Ballinger, 60 P. 824, 8 Kan. App. 756.
(556)
Art. 9) DEFECTS AND OBJECTIONS § 662
Where defendants plead facts amounting to a waiver of a condi-
tion in the policy, a failure of plaintiff to plead such waiver is
cured.98
Where the petition contains two counts, one for recovery of a
real estate agent's commission, the other on a note given for the
same debt, and defendant files a general denial and plea that the
note has been altered, plaintiff is entitled to a trial on both
counts."
Where the petition against the indorser of a note fails to allege
notice of dishonor or facts excusing notice, but the indorser sets
up a failure to give notice, and plaintiff replies, alleging facts ex-
cusing the failure, and the case is tried on the issues thus joined,
the defects are cured.1
Where the petition in holder's action against maker and in-
dorser, which because of scrivener's inadvertence in copying note
set out in its body failed to allege notice of dishonor or any ex-
cuse, after admission of note in terms waiving notice of protest,
court, in interest of justice, should treat the petition as amended. -
In an action for conversion, where possession was not alleged in
the pleading, the defect was cured by the introduction, without
objection at any time in the trial court, of evidence proving such
possession.3
An indefinite answer is cured by the admission without objec-
tion of evidence supplying the omissions.4
A complaint for negligence, though not alleging that plaintiff
used due care, is not cured by verdict for plaintiff.5
Failure of a petition in an action for price of land to allege ten-
der of a deed is cured by judgment requiring plaintiff to deposit a
deed before rendition of judgment.6
Where plaintiff recovered, and defects in the petition were not
challenged by demurrer, objections to testimony, or motion for
98 Milwaukee Mechanics' Ins. Co. v. Sewell (Okl.) 168 P. 660.
99 Gonder v. Dodge, 155 P. 937, 97 Kan. 562.
1 Shaffer v. Govreau, 128 P. 507, 36 Okl. 267.
2 Whitaker v. Bruner (Okl.) 175 P. 238.
3 Long-Bell Lumber Co. v. Webb, 52 P. 64, 7 Kan. App. 406.
4 Bailey v. Parry Mfg. Co., 59 Okl. 152, 158 P. 581.
5 City of Guthrie v. Nix, 41 P. 343, 3 Okl. 136.
6 Witt v. Boothe, 158 P. 851, 98 Kan. 554.
(557)
§§ 662-663 PLEADINGS (Ch. 11
new trial, the petition would be regarded after judgment as amend-
ed.7
Where defendants do not appear until after judgment, objec-
tions that the petition fails to support the judgment will be over-
ruled, unless it fails to allege some matter essential to the relief
sought.8
Any error in overruling objections to evidence in ejectment be-
cause the petition fails to set up copies of instruments making up
chain of title is cured by amendment after verdict without objec-
tion or exception setting up such copies.9
§ 663. Waiver
"When the defects do not appear upon the face of the petition,
the objection may be taken by answer; and if no objection be tak-
en, either by demurrer or answer, the defendant shall be deemed
to have waived the same, except only the objection to the jurisdic-
tion of the court, and that the petition does not state facts suffi-
cient to constitute a cause of action." 10
Where an attorney fails to point out clearly the grounds of his
objection to pleadings or proceedings, he will ordinarily be deem-
ed to have waived his objection.11
Irrelevancy and redundancy in a pleading are waived by failure
to move to strike it in the trial court.12
Incapacity of the plaintiff to sue, which appears on the face of
the petition, must be taken advantage of by either an answer or a
demurrer, or the defect is waived.18
Where parties submit issues to court on agreed state of facts,
generally such action waives error in rulings on the pleadings.1*
Where a defective petition sets forth a prima facie cause of ac-
7 Farmers' & Merchants' Nat. Bank v. Gann, 148 P. 249, 95 Kan. 237.
8 Hoehler v. Short, 140 P. 146, 40 Okl. 681.
8 Randals v. Paro (Okl.) 168 P. 216.
i° Rev. Laws 1910, § 4742.
11 Emery v. Bennett, loo P. 1075, 97 Kan. 490, Ann. Cas. 1918D, 437.
12 Hunt v. Jones, 128 P. 1094, 35 Okl. 252.
13 Where a widow sues for the wrongful death of her husband and alleges
that no personal representative has been appointed, widow's incapacity to sue
must be taken advantage of by demurrer or answer, or defect will be waived.
Chicago, R. I. & P. Ry. Co. v. Brooks, 57 Okl. 163, 156 P. 362.
14 Powell v. Crittenden, 57 Okl. 1, 156 P. 661; Enid City Ry. Co. v. City of:
Enid, 144 P. 617, 43 Okl. 778.
(558)
Art. 9) DEFECTS AND OBJECTIONS § 663
tion and is met by answer instead of demurrer, it will be deemed
sufficient.16
When a case is tried by the court on an agreed statement of
facts, and no objection is raised to the sufficiency of the petition,
any defect therein which could be cured by an amendment is
waived.16
A defendant cannot complain of the insufficiency of a petition
to present an issue in which it voluntarily joined, where such is-
sue was fully tried on the merits.17
A party, accepting all the issues tendered, by the petition, and
defending the case against all the theories presented, will not be
granted a new trial because of the inconsistency of such theories.18
Any error in overruling a demurrer is waived, where defendant
ans*wered an amended petition, curing the defect, and went to trial
without objection.19
Where a petition in equity was defective, in that it contained
no offer to place defendant in statu quo, defendant waived his right
15 Naugle v. Naugle, 132 P. 164, 89 Kan. 622.
Where failure of petition on foreclosure of mechanic's lien to allege that
the material furnished was actually used in the building was not challenged
by demurrer, the defect was waived. Ryndak v. Seawell, 76 P. 170, 13 Okl. 737.
A bill of particulars praying for specific property or its value and also for
damages is sufficient under Rev. Laws 1910, § 4807, to warrant recovery of
damages for the detention in absence of objection. Weleetka Light & Water
Co. v. Castleberry, 142 P. 1006, 42 Okl. 745.
In an action for partition, where a petition avers parties are tenants in
common, but not that plaintiffs are in possession, and there is not joined with
the demand for partition an action for possession, and the defendant answers,
claiming title and possession, and asking that title be quieted, and the suffi-
ciency of plaintiffs' petition is not challenged by defendant, he thereby waives
all objections to its sufficiency. Moorehead" v. Robinson, 75 P. 503, 68 Kan.
534.
16 State Bank of St. John v. Norduff. 43 P. 312, 2 Kan. App. 55.
17 Triple Tie Ben. Ass'n v. Wood, 98 P. 219, 78 Kan. 812.
Where, in ejectment, counsel in opening statement spoke of the defendant's
conversion of plaintiff's personalty, and the court without objection permitted
evidence as to damages for such conversion, though it was not pleaded, held,
that the pleading should be construed as broad enough to include those ele-
ments of damage, or that the issues were enlarged by consent of parties. Cus-
ter v. Royse, 104 Kan. 339, 179 P. 353.
18 Provident Loan Trust Co. v. Mclntosh, 75 P. 498, 68 Kan. 452, 1
Ann. Cas. 906.
1° Commerce Trust Co. v. School Dist. No. 37 of Pontotoc County, 47 Okl.
Ill, 147 P. 303.
(559)
§ 663 PLEADINGS (Ch. 11
to attack it on that ground, where he answered to the merits and
went to trial upon the issues tendered.20
When causes of action have been improperly joined, if no objec-
tion is taken by demurrer, the error is waived.21
It is too late to object for the first time on the trial of a cause
to the insufficiency of a petition on technical grounds, or to any
amendment which has been answered and issues joined thereon.22
The sufficiency of the allegations of a petition to state a cause
of action cannot be questioned for the first time by a motion to
set aside a sheriff's sale made pursuant to the judgment rendered
in the case.23
Failure to plead estoppel or waiver may be waived by plaintiff
by proceeding without objection as though such defense had been
pleaded.24
The pleading of inconsistent defenses is waived, where plaintiff
replies and joins issue thereon and makes no objection until motion
for a new trial.25
An answer charging contributory negligence in general terms
is sufficient, if a motion to make definite and certain has not been
filed.26
Objection on the ground that it does not state a cause of action
20 Smith V. Smith, 89 P. 896, 75 Kan. 847.
21 Tucker v. Hudson, 38 Okl. 790, 134 P. 21; Reynolds v. Hill, 114 P. 1108,
28 Okl. 533 ; Gates v. Freeman, 57 Okl. 449, 157 P. 74.
In ejectment for several distinct parcels of land, where plaintiff's title as
to all defendants is the same, and the answer sets up misjoinder of causes of
action, because some of the defendants claim separate interests in separate
parcels, but admits that all defendants are in possession of all the real estate,
the misjoinder is no ground for objection to the introduction of testimony, or
demurrer to tne evidence ; and, where none of defendants ask a separate trial,
and the action proceeds as though there was no misjoinder, it will be regarded
as immaterial. Bloclgett v. Yocum, 103 P. 128, SO Kan. 644.
One appearing and answering a cross-action against him without objection
waives misjoinder of causes of action in the cross-petition. State Exch.
Bank v. National Bank or Commerce (Okl.) 174 P. 796, 2 A. L. R. 211; Same
v. Traders' Nat. Bank (Okl.) 174 P. 799.
->2 City of Guthrie v. Finch, 75 P. 288, 13 Okl. 496.
23 Birmingham v. Leonhardt, 43 P. 996, 2 Kan. App. 513.
-4 First Bank or Texola v. Terrell, 44 Okl. 719, 145 P. 1140, Ann. Cas.
1917A, 681.
-5 Kaufman v. Boismier, 105 P. 326, 25 Okl. 252.
26 Kirkland v. Atchison, T. & S. F. Ry. Co., 104 Kan. 388, 179 P. 362.
(5GO)
Art. 9) DEFECTS AND OBJECTIONS § 663
is waived by failure to demur to a counterclaim seeking affirmative
relief.27
Where defendant voluntarily goes to trial without a reply being
filed, when he is not bound to do so, he waives it, and is regarded
as consenting to go to the proof of the answer as if it were de-
nied.28
Departure in a reply is waived by failure to move to strike.29
Where a petition is filed, defendant answers, and plaintiff re-
plies by a general denial, and afterwards defendant files an amend-
ed answer, including the allegations in his first answer, and, in
addition thereto, sets up new matter, and no reply is filed to this
amended answer; and the parties go to trial thereon without ob-
jection, all the allegations of the amended answer are put in issue
by the reply of plaintiff, except the new matter contained in the
amended answer; and, if a reply by plaintiff is necessary to the
amended answer, defendant waives such reply by proceeding to
trial without objection and as if a reply had been filed.30
An objection to a reply for variance cannot be made by a de-
27 Wyman v. Herard, 59 P. 1009, 9 Okl. 35.
Where a counterclaim for damages for an alleged wrongful attachment is
set up in answer, plaintiff, by filing a reply, thereby joins issue and waives
objection that such damages were not the proper subject for a counterclaim.
Word v. Nakdimen (Okl.) 178 P. 257.
28 Patterson v. Choate, 50 Okl. 761, 151 P. 620 ; Holt v. Holt, 102 P. 187, 23
Okl. 639 ; Kepley v. Carter, 30 P. 182, 49 Kan. 72 : Allison v. Bryan, 109 P.
934, 26 Okl. 520, 30 L. R. A. (N. S.) 146, 138 Am. St. Rep. 988; Leach v. Al-
tus State Bank, 56 Okl. 102, 155- P. 875.
29Purcell v. Corder, 124 P. 457, 33 Okl. 68; Stuart v. Grayson (Okl.) 162
P. 956 ; St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 91)
P. 647, 23 Okl. 79.
Defendant, who submits the cause to the jury without objection to the
pleadings or the evidence, will be held to have accepted all the issues ten-
dered, and waived any question of the departure of the reply from the peti-
tion. Consolidated Kansas City Smelting & Refining Co. v. Osborne, 71 P.
838, 66 Kan. 393.
In an action on a note by an indorsee against the maker, the answer was
fraud in its inception, plaintiff replied, denying each and all of the allegations
in the answer, inconsistent with or denying allegations of the petition. Held
that, though the reply was defective, as the parties proceeded through two
trials as if it were sufficient, and the fraud alleged was in issue, defendant
is not in a position to insist that the fraud was admitted. First Nat. Bank
v. Abmeyer, 108 P. 94, 82 Kan. 283.
30 Cooper v. Davis Sewing Mach. Co., 15 P. 235, 37 Kan. 231.
HoN.Pt.& PEAC.— 36 (561)
§ 663 PLEADINGS (Ch. 11
fendant who has filed a special answer setting forth a fals« is-
sue, to which any reply would be sufficient.31
Where a demurrer to a pleading is sustained, and the pleader
asks leave to amend, he waives the error in sustaining such de-
murrer, and in order to take advantage of any error in the ruling
he must stand on his pleading.32
The filing of an amended pleading on the sustaining of a demur-
rer to the original pleading is a waiver of any error in the ruling
on the demurrer.38
Defendant who files an answer within time granted therefor after
overruling of the demurrer, waives any error in overruling the de-
murrer,34 unless an exception to the ruling was taken.35
31 Plaintiff in an action on a policy alleged a total loss, which defendant in
his answer denied generally, averring the loss to be partial, and not total, and
set forth as a special defense that an appraisal required by the policy had not
been completed, and that the action was prematurely brought, which special
answer 'was surplusage and constituted no defense to the action stated. Plain-
tiff's reply alleged abandonment of the appraisement by defendant. Held, that
the reply was responsive to the special matter pleaded, and an objection that it
was variant with the cause of action stated in the petition could not be
raised by defendant; it having by special answer set forth a false issue, to
which any reply would "be sufficient. Liverpool & L. & G. Ins. Co. v. Heckman,
67 P. 879, 64 Kan. 388.
32 Board of Com'rs of uarfield County v. Beauchamp, 88 P. 1124, 18 Okl.
1 ; State v. Martin, 62 Okl. 295, 162 P. 1088 : Berry v. Barton, 71 P. 1074, 12
Okl. 221, 66 L. R. A. 513 ; Chidsey v. Ellis, 125 P. 464, 31 Okl. 107 ; Morrill v.
Casper, 73 P. 1102, 13 Okl. 335; Gates v. Miles (Okl.) 169 P. 888; Guess v.
Reed, 49 Okl. 124, 152 P. 399.
33 Bank of Santa Fe v. Haskell County Bank, 38 P. 485, 54 Kan. 375; King-
man v. Pixley, 54 P. 494, 7 Okl. 351 ; Pattee Plow Co. v. Beard, 110 P. 752, 27
Okl. 239, Ann. Cas. 1912B, 704 ; Campbell v. Thornburgh, 57 Okl. 231, 154 P.
574 ; Wallace v. Blasingame, 53 Okl. 198, 155 P. 1143 ; Cabell v. McLish, 61
Okl. 224, 160 P. 592 ; Brown v. J. I. Case Plow Works, 59 P. 601, 9 Kan. App.
685.
3* Munson v. First Nat. Bank of Okmulgee, 58 Okl. 284, 159 P. 486.
Where defendant demurs to a complaint as not stating a cause of action,
and the demurrer is overruled, and, without raising exceptions, defendant an-
swers, any defects in the complaint are cured. Sanford v. Weeks, 18 P. 823,
39 Kan. 649.
Where a petition on a policy failed to show that plaintiff had not per-
formed the conditions precedent, and after the overruling of a demurrer de-
fendant filed an answer, alleging failure to comply with the provisions of
the policy, the grounds of demurrer were waived. American Ins. Co. of
Newark, N. J., v. Rodenhouse, 128 P. 502, 36 Okl. 211.
Where the petition does not allege compliance with the conditions precedent
36 Simmons v. Chestnut-Gibbons Grocery Co. (Okl.) 173 P. 217.
(562)
Art. 9) DEFECTS AND OBJECTIONS § .663
AVhere a demurrer is sustained to certain paragraphs of the
answer, and defendant files an amended answer setting up the
same defenses and issues are joined thereon, error in sustaining
the demurrer is waived.36
A party who seeks to have the ruling on a demurrer to the peti-
tion reviewed must elect to stand on the demurrer, and at once
bring the case to the appellate court, or an answer may be filed, and
when the case is tried, if it is tried on the original petition, and
then brought up by the party demurring, the ruling on the demurrer
will be passed on.3T
The asking and obtaining of leave to file an amended petition at
end of trial waives any error in denying application to amend
original pleading or any error in proceedings prior to filing of
amended petition.38
Verification of the denial of the execution of a written instrument
is not waived, though there be no motion to strike the pleading
from the file.39
Where upon retrial the petition was amended so that the facts
stated in the amended petition constituted a new cause of action,
which would be barred by expiration of the period of limitation
after the filing of the original petition, and before the filing of the
amended petition, but at the former trial the case was tried on the
theory set up in the amended petition, defendant, having acquiesced
in such interpretation of the original petition, is precluded from ob-
jecting that the amended petition set up a new cause of action.40"
Where plaintiff is permitted to file a supplemental petition during
the trial without previous notice, and defendant objects to the fil-
ing on grounds other than want of notice, and proceeds with the
to an action, and a demurrer is overruled, and defendant alleges that plain-
tiff has failed to comply with the conditions, the grounds of demurrer are
waived. Rochester German Ins. Co. of Rochester, N. Y., v. Rodenhouse, 12£
P. 508, 36 Okl. 378.
36 Pacific Mut. Life Ins. Co. of California v. O'Neil, 130 P. 270, 36 Okl. 792.
A plaintiff in ejectment, who, on second trial as a matter of right, replied
to an answer to which a demurrer had been sustained, and objected to an
amended answer, held to have waived the demurrer. Johnson v. Myers, 122
P. 713, 32 Okl. 421.
87 Union Pac. Ry. Co. v. Estes, 15 P. 157, 37 Kan. 229.
38 Cornelssen v. Harman, 103 Kan. 624, 176 P. 141.
so St. Louis & S. F. R, Co. v. Bruner, 52 Okl. 349, 152 P. 1103.
*° Taylor v. Atchison, T. & S. F. Ry. Co., 68 P. 691, 64 Kan. 888.
(563)
§ 663 PLEADINGS (Ch. 11
trial without making an application for delay, he cannot afterwards
complain of want of notice.41
The lack of verification of a pleading is waived by pleading over
and going to trial on the merits without objection.42
A party who challenges the form or sufficiency of a verified
pleading should attack it by motion before the introduction of the
evidence is begun, and an objection made after the introduction of
the evidence is ordinarily too late to be available.43
Where, on sustaining objection to the sufficiency of plaintiff's
pleading, he avails himself of leave to amend, he thereby waives
his right to complain of the ruling.44
Error, if any, in striking matter from an amended answer, is waiv-
ed by defendant's taking leave to file and filing a further amend-
ment.45
41 King v. Hyatt, 32 P. 1105, 51 Kan. 504, 37 Am. St. Rep. 304.
Where plaintiff, without objection, filed a supplemental petition setting up
a new cause of action, the error, if any, was waived where defendant filed
answer and went to trial upon the issues so joined under Rev. Laws 1910, §
4742, providing that where certain defects, including misjoinder of causes of
action, exist in the petition, and no objection is taken by demurrer or answer,
defendant shall be deemed to have waived such objections with immaterial
exceptions. Reynolds v. Hill, 114 P. 1108, 28 Okl. 533.
*2 Boston Loan & Trust Co. v. Organ, 36 P. "733, 53 Kan. 386.
Plaintiff, not objecting to an unverified plea of intervention before proceed-
ing to trial, is deemed to have waived any objection to the failure to verify
such plea. Farmers' State Bank of Ada v. Keen (Okl.) 167 P. 207.
Defective verification of a petition on which a restraining order was granted
ex parte was waived where defendant answered to the merits without ob-
jecting to the petition. Galbreath Gas Co. v. Lindsey, 129 P. 45, 35 Okl. 235.
Any defect or irregularity in the verification of a petition for an injunction
is waived, where, without raising it, defendant answers to the merits. Glasco
v. School Dist. No. 22, McClain County, 103 P. 687, 24 Okl. 236.
The failure of defendant, in an action on a note, to verify his answer deny-
ing execution was waived by the filing of a reply denying the allegations of
the answer. Jones v. Citizens' State Bank. 39 Okl. 393, 135 P. 373.
Where a pleading denies the execution of a written instrument, and is veri-
fied by an attorney, and no objection is made to the verification until evidence
is offered in support of the denial, it is not error to overrule an objection made
on the ground that the affidavit does not show that the facts were within the
personal knowledge of the attorney. Hoopes v. Buford & George Implement
Co., 26 P. 34, 45 Kan. 549.
43 Hornick v. Union Pac. R. Co., 118 P. 60, 85 Kan. 568, 38 L. R. A. (N.
S.) 826, Ann. Cas. 1913A, 208.
44 Pappe v. Post, 101 P. 1055, 23 Okl. 581.
46 Ott v. Elmore, 73 P. 898, 67 Kan. 853.
Where a motion to strike and a demurrer are sustained to an answer, and
(564)
Art. 9) DEFECTS AND OBJECTIONS § 663
A defendant who has been brought in by a supplemental petition,
by answering and going to trial waives questions of jurisdiction
raised by a prior motion to dismiss on the grounds that the original
petition had fully performed its functions as a pleading in the cause
before the supplemental petition was filed, and that the supplemen-
tal petition was filed without notice to him.*6
The error in striking out a supplemental and amended answer
was waived by filing a second supplemental and amended answer,
alleging most of the facts set up in the stricken answer, which was
permitted to stand unchallenged, as it superseded the one stricken
out.47
Where the petition sets forth the manner of the indebtedness of
defendant to plaintiff, and defendant's answer is a general denial,
but at the trial defendant's evidence tends to establish a counter-
claim, and no objection is made to its introduction on the ground
that the pleadings did not authorize it, if the action is tried, and the
evidence admitted as though the answer were sufficient to allow
the evidence to be introduced, the objection is waived.48
In a suit to foreclose a lien for materials, where there is a gen-
eral denial, and also denial of any debt, and the case is tried on
the issue of payment without objection, until certain evidence is
offered, the findings for defendant will not be disturbed on the
ground that such issue is not made by the pleadings.49
Where the petition did not allege that the locomotive was de-
fective, but defendant tried the case on the assumption that the ex-
istence of defects was an issuable fact, defendant could not ob-
ject to evidence, introduced, by plaintiff tending to show that the
spark arrester on the engine was defective.50
The question of variance between pleading and proof must be
raised at a time* which will permit an amendment of the pleading
on such terms as may be just, and the adverse party must not only
defendants by leave file an amended answer repleading the eliminated matter,
any error in orders sustaining the motion and demurrer is waived. Schuber
v. McDuffee (Okl.) 169 P. 642.
46 Beecher v. Ireland, 54 P. 9, 8 Kan. App. 10.
47 Robertson v. Christenson, 90 Kan. 555, 135 P. 567.
48 Feidler v. Motz, 22 P. 561, 42 Kan. 519.
49 Chicago Lumber Co. v. Limerick, 36 P. 710, 53 Kan. 395.
50 Kansas City, Ft. S. & M. B. Co. v. Chamberlain, 61 Kan. 859, 60 P. 15.
(565)
§§ 663-664 PLEADINGS (Ch. II
have been misled to his prejudice, but the fact must be shown to the
satisfaction of the trial court.51
Where, in an action for money loaned, defendant answered that
the money was invested in cattle in which the parties were partners,,
and the court found that the money loaned was invested in part-
nership cattle, and afterwards defendant agreed to take plaintiff's
interest and repay the amount invested by him, and gave judgment
for plaintiff, no objection having been made till after judgment,
there was not a fatal variance.52
An averment that a certain person was general manager of a
railway company, and that, on behalf of the company, he promised
to give a pass over its roads, is a sufficient allegation of the au-
thority of the agent, after judgment for plaintiff, when there is no
showing that such averment was challenged at the trial.53
§ 664. Objection to introduction of any evidence — Form
An objection to the introduction of any evidence under a petition
is good only when there is a total failure to allege in the petition
some matter essential to recovery, and is not good when the al-
legations are simply indefinite or statements of conclusions of law.54
When this is the only objection to a petition its allegations will be
liberally construed, and when there is not a total failure of averment
as to some essential matter, the allegations are simply incomplete,
and objection to the introduction of evidence is properly overruled.55
si Missouri, K. & T. Ry. Co. v. Green, 89 P. 1042, 75 Kan. 504.
The petition alleged that defendant was negligent in permitting the roof of
his warenouse to become leaky, and that water came in and fell upon plain-
tiff's goods stored there, andi that defendant negligently permitted them to
remain wet, and they thus became damaged. The proof seemed to show that
the water came into the room from the street, and not through the roof. Held,
that there was not such a variance as would warrant the court in sustaining a
demurrer to the evidence. Red Ball Transfer & Storage Co. v. Deloe, 30 Okl.
522, 120 P. 575.
AVhere plaintin, in an action for injuries, sought to expand his charge of
negligence by proving the speed of the train to which testimony defendants
objected, ana moved to strike it out after it had 'been admitted, and by an in-
struction sought to limit the jury's inquiry to the issue presented by the
pleading, a claim that defendants acquiesced in the enlargement of the issues
is not sustained. Judgment, 79 P. 673, 70 Kan. 755, reversed on rehearing.
Chicago, R. I. & P. Ry. Co. v. Wheeler, 83 P. 27, 70 Kan. 7GO.
5a Mulhall v. Mulhall, 41 P. 109, 3 Okl. 304.
" Atchison, T. & S. F. R. Co. v. English, 16 P. 82, 38 Kan. 110.
s* First Nat. Bank v. Cochran, 87 P. 855, 17 Okl. 538.
66 Id. ; Ball v. White, 50 Okl. 429, 150 P. 901 ; Johnston v. Chapman, 38 Okl.
(566)
Art. 9) DEFECTS AND OBJECTIONS § 664
General averments of fraud in a petition are sufficient as against
an objection to the introduction of evidence thereunder.56 The
practice of questioning the sufficiency of a petition by objections
to evidence is not to be encouraged, and the objections should be
overruled, if under any fair construction of the petition any cause
of action is stated.57
42, 131 P. 1076 ; Abbott v. Dingus, 44 Okl. 567, 145 P. 365 ; Sulsberger & Sons
Co. v. Castleberry, 40 Okl. 613, 139 P. 837 ; Thorp v. St. Louis & S. F. R. Co.
(Okl.) 175 P. 240; First Nat. Bank v. Harkey, 63 Okl. 163, 163 P. 273;
Sharpless Separator Co. v. Gray, 62 Okl. 73, 161 P. 1074; Wilson v. Eulberg,
51 Old. 316, 151 P. 1067; Blackert v. Lankford (Okl.) 176 P. 532; Missouri, K.
& T. Ry. Co. v. Murphy, 90 P. 290, 75 Kan. 707 ; Hogan v. Bailey, 110 P. 890,
27 Okl. 15; Young v. Severy, 49 P. 1024, 5 Okl. 630.
In action for breach of contract, failure to allege performance on plaintiffs
part presented only by objection to evidence and not by demurrer held imma-
terial. Capper v. Manufacturers' Paper Co., 121 P. 519, 86 Kan. 355.
The payment of money to secure the liberty and discharge of one who has
been imprisoned on at malicious prosecution must be specifically averred in
a suit to recover damages therefor ; but averment is sufficiently made if it
is declared in the petition that the plaintiff has been "forced to pay out and
expend large sums of money in securing his liberty and discharge," if the ob-
jection is first made at the trial to the introduction of evidence tending to
show what payments have been made by the plaintiff for that purpose. Ten
Cate v. Fansler, 65 P. 375, 10 Okl. 7.
In an action by a servant for injuries, the petition alleged that "one V. was
employed by said defendant and was in charge of said machine, and that the
plaintiff herein was employed to take and carry away the staves after they
had been planed." It was further alleged that defendant was the owner and
operator of the plant in which the machine referred to was situated, and that
plaintiff was obliged to obey a foreman of -a department thereof. No demurrer
was filed, and a motion to make more definite did not refer to the failure to
directly allege employment by defendant. Held, that a motion objecting to tne
introduction of testimony on account of such failure was properly overruled.
Brower v. Timreck, 71 P. 581, 66 Kan. 770.
Where plaintiff died pending action, amendment of petition by administra-
trix, in whose name action was revived, stating that plaintiff died intestate
and that administratrix was duly appointed by probate court, had duly quali-
fied, and was acting administratrix of plaintiff, was sufficient against objec-
tion to introduction of evidence. Estes v. Edgar Zinc Co., 156 P. 758, 97
Kan. 774.
An objection to the introduction of evidence under a petition to set aside
a deed to property of which plaintiff is not in possession, alleged to have
T}een procured by undue influence, is properly overruled, though a prayer for
partition is joined with that for other relief. Howard v. Carter, 80 P. 61, 71
Kan. 85.
66 Howard v. Carter, 80 P. 61, 71 Kan. 85.
"Id.
Where a petition states a cause of action for damages for fraud, and de-
fendant answers, and trial is had on that theory, an objection that the peti-
(567)
§ 664 PLEADINGS (Ol. It
Every legal intendment is indulged in support of an answer at-
tacked, and if it may be construed to state a defense, etc., objection
to evidence in support of answer will not be sustained merely be-
cause allegations are indefinite or mere legal conclusions.58
A departure in the reply from the petition,59 or the failure to veri-
fy a pleading, cannot be taken advantage of by objection to the in-
troduction of any evidence thereunder, but should be raised by mo-
tion to strike out.60
Misjoinder of causes of action cannot be met by an objection to
introduction of evidence.61 .
Failure of a petition to state a cause of action may be presented
by an objection to the introduction of any evidence.62
An objection to the introduction of evidence on the ground that
the petition does not state a cause of action is equivalent to a
demurrer to the petition and cannot be used to raise the objection of
the uncertainty of the petition,63 and raises no issue of fact.64
Where the complaint does not state facts sufficient to constitute
a cause of action, and an objection is made by defendant to the in-
troduction of any evidence under it for that reason, the objection
should be sustained, even though defendant has answered.65 But
in the absence of a demurrer or motion, unless there is a total omis-
sion to allege some essential material fact, the petition will be held
good on an objection to the introduction t)f evidence,66 and the
tion was not drawn upon any definite theory cannot be raised by objection to
the evidence. Allen v. Datschewski, 142 P. 953, 92 Kan. 933.
58 First Nat. Bank v. Humphreys (Okl.) 168 P. 410.
59 St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 99 P.
647, 23 Okl. 79; Merchants' & Planters' Ins. Co. v. Marsh, 125 P. 1100, 34
Okl. 453, 42 L. R. A. (N. S.) 996; Purcell v. Corder, 124 P. 457, 33 Okl. 68;
Landon v. Morehead, 126 P. 1027, 34 Okl. 701.
«o / Doughty v. Funk, 103 P. 634, 24 Okl. 312.
61 State Exch. Bank v. National Bank of Commerce (Okl.) 174 P. 796, 2 A.
L. B. 211; Same v. Traders' Nat. Bank (Okl.) 174 P. 799.
e2 Lankford v. Schroeder, 47 Okl. 279, 147 P. 1049, L. R. A. 1915F, 623.
63 wey v. City Bank, 116 P. 943, 29 Okl. 313 ; Shultz v. Jones, 3 Okl. 504, 41
P. 400.
64 Cowart v. Parker-Washington Co., 136 P. 153, 40 Okl. 56.
05 Church v. Atchison, T. & S. F. R. Co., 29. P. 530, 1 Okl. 44.
Where a petition fails to state a cause of action, the trial court should
sustain an objection to the introduction of evidence thereunder. Willoughby
v. Ball, 90 P. 1017, 18 Okl. 535.
ee Marshall v. Homier, 74 P. 368, 13 Okl. 264.
(568)
Art. 9) DEFECTS AND OBJECTIONS § 664
court will consider all the pleadings in the case, and if, 'from all
of them, it can find that there is a cause of action for plaintiffs, the
motion will be overruled.87
Where a petition states a cause of action in general terms, and
defendant answers, he cannot by 'demurrer to the. evidence question
the sufficiency of the petition.68
Testimony tending to support the allegation will not be exclud-
«d, because not specifically pleaded, and where no motion is made
to make it more certain.69
Where the petition alleges ownership generally, but the reply ad-
mits the ownership to be special, as that of a mortgagee, an objec-
tion to evidence under the repugnant matter in the reply should be
sustained.70
An objection to any evidence under the petition, because of the
omission of the allegations of certain material facts is waived, if
evidence is introduced on the trial to prove such facts, without ob-
jection.71
When it is essential that one insisting on specific performance
make out complete equity, he must show that the contract sued on
is capable of being specifically enforced, and where it is disclosed
that the contract is unreasonable in its terms and void under the
statute of frauds and that the acts done are not such that dam-
ages would be an inadequate remedy, and plaintiff has within his
control money more than sufficient to compensate him for any loss
sustained, objection to the introduction of evidence thereunder is
properly sustained.72 Where the only objection to a petition is by
objection to the introduction of evidence at the trial, the court will
determine only whether it states a cause of action in equity, and if
87 Id. ; Missouri, O. & G. Ry. Co. v. McClellan, 130 P. 916, 35 Okl. 609 ;
De Watteville v. Sims, 44 Okl. 708, 146 P. 224 ; Litsch v. Kansas Gas & Elec-
tric Co., 148 P. 632, 95 Kan. 496.
If a pleading treated as an answer with a demurrer waived states a cause
of action, though defectively, an objection to the introduction of testimony
will be overruled. State Exch. Bank v. National Bank of Commerce (Okl.)
174 P. 796, 2 A. L. R. 211; Same v. Traders' Nat. Bank (Okl.) 174 P. 799.
68 Elliott v. Hudson, 113 P. 307, 84 Kan. 7.
69 St. Louis & S. F. Ry. Co. v. Henry, 46 Okl. 526, 149 P. 132.
70 Johnson v. State Bank of Seneca, 52 P. 860, 59 Kan. 250.
71 Baden v. Bertenshaw, 74 P. 639, 68 Kan. 32.
72 Haffner v. Dobrinski, 88 P. 1042, 17 Okl. 438, judgment affirmed 30 S. Ct.
172, 215 U. S. 446, o4 L. Ed. 277.
(569)
§ 664 PLEADINGS (Ch. 11
the facts pleaded are sufficient, and in their nature properly cog-
nizable by a court of equitable jurisdiction, the objection will be
overruled.73
Objection to evidence because incompetent, irrelevant, and im-
material is insufficient to test sufficiency of petition, counterclaim,
etc., or whether it is a proper subject of litigation when it has not
been tested by demurrer, motion, or objection to introduction
of any evidence on ground that pleading states no cause of action
or defense.74
An objection to the introduction of evidence under an answer
should be sustained, where it clearly appears that the answer fails
to state a defense.75
Where a cross-petition does not state a cause of action against
plaintiff, the court should decline to hear evidence in support
thereof.76
Where the question of a variance between the pleading and proof
is first raised by a demurrer to the evidence, it will not be regarded
as fatal, when it appears that the party objecting was neither sur-
prised, misled, or prejudiced thereby.77 •
OBJECTION TO INTRODUCTION OF
(Oral.)
Comes now the defendant and objects to the introduction of any
evidence, for the reason that plaintiff's petition filed herein wholly
fails to allege facts sufficient to constitute a cause of action in
favor of the plaintiff and against this defendant.
73 Id.
7* Scanlan v. Barkley (Okl.) 178 P. 674.
75 Hilton v. Bailey, 46 Okl. 759, 149 P. 863.
Overruling of objection to evidence by the defendant purchaser, who set up
failure of title as a defence, held error, where his answer did not contain an
offer to reconvey. Herron v. Harbour, 57 Okl. 71, 155 P. 506.
Where a defendant is estopped from making a claim of damages or question-
ing the amount of a debt by a former judgment or decree, it is not error to
sustain an objection to the introduction of evidence when offered to estab-
lish such defenses. Engle v. Legg, 39 Okl. 475, 135 P. 1058.
76 McConnell v. Davis, 46 Okl. 201, 148 P. 687.
77 Collier v. Monger, 75 Kan. 550, 89 P. 1011.
(570)
Art. 10) MOTIONS AND ORDERS THEREON
ARTICLE X
MOTIONS AND ORDERS THEREON
DIVISION I.— MOTIONS IN GENERAL
Sections
665. Definition — Several objects.
666. Notice — Form.
667. Service — Return — Form.
668. By officer — Fees.
669. Appearance.
670. Affidavits and pleadings to motion.
671. Hearing.
672. Effect of continuance.
673- Second motion.
DIVISION II.— ORDERS
674. Ruling — Form.
675. Law of the case.
676. Nunc pro tune order — Form.
677. Entry — Notice.
678. Vacating and modifying.
DIVISION III.— PARTICULAR MOTIONS
679. Motion to dismiss.
680. Motion for judgment on the pleadings — Nature — Form.
681. Grounds for sustaining or overruling.
682. Departure.
683. Judgment against verdict.
684. Motion to strike from files — Form.
685. Affirmative pleading.
686. Defensive pleadings.
687. Demurrer.
688. Departure.
689. Limitations.
690. Amended pleading.
691. Failure to amend.
692. Motion to strike from pleading — Form.
693. Motion to strike parties — Form.
694. Motion to make more definite and certain.
695. Form and requisites.
696. Time of making.
697. Waiver — Dismissal.
698- Motion to require pleader to separately state and number.
699. Form and requisites.
700. Waiver — Dismissal.
701. Motion to require election — Form.
702. Time of making.
(571)
§§ 665-667 PLEADINGS (Ch. 11
DIVISION I. — MOTIONS IN GENERAL
§ 665. Definition — Several objects
"A motion is an application for an order, addressed to the court,
or a judge in vacation, or by any party to a suit or proceeding, or
one interested therein, or affected thereby." 78
"Several objects may be included in the same motion, if they
all grow out of, or are connected with, the action or proceeding in
which it is made." 79
§ 666. Notice— Form
"Where notice of a motion is required, it must be in writing, and
shall state the names of the parties to the action or proceeding in
which it is made, the name of the court or judge before whom it is
to be made, the place where and the day on which it will be heard,
the nature and terms of the order or orders to be applied for; and
if affidavits are to be used on the hearing, the notice shall state
that fact, and it shall be served a reasonable time before the hear-
ing." 80
NOTICE OF MOTION
(Caption.)
To the Above Named Plaintiff, A. B., and His Attorney of Record,
G. H.:
You and each of you are hereby notified that said defendant, C.
D., has filed in the above entitled cause his motion to (stating kind
of motion filed), a copy ofl which is hereto attached, and that the
same will be presented in said court on the — — day of ,
19 — , at o'clock, , M., or as soon thereafter as counsel
can be heard.
X. Y., Attorney for Defendant.
§ 667. Service — Return — Form
"Notices of motions, mentioned in this article, may be served
by a sheriff, coroner or constable, the party or his attorney, or by
any other person, and the return of any such officer or affidavit of
any such person shall be proof of service ; the service shall be on the
7 s Rev. Laws 1910, § 5310.
TO Rev. Laws 1910, § 5311.
so Rev. Laws 1910, § 5312.
(572)
Art. 10) MOTIONS AND ORDERS THEREON §§ 6G7-GG9
party, or his attorney of record, and in case there is more than one
party adverse to such motion, service shall be made on each party
or his attorney." 81
RETURN OF NOTICE OP MOTION
(Acceptance of Service)
Receipt of a copy of the above and foregoing notice, and of a
copy of the motion therein referred to, is hereby acknowledged on
behalf of plaintiff this day of , 19 — .
G. H., Attorney for Plaintiff.
(Affidavit of Personal Service]
(Venue.)
X. Y., being duly sworn, .on oath says : That he is the attorney
for the defendant in the above entitled action ; that he served the
attached notice on the plaintiff therein, A. B., on the day
of , 19 — , by delivering to said A. B., personally, at his of-
fice in the city of , a true and correct signed duplicate orig-
inal thereof. X. Y.
Subscribed and sworn to before me this day of - — ,
19—.
, Notary Public.
My commission expires , 19 — .
§ 668. By Officer — Fees
"The service of a notice shall be made in the manner required
by law for the service of a summons ; and when served by an of-
ficer, he shall be entitled to like fees." 82
§ 669. Appearance
The journal entry of a ruling of a trial court sustaining a motion
to retax costs, reciting that the adverse party excepted to the rul-
ing, sufficiently shows an appearance.83
si Rev. Laws 1910, § 5313.
82 Rev. Laws 1910, § 5314.
88 Teagarden v. Board of Com'rs of Linn County, 49 Kan. 146, 30 P. 171.
(573)
§§670-673 PLEADINGS (Ch. 11
§ 670. Affidavits and pleadings to motion
On the hearing of a motion addressed to the discretion of the
court and supported by affidavit, it is not error for the court to re-
ceive and consider counter affidavits tending to refute facts stated
in affidavits supporting the motion and presenting other grounds
for denying it.84
Answers or other pleadings to a motion are not required, and
there is no provision for making up the issues for the trial of mo-
tions.85
§ 671. Hearing
Where numerous motions are pending1 for executions against
stockholders of a corporation, and a petition is filed to set aside
the judgment against the corporation as to them, and in the ab-
sence of the district judge the county judge grants a temporary
injunction against the proceeding on the motions, the district
court, in ordering that the hearing of the motions be postponed un-
til further orders are made in the injunction proceedings, does not
abuse its discretion.88
§ 672. Effect of continuance
Where a motion is 'made during the term and continued to an-
other term, when it is decided, it is the same as if the decision was
made at the term when it was filed.87
§ 673. Second motion
After a motion has been overruled, the movant has no right to
file a second motion for the same relief on grounds existing at
the time of the prior motion. It can only be done on leave of
court, which is seldom granted.88
Where a party concludes that his motion is defective or insuffi-
cient, he should apply and obtain leave to amend or withdraw his
first motion before filing a second motion.88
s* Randall v. Randall, 101 Kan. 341, 166 P. 516.
ss Berry v. Dewey (Kan.) 170 P. 1000.
se Gurney v. Steffens, 43 P. 241, 56 Kan. 295.
ST St. Louis, I. M. & S. Ry. Co. v. Lowrey, 61 Okl. 126, 160 P. 716.
ss Adams v. Lockwood, Englehart & Co., 30 Kan. 373, 2 P. 626.
so KjellandSr v. Kjellander, 139 P. 1013, 92 Kan. 42.
(574)
\
Art. 10) -MOTIONS AND ORDERS THEREON §§ 674~675
DIVISION II. — ORDERS
§ 674. Ruling — Form
A ruling on a motion will not be set aside, where there were
sufficient grounds to sustain it, though such grounds were not re-
lied on by the party seeking relief.90
'ORDERS ON MOTIONS
(Caption.)
This cause coming on to be heard on the motion of the defend-
ant to require the plaintiff to make his petition more definite and
certain (or state other kind of motion), due proof of notice and
copy of said motion on G. H., attorney for plaintiff having been
made, and the court having heard said motion and being fully
advised in the premises :
It is ordered that the plaintiff's petition herein be made more
definite and certain by amendment in the following allegations
(stating them and showing in what particular to be amended) ;
and leave to amend said petition in that respect is hereby granted,
said amendment to be filed within days from this date.
Dated this day of , 19 — .
, Judge.
§ 675. Law of the case
A ruling on a motion to suppress a deposition on grounds not
appearing therein does not become the law of the case, so as to
require the court, when the motion is renewed at a subsequent trial
and supported by new proof of the invalidity of the deposition, to
overrule it without consideration.91
Where an order is made denying a motion to quash service of
summons, and a final judgment is rendered, and no appeal is tak-
en, the matter arising on the motion to quash becomes res judica-
ta and a bar to the right of defendant to raise the same question
on a subsequent motion involving the same subject-matter.90
»o Hancock v. Youree, 106 P. 841, 25 Okl. 460.
si Bethany Hospital Co. v. Hale, 77 P. 537, 69 Kan. 616.
92 Rogers v. McCord Collins Mercantile Co., 91 P. 864, 19 Okl. 115.
(575)
§ 676 PLEADINGS (Cll. 11
§ 676. Nunc pro tune order — Form
Every court of record may, on proper application, enter its or-
ders, by nunc pro tune entry, which the clerk has by mistake omit-
ted from the record. The jurisdiction to order a nunc pro tune
entry is not lost by lapse of time, where no intervening rights are
affected.93 Such order may be made either on parol or on written
evidence,94 and is not open to collateral attack by a party to a
proceeding, because not made upon sufficient evidence, or because
of erroneous findings of fact, or because not supported by the find-
ings of fact.95 Though lapse of time may call for stronger testi-
mony that an order was in fact made and as to the extent thereof,
and as to the effect of the belated entry, when it is made, it may
be enforced as if entered when originally made.96
Application for Order Nunc Pro Tune — Nunc Pro Tune Order
MOTION
(Caption.)
Comes now the said plaintiff, A. B., and respectfully represents
and shows to the court that the order of this court made and en-
tered herein on the day of — — , 19 — , recites that (set-
ting forth facts incorrectly stated in order), whereas (state what
facts were), and by a clerical error and mistake the said facts were
erroneously stated in said order.
(Or, that the order of this court made the day of ,
19 — , overruling the plaintiff's motion for judgment on the plead-
ings herein, and allowing plaintiff exceptions to such ruling, have
not been regularly brought up and recorded by the clerk of this
court.)
Wherefore plaintiff moves the court to enter an order nunc pro
tune herein, correcting said order (or record), to show (state cor-
rection to be made).
X. Y., Attorney for Plaintiff.
as Courtney v. Barnett (Okl.) 166 P. 207.
94 Where an order is made by the probate court, and through mistake or
neglect is not entered on the records, the court can enter such order nunc pro
tune even after considerable time and on either parol or written evidence.
Graden v. Mais, 112 P. 107, 83 Kan. 481.
95 Courtney v. Barnett (Okl.) 166 P. 207.
»6 Graden v. Mais, 112 P. 107, 83 Kan. 481.
(576)
Art. 10) MOTIONS AND ORDERS THEREON §§ 676-678
ORDER
(Caption.)
This court having, on the day of , 19 — , made and
entered in the above entitled cause its order reciting that (set
forth facts incorrectly stated in order), whereas (set forth what
facts were), and by a clerical error and mistake the said facts were
erroneously stated in said order:
It is therefore hereby ordered that said order be and the same
is hereby corrected and amended, so as to state that (state cor-
rections).
Dated , 19 — , this order to be entered nunc pro tune as of
, 19-.
• , Judge.
§ 677. Entry — Notice
The statute requiring orders made out of court to be entered on
the journal is directory, and compliance therewith is not essential
to the validity of the orders.97
In the absence of some statute or rule of court requiring it, par-
ties who rely upon a custom of the clerk to notify them when
orders are entered upon motions pending in their cases, do so at
their peril.98
§ 6J8. Vacating and modifying
A court of record has inherent power on its own motion to va-
cate or modify its orders, however conclusive, during the term of
their rendition or entry.99
An order is void which is made by the superior court at a sub-
sequent term, vacating a former order without notice on its own
motion, without complying with the statutes relative to the review
of orders on motions.1
97 Keenan v. Chastain, 64 Okl. 16, 164 P. 1145, withdrawing opinions on
second rehearing 157 P. 326 ; Rev. Laws 1910, § 5317 ; Mutual Life Ins. Co.
of New York v. Buford, 61 Okl. 158. 160 P. 928.
98 Western Coal & Mining Co. v. Green, 64 Okl. 53, 166 P. 154.
»» St. Louis, I. M. & S. Ry. Co. v. Lowrey, 61 Okl. 126, 160 P. 716.
i Hawkins v. Hawkins, 153 Pac. 844, 52 Okl. 786; Rev. Laws 1910, §§
5267-5269.
HON.PL.& PBAC.-37 (577)
5§ 679-680 PLEADINGS (Ch. 11
DIVISION III. — PARTICULAR MOTIONS
§ 679. Motion to dismiss
The question of a former adjudication cannot be raised by a
motion to dismiss.2
§ 680. Motion for judgment on the pleadings — Nature — Form
A motion for judgment on pleadings is in the nature of a demur-
rer, and is in substance both a motion and a demurrer; being a
demurrer because it attacks the sufficiency of pleadings, and a mo-
tion because an application for an order for judgment.3 It is not
'available, however, to dispose of the merits of the case.4
Every legal intendment is to be indulged in favor of the plead-,
ing attacked,5 and if there is any reasonable doubt as to its suffi-
ciency, a judgment on the pleadings should not be granted.6
2 Attica State Bank v. Benson, 54 P. 1037, 8 Kan. App. 566.
For form of motion to dismiss, see ante, § 533.
s Deming Inv. Co. v. Reed (Okl.) 179 P. 35.
A motion for judgment on the pleadings is in the nature of a demurrer,
and tests the sufficiency of the pleadings and presents a question of law as
to whether the facts alleged are a defense. Schuber v. McDuffee (Okl.) 169
P. 642; Oliphant v. Crane (Okl.) 172 P. 1073; Mires v. Hogan (Okl.), 192
P. 811.
In action on note and to foreclose mortgage securing it, plaintiff's motion
for judgment on the pleadings held properly sustained. Kerr v. Mcffinney
(Okl.) 170 P. 685.
4 Peck v. First Nat Bank of Claremore, 50 Okl. 252, 150 P. 1039.
s Every legal intendment is indulged in support of an answer attacked,
and if it may be construed to state a defense, a motion for judgment on the
pleadings will not be sustained merely because allegations are indefinite or
mere legal conclusions. First Nat. Bank v. Humphreys (Okl.) 168 P. 410.
6 If there is any reasonable doubt as to the sufficiency of the pleading,
judgment on the pleadings will not be granted. Peck v. First Nat. Bank of
Claremore, 50 Okl. 252, 150 P. 1039. Where it is necessary for plaintiff to
file reply to new matter set up in the answer, it is reversible error to render
judgment on the pleadings on plaintiff's motion after his reply is filed. Id.
A motion for judgment on the pleadings in a justice court should be over-
ruled where there is any reasonable doubt as to its sufficiency. Earl v. Tyler,
128 P. 269, 36 Okl. 179.
A motion for judgment on the pleadings, where filed by plaintiff to de-
fendant's answer, should be granted only when such answer, allowing every
reasonable intendment in its favor, does not deny or state a defense to the
material allegations of the pleading. Cobb v. Wm. Kenefick Co., 100 P. 545,
23 Okl. 440.
On motion for judgment on averments in petition and opening statement
of counsel, they should be liberally interpreted. Moffatt v. Fouts, 160 P.
1137, 99 Kan. 118.
(578)
Art. 10) MOTIONS AND ORDERS THEREON §§ 680-681
A motion for judgment on the pleadings is in the nature of a
demurrer, and admits for its purpose the truth of all facts well
pleaded by the opposite party.7
It invokes the trial court's judgment on pleaded and undisputed
facts, and the judgment is equivalent to a ruling on a demurrer.8
The district court has the inherent power to render a judgment
on the pleadings without a motion.9
MOTION FOR JUDGMENT ON THE PLEADINGS
(Caption.)
Comes now the above named plaintiff, A. B., and moves the
court to enter judgment on the pleadings in the above entitled
action, as prayed for in plaintiff's petition, on the ground and for
the reason that the answer and cross-petition filed herein are sham,
frivolous, and wholly insufficient to constitute a defense to the
said action, and wholly barren of any equities or claims of right in
the defendant to entitle him to the relief sought, or to any equita-
ble, legal, or other relief whatsoever.
X. Y., Attorney for Plaintiff.
§ 681. Grounds for sustaining or overruling
A motion for judgment on the pleadings should be denied where
the pleadings raise a question of fact.10 Hence a motion by plain-
tiff for judgment on the pleadings should be denied, where the
7 C. E. Sharp Lumber Cp. v. Kansas Ice Co., 142 P. 1016, 42 Okl. 689.
A motion for a judgment on the pleadings like a demurrer admits the
truth of all well-pleaded facts in the pleadings of the opposing party. Dem-
ing Inv. Co. v. Reed (Okl.) 179 P. 35. A motion for judgment on the pleadings
may be carried back and sustained against a prior pleading of the movant,
and the court will consider the whole record and give judgment for the
party who on the whole appears entitled to it. Id.
Motion for judgment on the pleadings admits for its purpose the truth of
all the facts well pleaded by the opposite party. Griffin v. Gulp (Okl.) 174
P. 495.
s Smith v. Lundy, 173 P. 275, 103 Kan. 207.
a Mires v. Hogan (Okl.) 192 P. 811.
10 Cobble v. Farmers' Nat. Bank of Tecumseh, Okl., 53 Okl. 814, 158 P. 364;
Franklin v. Ward (Okl.) 174 P. 244; St. Louis & S. F. R. Co. v. Kerns, 136
P. 169, 41 Okl. 167 ; Noland v. Owens, 74 P. 954, 13 Okl. 408 ; Smith v. Jos.
W. Moon Buggy Co. (Okl.) 169 P. 875 ; Chapman v. Tallant, 42 P. 61, 1 Kan.
App. 799.
(579)
§ 681 PLEADINGS (Ch. 11
answer raises any issue of fact,11 though by way of general denial,12
unless there be an agreed statement of facts which contains some-
11 It is error to sustain a motion for judgment on the pleadings, where
there is on file, undisposed of, an answer of one of the defendants, setting
forth that plaintiff is indebted to him on account in a sum in excess of plain-
tiff's demand. Stauffer v. Campbell, 30 Okl. 76, 118 P. 391.
Where the answer states a defense to a cause of action pleaded, it is error
to render judgment for plaintiff on the pleadings and opening statement.
Mascho v. Johnson, 49 Okl. 646, 153 P. 630; Mackey v. Boswell, 63 Okl. 20,
162 P. 193.
When it appears on the face of a note sued on that it is barred by the
statute of limitations, and the only evidence that it is not barred consists
in alleged promises in writing to pay, made within the statutory period, and
such alleged promises are denied under oath, plaintiff is not entitled to a
judgment on the pleadings ; and the fact that defendant added, to said denial
under oath, the plea of payment within the statutory period, is immaterial.
Smith v. Beeler, 29 P. 1087, 48 Kan. 669.
Where, in an action on a note, an answer was filed alleging that the real
owner of the note and the makers resided in different counties, and that the
owner, to compel the makers to leave the county of their residence to defend
the action, transferred it without consideration to plaintiff and caused him
to commence an action against the makers and owner as indorser in the
county in which he resided, it was error to render judgment on the plead-
ings against the makers on the ground that the answer did not state a de-
fense to the note, for the facts stated showed that the court had no juris-
diction to hear the merits of the controversy. Freight v. Wyandt, 99 P. 611,
79 Kan. 309.
It is error to sustain a motion for judgment on the pleadings where the
answer properly raised the bar of limitations and the statute of frauds and
12 in replevin, answer by defendant, pleading general denial, and also af-
firmative defense admitting execution of note and mortgage on which claim
for possession was based raises question of fact, so that judgment on plead-
ings is improper. Williams v. Gibson Bros., 60 Okl. 147, 159 P. 649.
A plaintiff who seeks to restrain a city of the first class from collecting a
special tax on his property, on account of the cost of the improvement of a
street upon which his property is situate, is not entitled to a judgment on the
pleadings, when an answer by said city is on file, verified by the city attorney,
that is in effect a general denial. McCrea v. City of Leavenworth, 27 P. 129,
46 Kan. 767.
Where in an action on an oral agreement to pay rent defendant filed a
general denial, a motion for judgment on the pleadings was properly denied.
Dunn v. Anderson, 51 Okl. 280, 151 P. 1045.
It is not error to deny judgment on the pleadings, where the answer is a
general denial sufficient to put in issue all the averments of the petition.
Barnes v. Davis, 30 Okl. 511, 120 P. 275.
Where two separate and well-pleaded causes of action are united in one
petition, and a general denial is filed by the defendants, and also a good
plea of a former adjudication as to one of the causes only, it is error for the
court to sustain a motion for judgment on the pleadings as to both causes of
action. Fouts v. Pettigrew, 74 P. 1107, 68 Kan. 289.
(580)
*
Aft. 10) MOTIONS AND ORDERS THEREON § 681
the existence of an oral contract without which plaintiff could not recover.
Fox v. Ziehme, 30 Okl. 673, 120 P. 285.
in action on written contract for payment of money, alleging ownership
of certain lease, a part of consideration for contract, wherein answer al-
leged failure of consideration and contained a general denial, judgment for
plaintiffs on the pleadings was error. Lesem v. Harris, 102 Kan. 222, 169
P. 959.
In action on notes and to foreclose mortgage securing them, where defend-
ant pleaded payment and was in default under an order to make his answer
more definite and certain, sustaining of plaintiff's motion for judgment on
the pleadings was error, in view of Rev. Laws 1910, § 4745, prescribing
requisites of answer. Moore v. Continental Gin Oo. (Okl.) 173 P. 809.
Where answer admitted execution of note but denied a holding in due
course alleging. that it was given on condition and negotiated in breach there-
of to plaintiff, who took with knowledge, it was error to render judgment
for plaintiff on pleadings. Dunkin v. Waurika Nat. Bank, 62 Okl. 175, 162
P. 788.
Where the answer in replevin contained several defenses in addition to a
general denial, a motion for judgment on the pleadings was properly over-
ruled. First State Bank of Mannsville v. Howell, 137 P. 657, 41 Okl. 216 ;
Same v. Lawson, 137 P. 661, 41 Okl. 226.
A motion by plaintiff for judgment on the pleadings should be granted only
when the answer does not deny, or state a defense to, a material allegation
of the petition. Shipman v. Porter, 48 Okl. 265, 149 P. 901 ; Id., 48 Okl. 284,
149 P. 902.
Where material allegations of plaintiff's petition are denied by the an-
swer and facts pleaded showing the same to be untrue, it is error to render
judgment for plaintiff on the pleadings. Fenton v. Burleson, 124 P. 1087,
33 Okl. 230.
Plaintiff sued to recover an amount due on a contract to clean and crush
zinc ore, which provided that plaintiff should sell to defendants his crushing
plant and lease, but should retain the mill for 100 days to clean ore furnished
by defendants, payment to be made for such work when the ore was sold,
provided that if payment was not made as agreed, or if defendants failed to
perform, plaintiff might retain any sum paid and withdraw the papers from
escrow in satisfaction of the contract. It was also provided that plaintiff
would execute bills of sale and an assignment of a lease to be placed in es-
crow, that the property should be free from all incumbrances, and the peti-
tion averred performance of all the conditions. The answer admitted the
contract, the milling of the ore and alleged performance, and further alleged
that plaintiff did not own the property when he agreed to sell it, and' that
he refused to place in escrow the bill of sale and assignment of the lease,
and prayed recovery for an overpayment to plaintiff. Held, that a motion
for judgment on the pleadings by plaintiff should have been overruled.
Sparks v. McAllister, 103 P. 127, 80 Kan. 546.
In action for unliquidated damages, where answer admits breach of con-
dition of bond sued on, but raises issue as to damages, motion of plaintiff
for judgment on pleadings was improperly sustained. White v. Hocker, 58
Okl. 38, 158 P. 440.
(581)
•
§ 681 PLEADINGS (Ch. 11
thing fatal to defendant's recovery,13 or the defenses or general
denial contained in the answer are vitiated by admissions con-
tained therein;14 but should be granted where the petition states
is Where parties stipulated that certain statements were facts in the case
reserving right to put in further evidence, plaintiff's motion for judgment on
pleadings and findings could only be sustained if answer stated no defense,
or if agreed facts contained something fatal to defendant's recovery. Coburn
v. Simpson, 102 Kan. 234, 170 P. 383.
For purpose of plaintiff's motion for judgment on pleadings and findings,
allegations of answer, unless contradicted by stipulation of parties as to
facts, must be assumed to be true, though referred to in such stipulation.
Coburn v. Simpson, 102 Kan. 234, 170 P. 383.
i* When, under the allegations of the petition and the admissions in the
answer, the plaintiff is entitled to judgment on the pleadings, it is error to
deny a motion made for such purpose. Long v. Shepard, 130 P. 131, 35 Okl.
489.
Where defendant bases his counterclaim on a written contract for commis-
sions for the sale of goods, but the contract provides for a sale outright to
defendant, and no commissions are provided for therein, and no other de-
fense is made, overruling of the motion for judgment on the pleadings is
error. Page Woven Wire Fence Co. v. Allen, 31 Okl. 155, 120 P. 638.
Ordinarily a judgment for plaintiff on the pleadings cannot be ordered,
where issue is joined upon a general denial and other defenses, unless the
general denial is overthrown by other statements in the answer. Cobe v.
Coughlin Hardware Co., 112 P. 115, 83 Kan. 522, 31 L. R. A. (N. S.) 1126.
Where defendant's answer contained a general denial, which, however,
was qualified by other allegations admitting all facts necessary to authorize
a judgment in plaintiff's favor, it was not error to sustain plaintiff's motion
for judgment on the pleadings. Oliphant v. Crane (Okl.) 172 P. 1073, 1074;
Schuber v. McDuffee (Okl.) 169 P. 642.
An answer containing a general denial and also a negative pregnant con-
stituting admission of liability by defendant is subject to a motion for judg-
ment in the pleading. Marshall Mfg. Co. v. Dickerson, 55 Okl. 188, 155 P.
224.
Where the admitted facts showed that the organization of a consolidated
district was void, the court properly entered judgment on the pleadings,
declaring the district void and that the persons acting as its officers were
without legal rights, and decreeing dissolution of the district. Smith v. State.
47 Okl. 682, 149 P. 884.
Where the petition states a cause of action and, aside from the general
denial, the answer admits facts entitling plaintiff to recover, judgment on
pleadings is proper. Acton v. Culbertson, 38 Okl. 280, 132 P. 812.
Where the essential averments of a petition in an action for compensation
as a real estate broker are a contract and a compliance therewith, and the
answer, after a general denial, recognizes the procurement of a purchaser
and an acceptance by the landowner and the execution of a valid contract of
sale, and an agreement to compensate the brokers in accordance with the
contract a motion by plaintiffs for judgment on the pleadings was properly
sustained. Yoder v. Randol, S3 P. 537, 16 Okl. 308, 3 L. R. A. (N. S.) 576. .
(582)
Aft. 10) , MOTIONS AND ORDERS THEREON § 681
a cause of action and the answer fails to set up any legal defense,15
or cross-complaint.16
A motion by defendant for judgment on the pleadings should
15 Baker v. Gaines Eros. Co. (Okl.) 166 P. 159; Mires v. Hogan (Okl) 192
P. 811.
In action on contract for sale of wheat, held that plaintiff was entitled
to judgment on the pleadings. Cargill Commission Co. v. Mowery, 161 P.
634, 99 Kan. 389, judgment modified on rehearing 162 P. 313, 99 Kan. 389.
Plaintiff sued to foreclose a mortgage in the form of a warranty deed.
The answer admitted that the deed was executed to secure an extension of
a note and mortgage which was surrendered to defendants and to enable the
mortgagor to avoid the payment of taxes. There was no plea of payment.
Held to authorize judgment on the pleadings. Johnson v. Harvey, 112 P. 108,
83 Kan. 471.
In action for unpaid installments on an article sold under contract bind-
ing buyer to execute notes as evidence of indebtedness, answer not pleading
any consideration for modification of contract stated no defense, and au-
thorized judgment for plaintiff on the pleadings. Miles v. Grosman Co. (Okl.)
173 P. 808.
Where a copy of a negotiable note sued on and attached to the petition
shows an undated indorsement, and defendant indorsee does not deny the
indorsement under oath or plead facts showing that plaintiff took with
knowledge of infirmities, plaintiff is entitled to judgment on the pleadings.
Mangold & Glandt Bank v. Utterback, 54 Okl. 655, 160 P. 713, L. R. A. 1917B,
364.
Where a petition alleges defects in a note by mutual mistake, and the an-
swer admits the defects, it is not error to render judgment on the pleadings
reforming the same. De Groat v. Focht, 131 P. 172, 37 Okl. 267.
Where the pleadings aver that a citizen of the Creek Nation, by a clause
in a deed executed prior to Act April 2G, 1906, § 19, and before the restric-
tions were removed from the allotment of the grantor, agreed to execute a
conveyance when his restrictions were removed, and such agreement is at-
tached to the petition as a part thereof, and its execution is not denied, and
it is averred that after removal of the restrictions the grantor executed a
deed pursuant to the stipulation, the latter deed is void ; and judgment to
that extent should be entered for plaintiff on the pleadings. Long v. Shep-
ard, 130 P. 131, 35 Okl. 489.
In replevin to recover certain chattels by virtue of a mortgage the answer
setting up only a partial failure of consideration judgment was properly en-
tered for plaintiff. Jones v. Bostick, 129 P. 718, 35 Okl. 363.
In an action on a note, indorsed before maturity, where the unverified an-
swer contains a general denial, a denial of ownership, and an allegation of
fraud, but sets up no counterclaim, plaintiff is entitled to judgment on the
pleadings. Rose v. Boyer, 141 P. 1006, 92 Kan. 892.
is Where the allegations of a complaint as amended are admitted by the
answer, and affirmative matter is filed as an answer and cross-complaint, on
a motion for judgment on the pleadings ,the same should be rendered for
plaintiff, if the allegations of the cross-complaint are insufficient to sustain
a judgment for defendant. Pugh v. Stigler, 97 P. 566, 21 Okl. 854.
(583)
§ 681 PLEADINGS (Ch. 11
likewise be denied, where the pleadings raise any issue of fact,11
which, if decided in plaintiffs favor would entitle him to any legal
IT Where an answer states a defense to plaintiff's cause of action and plain-
tiff files a verified reply putting in issue the existence of such facts, it is er-
ror to render judgment on the pleadings. Goodman v. Broughman, 136 P.
420, 39 Okl. 585.
Allegations in pleadings of defendant that no summons was served in the
case in which the judgment was rendered, though insufficient when standing
alone, if coupled with averments of fraud and collusion extraneous to the
issues in the case in which the judgment was rendered, were sufficient on mo-
tion by defendants for judgment on the pleadings. Griffin v. Gulp (Okl.) 174
P. 495.
In an action on a note, it is error to render judgment in favor of defendant
on. the pleadings where the answer fails to set up a complete defense. McCor-
mick Harvesting Machine Co. v. Koch, 58 P. 626, 8 Okl. 374.
Where court, on motion for leave to amend subcontractor's statement for
lien filed as an exhibit to petition, found that owner was known by name to be
inserted by amendment, judgment on pleadings for defendant was error.
Badger Lumber Co. v. Collinson, 156 P. 724, 97 Kan. 791.
In ejectment, plaintiff claimed to be the owner and entitled to possession.
Defendants, in their cross-petition, denied plaintiff's ownership and alleged
that a third person was the owner and that she had executed an oil and gas
lease to defendants under which they were in possession. Plaintiff filed a
general denial to the cross-petition and reaffirmed his ownership. Held, that
the court could not enter judgment for defendants on the pleadings; it being
necessary to determine the issue of ownership in order to decide the rights
of the parties. McCready v. Dennis, 85 P. 531, 73 Kan. 778.
Where the petition states a cause of action and the answer alleges no new
matter, rendition of judgment for defendant on the pleadings is improper.
Leighton v. Crowell, 60 Okl. 219, 159 P. 1119.
A reply denying each allegation in the answer inconsistent with the alle-
gations of the petition, without motion to make it more definite or other at-
tack which would give the pleader opportunity to amend, is sufficient to put
in issue allegations of defensive new matter in the answer, and judgment on
the pleadings based thereon is properly denied. Stone v. Stone (Okl.) 168 P.
423.
Reply to an answer setting up a judgment in bar, containing a general
denial of matters in answer, and alleging facts intended to avoid the judgment,
was an admission of existence of judgment, and where affirmative facts were
not legally sufficient to defeat the bar, judgment on the pleadings was proper.
GQacken v. Andrew (Okl.) 169 P. 1096.
Where, in action on note, the answer admitted execution by several defend-
ants, and oral agreement to receive a fixed sum as defendant's liability and
payment thereof and a reply denied allegations of answer as "inconsistent"
with petition, motion by defendant for judgment on the pleadings was proper Iv
denied where no motion to make the reply definite and certain was made.
Lambert v. Sloop, 58 Okl. 289, 159 P. 482.
In action for rent collected by plaintiff's agent, held, on the petition, answer
and cross-petition, and the reply alleged to be improperly verified, it was
(584)
Art. 10) MOTIONS AND ORDERS THEREON § 681
or equitable relief,18 as where the petition states a cause of action
and the answer does not constitute a complete defense thereto,1'
though no reply has been filed,20 but should be granted where the
not error to refuse to render judgment for defendant upon the pleadings.
Harn v. Boyd (Okl.) 170 P. 505.
Where plaintiff alleged that he had repaid the beneficiary for premiums ad-
vanced and made further advancements on consideration of being substituted
as beneficiary, held, that it was error to render judgment for a claimant to tbe
fund adverse to plaintiff, without receiving all the evidence and determining
the cause on equitable considerations. Brown v. Modern Woodmen of Ameri-
ca, 156 P. 767, 97 Kan. 665, L. R. A. 1916E, 588.
is A motion for a judgment for defendant on the pleadings will not be sus-
tained where, on any or all the pleadings in the case, taken together, facts
are stated which show that plaintiff is entitled to some legal or equitable re-
lief. Hawkins v. Overstreet, 54 P. 472, 7 Okl. 277.
Plaintiff filed a petition alleging title to land through a railway company,
and that defendants took forcible possession under a pretended homestead
entry, and by false representations secured a settlement whereby he gave then
$400 in cash and his note for $600 to obtain a relinquishment of their title, and
asked judgment for $400. Defendants filed a general denial, and set up title
to the land under their homestead entry. Plaintiff replied, attacking the bona
fides of the homestead entry. Held, that a judgment for defendants on the
pleadings was erroneous, since the plaintiff had a right to present to the jury
the question of the good faith of the homestead entry. Tessendorf v. Lasater,.
61 P. 328, 9 Kan. App. 885.
Since a plea of former adjudication presents an issue of fact, a party
pleading same is not entitled to judgment on the pleadings by reason thereof-
Johnson v. Johnson, 143 P. 670, 43 Okl. 582.
19 Where plaintiff's petition states a cause of action, and defendant's answer
does not constitute a complete defense thereto, it is error to render judgment
for defendant on the pleadings. Sweet v. Crane, 39 Okl. 248, 134 P. 1112.
Where, in a materialman's action to enforce a lien, the petition states a
cause of action for wrongful conversion, defendant's motion for judgment on
the pleadings should be denied, though the petition does not show plaintiff
entitled to enforce the lien, and though the prayer be only for such enforce-
ment. C. E. Sharp Lumber Co. v. Kansas Ice Co., 142 P. 1016, 42 Okl. 689.
20 Where petition seeks cancellation of conveyance because never executed
by plaintiffs, and that being a full-blood conveyance of inherited lands, it
was never approved by the county court, and answer contained general denial
and allegations of execution and approval of conveyance, judgment on the
pleadings should not be entered for failure to reply. Robert v. Mullen, 61 Okl.
40, 160 P. 83.
An allegation in the answer that plaintiff, assignee of the note sued on, paid
nothing for the note, held not to state a defense, and not to call for a reply
so as to permit judgment on the pleadings for want of reply. Owens v.
Farmers' & Merchants' Bank of Duke, 54 Okl. 387, 154 P. 355.
Where, if claim of plaintiff was true, defendant was not entitled to judg-
ment on its cross-petition, defendant's motion for judgment on the pleadings
after all of the evidence had been offered held properly overruled, though^
plaintiff filed no reply. Hoover v. Brookshire, 122 P. 171, 32 Okl. 298.
(585)
§ 681 PLEADINGS (Ch. 11
pleadings do not present any issue of fact which, if determined in
plaintiff's favor, would warrant recovery by him,21 particularly if
plaintiff does not request leave to amend.22
21 In action in replevin, consolidated with action by defendant therein for
injunction, setting up right to replevied property under award, held, that
trial court did not err in sustaining motion of defendant in first action, plain-
tiff in second action, for judgment on the pleadings. Scrivner v. McClellancl
(Okl.) 168 P. 415.
Where cattle were shipped under a written contract alleged in the answer
providing that a failure to give notice of claims before removal of the cattle
at destination and within one day after delivery should bar the shipper's right
to recover on claims with reference thereto, and neither the petition nor
the reply alleged a compliance with such condition nor waiver thereof, and
no facts were pleaded showing an actual or substantial compliance with the
provision or excuse for failure to do so, defendant was entitled to judgment
on the pleadings. St. Louis & S. F. R. Co. v. Cake, 105 P. 322, 25 Okl. 227.
A petition to foreclose a subcontractor's lien under the mechanic's lien law
failed to allege that notice of the filing of the lien had been served on the
owner. More than a year after the lien was filed the petition was amended to
allege service of notice. A motion for judgment on the pleadings was denied,
and an objection to evidence under the amended pleading overruled. Held er-
ror. Powers v. Badger Lumber Co., 90 P. 254, 75 Kan. 687.
Where the reply to an answer setting up a discharge in bankruptcy, in ad-
dition to a general denial, alleged particular but insufficient facts to avoid the
effect of the discharge, held, that a judgment on the pleadings was proper,
notwithstanding the general denial. Chambers v. Kirk, 139 P. 986, 41 Okl.
696.
Where a petition in an action on the bond of a justice of the peace alleges
the collection of moneys by the principal as justice, and the answer admits
the execution of the bond, and alleges that the moneys were collected under a
contract between plaintiff and the justice, so pleaded as to require a verified
denial, and the contract shows on its face that it is illegal and void as against
public policy, and the reply filed is an unverified general denial, the legal ef-
fect of the contract is admitted, and defendant is entitled to judgment on the
pleadings. Limerick v. Barrett, 43 P. 853, 3 Kan. App. 573.
22 Where an action is brought against a railroad for injury to horses ship-
ped, and the petition alleges that they were shipped under a written contract,
evidenced by bill of lading attached to the petition and made a part thereof,
and said bill of lading provides for notice within 30 hours of any damage in
transit, and there is written across the face of the bill of lading "released per
contract," and this contract is referred to in the answer of defendant and at-
tached as an exhibit, and contains provision that as a condition precedent
to recovery notice shall be given in writing to the railroad company or its of-
ficers before the stock is removed from the place of shipment, and it is al-
leged that this provision of the contract has not been complied with, and
plaintiff files a reply setting up a general denial, which is unverified, the
written contract is admitted, and where neither the petition nor the reply al-
leges a compliance with conditions of the bill of lading or contract, nor any
allegation of waiver, and no facts are set up in the pleadings as to compliance,
(586)
Art. 10) MOTIONS AND ORDERS THEREON § 681
Where the execution of a written contract is alleged and relied
on in a petition, counterclaim, or set-off, a verified denial thereof
must be contained in the answer or reply ; otherwise, the allega-
tion as to the execution of the instrument will be taken as true at
the hearing on a motion for judgment on the pleadings.23 The
same is true where the plaintiff or defendant, as the case may be,
relies on a verified account to which no verified denial is filed,14
providing the correctness of the account is alleged in the body of
the pleading.25
Where plaintiff alleged a shipment under a definite verbal con-
a motion for judgment for defendant on the pleadings should be sustained,
where there is no request by plaintiff to amend. St. Louis & S. F. R. Co. v.
Phillips, 87 P. 470, 17 Okl. 264.
23 Where, in an action on a note, the answer denying its execution i«>
filed unverified, but was sworn to by defendant before the clerk of the court
on the day the case is called for trial without leave of court first obtained,
while the answer remains on file, it is error to render judgment against de-
fendant on the pleadings. Manning v. Stroud State Bank, 110 P. 650, 26 Okl.
6^5.
In action on note wherein answer is not verified and does not allege any set-
off or counterclaim or legal defense, judgment on the pleadings may be en-
tered for plaintiff. Kerr v. McKinney (Okl.) 170 P. 685.
In action to enforce policy as it was alleged to have been before being
wrongfully changed, where defendant alleged execution as shown by copies at-
tached and reply was not verified, defendant was entitled to judgment on
pleadings, under Code Civ. Proc. Kan. § 110 (Gen. St. Kan. 1909, § 5703).
Hayes v. Mutual Benefit Life Ins. Co., 158 P. 1107, 98 Kan. 584.
Where defendants pleaded the execution of a note and mortgage, and asked
judgment thereon and foreclosure, and plaintiff replied by an unverified de-
nial, judgment should have been rendered for defendants on the note and
mortgage. Brewer v. Martin, 138 P. 166, 40 Okl. 350.
24 An action was brought upon an account, the correctness of which was
verified by affidavit. Defendants filed a verified answer, conceding the
account, but stating that they purchased drafts from a banking firm of which
plaintiff was. a partner, and that the drafts were dishonored, and they were
compelled to redeem the same. The amount of the indebtedness thus arising
exceeded plaintiff's claim, and defendants demanded judgment for the differ-
ence. Plaintiff replied with a verified denial of the allegations of the answer.
Both parties declined to offer evidence, and submitted the case upon the
pleadings, and judgment was rendered for plaintiff for the amount of his ac-
count. Held that, though the counterclaim was good, the judgment was prop-
er, since it was denied under oath and no proof was offered. Hatfield v. Far-
num, 29 P. 395, 48 Kan. 126.
25 Where bill of particulars does not allege correctness of the account sued
on, and is unverified, plaintiff is not entitled to judgment on the pleadings,
though a verified statement of account be attached to the bill. Barnes v. Uni-
versal Tire Protector Co., 63 Okl. 292, 1C5 P. 176.
(587)
§ 681 PLEADINGS (Ch. 11
tract, and defendant answered by general denial and by pleading a
written contract which it alleged was the only one between the
parties, the overruling of defendant's motion for judgment on the
pleadings, because the reply containing a general denial of new
matter was unverified, was not error.26
Where defendant in his answer, in addition to the general de-
nial, pleads facts warranting affirmative relief, and after filing such
answer, but before reply, plaintiff, by leave of court, dismisses, de-
fendant will be allowed to pursue his remedy for affirmative relief
as set up in his answer, and on motion for judgment on the plead-
ings on the ground that the allegations for affirmative relief are
undenied, the court should either sustain the motion or rule plain-
tiff to reply to the affirmative part of the answer, so that the issue
may be raised and tried by the court.27
A reply, denying the allegations of the answer inconsistent with
the petition, denies all defenses to the cause of action alleged in
the petition, so as not to entitle defendant to judgment on the
pleadings.28
Where the answer raises an issue of fact and both parties move
for judgment on the pleadings, it is error to grant plaintiff's mo-
tion.29 Defendant, by moving for judgment on the pleadings,
does not waive his right to have an issue of fact set out in his an-
swer, tried by the court or by a jury.30
Motions for judgment on the pleadings cannot be sustained, un-
less the court can determine on the pleadings the rights of the par-
ties and pronounce judgment final between them.31
Where a question of fact is involved, it is proper for the court to
set aside its judgment on the pleadings.32
26 Atchison, T. & S. F. Ry. Co. v. Moore, 129 P. 24, 36 Okl. 433; Atchison, T.
& S. F. Ry. Co. v. Robinson, 129 P. 20, 36 Okl. 435.
27 Brown v. Massey, 92 P. 246, 19 Okl. 482.
as McKnight v. Strastmrger Bldg. Co., 150 P. 542, 96 Kan. 118.
29Atwood v. Massey, 54 Okl. 178, 153 P. 629.
so Id.
si White v. Hocker, 58 Okl. 38, 158 P. 440.
32 Chamberlain Metal Weather Strip Co. v. Bank of Pleasanton, 160 P. 1138,
98 Kan. 611.
(588)
Art. 10) MOTIONS AND ORDERS THEREON §§ 682-684
§ 682. Departure
A departure in the reply from the petition cannot be taken ad-
vantage of by motion for judgment on the pleadings, but can only
be reached by a motion to strike.33
§ 683. Judgment against verdict
While judgment may be given for a party on the pleadings even
after verdict against him, his right thereto should clearly appear
from the pleadings, and where the pleadings present material is-
sues of fact not determinable without evidence aliunde a motion
for judgment on the pleadings is properly overruled.3*
§ 684. Motion to strike from files — Form
"Motions to strike pleadings and papers from the files may be
made with or without notice, as the court or judge may direct." 85
Like a demurrer, a motion to strike a pleading admits the truth
of all facts well pleaded for .the purposes of the motion, except
where the motion is to strike the pleading as a sham.36 While in
some cases the granting or refusing of a motion to strike rests in
the sound discretion of the trial 'court, the court must not act ar-
bitrarily. The discretion referred to contemplates a legal discre-
tion, a discretion to be exercised in discerning the course prescrib-
ed by law according to legal principles.
Motions to strike pleadings for any cause are not to be encour-
aged, and will be granted only in a clear case. A motion to strike
a pleading as an entirety, or several separate paragraphs of a
pleading, cannot be sustained, where one or more of the paragraphs
are sufficient.37
Where objections to a pleading are based on its insufficiency in
83 St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 99
P. 647, 23 Okl. 79; Wilson v. Jones (Okl.) 168 P. 194.
s* Curtis & Gartside Co. v. Pigg, 39 Okl. 31, 134 P. 1125; Rev. Laws 1910, §
5140.
35 Rev. Laws 1910, § 5315.
3* Turk v. Page (Okl.) 174 P. 1081.
37 Turk v. Page (Okl.) 174 P. 10S1.
Considered as a permissible pleading, it was error to strike from an an-
swer eight separate paragraphs thereof, where one or more of such para-
graphs of the defenses interposed was sufficient. Turk v. Page (Okl.) 174 P.
1081.
(589)
§§ 684-686 PLEADINGS (Ch. 11
matters of substance, they should be taken by demurrer, and not
by motion to strike.38
MOTION TO STRIKE ANSWER PROM
(Caption.)
Comes now the plaintiff and moves the court to strike from the
files herein the answer filed by the defendant, upon the ground that
said answer is not verified (or is defectively verified, in this, speci-
fying the defect).
- , Attorney for Plaintiff.
§ 685. - Affirmative pleading
A motion to strike out an affirmative pleading is not an appro-
priate method of testing its sufficiency ; 89 the proper remedy be-
ing by demurrer,*0 or by objection to the introduction of any evi-
dence under it.41
A motion to strike a petition from the files for impertinent, im-
material, libelous, and scandalous matter, should not be sustained,
where the petition contains facts which, if true, would constitute a
valid basis for judgment.42
§ 686 - Defensive pleadings
Where the answer fails to state a defense to the action or any
part thereof, a motion to strike the answer should be sustained.43
Where the defendant's answer and cross-petition alleges that
an account was a joint liability against the plaintiff and third par-
ty, plaintiff's agent, and its correctness is denied by an affidavit of
the agent in the reply, a refusal to strike the reply for want of
ss Hailey v. Bowman, 137 P. 722, 41 Okl. 294.
88 Grand Lodge I. O. O. F. of State of Kansas v. Troutman, 84 P. 567, 73
Kan. 35.
40 Where objections to a pleading are based on its insufficiency in matters of
substance, they should be taken by demurrer, and not by motion to strike.
Hailey v. Bowman, 137 P. 722, 41 Okl. 294.
It is improper to strike out an answer and cross-petition because the facts
stated therein are insufficient to establish a cause for relief, the proper prac-
tice being to demur. Armstead v. Neptune, 44 P. 998, 56 Kan. 750.
41 Objection to a petition on the ground that it does not state facts suffi-
cient to constitute a cause of action can be made only by demurrer or ob-
jection to evidence, and cannot be raised by motion to strike the petition from
the files. First Nat. Bank v. Cochran, 87 P. 855, 17 Okl. 538.
42 Butler v. Butler, 125 P. 1127, 34 Okl. 392.
48 National Life Ins. Co. v. Hale, 54 Okl. 600, 154 P. 536, L. R. A. 1916E, '<21.
(590)
Art. 10) MOTIONS AND ORDERS THEREON §§ 686~689
proper verification is not error, particularly where the purported
account is not in fact an account; it not constituting a proper
counterclaim or set-off.44 Where the defendant has filed an an-
swer, good in form, to which a reply has been filed, he cannot be
compelled, to avoid having the answer stricken as a sham, to give
an affidavit or deposition before a notary public, to be used on the
hearing of a motion to strike from the files the answer as false and
a sham.45
If the amended reply is filed, and the defendant is not prepared
to proceed with the trial, his remedy is to apply for a continuance,
not to move to strike the amended reply.46 •
§ 687. Demurrer
The striking of the demurrer of one defendant from the files, in-
stead of permitting it to be amended, was not an abuse of discre-
tion, where such defendant, being in default, obtained leave to plead,
and was represented by the same attorney as his codefendant, who
had filed a demurrer on the same grounds, -which demurrer had
been previously overruled.47
§ 688. Departure
An objection to a pleading on the ground of departure must be
raised by motion to strike,48 not by motion for judgment on the
pleadings.49
§ 689. Limitations
The question whether an action was barred by limitations can-
not be raised by a motion to strike the petition from the files.50
4* Ham v. Boyd (Okl.) 170 P. 505.
45 in re Bartholomew, 21 P. 275, 41 Kan. 273.
40 Ely v. Pool, 60 Okl. 77, 159 P. 511.
47 Burr v. Honeywell, 51 P. 235, 6 Kan. App. 783.
48 Wilson v. Jones (Okl.) 168 P. 194; Merchants' & Planters' Ins. Co. v.
Marsh, 125 P. HOC, 34 Okl. 453, 42 L. R. A. (N. S.) 996.
Departure held ground for striking out a reply. Springfield Fire & Marine
Ins. Co. v. Halsey, 126 P. 237, 34 Okl. 383.
A refusal to strike from the files an amended petition, as a departure from
the original petition, is not ground of reversal on appeal where no objection-
able departure appears, nor any abuse of its discretion by the trial court. Le-
roy & C. V. A. L. R. Co. v. Small, 26 P. 695, 46 Kan. 300.
49 Wilson v. Jones (Okl.) 154 P. 663; Stuart v. Grayson (Okl.) 162 P. 956.
so Baldwin v. Ohio Tp., 65 P. 700, 63 Kan. 885.
(591)
§§ 690-692 PLEADINGS (Ch. 11
§ 690. Amended pleading
A motion to strike out a pleading may be used to eliminate an
amended pleading which is a mere repetition of one held defective
on demurrer; "but where an amended petition sets forth addition-
al facts and a fuller statement of those alleged in the original peti-
tion, and made in the bona fide effort to state a cause of action, a
motion to strike out because of sameness to the original petition
will not lie.51
Where an amended answer measurably complies, in particulars
required", with an order that the original be made more definite and
certain, it is error to sustain a motion to strike the amended an-
swer from the files, though it may not state facts sufficient to con-
stitute a defense; but a demurrer, so that an amendment can be
allowed, is the proper pleading.52
However, where parties obtain leave to amend to make it more
definite and certain and the amendment fails to do so, the amend-
ment is properly stricken.53
The striking of an amended pleading leaves the original plead-
ing standing, as though no amendment had been filed.54
§ 691. Failure to amend
Where an answer on file states a defense and defendant is in de-
fault of an order to make his answer more definite and certain, the
proper procedure is by motion to strike the answer.55
§ 692. Motion to strike from pleading — Form
"If redundant or irrelevant matter be inserted in any pleading, it
may be stricken out, on motion of the party prejudiced thereby." 56
si Grand Lodge I. O. O. F. v. Troutman, 84 P. 567, 73 Kan. 35.
Where the original petition was sufficient, there was no error in refusing to
strike from the files an amended petition, which in no way changed the cause
of action. Chicago. K. & W. Ry. Co. v. Totten, 42 P. 269, 1 Kan. App. 558.
Where the original and two amended petitions prayed for equitable relief,
it was error to sustain a motion to strike the last amended petition from the
files, as changing the action from one in tort to an action in equity. Baldwin v.
Ohio Tp., 65 P. 700, 63 Kan. 885.
52 McNinch v. Northwest Thresher Co., 100 P. 524, 23 Okl. 386, 138 Am. St.
Rep. 803.
53 Long v. McFarlin, 58 Okl. 321, 159 P. 653.
54 St. Francis Land oc Abstract Co. v. Rathburn, 114 P. 862, 84 Kan. 664.
55 Moore v. Continental Grn Co. (Okl.) 173 P. 809.
so Rev. Laws 1910, § 4770.
In action by creditor, after alleged rescission of settlement by debtor's con-
(592)
Art. 10) MOTIONS AND ORDERS THEREON § 692
It is proper to strike from a petition on motion mere surplus-
age,57 irrelevant58 and immaterial allegations calculated to preju-
dice defendant,59 matter in avoidance of an anticipated defense,60
copies, the originals of which are not signed by the defendant or
his agent,61 allegations specially pleading punitive damages in a
sum certain, where it is not required that such damages be spe-
cially pleaded.62 Likewise redundant and irrelevant matter may
be stricken from an answer.63
structive delivery of goods, debtor's claim for damages for malicious prosecu-
tion of former civil action held properly stricken; there being no basis for
a/ claim that the action was brought maliciously and without probable cause.
United States Tire Co. v. Kirk, 102 Kan. 418, 170 P. 811.
57 In petition to cancel deeds oy full-blood Indians and quiet title on ground
that county court was without jurisdiction to approve the deeds, and that
they were void and not supported by consideration, allegations that considera-
tion named was never paid held surplusage and properly stricken. Long v.
McFarlin, 58 Okl. 321, 159 P. 653.
Where facts in a petition are redundant and surplusage and could be proven
without being pleaded, it is within the discretion of the court to strike out rr
retain them. Sramek v. Sklenar, 85 P. 566, 73 Kan. 450.
ss it is not error, on motion of defendant, to strike irrelevant matter from
plaintiffs petition. Grand Lodge K. P. of North America, etc., v. Farmers' &
Merchants' Bank of Boley, 64 Okl. 225, 166 P. 1080.
59 Roe v. Board of Com'rs of Elk County, 40 P. 1082, 1 Kan. App. 219.
When a petition contains redundant or irrelevant allegations, calculated to
prejudice defendant on the trial, the same should be stricken out on motion.
Roe v. Board of Com'rs oij Elk County, 40 P. 1082, 1 Kan. App. 219.
In action for partition of land in this state, where amended petition made
stranger to title a party, alleging that he claimed title to plaintiff's land in an-
other state and wrongfully excluded plaintiff from possession, motion by an
other defendant claiming interest in Kansas lands to strike averments as t<>
new defendant, etc., was properly sustained. Caldwell v. Newton, 163 P.
163, 99 Kan. 846.
eo When a complaint sets up matter in avoidance of a plea of res judicata
which plaintiff anticipates may be made by defendant, that matter is properly
stricken out. Frick Co. v. Carson, 43 P. 820, 3 Kan. App. 478.
61 Certain copies of letters held properly stricken from the petition, in an
action for services, where they were not signed by defendant, or by any
person authorized by him to sign them. Van Doren v. Altoona Portland Ce-
ment Co., 141 P. 560, 92 Kan. 470.
62 Where in the ad damnum damages are claimed generally in a sum cer-
tain, and exemplary damages as such are claimed also in a sum certain, motion
to strike the latter item was properly sustained; it being unnecessary that
punitive damages should be specially pleaded. Acton v. Culbertson, 38 Okl.
280, 132 P. 812.
es An order striking out parts of an answer, but leaving sufficient to pro-
sent all proper defenses and counterclaims, held not error. Stroupe v. Hewitt,
133 P. 562, 90 Kan. 200.
In action for damages for conversion of goods by bailee, striking from his
HON.PL.& PKAC.— 38 (593)
§ 692 PLEADINGS (Ch. 11
It is error, however, to strike out certain portions of a petition
unless such parts are statements of matter foreign to the cause,
and raise no issue proper to be raised in the case, and unless such
motion is made by the party prejudiced.84
It is not error to refuse to strike out the statement of a legal con-
clusion from a pleading, where the facts on which such statement
rests are fully set out.65
In an action for breach of marriage promise, it is not error to
overrule a motion to strike out of the petition evidential facts form-
ing no part of the cause of action, but which are pleaded as aggra-
vation of damages.66
An allegation in a reply at variance with the petition should be
stricken on motion.67
MOTION TO STRIKE) PORTION OF PLEADING
(Caption.)
Comes now the above named defendant, C. D., and moves the
court to strike from the petition of the plaintiff heretofore filed
herein the following statements and allegations, to wit :
1. That portion of the and lines of paragraph
numbered of said petition, reading as follows: (Set forth
portion of petition concerned) for the reason that the same is ir-
relevant and immaterial and a legal conclusion.
2. That portion of the last line of paragraph numbered
of said petition, reading as follows: (Setting same forth)
answer statements amounting to reasons for conversion was not error, where
the facts had no bearing on question of liability. United States Tire Co. v.
Kirk, 102 Kan. 418, 170 P. 811.
e* Berry v. Geiser Mfg. Co., 85 P. 699, 15 Okl. 364.
It is not error for the court to overrule a motion to strike out parts of pe-
tition not statements of redundant or irrelevant matter, but germane to the
issues. Crump v. Lanham (Okl.) 168 P. 43.
In action to recover twice the amount of usurious interest paid, overruling
motion to strike certain parts of petition relating only to renewal notes of
original notes, was not error, where action was brought within two years
from maturity of last renewal note. Citizens' State Bank of Ft. Gibson v.
Strahan, 63 Okl. 288, 165 P. 189, modifying judgment on rehearing 59 Okl.
215, 158 P. 378.
SB State Bank of Stockton v. Showers, 70 P. 332, 65 Kan. 431.
616 Sramek v. Sklenar, 85 P. 566, 73 Kan. 450.
67 Gage v. Connecticut Fire Ins. Co. of Hartford, Conn., 127 P. 407, 34 Okl.
744.
(594)
Art. 10) MOTIONS AND ORDERS THEREON §§ 692~694
for the reason that the same is irrelevant, immaterial, and sur-
plusage.
3. That portion of paragraph numbered - - of said petition
reading as follows: (Setting same forth) for the reason that the
same is irrelevant, immaterial, a repetition^ and surplusage. ,
, Attorney for Defendant.
§ 693. Motion to strike parties — Form
Where plaintiff has joined unnecessary parties with him, the
proper practice is a motion to strike such parties from the petition,
rather than a motion to strike the petition from the files.68
MOTION TO STRIKE PARTIES
(Caption.)
Comes now the above named defendant, C. D., and moves the
court to strike the name of the plaintiff, E. F., from the petition
herein, and from this action, for the reason that said plaintiff has
no interest in this action and is an unnecessary and improper party
plaintiff. X. Y., Attorney for Defendant.
§ 694. Motion to make more definite and certain
"When the allegations of a pleading are so indefinite and un-
certain that the precise nature of the charge or defense is not ap-
parent, the court may require the pleading to be made definite and
certain by amendment." 69
Under this statute, it is only where the allegations of a pleading
are so indefinite and uncertain that the precise nature of the action
or defense is not apparent that the court may require a party to
make his petition or answer more definite and certain.70
es Maddin v. Robertson, 38 Okl. 526, 133 P. 1128.
es Rev. Laws 1910, § 4770.
70 Moore v. Continental Gin Co. (Okl.) 173 P. 809.
It is not error to overrule a motion to make a pleading more definite where
it is sufficient to inform the opposing party of the precise charge or defense.
Eisminger v. Beman, 124 P. 289, 32 Okl. 818.
Where the answer set up a large number of items which defendant alleged
were owing him by plaintiff and alleged that plaintiff, at the execution of the
note and mortgage, was indebted to defendant in a larger sum than that
named in the note, and the reply alleged that at the date of the execution of
the note and mortgage there were other matters of mutual account between
the plaintiff and defendant, and that on that date the plaintiff and defendant
mutually agreed that all obligations between them, except the note and mort-
(595)
§ 694 PLEADINGS ( Ch. 11
This statute does not authorize the court to require a party to
plead his evidence,71 or to supply omitted matters which would
give the opposite party an opportunity to demur.72
The motion is addressed to the trial court's sound discretion,73
but should be sustained where the statutory grounds clearly ap-
gage should be extinguished and satisfied, a motion to make the reply more
definite and certain was properly overruled. Hutchings v. Cobble, 30 Okl. 158,
120 P. 1013.
A petition in an action for conversion held sufficient as against an objection
to evidence, in absence of a motion to make more definite and certain, where
it advised defendant of the nature of plaintiff's claim. Farmers' & Merchants'
Nat. Bank v. Gann, 148 P. 249, 95 Kan. 237.
Where in an action for death of an employe, it appeared that the intestate's
fellow employes knew how he was killed, and before the trial all the evidence
offered by plaintiff relating to the occurrence was taken by deposition, so
that defendant had full knowledge of the facts, it was not reversible error
to overrule a motion to require general allegations of the petition as to neg-
ligence to be made more definite. St. Louis & S. F. Ry. Co. v. French, 44 P.
12, 56 Kan. 584.
Where a petition in a personal injury case alleges a specific act of negli-
gence by one of three designated agents of the defendant, it is not subject to
a motion to make the allegation more definite by pointing out the particular
agent, where it is also averred that plaintiff has no further information.
Atchison, T. & S. F. Ry. Co. v. Davis, 79 P. 130, 70 Kan. 578.
The fact that a petition setting forth a specific cause of action contains
general allegations did not render erroneous the overruling of a motion to
make more definite and certain, where the court treated the general allegations
as surplusage, and confined plaintiffs to the specific cause of action. Dwelle
v. Dwelle, 40 P. 825, 1 Kan. App. 473.
It is proper to overrule a motion to make a petition more definite and cer-
tain, made long after the issues were joined, and only when the case is called
for trial, where the petition is fully traversed, has not been otherwise assail-
ed, and is not clearly misleading. Phoenix Ins. Co. of Brooklyn v. Arnoldy,
47 P. 178, 5 Kan. App. 174.
TI Moore v. Continental Gin Co. (Okl.) 173 P. 809; Shawnee Life Ins. Co.
v. Taylor, 58 Okl. 313, 160 P. 622 ; Scott v. Shewell, 164 P. 1061, 100 Kan. 466.
Motion to require petition to be made more definite and certain by setting
out evidentiary facts is properly denied, where ultimate facts are alleged.
Jackson v. Uncle Sam Oil Co. of Kansas; 156 P. 756, 97 Kan. 674.
72 Listen v. Nail, 63 Okl. 212, 164 P. 467.
7 s City of Lawton v. Hills, 53 Okl. 243, 156 P. 297; Frey v. Failes, 132 P.
342, 37 Okl. 297; Felt v. Westlake (Okl.) 174 P. 1041; Cribb v. Hudson, 160
P. 1019, 99 Kan. 65.
An order requiring a petition to be made more direct and certain will not
be reversed, where there is a doubt as to the issue presented, or whether a
cause of action is stated, or whether defendant is charged with notice of what
he is required to defend against. Skelton v. Standard Inv. Co., 37 Okl. 82,
130 P. 562.
(596)
Art. 10) MOTIONS AND ORDERS THEREON § 694
^ pear.74 It lies only when the pleading is so uncertain that the
charge or defense is not apparent, and does not relate to the refine-
ments of common-law pleadings.75 To be available, however, an
objection to the generality or indefiniteness of a pleading should be
raised by such a motion.76
PAailure to attach to a petition a copy of the written instrument
upon which the cause of action is based, should be challenged by
motion.77
74 A pleading containing only a general allegation of negligence is subject
to a motion to make more definite and certain. Price v. Atchison Water Co.,
50 P. 450, 58 Kan. 551, 62 Am. St. Rep. 625.
Where the petition in an action to recover unauthorized fees and money
received by the board of county commissioners failed to show wherein the fees
were illegal, and wherein the claim allowed by the commissioners for which
he was alleged to have unlawfully received the money was unlawful, it was
error to deny a motion to make the same more definite. Roe v. Board of
Com'rs of Elk County, 40 P. 1082, 1 Kan. App. 219.
Where petition alleged that employer neglected to furnish safe means of
passage to and from its brick kilns or running boards, and negligently re-
moved cross-bricks from ditches, whereby employ^ going out of kiln acciden-
tally stepped into hole in ditch and was injured, it was not error to require
plaintiff to make his petition more definite and certain as to place of injury.
Anderson v. Denison Clay Co., 104 Kan. 766, 180 P. 797.
Petition in action against outgoing clerk of county court and surety on his
bond for moneys received during office, held insufficient as against motion to
require petition to be made more definite and certain by setting forth sources
of moneys and separate receipts and disbursements. Swarts v. State 4Okl.)
174 P. 255.
Where allegations of a complaint for slander contain two separate causes
of action and show that the slanderous words were spoken in the same con-
versation, defendant is entitled, on motion, to have the petition made more
definite, to the end that he may not be tried on two causes of action, when
but one exists. Thompson v. Harris, 67 P. 456, 64 Kan. 124, 91 Am. St. Rep.
187.
A petition alleged that a copy of an account attached as an exhibit, indi-
cating merely dates and sums of money, generally represented grain sold and
delivered. There was nothing indicating the quantity or kinds of grain, or
which items referred to grain. Held, that a motion to make more definite
should have been granted. Nash v. Deuton, 51 P. 896, 59 Kan. 771.
75 Board of Com'rs of Republic County v. United States Fidelity & Guaran-
ty Co., 150 P. 590, 96 Kan. 255.
TAEng-elbrecht v. Herrington, 172 P. 715, 101 Kan. 720, 103 Kan. 21, L. R.
A. 1918E, 785; Board of Com'rs of Neosho County v. Spearman, 130 P. 677,
89 Kan. 106.
77 Incorporated Town of Sallisaw v. Chappelle (Okl.) 171 P. 22; Rev. Laws
1910, § 4769.
Where a petition alleges a contract for sale of lands, made between plain-
(597)
§§ 695-697 PLEADINGS (Ch. 11
§ 695. Form and requisites
A motion to make a pleading more definite, which fails to point
out wherein it is indefinite, is properly overruled.78
MOTION TO MAKE MORE DEFINITE AND CERTAIN
(Caption.)
Conies now the above named defendant, A. B., and moves the
court to require the plaintiff to make his petition filed herein more
definite and certain in the following particulars, to wit: (Here
set forth particulars in which petition should be more definite
and certain.)
, Attorneys for Defendant.
§ 696. Time of making
A motion made by defendant to require plaintiff to make his
pleading more definite and certain is generally too late when not
made until after the case is called for trial.79 It may be made at
any time within the period allowed to answer or demur, and, if
defendant obtains an extension of time in which to plead, his right
to make such motion is not waived, since the words "to plead"
are not limited to the filing of an answer or demurrer, but include
any pleading provided for by law.80
It was not an abuse of discretion to deny an application for leave
ttj file, out of time, a motion requiring plaintiff to make his petition
more definite and certain, where no showing was made by "defend-
ant that he had any valid defense.81
The motion may be heard, though filed by leave of court after
defendant is in default.82
§ 697. Waiver — Dismissal
Failure to secure a ruling upon a motion to make the petition
more definite and certain constitutes an abandonment and waiver
/
tiff and defendant's agent, and that the authority of the agent is in writing, it
is not error to require plaintiff to set out a copy of such writing. Atwood v.
Rose, 122 P. 929, 32 Okl. 355.
TS Grimes v. Cullison, 41 P. 355, 3 Okl. 268; Union Coal Co. v. Wooley, 54
Okl. 391, 154 P. 62.
TO St. Louis & S. F. Ry. Co. v. Snaveley, 28 P. 615, 47 Kan. 637.
so St. Louis & S. F. R. Co. v. Young, 130 P. Oil, 35 Okl. 521.
si Horton v. Haines, 102 P. 121, 23 Okl. 878.
82 Anderson v. Denison Clay Co., 104 Kan. 766, 180 P. 797.
(598)
Art. 10) MOTIONS AND ORDERS THEREON §§ 698~699
thereof.83 Failure to comply with an order sustaining such mo-
tion authorizes dismissal of the action.84
§ 698. Motion to require pleader to separately state and number
A motion to separately state and number is addressed to the
sound discretion of the trial court ; 85 but where two or more caus-
es of action are stated in the same petition, and not separately stat-
ed or numbered, it is error for the court to overrule a motion of
the defendant to require the plaintiff to separately state and num-
ber the several causes of action stated in his petition.88
§ 699. Form and requisites
A motion to require causes of action to be separately stated and
numbered should designate the matters constituting each separate
cause.87
ss Arnold v. Burks, 63 Okl. 273, 164 P. 970.
«* Anderson v. Denison Clay Co., 104 Kan. 766, 180 P. 797.
ss Cribb v. Hudson, 160 P. 1019, 99 Kan. 65.
sa Provident Trust Co. v. Coron, 49 P. 345, 5 Kan. App. 431.
Under Code Civ. Proc. Kan. § 88, and Gen. St. Kan. 1901, § 4522, where a
petition sets up a cause of action in ejectment and another for rents and
profits, a motion to separately state and number the two causes of action
should be sustained. New v. Smith, 84 P. 1030, 73 Kan. 174.
A petition against the A. and the F., and other railroad companies, alleged
that plaintiff was a stockholder in the F. company, and, after setting out a
history of certain transactions, prayed that the A. company be compelled to
account for the proceeds of certain bonds which it is alleged were wrongfully
surrendered to it by the F. company; that it recover from the A. company
the rents and profits of the F. company from the time it was built ; that cer-
tain shares of stock of the F. company which were issued to the A. company
be canceled ; and that a consolidation of the A., the F., and other companies
be declared void. Held, that plaintiff should have been required to separately
state and number his several causes of action. Atchison, T. & S. F. R. Co.
v. Board of Com'rs of Sumner County, 33 P. 312, 51 Kan. 617.
Where a petition alleges as ground for damages the premature bringing of
a former action by defendant against plaintiff, and its dismissal, and that
such action has been determined by the court as prematurely brought, and
judgment therein rendered against plaintiff, alleging in another paragraph
that defendant sued to enjoin plaintiff from doing certain acts, and that such
injunction action was dismissed and judgment rendered for plaintiff for costs,
and a third paragraph alleges refusal of defendant to do certain things which
he had agreed to do under a written contract, it states three causes of action,
so that a motion to require these three causes to be separately stated and
numbered was proper. fBurdick v. Carbondale Inv. Co., 80 P. 40, 71 Kan. 121.
ST Southern Surety Co. v. Waits, 45 Okl. 513, 146 P. 431.
Motion to separately state and number, which fails to point out causes of
(599)
§§ 699-701 PLEADINGS (Ch. 11
MOTION TO SEPARATELY STATE AND NUMBER
(Caption.)
Comes now the defendant, A. B., and moves the court to require
the plaintiff to separately state and number the various causes of
action alleged in plaintiff's petition filed herein.
, Attorneys for Defendant.
§ 700. Waiver — Dismissal
The right to move to have different causes of action separately
stated and numbered is waived by demurring to either the whole
or a part of the petition.88
When a petition embraces two separate and distinct causes of
action in one count, and, on motion, plaintiff is required by the
court to separately state and number them, and he refuses to do
so, it is not error for the court to dismiss the action without prej-
udice to a future one.89
§ 701. Motion to require election — Form
Plaintiff cannot ordinarily be required to elect on which count he
will proceed,90 unless the causes of action are inconsistent with
action or call court's attention to paragraphs which should be separately
stated and numbered, is too general. Henry v. Gulf Coast Drilling Co., 56
Okl. 604, 156 P. 321 ; Western Union Tel. Co. v. Simpson, 62 P. 901, 10 Kan.
App. 473.
Where it is not obvious that the petition states more than one cause of ac-
tion, and the motion to require plaintiff to separately state and number the
several causes of action is general and fails to specify wherein the petition
states more than one cause of action, it is not error to overrule the motion.
Cockrell v. Schmitt, 94 P. 521, 20 Okl. 207, 129 Am. St. Rep. 737.
ss First Nat. Bank of Tishomingo v. Ingle, 132 P. 895, 37 Okl. 276.
Where petition states both statutory and common-law cause of action, grow-
ing out of same transaction, in one count, there is a defect within Rev. Laws
1910, § 4738, that may be remedied on motion, but cannot be reached by de-
murrer. Shelby-Downard Asphalt Co. v. Enyart (Okl.) 170 P. 708.
89 Eisenhouer v. Stein, 15 P. 167, 37 Kan. 281.
»o Woodman v. Davis, 4 P. 262, 32 Kan. 344.
Where petition alleged deposit with defendant bank of a note for collec-
tion, which note was secured by chattel mortgage, and the bank allowed the
mortgage to expire and also failed to apply certain deposits made in the bank
by the maker to payment of the note but applied such deposits to its own use,
it was error to require plaintiff to elect on which theory he would rely for
recovery. Bourland v. Madill State Bank, 124 P. 314, 32 Okl. 761.
Where petition alleged execution of note, its return to maker, and his re-
ceipt therefor conditioned to pay in case of any mistake as to his claim of
(600)
Art. 10) MOTIONS AND ORDERS THEREON § 701
each other.91 For example, where the petition alleged in one para-
graph the existence of an agency, and in another that the acts of
the party assuming to act as agent had been ratified, the court prop-
erly refused to require plaintiff to elect upon which he would
stand.92
In a suit on account for services rendered, where there is uncer-
tainty as to the grounds of recovery, there may be properly joined
in the petition a count on an express contract, a count on quantum
meruit, and the granting of a motion to require plaintiff to elect is
addressed to the discretion of the trial court.03
Where a petition states one cause of action and the evidence
tends to establish that cause of action, it is not error to refuse to
require the plaintiff to make any election between different phases
of the evidence.94 But where a party pleads facts constituting two
causes of action, one for rescission of contract and one for dam-
ages for breach of warranty, it is proper to require an election be-
tween the causes.95
Where separate causes of action are improperly joined in a pe-
payment, an arbitration finding it unpaid, maker's failure to acquiesce in
award or to pay or return note, it was not error to deny motion to compel
plaintiff to elect as to cause of action, submitted by court as an action upon
an alleged indebtedness. Washington Nat. Bank v. Myers, 104 Kan. 526, 180
P. 268.
Where a petition states facts entitling plaintiff either to a decree of specific
performance of a contract to convey land or judgment for damages and prays
for such judgment, he may not be required to elect his remedy before trial.
Huey v. Starr, 101 P. 1075, 79 Kan. 781, rehearing denied 104 P. 1135, 79 Kan.
781.
»i Action for specific performance of husband and wife's oral contract to
raise plaintiff as their child, and that on their death she should inherit as if
they died intestate and to recover on implied contract for reasonable value of
plaintiff's services, held inconsistent, and court did not err in compelling plain-
tiff to elect. Pantel v. Bower, 104 Kan. 18, 178 P. 241.
A count of a petition which claims the price of property on the theory that
plaintiff has parted with title to it by sale, and that defendant owns it and
is entitled to its possession, is inconsistent with another count asking dam-
ages as in trover for its conversion on the theory that the plaintiff owned it,
and it is not error to require an election between such counts. J. B. Ehrsam
& Sons Mfg. Co. v. Jackman, 85 P. 559, 73 Kan. 435, rehearing denied 91 P.
486, 73 Kan. 435.
» 2 Amazon Fire Ins. Co.'v. Bond (Okl.) 165 P. 414.
»s Mellon v. Fulton, 98 P. 911, 22 Okl. 636, 19 L. R. A. (N. S.) 960.
»4 Harris v. Morrison, 163 P. 1062, 100 Kan. 157.
»s Muenzenuiaycr v. Hay, 159 P. 1, 98 Kan. 538.
(601)
§§ 701-702 PLEADINGS (Ch. 11
tition and no demurrer is filed, the defect cannot be taken advan-
tage of by motion to require plaintiff to elect.96
As inconsistent defenses may be included in one answer, election
between them cannot be required.97
Misjoinder of causes of action is not raised by a motion to re-
quire the pleader to elect.98
MOTION TO REQUIRE ELECTION
(Caption.)
Comes now the above named defendant, and moves the court
to require the plaintiff to elect on which cause of action stated in
his petition he will proceed, for the reason that in the first cause
of action therein stated plaintiff repudiates and asks to rescind
the contract therein alleged, for the reason that the same is void
on the ground of fraud, and in the second cause of action alleged
plaintiff seeks to affirm said alleged contract and recover damages
for an alleged breach thereof, and that said causes of action are
inconsistent. X. Y., Attorney for Defendant.
§ 702. Time of making
An objection to inconsistent counts in a petition and motion to s
require plaintiff to elect should be made before answer, and the
overruling of such objection made at the commencement of trial is
within the discretion of the trial court.99
se Gates v. Freeman, 57 Okl. 449, 157 P. 74.
97 Emerson-Brantingham Implement Co. v. Ware (Okl.) 174 P. 1066.
Even if defenses are inconsistent, unless expressly prohibited by statute,
they may be united in one answer, and the pleader cannot be compelled to
elect between them. Covington v. Fisher, 97 P. 615, 22 Okl. 207.
Where answer sets forth in separate paragraphs a different state of facts,
each of which constitutes a defense or counterclaim, defendant cannot be re-
quired to elect on which paragraph he will proceed to trial. Oklahoma Hay
& Grain Co. v. T. D. Randall & Co. (Okl.) 168 P. 1012 ; Rev. Laws 1910, § 4745,
subd. 3.
»s West v. Madansky (Okl.) 194 P. 439.
99 Day v. Kansas City Pipe Line Co., 125 P. 43, 87 Kan. 617.
(602)
Art. 11) DEMURRER § 703
ARTICLE XI
DEMURRER
Sections
703. Grounds-rForm.
704. Misjoinder ot parties.
705. Office of demurrer.
706. Requisites and construction.
707. Time to demur — After motions. i
70S. Admissions for purpose of demurrer.
709. General demurrer.
710. Limitations.
711. Objection to introduction of any evidence as alternative.
712. Demurrer and answer.
713. Where single count.
714. Joint demurrer.
715. Demurrer to answer.
716. To amended answer.
717. To set-off or counterclaim.
718. Demurrer to reply.
719. Demurrer relating back.
720. Construction of pleading demurred to.
721. Ruling, order, and judgment.
§ 703. Grounds — Forms
"The defendant may demur to the petition only when it appears
on its face, either :
"First. That the court has no jurisdiction of the person of the
defendant, or the subject of the action.
"Second. That the plaintiff has no legal capacity to sue.
"Third. That there is another action pending between the same
parties for the same cause.
"Fourth. That there is a defect of parties, plaintiff or defend-
ant.1
i "Defect of parties," within the statute making it a ground of demurrer,
means too few and not too many parties, and is not synonymous with "mis-
joinder of parties," which means an excess of parties. Niblo v. Drainage
Dist. No. 3, 58 Okl. 639, 160 P. 468.
A petition alleging a cause of action against a railway company and cer-
tain persons named as receivers of its property is not demurrable on the
ground that it shows a defect of parties, nor on the ground that it fails to
state a cause of action against either one because the other is charged also
with the same liability. Union Pac. Ry. Co. v. Smith, 52 P. 102, 59 Kan. 80.
. A demurrer to a petition for a defect of parties defendant should point out
the parties improperly omitted, and where this is not done the overruling of
(603)
§ 703 PLEADINGS (Ch. 11
"Fifth. That several causes of action are improperly joined.2
"Sixth. That the petition does not state facts sufficient to con-
stitute a cause of action." 3
DEMURRER TO PETITION, CONTAINING ALL STATUTORY GROUNDS
(Caption.)
Comes now the said defendant and demurs to the petition of
plaintiff filed herein, and for grounds of demurrer alleges:
1. That it appears upon the face of said petition that the court
has no jurisdiction of the person of this defendant.
2. That the court has not jurisdiction of the subject of this ac-
tion (pointing out why).
the demurrer cannot be regarded as erroneous. Federal Betterment Co. v.
Blaes, 88 P. 555, 75 Kan. 69.
Where a suit is brought against one person, and the petition discloses on its
face that the debt sued on is the debt of a co-partnership, a demurrer for de-
fect of parties defendant is the proper practice, and should be sustained. Cox
v. Gille Hardware & Iron Co., 58 P. 645, 8 Okl. 483.
A general demurrer does not raise the question of defect of parties. Davis,
v. Caruthers, 97 P. 581, 22 Okl. 323. A defect of parties is waived where
there is no special demurrer on that ground and the question is not otherwise
raised. Id.
The question of defect of parties plaintiff must be raised by demurrer if
the defect appears on the face of the petition, otherwise by answer, and if
no objection be taken any other way, the same is waived. Culbertson v.
Mann, 30 Okl. 249, 120 P. 918; Coulson v. Wing, 22 P. 570, 42 Kan. 507, 16 Am.
St. Rep. 503 ; Union Pac. Ry. Co. v. Kindred, 23 P. 112, 43 Kan. 134 ; Ryan v.
Phillips, 44 P. 909, 3 Kan. App. 704 ; Harrah State Bank v. School Dist. No.
70, Oklahoma County, 47 Okl. 593, 149 P. 1190 ; Burton v. Cochran, 47 P. 569,
5 Kan. App. 508. •
Objections to a counterclaim which asks affirmative relief on the ground
of defect of parties are waived by reply without demurrer. Wyman v. Her-
ard, 50 P. 1009, 9 Okl. 35.
2 West v. Madansky, 80 Okl. 161, 194 P. 439 ; Lyons v. Berlau, 73 P. 52, 67
Kan. 426.
Under the rule of procedure in the territory of Oklahoma prior to its admis-
sion as a state, which is the rule of procedure now in force in the state, mis-
joinder of causes of action should be raised by demurrer. Choctaw, O. & G.
R. Co. v. Burgess, 97 P. 271, 21 Okl. 653.
Where a petition contains two or more causes of action which cannot be
properly united in the same action, the fact that they are in one statement,
instead of being set forth in separate counts, will not deprive defendant of
his right to demur. Benson v. Battey, 78 P. 844, 70 Kan. 288, 3 Ann. Cas. 283.
s Rev. Laws 1910, § 4740.
A petition warranting relief either at law or in equity is good on a gen-
eral demurrer. Schanbacher v. Payne, 79 Okl. 101, 191 P. 173.
(604)
Art. 11) DEMURRER §§ 703-705
3. That the plaintiff has no legal capacity to sue (pointing out
defect relied upon).
4. That there is another action pending between the same par-
ties for the same cause (specifying same).
5. That there is a defect of parties plaintiff (or defendant) in
the omission of (designating party) who is a necessary party plain-
tiff (or defendant).
6. That several causes of action are improperly joined, in this,
to wit : (Pointing out how.)
7. That the petition does not state facts sufficient to constitute
a cause of action in favor of plaintiff and against this defendant
8. That said petition shows upon its face, that the alleged cause
of action is barred by the statute of limitations of the state of Ok-
lahoma. A. B., Attorney for Defendant.
§ 704. Misjoinder of parties
A misconduct of parties plaintiff is not a cause for demurrer.4
§ 705. Office of demurrer
The office of a demurrer is primarily to raise an issue of law on
facts raised in the pleading attacked,8 and to challenge the suffi-
ciency of a pleading on its face.6
* First Nat. Bank of Russell v. Knoll, 52 P. 619, 7 Kan. App. 352 ; Stiles v.
City of Guthrie, 41 P. 383, 3 Okl. 26; Martin v. Clay, 56 P. 715, 8 Okl. 46;
Powell v. Dayton, S. & G. R. R. Co., 11 P. 222, 13 Or. 446 ; Pierson v. Fuhr-
mann, 27 P. 1015, 1 Colo. App. 187; Stiles v. City of Guthrie, 41 P. 383, 3 Okl.
26 ; Marth v. City of Kingfisher, 98 P. 436, 22 Okl. 602, 18 L. R. A. (X. S.)
1238 ; City of Pawhuska v. Rush, 119 P. 239, 29 Okl. 759 ; Marshall v. City of
Osborne, 104 Kan. 377, 179 P. 303 ; Bourland v. Madill State Bank, 124 P. 314,
32 Okl. 761; Tucker v. Hudson, 38 Okl. 790, 134 P. 21; Dieterle v. Harris
(Okl.) 169 P. 873.
Neither misjoinder of parties nor excess of parties can be taken advantage
of by demurrer, but can only be reached by motion filed before joining issues
on the merits. State Exch. Bank of Elk City v. National Bank of Commerce
s Bristow v. Carrigar, 132 P. 1108, 37 Okl. 736.
W|here it appears on the face of petition that contract sued on is within
statute of frauds the defect may be taken advantage of by demurrer. Crab-
tree v. Eufaula Cotton Seed Oil Co., 122 P. 664, 32 Okl. 465.
An objection that a petition fails to state a cause of action should be pre-
sented by demurrer. Lankford v. Schroeder. 47 Okl. 279, 147 P. 1049, L. R.
A. 1915F, 623.
« Ball v. White, 50 Okl. 429, 150 P. 901 ; McConnell v. Davis, 46 Okl. 201, 148
P. 687.
(605)
§ 705 PLEADINGS (Ch. 11
A demurrer will not lie where the alleged defects do not appear
on the face of the pleading,7 or to rid a single cause of action or de-
fense of irrelevant, redundant, or improper matter,8 or because of
mere generality in the allegation of essential facts or mere conclu-
sions of fact,9 or because the pleading is indefinite and uncertain
and properly subject to a motion to make more definite and cer-
tain,1-0 or because of redundancies which may properly be reached
by motion to strike out.11 Nor will a demurrer raise the question
of inconsistency or departure in the pleadings,12 or reach a failure
(Old.) 174 P. 796, 2 A. L. B. 211 ; Same v. Traders' Nat. Bank of Kansas City,
Mo. (Okl.) 174 P. 799; Cfcoctaw, O. & G. R. Co. v. Burgess, 97 P. 271, 21 Okl.
653.
' Continental Ins. Co. v. Pratt, 55 P. 671, 8 Kan. App. 424 ; Sweet v. Crane,
39 Okl. 248, 134 P. 1112.
Where the petition, in an action on a voluntary bond of a district clerk,
charged the due execution of the bond, the defense that it was given without
consideration, not appearing therein, could not be raised by demurrer. Ahs-
muhs v. Bowyer, 39 Okl. 376, 135 P. 413, 50 L. B. A. (N. S.) 1060.
Where a petition in replevin, on its face, states a cause of action, and the
defendant relies upon the fact that a valid service of summons was not had
until more than two years after the cause of action accrued, such a defense
cannot be raised by demurrer. Harris v. Bell, 59 P. 1095, 9 Kan. App. 706.
A demurrer to a bill of particulars on the ground that there is another ac-
tion pending between the same parties for the same cause of action should be
overruled where such fact does not appear on the face of the pleadings.
Biard v. Laumann, 116 P. 780, 29 Okl. 138.
s Sparks v. Smeltzer, 93 P. 338, 77 Kan. 44.
» Gano v. Cunningham, 128 P. 372, 88 Kan. 300.
Conclusions of fact held not to render a pleading bad as against a demurrer,
in the absence of a motion to make definite and certain. Boberts v. Pendle-
ton, 142 P. 289, 92 Kan. 847.
A demurrer to a petition on the ground that the material facts are set forth
in general terms will not lie. Board of Com'rs of Neosho County v. Spear-
man, 130 P. 677, 89 Kan. 106.
10 City of Guthrie-v. Shaffer, 54 P. 698, 7 Okl. 459; Wey v. City Bank of
Hobart, 116 P. 943, 29 Okl. 313.
Indefiniteness and informality of pleading cannot be alleged by demurrer
or objection to evidence. Burnette v. Elliott, 84 P. 374, 72 Kan. 624.
11 Bank of Le Boy v. Harding, 41 P. 680. 1 Kan. App. 389.
12 Walters v. Chance, 85 P. 779, 73 Kan. 680; Fetzer & Co. v. Williams, 103
P. 77, 80 Kan. 554.
Inconsistent averments in a petition, which might have been stricken out
on motion, furnish no ground of demurrer, if by rejecting them, a cause of ac-
tion still remains. Nicholson v. Nicholson, 109 P. 1086, 83 Kan. 223.
The fact that more than one ground of recovery may have been pleaded in
the petition, or that the grounds set up for recovery may not be consistent
with each other, affords no reason for sustaining a demurrer which challenges
(606)
Art. 11) DEMURRER §§ 705-706
to attach to the petition a copy of the written instrument upon which
the cause of action is based.18
A petition is not demurrable because it commingles several causes
of action erroneously paragraphed or subdivided; the remedy in
such cases being by motion to separately state and number.1*
Demurrer is not the proper method by which to object to a suit
against a defendant by initials instead of by his Christian name.15
The question of the ownership of the notes sued on cannot be
raised by demurrer.16
§ 706. Requisites and construction
"The demurrer shall specify distinctly the grounds of objection
to the petition. Unless it do so, it shall be regarded as objecting
only that the petition does not state facts sufficient to constitute a
cause of action." 17
only the sufficiency of the facts alleged. Bichel v. Oliver, 95 P. 396, 77 Kan.
696.
An objection to a pleading on the ground of departure cannot be raised by
demurrer. Merchants' & Planters' Ins. Co. v. Marsh, 125 P. 1100, 34 Okl. 453,
42 L. R. A. (N. S.) 996; Landon v. Morehead, 126 P. 1027, 34 Okl. 701; Purcell
v. Corder, 124 P. 457, 33 Okl. 68.
1 3 Incorporated Town of Sallisaw v. Chappelle (Okl.) 171 P. 22 ; Rev. Laws
1910, § 4769.
That a copy of the account sued on was not attached to the petition did not
render the petition demurrable under Rev. Laws 1910, § 4769. Rogers' Mill-
ing Co. v. Goff, Gamble & Wright Co., 46 Okl. 339, 148 P. 1029.
Petition held not demurrable where it stated a cause of action on account,
though exhibits attached to it suggested a doubt as to whether defendant act-
ed in a representative capacity or as an individual. Caiman v. Kreipke, 139
P. 698, 40 Okl. 516.
A petition in an action on account for goods sold by a corporation held not
demurrable, though it did not describe the account otherwise than as that of
defendant, and was signed only by the vice president, without any seal at-
tached. Davison v. Calmback, 148 P. 625, 95 Kan. 560.
i* First Nat Bank of Tishomingo v. Ingle, 132 P. 895, 37 Okl. 276 ; City
of Ellsworth v. Rossiter, 26 P. 674, 46 Kan. 237.
A demurrer will not lie against a petition which is defective only in not
separately stating and numbering the several causes of the action supposed to
be stated therein. Walker v. Sims, 64 P. 81, 9 Kan. App. 890.
Where petition states both statutory and common-law cause of action, grow-
15 McColgan v. Territory, 49 P. 1018, 5 Okl. 567.
is Waldock v. Winkler, 51 Okl. 485, 152 P. 99.
IT Rev. Laws 1910, § 4741.
A demurrer to a pleading must specify the grounds of the objection. Tootle
v. Berkley, 45 P. 77, 57 Kan. 111.
(607)
f
§§ 706-708 PLEADINGS (Ch.ll
The question of a defect of parties cannot be raised under a
general demurrer alleging simply a want of facts sufficient to state
a cause of action.18
Where the petition is a single cause of action or count, though
the pleader paragraphs the same and numbers each paragraph, it is
error to sustain a demurrer on the ground "that none of the counts
state a cause of action." 19
Where a demurrer to a petition consisting of one count is sus-
tained, and the same is refiled unchanged, except for a second cause
of action plaintiff attaches thereto a second count, a demurrer sub-
sequently filed only applies to the second count.20
§ 707. Time to demur — After motions
A demurrer to a pleading is a waiver of all defects that should
properly be raised by motion.21
§ 708. Admissions for purpose of demurrer
A demurrer to a pleading admits the truth of the allegations there-
of,22 which are well pleaded,23 but does not determine the truth of
the pleader's inference based on facts pleaded unless the facts are
sufficient to authorize such inference,24 nor does it admit the truth
ing put of same transaction, in one count, there is a defect within Rev. Laws
1910, § 4738, that may be remedied on motion, but cannot be reached by de-
murrer. Shelby-Downard Asphalt Co. v. Enyart (Okl.) 170 P. 708.
is A. Helm & Son v. Briley, 87 P. 595, 17 Okl. 314.
is Burton v. Doyle, 48 Okl. 755, 150 P. 711.
20 Schoner v. Allen, 105 P. 191, 25 Okl. 2,2.
21 Union State Bank v. Woodside (Okl.) 178 P. 109.
22 C. E. Sharp Lumber Co. v. Kansas Ice Co., 142 P. 1016, 42 Okl. 689; Tan-
cred v. Brewer, 75 Okl. 17, 181 P. 490 ; Gregg v. Oklahoma State Bank (Okl.)
179 P. 613.
A demurrer to an answer admits the allegation of ownership therein, mak-
ing proof unnecessary, though the exhibits thereto show that, under a rule of
evidence, defendant is without proof thereof. State v. Freeman, 62 P. 717, 10
Kan. App. 578.
In an action for death of a child from drowning in a pond in a city park,
a demurrer to the petition admitted its allegations generally, and especially as
to the physical conditions of the pond. Harper v. City of Topeka, 139 P. 1018,
92 Kan. 11, 51 L. R. A. (N. S.) 1032.
23 A demurrer only admits facts which are well pleaded. Adams v. Couch,
26 P. 1009, 1 Okl. 17.
A demurrer admits every material fact properly stated in plaintiff's peti-
tion. Scrivner v. McClelland, 75 Okl. 239, 182 P. 503.
24 Kee v. Armstrong, Byrd & Co., 75 Okl. 84, 182 P. 494, 5 A. L. R. 1349.
Allegations of a petition placing a practical interpretation on the bond sued
(608)
Art. 11) DEMURRER §§ 708-709
of the allegations of the pleading attacked, except for the purpose
of determining their legal effect/-3 and to test the demurrer.29
On a demurrer to an answer which is carried back to the petition,
the plaintiff will not be deemed to have admitted allegations in the
answer inconsistent with and contradictory to those included in the
petition.27
The pleading demurred to must be liberally construed.28
§ 709. General demurrer
A general demurrer to a petition raises only the question of its
sufficiency in stating a cause of action.29 It should be sustained
where the petition neither states a cause of action in equity or at
law,30 or omits any fact or facts essential to be established by proof
to sustain the action,31 or shows that the remedy sought is barred
on were not to be taken as true on demurrer when inconsistent with the lan-
guage of the bond. Rettiger v. Dannelly, 136 P. 942, 91 Kan. 61.
Though a demurrer admits the facts of a petition, yet, where an agreement
is in parol, the defendant is entitled to the benefit of the statute of frauds, un-
less the part performance pleaded is sufficient to avoid its operation. Pur-
cell v. Corder, 124 P. 457, 33 Okl. 68. The effect of a demurrer to a petition
pleading an oral agreement is the same as an answer admitting the agreement,
but claiming the benefit of the statute of frauds. Id. If the petition alleges
such a part performance as will take the agreement out of the statute of
frauds, the demurrer is such an admission of part performance as will pre-
clude defendant from the benefit of the statute. Id.
25 Jacobs v. Vaill, 72 P. 530, 67 Kan. 107.
26 Buell v. U-Par-har-ha, 60 Okl. 79, 159 P. 507.
27 Marney v. Joseph, 145 P. 822, 94 Kan. 18, Ann. Gas. 1917B, 225.
28 On demurrer to a petition as defective for not stating a cause of action,
the petition must be liberally construed, and all its allegations for the purpose
of the demurrer taken as true. Oklahoma Sash & Door Co. v. American Bond-
ing Co. (Okl.) 170 P. 511.
On demurrer to an answer as not stating a defense, the pleading must be
liberally construed, and all its allegations, for the purposes of the demurrer,
taken as true; and the demurrer will be sustained only where the answer pre-
sents defects so substantial as to authorize the court to say that, taking all
the facts to be admitted, they constitute no defense to the action stated in the
petition. Smith- Wogan Hardware & Implement Co. v. Jos. W. Moon Buggy
Co., 108 P. 1103, 26 Okl. 161.
29 Westervelt v. Jones, 47 P. 322,- 5 Kan. App. 35.
30 Kimmell v. Powers, 91 P. 687, 19 Okl. 339.
While an action improperly brought for specific performance may be retain-
ed to render damages for breach of contract, yet if the petition, after repeat-
ed amendments, neither states a cause of action for specific performance, nor
for breach of contract a general demurrer should be sustained. Schilling v.
Moore, 125 P. 487, 34 Okl. 155.
31 Garten v. Trobridge, 104 P. 1067, 80 Kan. 720.
HON.PL.& PBAC.— 39 (609)
§ 709 PLEADINGS (Ch. 11
by reason of plaintiff's laches,32 but should be overruled where the
petition states facts constituting a cause of action and is sufficiently
definite to put defendant on notice of what he is charged with,33
though the relief prayed for is not that to which the facts entitle the
plaintiff,34 and though the petition seeks to recover more relief
than that to which plaintiff is entitled.33
Where no motion to make more definite has been presented, the
demurrer should be overruled if the facts stated, when all are taken
as true, constitute a cause of action, whether well pleaded or not.36
32 City of Leavenworth v. Douglass, 53 P. 123, 59 Kan. 416.
ss Incorporated Town of Stigler v. Wiley, 128 P. 118, 36 Okl. 291.
It is not error to overrule demurrer where allegations of petition construed
most favorably to pleader set up cause of action. Henry v. Gulf Coast Drill-
ing Co., 56 Okl. 604, 156 P. 321.
Though petition in action to recover on contractor's surety bond, which
plainly alleged that a stated balance was due, contained obvious clerical er-
ror as to amount already paid, whereby it might be asserted that no balance
was due, it is not subject to demurrer. Sheahan v. United States Fidelity &
Guaranty Co., 163 P. 172, 99 Kan. 704.
Where a pleading states any facts upon which the pleader is entitled to any
relief under the law, a general demurrer should not be sustained. Bishop-
Babcock-Becker Co. v. Estes Drug Co., 63 Okl. 117, 163 P. 276; C. E, Sharp
Lumber Co. v. Kansas Ice Co., 142 P. 1016, 42 Okl. 689.
Where pleading contains more than one paragraph alleging more than one
cause of action or defense and states one cause of action or defense, it is er-
ror to sustain general demurrer to it as entirety. Zebold v. Hurst (Okl.) 166
P. 99, L. R. A. 1917F, 579.
Where a pleading consists of more than one count, each count must, as
against a general demurrer be considered as if constituting the entire pleading.
Riverside Tp. v. Bailey, 82 Kan. 429, 108 P. 796.
s* Anderson v. Muhr, 128 P. 296, 36 Okl. 184.
Where the relief prayed for is for a money judgment, and plaintiff does not
state the amount for which she asked judgment, as required by Wilson's Rev.
& Ann. St. 1903, § 4291, such failure does not alone render the petition so in-
sufficient as to render it subject to demurrer on the ground that it does not
state facts sufficient to constitute a cause of action. Oklahoma Gas & Electric
Co. v. Lukert, 84 P. 1076, 16 Okl. 397.
A petition, alleging that plaintiff purchased land from defendants relying
on their willfully false statements that they had an absolute title when in fact
they had less than a full title, held good on demurrer, though rescission was
not in terms asked for, and no formal offer to reconvey was made, and the
facts were not pleaded by which damages recoverable could be accurately
measured. Klingman v. Gilbert, 135 P. 682, 90 Kan. 545.
so Updegraff v. Lucas, 93 P. 630, 76 Kan. 456, 13 Ann. Gas. 860, rehearing
denied 94 P. 121, 76 Kan. 456, 13 Ann. Cas. 860 ; Walker v. Fleming, 14 P. 470,
37 Kan. 171.
se Bowersox v. J. W. Hall & Co., 84 P. 557, 73 Kan. 99.
Where the language of a petition is sufficiently explicit to raise an issue of
(610)
Art. 11) DEMURRER § 709
A general demurrer to a petition, which attempts to state several
causes of action, should be overruled if any of the statements of
causes of action are good,37 though such facts may not entitle
plaintiff to the entire relief prayed for.38
Where a petition states a valid cause of action as to a part of the
relief demanded, a judgment sustaining a demurrer generally is er-
roneous.39
A joint general demurrer should be overruled where the petition
states a cause of action against any party joining in the demurrer.40
Where a petition of two plaintiffs states a cause of action as to
but one of them, it is proper practice to overrule a general demurrer
thereto as to him, and sustain it as to the other plaintiff.41
Where a pleader alleges two different rights of recovery and the
question is whether either of said remedies is proper, a general de-
murrer should be overruled if facts are alleged sufficient to consti-
tute a cause of action for either remedy,42
When the separate paragraphs of a petition sufficiently state a
cause of action for debt and mortgage foreclosure, a general demur-
rer to each of such paragraphs should be overruled, though plain-
tiff also asks for an attorney's fee, which is not recoverable.43
A petition in action for money had and received is not subject
to general demurrer for failure to allege what specific use was made
of money.44
fact on which the pleader would be entitled to recover, it is error to sustain
a general demurrer. Berry v. Geiser Mfg. Co., 85 P. 699, 15 Okl. 364.
37 Emmerson v. Botkin, 109 P. 531, 26 Okl. 218, 29 L. R. A. (N. S.) 786, 138
Am. St. Rep. 953 ; Hanenkratt v. Hamil, 61 P. 1050, 10 Okl. 219 ; Blackwell
Oil & Gas Co. v. Whitesides (Okl.) 174 P. 573; Chupco v. Chapman (Okl.) 160
P. 88; Coody v. Coody, 136 P. 754, 39 Okl. 719, L. R. A. 1915E, 465; Cockrell
v. Schmitt, 94 P. 521, 20 Okl. 207, 129 Am. St. Rep. 737 ; Ardmore State Bank
v. Mason, 30 Okl. 568, 120 P. 1080, 39 L. R. A. (N. S.) 292.
38 Watkins v. Yell (Okl.) 176 P. 390.
3» St. Louis & S. F. R. Co. v. Commissioners of Labette County, 63 Kan. 889,
66 P. 1045.
Where petition states a good cause of action for foreclosure of a mechanic's
lien, and seeks to recover $40 attorney's fees, the allegation as to the attor-
40 Rogers' Milling Co. v. Goff, Gamble & Wright Co., 46 Okl. 339, 148 P. 1029.
41 Bissey v. Marion (Kan.) 178 P. 991.
42 Gourley v. Lookabaugh, 48 Okl. 65, 149 P. 1169.
43 Hailey v. Bowman, 137 P. 722, 41 Okl. 294.
44 Cleveland Nat. Bank v. Board of Education of City of Cleveland (Okl.)
179 P. 464.
(611)
§§ 709-710 PLEADINGS (Ch. 11
A misjoinder of causes of action can only be reached by special
demurrer setting forth distinctly the grounds of objection, and can-
not be met by general demurrer.45
An oral demurrer should be considered as a general demurrer
only, and be overruled, where the pleading attacked states a cause
of action entitling the pleader to any relief.46
§ 710. Limitations
Where petition on its face shows that cause of action is barred
by limitations, a general demurrer thereto is properly sustained,
unless facts as pleaded in the petition show that the statute has been
tolled.47
ney's fees, none being allowed, will not render the petition so defective that
the matter may be reached by general demurrer to the whole petition. Savage
v. Dinkier, 72 P. 366, 12 Okl. 463.
45 State Exch. Bank of Elk City v. National Bank of Commerce (Okl.) 174
P. 796, 2 A. L. R. 211; Same v. Traders' Nat. Bank of Kansas City, Mo. (Okl.)
174 P. 799.
A general demurrer does not go to a misjoinder of causes of action, under
Rev. Laws 1910, § 4740, subsec. 5, and in order to attack a misjoinder of
causes of action a demurrer for such misjoinder must be interposed. Hart-
Parr Co. v. Thomas (Okl.) 171 P. 867.
46 United States Fidelity & Guaranty Co. v. Fidelity Trust Co., 49 Okl. 398,
153 P. 195.
47 Delzell v. Couch (Okl.) 173 P. 361; Missouri, K. & T. Ry. Co. v. Wilcox,
121 P. 656, 32 Okl. 51 ; Territory v. Woolsey, 130 P. 934, 35 Okl. 545; Ostran
v. Bond (Okl.) 172 P. 447; Webb v. Logan, 48 Okl. 354, 150 P. 116; Fox v.
Ziehme, 30 Okl. 673, 120 P. 285 ; Froage v. Webb (Okl.) 165 P. 150. Where pe-
tition in action for breach of oral contract showed that cause of action ac-
crued more than three years before commencement of action, and did not al-
lege any written acknowledgment of existing liability within limitations, over-
ruling of demurrer thereto was error. Id.
The defense of the statute of limitations may be availed of by general de-
murrer, or by an objection to testimony under the petition. Martin v. Gassert,
139 P. 1141, 40 Okl. 608. A petition, showing on its face that a fraud on which
the cause of action was founded was consummated more than two years be-
fore action brought is demurrable, where it does not show that plaintiff did
not discover the fraud until within the two years. Id.
Only an explicit allegation, showing that limitations have run, renders a
petition demurrable. Wray v. Howard, 79 Okl. 223, 192 P. 584.
Kansas cases.— The defense of limitations cannot be raised by demurrer, un-
less it distinctly appears on the face of the petition that the action is neces-
sarily barred. Walker v. Fleming, 14 P. 470, 37 Kan. 171.
The objection that a cause of action is barred by limitations cannot be taken
by demurrer, unless the petition shows on its face that the cause of action is
(612)
Art. 11) DEMURRER §§ 710-713
But where the petition on its face does not show that the cause of
action is barred by limitations, a demurrer thereto on that ground
should be overruled.48
§ 711. Objection to introduction of any evidence as alter-
native
Defendant may demur to a petition for not stating facts sufficient
to constitute a cause for action, or may question its sufficiency by
objection to the introduction of evidence.49
§ 712. Demurrer and answer
"The defendant may demur to one or more of the several causes
of action stated in the petition, and answer to the residue." 50
§ 713. Where single count
Where a demurrer and an answer are filed at the same time, and
the petition contains but one count, the answer will be held to have
so barred. Garfield Tp., Finney County, v. Dodsworth, 9 Kan. App. 752, 58 P.
565.
A demurrer should be sustained where the complaint shows on its face that
the action is barred. Morgan v. Van Wyck, 5 Kan. App. 520, 48 P. 206; City
of Phillipsburg v. Kincaid, 50 P. 1093, 6 Kan. App. 377 ; Hunt v. Jetmore, 61
P. 325, 9 Kan. App. 333.
A petition held demurrable where it appeared that the action was barred
under the statute of Kansas and no other statute was pleaded. Perry v. Rob-
ertson, 150 P. 223, 93 Kan. 703, 96 Kan. 96. A petition on a written contract
maturing more than five years before action is demurrable, unless it shows
some fact interrupting the running of limitations. Id.
Limitation is a matter of defense, and only explicit allegations showing di-
rectly that limitations have run renders a petition demurrable; the question
otherwise being raised by special plea. Brunbaugh v. Wilson, 82 Kan. 53, 107
P. 792.
Where the exhibits attached to a petition show upon their face that the
cause of action set out therein is barred by the statute of limitations, and there
are no allegations in the petition showing that the cause of action is not so
barred, held, that a demurrer to such a petition should be sustained. School
Dist. No. 1 v. Herr, 50 P. 101, 6 Kan. App. 861.
48 Tucker v. Hudson, 38 Okl. 790, 134 P. 21 ; Lindsay v. Chicago, R. I. & P.
Ry. Co., 56 Okl. 234, 155 P. 1173; United States Fidelity & Guaranty Co. v.
Fidelity Trust Co., 49 Okl. 398, 153 P. 195.
4» Brown v. Galena Mining & Smelting Co., 4 P. 1013, 32 Kan. 528.
In action for breach of contract, failure to allege performance on plaintiff's
part presented only by objection to evidence and not by demurrer held imma-
terial. Capper v. Manufacturers' Paper Co., 121 P. 519, 86 Kan. 355.
so Rev. Laws 1910, § 4744.
(613)
§§ 714-715 PLEADINGS (Ch. 11
superseded the demurrer, and the trial should proceed as though
none had been filed.51
§ 714. Joint demurrer
A complaint which states a cause of action against one of several
defendants is good against a joint demurrer.52
§ 715. Demurrer to answer
It is error to sustain a general demurrer to an answer which in-
cludes a general denial of the averments of the petition. The de-
murrer should be overruled as to that averment.53 But the demur-
rer may be sustained where the answer contains averments in-
consistent with the general denial.54 A demurrer will not lie for
surplusage or generalities.55
A general demurrer to an answer should be overruled, where the
answer raises any issue necessary to be determined before judgment
can be rendered on the petition,56 and where the answer contains
several paragraphs or defenses, one of which is good.57
si Ryndak v. Sea well, 76 P. 170, 13 Okl. 737.
Where a pleading styled an answer contained a demurrer, coupled with
facts constituting a defense, and thereafter a general denial by way of a re-
ply was filed, it was not error to disregard the demurrer, and require a trial
on the merits. Title Guaranty & Surety Co. v. Slinker, 128 P. 696, 35 Okl. 128;
Id., 128 P. 698, 35 Okl. 153.
52 Stiles v. City of Guthrie. 3 Okl. 26, 41 P. 383.
53 City of Guthrie v. T. W. Harvey Lumber Co., 50 P. 84, 5 Okl. 774.
An answer containing a general denial modified by admissions, but not ad-
mitting all facts necessary to entitle plaintiff to recover, is good as against de-
murrer. Rust v. Rutherford, 147 P. 805, 95 Kan. 152.
A general demurrer to an answer containing a general denial cannot be
sustained. Marshall Mfg. Co. v. Dickerson, 55 Okl. 188, 155 P. 224. An an-
swer containing a general denial and also a negative pregnant constituting
admission of liability by defendant, though subject to motion for judgment
on the pleadings, is not subject to a general demurrer. Id.
Where facts pleaded in a paragraph of an answer are admissible under a
general denial pleaded, it is not error to sustain a demurrer to such para-
graph. Hopkins v. Dipert, 69 P. 883, 11 Okl. 630.
s* Adkins v. Arnold, 121 P. 186, 32 Okl. 167.
55 A demurrer to an answer, in that the second clause of the first paragraph
was not responsive to an allegation in the petition, that the third clause was
evasive, and that another paragraph stated conclusions of law, and was not
responsive to the allegations of the petition, was insufficient. Galbreath Gas
Co. v. Lindsey, 129 P. 45, 35 Okl. 235.
56 Simpson v. Collins, 62 P. 719, 10 Kan. App. 578.
Where an answer denies a material fact in the petition essential to plain-
s' See note 57 on following page.
(614)
Art. 11) DEMURRER §§ 715-718
A pleading containing a general denial and also a general demur-
rer will be treated as an answer, and the demurrer will be con-
sidered waived.58 ,
§ 716. To amended answer
Where an amended answer measurably complies in particulars
required, with an order to make the original more definite and cer-
tain, it is error to sustain a motion to strike it from the files, though
it may not state facts sufficient to constitute a defense; but a de-
murrer, so an amendment can be allowed, is proper.59
§ 717. To set-off or counterclaim
A set-off or counterclaim, to withstand a demurrer for want of
facts, must, like any other complaint, state facts sufficient to consti-
tute a cause of action.60
§ 718. Demurrer to reply
"If the reply to any defense set up by the answer be insufficient,
the defendant may demur thereto, stating the grounds of such de-
murrer." '
To a reply containing a general denial and new matter, a demur-
tiffs' right of recovery, it is error to sustain a demurrer to such answer on
the ground that it does not state a defense. Lee v. Mehew, 56 P. 1046, 8 Okl.
136. ,
Where an answer states facts constituting a defense in themselves, the sus-
taining of a general demurrer thereto is error. Gillum v. Anglin, 44 Okl. 684,
145 P. 1145.
67 A demurrer to an answer containing several paragraphs must be over-
ruled, if there is one good paragraph. Hurst v. Sawyer, 37 P. 817, 2 Okl. 470.
A general demurrer to an answer containing several defenses should be over-
ruled, where any defense by itself, or the answer as a whole, states matters
which defeat plaintiff's right to recover. Rust v. Rutherford, 147 P. 805, 95
Kan. 152; Mollohan v. King, 50 P. 881, 58 Kan. 816; Harrill v. Weer, 109 P.
539, 26 Okl. 313 ; Flint v. Dulany, 15 P. 208, 37 Kan. 332.
ss State Exch. Bank v. National Bank of Commerce (Okl.) 174 P. 796, 2 A.
L. R. 211; Same v. Traders' Nat. Bank (Okl.) 174 P. 799.
sa McNinch v. Northwest Thresher Co., 100 P. 524, 23 Okl. 386, 138 Am. St.
Rep. 803.
eo In action on note, answer of defendant indorsers held, as against a de-
murrer, to sufficiently plead a set-off based upon alleged fraud practiced upon
them by plaintiff holder and defendant maker of the note. Blair v. McQuary,
164 P. 262, 100 Kan. 203, modifying judgment on rehearing 162 P. 1173, 100
Kan. 203.
el Rev. Laws 1910, § 4754.
(615)
§§ 719-720 PLEADINGS (Ch. 11
rer for want of facts is bad if not addressed especially to the new
matter.62
§ 719. Demurrer relating back
A demurrer to an answer or reply searches the record.63 A de-
murrer to a petition because not stating a cause of action can be sus-
tained only where court can say that, taking all the facts to be
admitted, they furnish no cause of action, and, if facts stated
therein entitle plaintiff to any relief, a demurrer for want of facts
should be overruled ; 6* and where there is a general demurrer to
defenses of an answer and the petition does not state facts suffi-
cient to constitute a cause of action, a demurrer should be sustain-
ed to the petition.66
However, where a petition is defective for want of a material
averment, but such averment is supplied by the answer and is not
inconsistent with the averments of the petition, a demurrer filed
to the answer and properly overruled will not be carried back and
sustained as to the petition^6
§ 720. Construction of pleading demurred to
On demurrer a petition is liberally construed.67 It must be con-
strued with exhibits attached.68
62 Ordway v. Cowles, 25 P. 862, 45 Kan. 447.
63 In action on note, where answer alleged that it was given in connection
with written contract in settlement of controversy between parties, and by
the terms thereof it never became payable, held that demurrer to plaintiff's
reply to answer should have been carried back to answer and sustained there-
to, and judgment rendered for plaintiff. Rohrbaugh v. Cunningham, 101 Kan.
284, 166 P. 471.
04 Oklahoma Sash & Door Co. v. American Bonding Co. (Okl.) 170 P. 511.
es Bartholomew v. Guthrie, 81 P. 491, 71 Kan. 705.
A demurrer to an answer brings up the sufficiency of the complaint. John-
son v. Wynne, 67 P. 549, 64 Kan. 138 ; Crow v. Hardridge (Okl.) 175 P. 115.
A demurrer to an answer may be carried back to a petition, though a pre-
vious demurrer to the petition has been overruled. Marney v. Joseph, 145 P.
822, 94 Kan. 18, Ann. Gas. 1917B, 225.
66 Sill v. Sill, 1 P. 556, 31 Kan. 248.
67 Jackson v. Moore, 79 Okl. 59, 191 P. 590.
es Southern Surety Co. v. Municipal Excavator Co., 61 Okl. 215, 160 P. 617,
L. R. A. 1917B, 558: Pettis v. Johnston, 78 Okl. 277, 190 P. 681; Hughes v.
Martin (Okl.) 196 P. 951.
Where the instrument sued on is attached by copy to the petition and made
a part thereof, it should be made a part of the petition when constructing the
allegations thereof as against a general demurrer. Whiteacre v. Nichols, 87 P.
865, 17 Okl. 387.
(616)
Art. 11) DEMURRER §§ 720-721
In replevin, the affidavit and bond for the ancillary order are not
construed as parts of the pleadings, to determine whether a cause
of action has been stated.60
On demurrer to improperly commingled paragraphs of a peti-
tion, the entire petition will be considered, and not merely the
subdivisions attacked.70
In considering demurrers to separate causes of action, the court
is not confined to allegations in a particular subdivision, but may
supplement them with general allegations applicable alike to the
different causes, though this could not be done if separate causes
are separately stated and numbered, except where allegations are
incorporated by reference.71
Facts not shown by the pleadings cannot be inquired into in de-
termining sufficiency of a pleading on demurrer.72
§ 721. Ruling, order, and judgment
In sustaining a demurrer to a petition for misjoinder of causes of
action, the court should so state, and afford plaintiff an oppor-
tunity to file several petitions.73 But where a demurrer to a peti-
tion is sustained, and plaintiff fails to file an amended pleading as
permitted by the order, a judgment dismissing his cause of action
is proper.74
It is error for the court to render judgment by default on sus-
taining a demurrer to the answer, in the absence of defendant or his
counsel, without giving defendant an opportunity to plead over or
elect to stand on the demurrer.75
so Cudd v. Farmers' Exch. Bank of Lindsay, 76 Okl. 317, 185 P. 521.
70 First Nat. Bank of Tishomingo v. Ingle, 132 P. 895, 37 Okl. 276.
71 Cliupco v. Chapman (Okl.) 160 P.. 88.
Where a pleading consists of more than one count, neither the facts involv-
ed in the action nor the averments of another count, unless incorporated into
the pleading demurred to, can be considered on a hearing on the demurrer.
Riverside Tp. v. Bailey, 82 Kan. 429, 108 P. 796.
72 Where, in an action by F. against D., charging that certain covenants
contained in a deed by D. to F. were broken, neither the petition nor the ^x-
hibits connect D. with the title of the original grantor, W., on demurrer the
court cannot properly determine the question of W.'s right to alienate. Fal-
ler v. Davis, 30 Okl. 56, 118 P. 382, Ann. Gas. 1913B, 1181.
>"• Wlutley v. St. Louis, E. R. & W. Ry. Co., 116 P. 165, 29 Okl. 63; Rev.
Laws 1910, § 4743.
74 Gates v. Miles (Okl.) 169 P. 888; State v. Martin, 62 Okl. 295, 162 P. 108&.
75 Thwing v. Doye, 44 P. 381, 2 Okl. 608.
(617)
§ 721 PLEADINGS (Ch. 11
Where an answer in an action on an official bond contains a
general denial, and the plaintiff elects to stand on a demurrer,
which is overruled, to two other paragraphs of the answer, which
state a good defense, and nothing further is offered by the plaintiff,
it is not error for the court to dismiss the cause.76
An order of the court overruling defendant's demurrer to the
petition on the ground that it does not state facts sufficient to con-
stitute a cause of action is not a final adjudication in plaintiff's
favor, so as to prevent defendant, at the trial, from again attacking
the sufficiency of the petition by an objection to the reception of
any evidence thereunder.77
The court, by erroneously overruling a demurrer to the reply,
is not precluded from correctly deciding a motion for judgment on
the pleadings.78
An application for leave to answer after a demurrer has been
adjudged frivolous rests largely within the trial court's reasonable
discretion, and should be granted except in extreme cases.79
Where a demurrer to an answer is sustained, and defendant
stands on his exception thereto, and judgment is rendered against
him, and he takes additional time to prepare a case for appeal, and
when, after the term has expired, he files a motion to set aside the
judgment and be allowed to amend, the motion cannot be con-
sidered.80
It is error for a trial court to render a judgment sustaining a plea
in abatement, without giving plaintiff an opportunity to plead there-
to, where it cannot be said from the record that he elected to stand
on his demurrer to the plea or refused to plead further.81
A judgment sustaining a demurrer to a petition from which no
76 Board of Com'rs of Logan County v. Harvey, 52 P. 402, 6 Okl. 629.
77 Goodrich v. Commissioners of Atchison County, 47 Kan. 355, 27 P. 1006,
18 L. B. A. 113.
78 Sherburne v. Strawn, 34 P. 405, 52 Kan. 39.
7» Nolen v. State, 48 Okl. 594, 150 P. 149; Jones v. Same, 48 Okl. 601, 150
P. 151.
A "frivolous pleading'' is one so clearly untenable or the insufficiency of
which is so manifest upon a bare inspection of the pleading that the court or
judge is able to determine its character without argument or research. Nolen
v. State, 48 Okl. 594, 150 P. 149 ; Jones v. Same. 48 Okl. 601, 150 P. 151.
so Davidson v. Hughes, 91 P. 913. 76 Kan. 247; Id., 91 P. 915, 77 Kan. 842.
si Nation v. Savely (Okl.) 176 P. 937.
(618)
Art. 12) ISSUES, PROOF, AND VARIANCE §§ 722~724
appeal is taken does not control the judgment on hearing of a de-
murrer against an amended petition afterwards filed by leave of
court.82
ARTICLE XII
ISSUES, PROOF, AND VARIANCE
DIVISION I.— ISSUES
Sections
722. Kinds.
723. Of law.
724. Of fact.
725. Where both issues arise.
726. Allegations deemed true.
727. Admissions.
728. Material allegation.
DIVISION II.— PBOOF
729. Proof required under certain pleadings — Verified denial.
730. Proof admissible under pleadings.
731. Under general denial.
732. When evidence admissible of facts not pleaded.
DIVISION III. — VABIANCE
733. Rules and application.
DIVISION I. — Issues
§ 722. Kinds
"Issues arise on the pleadings, where a fact or conclusion of law
is maintained by one party, and controverted by the other. There
are two kinds : First, Of law. Second, Of fact." 83
§ 723. Of law
"An issue of law arises upon a demurrer to the petition, answer
or reply, or to some part thereof." 8*
§ 724. Of fact
"An issue of fact arises : First, upon a material allegation in the
petition, controverted by the answer ; or, second, upon new matter
in the answer, controverted b/y the reply ; or, third, upon new mat-
S2 Parks v. Monroe, 161 P. 638, 99 Kan. 368.
ss Rev. Laws 1910, § 49S9 ; General Electric Co.-v. Sapulpa & I. Ry. Co., 4&
Okl. 376, 153 P. 189; United States Fidelity & Guaranty Co. v. Fidelity
Trust Co., 49 Okl. 398, 153 P. 195.
s* Rev. Laws 1910, § 4990.
(619)
§§ 725-726 PLEADINGS ,Ch.ll
ter in the reply, which shall be considered as controverted by the
defendant without further pleading." 85
§ 725. Where both issues arise
Issues both of law and fact, may arise upon different parts of
the pleadings in the same action. In such cases the issues of law
must be first tried, unless the court otherwise direct." 86
§ 726. Allegations deemed true
"Every material allegation of the petition, not controverted by
^ the answer, and every material allegation of new matter in the
answer, not controverted by the reply, shall, for the purposes of
the action, be taken as true ; but the allegation of new matter in the
reply shall be deemed to be controverted by the adverse party, as
upon direct denial or avoidance, as the case may require. A de-
murrer to a reply shall not be held to admit any of the facts al-
leged in such reply for any purpose other than to determine the
sufficiency thereof. Allegations of value, or of amount of damages,
shall not be considered as true, by failure to controvert them ; but
this shall not apply to the amount fclaimed in action on contract,
express or implied, for the recovery of money only." 87
as Rev. Laws 1910, § 4991.
se Rev. Laws 1910, § 4992.
87 Rev. Laws 1910, § 4779.
Under Rev. Laws 1910, § 4779, allegations of value or amount of damages
in a petition are not admitted as true by a failure to controvert them. Cudd
v. Farmers' Exch. Bank of Lindsay, 76 Okl. 317, 185 P. 521.
Where, prior to the admission of the state into the Union, in replevin to
recover certain personalty, in which plaintiffs claimed a special ownership
under chattel mortgages, there was a nouverified answer with allegations
that plaintiffs were a partnership and were transacting business under a fic-
titious name, a reply was necessary, and, none being filed, the material alle-
gations of the new matter in the answer uncontroverted should be taken as
true and constitute a complete defense. Baker v. L. C. Van Ness & Co., 105
P. 660, 25 Okl. 34.
Where plaintiff founds his claim to property on a certain note and chattel
mortgage, and sets forth a copy of them in his original pleadings, and makes
them a part thereof, and defendant does not deny their execution by affidavit,
it is not necessary for plaintiff to prove that the note was unpaid. Hardwick
v. Atkinson, 58 P. 747, 8 Okl. 608.
(620)
Art. 12)' ISSUES, PROOF, AND VARIANCE §§ 727-729
§ 727. Admissions
Defendant need not prove matters admitted in the petition;88
but his act in challenging the competency of one of plaintiff's wit-
nesses, upon the theory of the facts as alleged in the petition, is
not such an admission of the truthfulness of the petition as renders
proof unnecessary.89 Likewise plaintiff is relieved from proving
facts admitted by defendant in the answer.90
§ 728. Material allegation
"A material allegation, in a pleading, is one essential to the claim
•or defense, which could not be stricken from the pleading without
leaving it insufficient." 91
DIVISION II. — PROOF
t
§ 729. Proof required under certain pleadings — Verified denial
The issues raised by the pleadings determine the proof which
is required.92 A verified denial, however, is required to put certain
facts in issue. It is necessary to put in issue plaintiff's corporate
88 Where the execution of the deeds relied upon by the defendant in parti-
tion is admitted in plaintiff's pleading, the defendant need not introduce the
deeds in evidence to establish his interest. Ryan v. Cullen, 133 P. 430, 89
Kan. 879.
Where, in an action to enjoin the collection of certain school district taxes,
plaintiff admitted that the order for the levy had been made and that the
county clerk had extended the levy, further proof that the levy had been or-
dered was unnecessary. St. Louis & S. F. Ry. Co. v. Lindsey, 39 Okl. 439,
135 P. 1053.
*» McWilliams v. Piper, 53 P. 837, 7 Kan. App. 289.
»o Where the answer admits execution of the note sued upon and pleads
payment and set-off, the note need not be put in evidence. Dill v. Malot (Okl.)
167 P. 219.
In an action on an unindorsed note, payable to a third person, defendants'
answer that the note was executed in consideration of a conveyance of lands
by plaintiff admitted plaintiff's ownership of the note, and no proof is nec-
essary, though it was denied by the answer. Choate v. Stander, 61 Okl. 148,
160 P. 737.
si Rev. Laws 1910, § 4780.
In an action on a negotiable certificate of deposit, an unverified answer de-
nying plaintiff's ownership of the certificate and alleging that the deposit had
been withdrawn by the true owner presents an issue for trial. Wichita Nat.
Bank v. Maltby, 36 P. 1000, 53 Kan. 567.
92 Where the defense in an action for the publication of libelous articles is
that the articles are true, plaintiff is entitled to recover unless defendant es-
tablishes the truth of every material item. Spencer v. Minnick, 139 P. 130,
41- Okl. 613.
(021)
§ 729 PLEADINGS (Ch. 11
character,93 or the existence of an alleged partnership,94 or the exe-
cution of a written instrument.95
Although several facts are alleged in the petition, plaintiff need
prove only such facts as are essential to establish his right to re-
cover.96 He must prove all material and necessary allegations,97
but he need not prove a conclusion of law.98 A slanderous state-
ment need not be proven precisely as charged.99
An unnecessary allegation need not be proven. Thus, whe're an
insurance company pleads a breach of condition against concur-
93 Where defendant flies specific verified denial of plaintiff 's corporate char-
acter, plaintiff must prove such character. J. P. Bledsoe & Son v. Keystone
Steel & Wire Co., 139 P. 257, 41 Okl. 586.
94 Where the petition alleges the existence of a partnership, and the exe-
cution of a mechanic's lien, and a verified answer is filed denying "each and
every allegation, averment, and statement contained in the plaintiff's peti-
tion," the existence of the pai'tnership, and the due execution of the lien, are
such issues as must be proved on the trial, to entitle the plaintiff to recover.
Hayner v. Eberhardt, 15 P. 168, 37 Kan. 308.
95 Felix v. Walker, 57 P. 128, 60 Kan. 467.
Where defendant alleged that he was induced by fraud to sign, without
reading it, the contract sued on, and that it did not contain the real agree-
ment, held, that evidence supporting such allegations was admissible. George
O. Richardson Machinery Co. v. Duncan, 46 Okl. 21, 148 P. 80.
96 Where plaintiff alleges several independent unconnected acts of negli-
gence as ground for recovery and the proof is sufficient to establish any of
such acts of negligence, he may recover. Dickinson v. Tucker (Okl.) 176 P.
949.
That the petition, in an action against a railroad company for damages
from fire, unnecessarily charged negligence did not require plaintiff to prove
negligence in order to recover. Midland Valley R. Co. v. Lynn, 38 Okl. 695,
135 P. 370.
In action for carrier's conversion of grain covered by bill of lading held by
bank, where it paid into court the amount demanded, and an intervener
claimed an interest in such money, proof of value of car was not necessary
as between plaintiff and intervener. Marsh Milling & Grain Co. v. Guaranty
State Bank of Ardmore (Okl.) 171 P. 1122, L. R. A. 1918D, 704.
»7 Under petition in action against railroad and its engineer and fireman,
alleging that the latter willfully, wantonly, and maliciously blew a whistle
with intent to frighten plaintiff's horse, no recovery could be had where the
evidence showed no more than mere negligence of defendants. St. Louis &
S. F. R. Co. v. Boush (Okl.) 174 -P. 1036.
98 St. Louis & S. F. R. Co. v. Johnson, 86 P. 156, 74 Kan. 83.
99 Refusal to instruct that a recovery could be had on proving the slan-
derous statement precisely as charged in the petition held not error. Smith
v. Gillis, 51 Okl. 134, 151 P. 869. It is sufficient to prove the substance of the
identical words charged, or so many of them as may be sufficient to make out
a case, without regard to structural combination not materially affecting the
meaning of the actionable words. Id.
(622)
Art. 12) ISSUES, PROOF, AND VARIANCE § 730
rent insurance, and the reply sets up a waiver, and the policy au-
thorizes concurrent insurance, it is unnecessary to prove the al-
leged waiver.1
§ 730. Proof admissible under pleadings
Ordinarily the evidence must be confined to the issues raised by
the pleadings ; 2 but this rule will not be applied so as to work an
injustice by excluding evidence because it only indirectly or partial-
ly supports the allegations.3
Evidence which may reasonably be held to have a bearing upon
1 Springfield Fire & Marine Ins. Co. v. Null, 133 P. 235, 37 Okl. 665.
2 Comanche Mercantile Co. v. Wheeler & 'Motter Mercantile Co., 55 Okl.
328, 155 P. 583 ; Winans v. Hare, 46 Okl. 741, 148 P. 1052 ; Frazier v. Eben-
ezer Baptist Church, 56 P. 752, 60 Kan. 404 ; Hartford Fire Ins. Co. v. War-
britton, 71 P. 278, 66 Kan. 93 ; Westchester Fire Ins. Co. v. Coverdale, 58 P.
1029, 9 Kan. App. 651 ; Chicago, R. I. & P. Ry. Co. v. Spears, 122 P. 228, 31
Okl. 469; Chambers v. Van Wagner, 123 P. 1117, 32 Okl. 774; Robieson v.
Royce, 66 P. 646, 63 Kan. 886.
A tax deed, executed after the commencement of an action, and not put in
issue, nor mentioned by the pleadings, cannot be introduced on trial. Camp-
bell v. Fulmer, 18 P. 493, 39 Kan. 409.
A plaintiff, in his complaint, must state the facts constituting his cause of
action, and is not at liberty to make out his case by giving in evidence facts
which he has not stated in his complaint. Burke v. Levy, 8 P. 527, 68 Cal.
32 ; Nordholt v. Nordholt, 26 P. 599, 87 Cal. 552, 22 Am. St. Rep. 268 ; King-
man, P. & W. R. Co. v. Quinn, 25 P. 1068, 45 Kan. 477 ; Robbins v. Barton, 31
P. 686, 50 Kan. 120 ; Northern Pac. R. Co. v. O'Brien, 21 P. 32, 1 Wash. St.
599; Gilmore v. H. W. Baker Co., 41 P. 124, 12 Wash. 468.
Without pleading and proof of special damages for delay in transit of
shipment, it was error to admit evidence of depreciation of value of merchan-
dise after delivery to consignee, because he had to carry it over to another
season. Wichita Falls & N. W. Ry. Co. v. D. Cawley Co. (Okl.) 172 P. 70.
Permitting plaintiff to testify that she became sick in consequence of being
deprived by the conductor of her suit case, containing medicine, held error,
where her petition did not ask special damages because thereof. Chicago,
Rock Island & P. Ry. Co. v. Mailes, 52 Okl. 278, 152 P. 1131. The evidence in
a passenger's action for injuries must be confined to the issues, raised in the
pleadings. Id.
In an action for damages to a shipment of cattle, held, that the admission of
evidence on the issue of a waiver of terms of the shipment contract was er-
ror, where such issue was not raised by the pleadings. Atchison, T. & S. F.
Ry. Co. v. Lynn & Hudson, 54 Okl. 701, 154 P. 657.
3 In an action to recover on a note, a copy of which is set out in the peti-
tion, proof of loss of the note and of its execution and contents may be re-
ceived, though no mention of the loss is made in the petition. Bare v. Ford,
87 P. 731, 74 Kan. 593, 118 Am. St. Rep. 336, 11 Ann. Cas. 251.
(623)
§ 730 PLEADINGS ( Ch. 11
the issues should be admitted,4 but evidence on a matter entirely
distinct from anything in issue should be excluded.5
4 In mandamus to compel the officers of a county to hold their offices at
the county seat, when the answer puts in issue the legality of the election,
all testimony tending to show fraud in receiving illegal votes or rejecting le-
gal votes for either of the contesting towns is admissible. State v. Stock, 16
P. 106, 38 Kan. 154, rehearing denied 16 P. 799, 38 Kan. 184.
Where plaintiff and defendant, attorneys, were employed in action to. re-
cover land, and client was to pay one-quarter of value of land recovered, and,
after recovery, conveyed one-quarter of land to defendant, and plaintiff sued
to recover a one-half interest therein, wherein defendant denied plaintiff's in-
terest, defendant's evidence that land was conveyed for services rendered by
him, and not under contract of employment, was within issues and compe-
tent, and its exclusion was prejudicial error. Lamb v. Alexander (Okl.) 179
P. 587.
Where a petition against * carrier for damages to cattle charged rough and
indifferent handling, by which the cattle were badly bruised, evidence that
the cattle were badly bruised, by their being lugged about in the cars and
jammed against the sides and ends of the cars, was within the issues. St.'
Louis & S. F. B. Co. v. Bilby, 130 P. 1089, 35 Okl. 589.
In action to set aside compromise of claim for seduction, where petition al-
leged that defendants misrepresented amount for which settlement could be
made, testimony as to what girl's father told defendants regarding terms of
settlement was admissible. Matthews v. McNeill, 157 P. 387, 98 Kan. 5. In
action to set aside compromise of claim for seduction, where petition alleged
that defendants falsely represented that girl became pregnant, doctor's testi-
mony that she became pregnant was admissible. Id.
Petition and answer in an action for secret profits made by defendant in a
real estate transaction, wherein he acted as plaintiffs' agent, held to raise a
primary issue of agency. Gast v. Barnes, 44 Okl. 114, 143 P. 856.
Petition and answer in an action for wrongful death held to show without
controversy that deceased was injured while employed by an express com-
pany, and not while employed by the defendant railway company, though the
petition alleged that deceased was also engaged in handling personal baggage.
Missouri, K. & T. By. Co. v. West, 38 Okl. 581, 134 P. 655.
Where a petition charges that a city negligently permitted a sidewalk to
become out of repair so as to be dangerous, and negligently permitted it to
remain in a dangerous condition, and the answer denies the allegations, it is
not error to permit the plaintiff to prove that the defendant city bad actual
notice of the defects, or that it had been out of repair for such a length of
time as to impute notice to the city. City of Guthrie v. Finch, 75 P. 288, 13
Okl. 496.
In railway mail clerk's^action for personal injury, alleging that car was
cold and unfit for occupancy, evidence that windows rattled and that doors
were loose were admissible. St. Louis & S. F. B. Co. v. McClain, 63 Okl. 75,
162 P. 751.
Where plaintiff in ejectment claimed right of possession under a verbal
agreement to convey land in settlement of a debt, and the proof showed that
possession was taken under an agreement that the land should stand as se-
5 See note 5 on following page.
(624)
Art. 12) ISSUES, PROOF, AND VARIANCE § 730
If testimony is competent to sustain either one of two causes oi
action contained in a petition, it should be admitted.6
The fact that evidence relevant as to an issue raised by an
curity, either agreement was pertinent to the issue. Charpie v. Stout, 129 P.
1166, 88 Kan. 682, denying rehearing 128 P. 396, 88 Kan. 318. Declarations
of the predecessor in title of plaintiffs in ejectment that the land in contro-
versy should pass to defendants at her death were as competent to rebut a
claim based on an agreement for sale as one based on an agreement for se-
curity. Id.
Where, in ejectment, defendant claims under deed from the plaintiff given
to elear title upon payment of a debt to secure which the defendant had exe-
cuted a deed to plaintiff, such claim1 does not preclude defendant from recov-
ering upon a title held prior to the giving of such deed. Madden v. Stegman,
127 P. 524, 88 Kan. 29.
Where the petition in an action to recover for work and material and fore-
closure of a mechanic's lien stated a cause of action for work and material,
evidence may be, received thereunder, though on its face it showed plaintiff
was entitled to no lien. Uncle Sam Oil Co. v. Richards, 60 Okl. 83, 158 P.
1187.
Where petition negatived contributory negligence and answer alleged that
if plaintiff received any injuries they were the result of her own negligence,
the issue of contributory negligence was raised ; reply denying that plain-
tiff's injuries were the result of her own negligence. Pioneer Telephone &
Telegraph Co. v. Kophart, 59 Okl. 265, 159 P. 355.
In an action to cancel a deed, under a general allegation of forgery the
grantor may show that the deed was placed in escrow with defendant with
the space for the name of the grantee left blank, and that defendant, with-
out authority, filled in his own name. Maclellan v. Seim, 46 P. 959, 57 Kan.
471.
c In action against domestic railway for injuries in another state, defense
that plaintiff was not defendant's employe1 is not available under plea to ju-
risdiction of trial court. Wichita Falls & N. W. Ry. Co. v. Puckett, 53 Okl.
4<&, 157 P. 112.
In an action for the value of live stock, where there is no negligence al-
leged, and the only breach of contract pleaded is the loss of the live stock in
New Mexico, it is error to admit evidence of injuries in Arizona ; such issue
not being raised by the pleadings. Atchison, T. & S. F. Ry. Co. v. Lambert,
123 P. 428, 32 Okl. 665. In an action for the loss of live stock shipped from
Arizona to Oklahoma, where defendant pleaded provisions of a shipping con-
tract as a defense and alleged that they were valid under the laws of Ari-
zona, the exclusion of evidence of the laws of Arizona was error. Id.
Where the petition alleges specific acts of negligence, evidence tending to
prove other negligent acts not embraced in the acts charged is not admissible.
Missouri, O. & G. Ry. Co. v. Adams, 52 Okl. 557, 153 P. 200.
Evidence of a settlement under a compromise agreement held not admissi-
ble under a plea of payment. Continental Gin Co. v. Arnold, 52 Okl. 569,
153 P. 160.
In an action under Rev. St. U. S. § 5198 (U. S. Comp. St. § 9759), to recover
e Lyons v. Berlau, 73 P. 52, 67 Kan. 426.
HON.PL.&PBAC.— 40 (025)
§ 730 PLEADINGS CCh. 11
answer was not relevant to an issue raised by the reply to a coun-
terclaim did not render the evidence inadmissible.7
A plaintiff alleging ownership of property at a certain time is
not restricted, as to the evidence of such ownership, to the day fix-
ed in the petition, but may show ownership prior to such time."
In an action for personal injuries, where defendant alleges con-
tributory negligence and denies negligence generally, there is no
admission of negligence limiting the issues to that of contributory
negligence.9
Proof of ratification of the acts of an agent includes proof of
agency and authority, and may be made under a pleading charging
the ratified act to be that of the principal.10
Proof cannot be offered by the surety that the default of the
principal was excused, unless the acts relied on to excuse the de-
i
the penalty provided for the payment of usurious interest, facts constituting
accord and satisfaction cannot be proven under a general allegation of pay-
ment. First Nat. Bank v. Latham, 132 P. 891, 37 Okl. 286.
Where a real estate agent sues for commissions earned on a sale of land
and relies on a special contract, it is error to admit evidence establishing a
quantum meruit and to instruct that the jury may return a verdict for such
sum as is customary for the services rendered. King v. Stephenson, 116 P.
183, 29 Okl. 29.
Where the petition declares merely on an express contract and pleads full
performance thereof, recovery cannot be had on quantum meruit. Dunn v.
T. J. Cannon Co., 51 Okl. 382, 151 P. 1167.
Where action is brought on insurance contract and petition alleges proof
of loss was furnished, evidence of waiver of proof of loss is inadmissible.
Hartford Fire Ins. Ob. v. Mathis, 57 Okl. 332, 157 P. 134.
Where the petition pleaded that affirmative proofs of loss of time had been
furnished, evidence that plaintiff wrote to the company, claiming indemnity,
and that it replied, denying all liability, was not within the issues. Conti-
nental Casualty Co. v. Wynne, 129 P. 16, 36 Okl. 325.
Evidence of directions given by plaintiffs to their agent, relative to con-
centrating the converted property at a given point, held immaterial, where it
was admitted by the pleadings that defendant was in possession when the
suit was instituted. West Tulsa Belt Ry. Co. v. Bell, 54 Okl. 175, 153 P. 622.
Where bill of particulars seeks recovery for conversion, admission of evi-
dence of breach of warranty by defendants is error. % Pierce v. Barks, 60 Okl.
97, 159 P. 323.
In ejectment, where defendant claims possession under contract with plain-
tiff for purchase of the property, evidence of title on plaintiff's part becomes
immaterial. Baldridge v. Centgraf, 108 P. 83, 82 Kan. 240.
T Mulhall v. Mulhall, 41 P. 577, 3 Okl. 252.
s Russell v. Bradley, 28 P. 176, 47 Kan. 438.
a Clemens v. St. Louis & S. F. R. Co., 131 P. 169, 35 Okl. 667.
10 St. Louis & S. F. R. Co. v. Leger Mill Co., 53 Okl. 127, 155 P. 599.
(626)
Art. 12) ISSUES, PROOF, AND VARIANCE §§ 730-731
fault, and which rendered the performance of the condition of the
recognizance impossible, have been pleaded by such surety.11
The petition in a personal injury case must allege that obliga-
tions have been incurred for medical attention, hospital fees, and
like items in the nature of special damages, to justify proof of such
items.12
Incompetent testimony is not rendered competent by being set
out in the pleadings, though the opposing party has failed to ask
that it be stricken out.lp
§ 731. Under general denial
A general denial puts in issue every material fact pleaded,14 and
any evidence is admissible under a general denial which controverts
the facts denied.15
11 Madden v. State, 10 P. 469. 35 Kan. 146.
12 Revel v. Pruitt, 142 P. 1019, 42 Okl. 696.
is Ireton v. Iretou, 52 P. 74, 59 Kan. 92.
i* First State Bank of Mannsville v. Howell, 137 P. 657, 41 Okl. 216; Same
v. Lawson, 137 P. 661, 41 Okl. 226.
15 Electric Ry., Light & Ice Co. v. Brickell, 85 P. 297, 73 Kan. 274; Lower
v. Shorthill (Okl.) 176 P. 107.
In an action to recover damages for the failure of the defendant to deliver a
quantity of corn which plaintiff claimed to have purchased from defendant
at a stated time, and on certain terms, defendant filed a general denial. Un-
der such an answer, defendant was entitled to offer any testimony which
went to controvert the facts that the plaintiff was bound to establish in order
to maintain his action. Davis v. McOrocklin, 8 P. 196, 34 Kan. 218.
Evidence that at date of the deed from plaintiff relied on by defendant in
ejectment, and for his entire life, plaintiff was an idiot, held admissible un-
der general denial with allegations of ownership. Hatfield v. Lotty, 48 Okl.
173, 149 P. 1171.
In action for damages for wrongful discharge, defendant, under a general
denial, was entitled to introduce evidence controverting any fact which plain-
tiff was bound to prove. McKelvy v. Choctaw Cotton Oil Co. (Okl.) 178 P.
882. In action for damages for wrongful discharge, the breach of the con-
tract was a necessary element in statement of his action which he was re-
quired to affirmatively prove. Id.
In action for damages for personal injuries, defense that person responsible
for injury complained of was independent contractor is not affirmative one,
and need not be specially pleaded, but is available under general denial.
Gulf, C. & S. F. Ry. Co. v. Beasley (Okl.) 168 P. 200.
( In an action against a sheriff for his refusal to levy a writ against prop-
erty, the petition alleged that the debtor "had sufficient property and effects
on which a levy might have been made to fully satisfy plaintiffs demand."
To the petition a general denial was filed. The plaintiff's evidence tended to
show the debtor's ownership of a stock of goods. Held, that evidence of chat-
(627)
§ 731 PLEADINGS (Ch. 11
Where defendant pleads as a defense the making of a written
contract between himself and the plaintiff, but specifies no con-
sideration, the law imports one, and, if the defense is only contro-
verted in the reply by a general denial, the issue of consideration is
not raised.16 But a special defense must be pleaded to authorize the
introduction of evidence thereon.17
Where a settlement of a debt is relied on as a defense it must be
pleaded; proof thereof not being admissible under a general de-
nial.18
Where an action is merely for an alleged existing balance due at
the beginning of suit, without reference to th£ extent or amount of
original liability, evidence of payment is admissible under the gen-
eral denial.19
A verified general denial will not raise the issue of execution of
tel mortgage liens on the goods to an amount in excess of their value was ad-
missible under the general denial. Phelps, Dodge & Palmer Co. v. Skinner,
65 P. 667, 63 Kan. 364.
In an action against an attorney for negligently failing to file appeal as
agreed, defendant may, under a general denial, introduce evidence to rebut
negligence. Tishomingo Electric Light & Power Co. v. Gullett, 52 Okl. 180,
152 P. 849.
Where, in an action for the balance due on a contract and for extras, de-
fendant answers by general denial and by specifically denying liability for
the extras it is error to exclude his evidence. Harris v. Warren-Sinith Hard-
ware Co., 44 Okl. 477, 144 P. 1050.
In an action of conversion, any evidence is admissible under a general de-
nial which tends to disprove plaintiff's allegations ; and it is not necessary?
under Comp. Laws 1909, § 5634, to plead that the property converted was a
gift inter vivos to defendant. Manning v. Maytubby, 141 P. 781, 42 Okl. 414.
is Avery Mfg. Co. v. Lambertson, 86 P. 456, 74 Kan. 304.
17 General denial is insufficient in action on fire insurance policy to pre-
sent issue of insured's willful burning of property. Springfield Fire & Ma-
rine Ins. Co. v. Griffin, 64 Okl. 131, 166 P. 431.
In an action on a fire insurance policy, evidence of waiver of proofs of loss
is inadmissible, unless pleaded. Palatine Ins. Co. v. Lynn, 141 P. 1167, 42
Okl. 486.
Where the insurer dM not specially plead as a defense pro tanto its re-
duced liability from. the loss occurring while the building wafe vacant, such
defense which was based on a condition subsequent, was not available. Liv-
erpool & London & Globe Ins. Co. v. Cargill, 44 Okl. 735, 145 P. 1134.
A breach of warranty cannot be proved under a general denial, but must
be specially pleaded. Standard Fashion Co. v. Morgan, 48 Okl. 217, 149 P.
1160.
is Roniger v. Mclntosh, 137 P. 792, 91 Kan. 368.
is Jones v. El Reno Mill & Elevator Co., 110 P. 1071, 26 Okl. 796, Ann. Gas.
1912B, 486.
(628)
Art. 12) ISSUES, PROOF, AND VARIANCE §§ 731-732
a written instrument, where in the same answer there is an admis-
sion of the execution.20
In ejectment, all defenses, legal and equitable, may be proven in
evidence under a general denial.21
The question as to whether an Indian is an adult, and thereby
competent to enter into a lease contract,22 or whether he is compe-
tent to make a lease without the approval of the county court, and
the questions as to his age, his quantum of Indian blood, and the
alienability of his surplus and homestead allotment, constitute de-
fensive matters, not available under a general denial.23
§ 732. When evidence admissible of facts not pleaded
Facts relied on to constitute waiver of proof of loss must be plead-
ed with particularity before evidence to establish same can be re-
ceived,24 as must also all acts, representations, and conduct relied
on to constitute an estoppel.25
20 Wilhite v. Dieball, 94 Kan. 78, 145 P. 854.
21 Eller v. Noah (Okl.) 168 P. 819 ; Hurst v. Sawyer, 37 P. 817, 2 Okl. 470 ;
Rowsey v. Jameson, 46 Okl. 780, 149 P. 880; Wiggins v. Powell, 152 P. 765,
96 Kan. 478; Armstrong v. Brownfield, 4 P. 185, 32 Kan. 116; Smith v.
Hobbs, 31 P. 687, 49 Kan. 800 ; Adam v. Johnson, 65 P. 662, 63 Kan. 886.
In ejectment where the petition and answer set forth such facts and make
such denials as are required by Code Civ. Proc. §§ 619, 620 (Gen. St. 1909, §S
6214, 6215), either party may prove any fact which would tend to strengthen
his own title or defeat that of his adversary as if the facts were fully plead-
ed, including those showing that the rights of either party were barred by
limitations. Taylor v. Danley, 112 P. 595/83 Kan. 646, 21 Ann. Gas. 1241.
22 The question as to whether an Indian is an adult, and thereby competent
to enter into a lease contract, or otherwise alienate his allotment, is defensive
matter, not available to the defendant under a general denial. Mullen v.
Carter (Okl.) 173 P. 512.
23 In an action for rent, under the statute the question whether the Indian
lessor was competent to make a lease without approval of the county court,
and the questions as to his age, his quantum of Indian blood, and the aliena-
bility of his surplus and homestead allotment, constituted defensive matters
not available under a general denial. Mullen v. Howard, 143 P. 659, 43 Okl.
531.
24 Continental Ins. Co. v. Chance, 48 Okl. 324, 150 P. 114.
25 Bunker v. Harding (Okl.) 174 P. 749.
Unless estoppel or waiver of conditions in a mutual fire insurance policy is
distinctly pleaded by insured in action thereon, evidence thereof is inadmis-
sible. Wolff v. German-American Farmers' Mut. Ins. Co., 60 Okl. 113, 159
P. 480.
In an action on a life policy, it was error to admit evidence tending to
show such estoppel or waiver, where not pleaded. Fidelity Mut. Life Ins. Co.
of Philadelphia, Pa., v. Dean, 57 Okl. 84, 156 P. 304.
(629)'
§§ 732-733 PLEADINGS (Ch.ll
In an action for injuries to plaintiff on the track, an ordinance
limiting the speed of trains within the city limits may be admitted
in evidence to show its violation by defendant as an element to
establish actionable negligence, though not pleaded.26
Where, after the issues in an ejectment suit have been made
up, defendants obtain a deed from plaintiff, and plaintiff claims on
trial that the deed was procured through fraud, evidence thereof is
admissible.27
DIVISION III. — VARIANCE
§ 733. Rules and application
In actions at law, in order to enable plaintiff to recover or defend-
ant t6 succeed in his defense, the proof must not vary from what
had been alleged in the pleadings.28
"Variance" means "difference," and it is no variance that the
proof does not establish all the allegations of the petition.29
26 Chicago, R. I. & P. Ry. Co. v. Martin, 141 P. 276, 42 Okl. 353.
27 Davis v. Mimey, 60 Okl. 244, 159 P. 1112.
2 s Chambers v. Van Wagner, 123 P. 1117, 32 Okl. 774.
Where a broker sues to recover a commission on sale of realty, he cannot
recover on the theory of damages from breach by the owner of his contract
of sale. Robinson v. Oklahoma Fire Ins. Co., 55 Okl. 52, 155 P. 202. Under
Rev. Laws 1910, § 4786, where the cause alleged is on a broker's contract for
commission, and the proof shows it to be a cause for the defendant owner's
breach of his contract to sell to the purchaser procured, there is not a vari-
ance, but a failure of proof. Id.
The plaintiff, in an action to set aside a deed and have a certain judgment
declared a lien on the property was not entitled to recover, in the absence of
proof that the judgment introduced in evidence had been recorded or dock-
eted so as to become a subsisting lien. Lockoby v. Cook, 132 P. 142, 37 Okl.
419. Where, in an action to have a deed set aside and a certain judgment de-
clared a lien on the property plaintiff introduced a judgment rendered in a
different court for a different amount against different parties than that de-
scribed in the petition, the variance was fatal in the absence of any amend-
ment. Id.
A divorce should not be granted for acts of cruelty entirely different from
those alleged in the petition. Winterburg v. Winterburg, 34 P. 97»1, 52 Kan.
406.
In an action on an account assigned to plaintiff in writing, in which the
execution of the assignment is admitted by the pleading, it is not error for
the court to refuse to admit the defendant to introduce evidence tending to
show that such assignment is only colorable, and that the plaintiff is not the
real party in interest, where no such defense is pleaded. Lesh v. Meyer, 66-
P. 245, 63 Kan. 524.
29 Red Ball Transfer & Storage Co. v. Deloe, 30 Okl. 522, 120 P. 575.
(630)
Art. 12) ISSUES, PROOF, AND VARIANCE § 733
That a petition alleges more than has been proven is not fatal
where the unproven allegations are not necessary to recovery, nor
is it fatal that the testimony offered does not support certain allega-
tions in the petition where it does support others sufficient to au-
thorize a recovery.30
A departure between pleadings and proof is not disclosed, merely
because the proof of essential allegations is not extended to cover
unnecessary averments made in connection with them.31
Proof of a fact different from that stated in the pleadings, but not
amounting to a failure of proof and to which no objection is made
by the adverse party, is of no consequence.82
so Shawnee Light & Power Co. v. Sears, 95 P. 449, 21 Okl. 13.
Under Civ. Code, § 134 (Gen. St. 1909, § 5727), discrepancy between pleading
that purchaser of land requested the seller to obtain as large loan as pos-
sible, after contract of sale was executed, and proof that request was made
after agreement had been made, but before it was reduced to writing, was
immaterial. O'Harro v. Akey, 158 P.* 854, 98 Kan. 511.
Under Code Civ. Proc. § 134 (Gen. St. 1909, § 5727), declaring a variance
immaterial unless misleading a party to his prejudice, a reply speaking in
the name of a firm, and proof that one of the partners owned all the prop-
erty and effects which were delivered to the defendant, are not in fatal vari-
ance. Danielson v. Scott, 129 P. 1190, 88 Kan. 789.
Where a petition alleged a will and the granting of letters testamentary to
have been made in one county, it was not error to admit in evidence proof
of probate and issue of testamentary letters by authenticated transcript from
the probate court of another county, since this was an immaterial variance.
Stout v. Crosby, 63 P. 661, 10 Kan. App. 580.
Where plaintiff, suing for personal injuries, pleads that certain items of
medical expense have been paid, but offers to show that the items have been
incurred, there is no .variance prejudicial to rights of defendant, and exclu-
sion of such offer is error. Sweet v. Henderson (Okl.) 178 P. 666.
si Bailey v. Gatewood, 74 P. 1117, 68 Kan. 231.
Immaterial variance between allegations and proof is not fatal, where there
is sufficient evidence to show substantially the matters alleged. Russell v.
Watts, 96 Kan. 275, 150 P. 600.
32 Patterson v. Missouri, K. & T. Ry. Co., 104 P. 31, 24 Okl. 747.
Where a complaint in an action against a national bank as a stockholder
in another corporation alleged that it acquired such stock in a particular
manner, evidence that it was acquired in a different manner held not a fatal
variance. First Nat. Bank v. Montgomery County Nat. Bank, 67 P. 458, 64
Kan. 134.
Where, in an action for money loaned, defendant answered that the money
was invested in cattle in which the parties were partners, and the court found
that the money loaned was invested in partnership cattle, and afterwards
defendant agreed to ttke plaintiff's interest and repay the amount invested by
him, and gave judgment for plaintiff, no objection having been made till after
(631)
§ 733 PLEADINGS (Ch.ll
In a broker's action for eompensation, there was no variance be-
tween an allegation that it was understood that plaintiff should re-
ceive the usual and customary commission paid' real estate agents
and proof of a parol agreement without any stipulations as to the
amount of the compensation, as it will be implied by law that plain-
tiff was to receive the customary or reasonable commission.33
Where a petition declares on both oral and written contracts con-
cerning the same matter, and evidence shows oral contract, there is
no variance between pleading and proof.34
A petition which alleges all the facts showing a cause of action
and the amount of actual damages, but prays for treble damages
which are not recoverable, does not prevent recovery of actual
damages.35
A variance is not material, unless it has actually misled the ad-
verse party.36
judgment, there was not a fatal variance. Mulhall v. Mulhall, 41 P. 109, 3
Okl. 304.
Where petition alleges contract and amount due thereunder, but is uncer-
tain as to whether it was express or implied, and there was no objection for
uncertainty, variance would not arise, because proof showed right to recover
upon quantum meruit. Producers' Supply Co. v. Shirley (Okl.) 170 P. 504.
A petition on a fire policy alleged specific acts as a waiver of proof of loss
and on the trial uncontradicted evidence was introduced, without objection,
sufficient to show a waiver thereof, but upon other grounds. Held, that the
petition would be considered as amended so as to conform to the proof, and a
waiver so proved fairly in issue. St. Paul Fire & Marine Ins. Co. v. Mitten-
dorf, 104 P. 354, 24 Okl. 651, 28 L. R. A. (N. S.) 651.
There is no material variance between an allegation that a railroad's em-
ployees knew that plaintiff was in a place of danger and proof that they should
have known it. St. Louis & S. F. Ry. Co. v. Cole, 49 Okl. 1, 149 P. 872, L. R.
A. 1915F, 866.
ss Lowenstein v. Holmes, 40 Okl. 33, 135 P. 727.
3* Royer v. Western Silo Co., 161 P. 654, 99 Kan. 309.
In an action by the mortgagor to compel the mortgagee to pay over the
balance of the loan to secure which the mortgage was executed, which had
been withheld by the mortgagee, plaintiff alleged that his cause of action was
based on a verbal agreement, while his proof showed that the application for
the loan was in writing, but that subsequently it was modified by parol be-
fore the loan was made. • Held no variance. Kansas Loan & Trust Go. v.
Love, 45 P. 953, 4 Kan. App. 188.
33 Mohr v. Sands, 44 Okl. 330, 133 P. 238.
se Patterson v. Missouri, K. & T. Ry. Co., 104 P. 31, 24 Okl. 747; Guinan v.
Readdy, 79 Okl. Ill, 191 P. 602 ; Chicago, R. I. & P. Ry. Co. v. Bankers' Nat.
Bank, 122 P. 499, 32 Okl. 290; People's Nat. Bank v. Myers, 69 P. 164. 65
Kan. 122.
A petition alleged a payment on account so as to toll limitations. The evi-
(632)
Art. 12) ISSUES, PROOF, AND VALANCE § 733
Where two causes of action are indefinitely stated in a petition,
and the petition is not attacked by motion to separately state the
causes of action, or to make more definite, it is not error to permit
plaintiff during the trial to abandon one of the causes and proceed
with the other.87
dence showed the indorsement of plaintiff's note by defendant, the discount
of it by plaintiff at a bank, and the payment thereof when due by defendant.
Held not a fatal variance. Benton v. Yurann, 55 P. 676, 8 Kan. App. 305.
There is no error in refusing to limit the inquiry as to the engine which
injured plaintiff to an engine of a certain number, though that numbered
engine was testified to as the one in question ; the number of the engine not
being essential, and the jury being authorized to find for plaintiff though
they did not find that the engine that did the injury bore that number. Chi-
cago Great Western Ry. Co. v. Troup, 80 P. 30, 71 Kan. 843.
An action in replevin was brought against a sheriff in his individual ca-
pacity and the evidence showed that the property was taken by him as sher-
iff as the property of a third person under an execution issued against such
third person. Held, that there was not a fatal variance between the plead-
ings and the proof. Burchett v. Purdy, 37 P. 1053, 2 Okl. 391.
A variance in the description of a contract which must be construed the
same, whether or not the variance existed, not changing its nature, will be
disregarded. Lowenstein v. Holmes, 40 Okl. 33, 135 P. 727.
A variance between the original note and the copy attached to the peti-
tion, in that the former was dated March 25, 19 — , and the latter March 25,
1910, was not material. Zeno v. Bazzell, 139 P. 281, 41 Okl. 574.
That the evidence as to date of conversion varied from the date alleged in
the petition did not authorize the taking of such evidence from the jury.
Missouri, O. & G. Ry. Co. v. Diamond, 48 Okl. 424, 150 P. 175.
37 Hume v. Atkinson, 54 P. 15, 8 Kan. App. 18.
(633)
DEPOSITIONS AND AFFIDAVITS (Ch. 12
CHAPTER XII
DEPOSITIONS AND AFFIDAVITS
Sections
734-774. Article I.— Depositions.
775-780. Article II — Affidavits.
ARTICLE I
DEPOSITIONS
Sections
734. Defined.
735. When taken.
736. Subpoena for deposition.
737. Contempt — Discharge.
738. Abuse of process.
739. Stipulation.
740. Before whom taken.
741. Depositions taken out of state.
742. Officer disinterested.
743. Commission.
744. Notice.
745- Publication notice.
746. Contempt— Refusal to testify.
747. Writing of depositions. .
748. Filing.
749. Authentication. '
750. Certificate.
751. When to be filed.
752. Fees for taking.
753- Exceptions.
754. Requisites and sufficiency.
755- To be decided before trial.
756. Incompetency and irrelevancy.
757. Motion to suppress — Form.
758. Objections at hearing.
759. Waiver of objections-
760. Perpetuating testimony.
761. Petition— Form.
762. Order for examining witnesses — Form.
763. Cross-interrogatories.
764. Before whom taken.
765. Filing and use — Cpsts.
766. Error waived by not excepting.
767. When deposition may be used.
768. Unavailability of witness.
769. Deposition as evidence.
770. May be read when.
(634)
Art. 2) DEPOSITIONS §§ 734-735
Sections
771. Admission of part of deposition.
772. Copies.
773- Interpleader.
774. Forms.
§ 734. Defined
"A deposition is a written declaration, tinder oath, made upon
notice to the adverse party for the purpose of enabling him to at-
tend and cross-examine, or upon written interrogatories." *•
It may be given in narrative form.2
§ 735. When taken
"Either party may commence taking testimony by deposition at
any time after service of summons upon the defendant." 3
Depositions may be taken during the term at which the case is
set for trial.*
It is not error for a notary before whom a deposition is to be
taken to adjourn the taking of said deposition at the time and place
named in the notice for taking the same until the next day, at the
same place and hour, at the request of the attorney of the party
taking the deposition,5 though the opposing party does not appear. (i
Where the next day is Sunday or a legal holiday, the adjourn-
ment should be to the next day thereafter; and this is true, though
both Sunday and a legal holiday intervene.7 But the deposition
must be taken in accord with the notice or stipulation. For ex-
ample, it is error to admit in evidence a deposition taken on the
5th day of the month instead of on the 3d, the time agreed on,
when there is nothing to show a commencement of the deposition
before the 5th, or that there was any continuance from the 3d to
the 5th.8
1 Rev. Laws 1910, § 5069.
2 N. S. Sherman Machine & Iron Works v. E. D. Cole Mfg. Co., 51 Okl. 353,
151 P. 1181.
s Rev. Laws 1910, § 5074.
* Northrup v. Hottenstein, 16 P. 445, 38 Kan. 263 ; In re Merkle, 40 Kan.
27, 19 Pac. 401 ; St. Louis & S. F. Ry. Co. v. Morse, 16 P. 452,' 38 Kan. 271.
s Babb v. Aldrieh, 25 P. 558, 45 Kan. 218.
6 Kelly v. Martin, 36 P. 705, 53 Kau. 380.
T Leach v. Leach, 27 P. 131, 46 Kan. 724.
s Peterson v. Albach, 32 P. 917, 51 Kan. 150.
(635)
§§ 736-740 DEPOSITIONS AND AFFIDAVITS (Ch. 12
i
§ 736. Subpoena for deposition
"When the attendance of the witness, before any officer author-
ized to take depositions, is required, the subpoena shall be issued by
such officer." 9
§ 737. Contempt — Discharge
A witness "imprisoned by an officer before whom his deposition
is being taken, may apply to a judge of a court of record, who
shall have power to discharge him, if it appears that his imprison-
ment is illegal." 10
§ 738. Abuse of process
Taking the deposition of a party in a pending case merely to
ascertain in advance what his testimony will be, and not for the
purpose of using the same as evidence, is an abuse of judicial au-
thority and process; and a party committed for refusing to give
his deposition in such a case will be released on habeas corpus.11
§ 739. Stipulation
A stipulation of facts to avoid the taking of depositions does not
enlarge or change the issues made by the pleadings.12
§ 740. Before whom taken
"Depositions may be taken in this state before a judge or clerk
of a court of record, before a county clerk, justice of the peace, no-
tary public, or before a master commissioner, or any person em-
powered by a special commission; but depositions taken in this
state, to be used therein, must be taken by an officer or person
whose authority is derived within the state." 13
"The [Corporation] Commission is authorized to have deposi-
tions taken upon the application of either party to any cause pend-
ing before it, or upon its own motion; and to designate a person
to take depositions under such rules and regulations as may be
prescribed by the commission: Provided, that any party to a
» Rev. Laws 1910, § 5053.
10 Rev. Laws 1910, § 5060.
11 In re Davis, 16 P. 790, 38 Kan. 408; In re Cubberly, 18 P. 173, 39
Kan. 291.
12 Brinkmeier v. Missouri Pac. Ry. Co., 105 P. 221, 81 Kan. 101, judgment
affirmed 32 S. Ct. 412, 224 U. S. 268, 56 L. Ed. 758.
is Rev. Laws 1910, § 5075.
(63G)
Art. 1) DEPOSITIONS §§ 741- T14
proceeding before the commission may take depositions in the
same manner as in actions pending in the courts of the state." 14
§ 741. Depositions taken out of state
"Depositions may be taken out of this state by a judge, justice
or chancellor of any court of record, a justice of the peace, notary
public, mayor or chief magistrate of any city or, town corporate,
or any person authorized by a special commission from this
state." 15
§ 742. Officer disinterested
"The officer before whom depositions are taken must not be a
relative or attorney of either party, or otherwise interested in the
event of the action or proceeding." 16
A notary public is not disqualified to take depositions by reason
of the fact alone that he is the bookkeeper of the plaintiff.1'7
§ 743. Coimmission
"Any court of record of this state, or any judge thereof, is au-
thorized to grant a commission to take depositions within or with-
out the state. The commission must be issued to a person or per-
sons therein named, by the clerk, under the seal of the court grant-
ing the same ; and depositions under it must be taken upon written
interrogatories, unless the parties otherwise agree." 18
§ 744. Notice
"Prior to the taking of any deposition, unless taken under a
special commission, a written notice, specifying the action or pro-
ceeding, the name of the court or tribunal in which it is to be used,
and the time and place of taking the same, shall be served upon
the adverse party, his agent or attorney of record, or left at his
usual place of business or residence. The notice shall be served so
as to allow the adverse party sufficient time, by the usual route of
travel, to attend, and one day for preparation, exclusive of Sunday,
i* Rev. Laws 1910, § 1203.
is Rev. Laws 1910, § 5076.
le Rev. Laws 1910, § 5077.
17 Palmer v. Hudson River State Hospital, 61 P. 506, 10 Kan. App. 98.
is Rev. Laws 1910, § 5078.
(637)
§ 744 DEPOSITIONS AND AFFIDAVITS (Ch. 12
and the day of service; and the examination may, if so stated in
the notice, be adjourned from day to day." 19
Where the caption of a notice to take depositions includes the
name of the court and the title of the action, and the body of the
notice specifies that the deposition to be taken is "to be used on
the trial of the above-entitled action," it substantially complies with
the requirement that the notice shall specify the action or proceed-
ing, and the name of the court in which it is to be used.20
Depositions taken upon the notice prescribed are admissible
whether taken within or without the state.21
A notice to take depositions need not set out the names of the
witnesses.22
The adverse party has a right to be personally present at the tak-
ing of any deposition pursuant to notice.23
A notice which would require a party to start at midnight is in-
sufficient,24 as is also a notice requiring a party to use the day on
which the deposition is to be taken in traveling to the place of
taking.25
Where notices are served to take depositions at two or more
places on the same day, the parties served may attend at either
is Rev. Laws 1910, § 5079.
In an action against a railroad company for the death of a stallion, occa-
sioned by injuries received during shipment, a notice of taking depositions as
to the condition of the stallion before shipment, served on a station agent,
who has no authority in or connection with the cause, is not such notice as
is contemplated by Code, § 352, providing that, prior to the taking of any
deposition, notice shall be served on "the adverse party, his agent or attorney
of record." Atchison, T. & S. F. R. Co. v. Sage, 31 P. 140, 49 Kan. 524.
A notice to take depositions is not "process," within the Kansas Code of
Civil Procedure, which provides (section 68a) that every railroad company
shall designate some person residing in each county into which the line runs,
on whom "all process and notices issued by any court" may be served, and
(section 68c) that on failure to designate such person "such process" may be
served on any ticket agent in the county; and a notice to take depositions,
served on a ticket agent, is insufficient. Atchison, T. & S. F. R. Co. v. Sage,
31 P. 140, 49 Kan. 524.
20 Sparks v. Sparks, 32 P. 892, 51 Kan. 195.
21 J. M. Hoard, Jr., Co. v. Grand Rapids Showcase Co. (Okl.) 173 P. 844.
22 Dietrich v. Dr. Koch Vegetable Tea Co., 56 Okl. 636, 156 P. 188.
23Gillis v. First Nat. Bank of Frederick, 47 Okl. 411, 148 P. 994; Evans
v. Rothschild, 39 P. 701, 54 Kan. 747.
24 Helms v. Southwest Missouri R. Co., 152 P. 632, 96 Kan. 568.
25 Hartley v. Chidester, 13 P. 578, 36 Kan. 363.
(638)
Art. 1) DEPOSITIONS §§ 744-745
place and disregard the other notices, and depositions taken at
places where he does not attend should be suppressed.28
Mere irregularities may be waived. For example, a deposition
taken in the absence of the opposing party, a short distance from
the place stated in the notice, will not be suppressed, where it ap-
pears that on the same day the counsel for the opposing party ap-
peared, and by consent of all the deposition was opened, and the
witness recalled and cross-examined.27
The designation of the place where the depositions are to be
taken is sufficient, where it so describes it that it can be identified
by the exercise of reasonable diligence.28 It has been held that,
in the absence of any showing of prejudice, a notice to take depo-
sitions that designates the place as "at the office of R. L. McDou-
gal, in the city of Marysville, in the county of , in the state
of Missouri," was sufficient.29
§ 745. Publication notice
"When the party against whom the deposition is to be read is
absent from or a nonresident of the state, and has no agent or
attorney of record therein, he may be notified of 'the taking of the
deposition by publication. The publication must be made three
consecutive weeks, in some newspaper printed in the county where
the action or proceeding is pending, if there be any printed in such
county, and if not, in some newspaper printed in this state, of
general circulation in the county. The publication must contain
all that is required in a written notice ; and may be proved in the
manner prescribed for service by publication at the commence-
ment of the action." 30
26 Gillis v. First Nat. Bank of Frederick, 47 Okl. 411, 148 P. 994; Evans
v. Rothschild, 39 P. 701, 54 Kan. 747.
27 Southern Kansas Ry. Co. v. Robbins, 23 P. 113, 43 Kan. 145.
28 The fact that the notice of a deposition specified that it would be taken
at the office of "Dan. Ray," whereas the deposition showed that it was- taken
at the office of "Daniel E. Wray," does not render the notice misleading so
as to invalidate the deposition where Wray was identified in the notice as
an attorney at law of the place where the deposition was . to be taken, and
there was no other person of that name or having one s-ounding like it in
that place. Sparks v. Sparks, 32 P. 892, 51 Kan. 195.
29 Atcbison, T. & S. F. R. Co. v. Pearson, 49 P. 681, 6 Kan. App. 825.
so Rev. Laws 1910, $ 5080.
(639)
§§ 746-748 DEPOSITIONS AND AFFIDAVITS (Ch. 12
§ 746. Contempt — Refusal to testify
A witness may be punished for contempt for refusing to testi-
fy or answer questions propounded to him on the taking of his
deposition, though he act on the advice of counsel.31 The power
to punish for contempt in such cases is vested in justices of the
peace and judges of courts of record, including judges of county
courts.32
§ 747. Writing of depositions
"The deposition shall be written in the presence of the officer
taking the same, either by the officer, the witness or some disin-
terested person, and subscribed by the witness, or the deposition
may be taken in shorthand by the officer or some disinterested per-
son, and if so taken and after being transcribed shall be subscribed
by the witness as though taken in long hand in the first in-
stance." 33
§ 748. Filing
"The deposition, so taken, shall be sealed up and indorsed with
the title of the cause and the name of the officer taking the same,
and by him addressed and transmitted to the clerk of the court
where the action or proceeding is pending. It shall remain under
seal until opened by the clerk by order of the court, or at the re-
quest of a party to the action or proceeding, or his attorney." 3*
Where all legal requisites have been complied with in sealing
and indorsing depositions to be transmitted by mail, and where
such depositions are actually received by the district clerk with-
out being separated or mutilated, the mere fact that the envelope
containing such depositions has been broken or injured during
transmission will not justify a court in suppressing the deposi-
tions.35
Where an envelope containing a deposition is indorsed with the
si In re Merkle, 19 P. 401, 40 Kan. 27.
32 Waugh v. Dibbens, 61 Okl. 221, 160 P. 589, L. R/A. 1917B, 360.
ss Rev. Laws 1910, § 5081.
34 Rev. Laws 1910, § 5082.
Depositions, the taking of which was begun before and completed after ad-
mission of state, held properly filed with the clerk of the district court to
which the action was transferred. Scott v. Vulcan Iron Works Co., 122 P.
1S6, 31 Okl. 334.
as Commercial Nat. Bank v. Atkinson, 64 P. 617, 62 Kan. 775.
(640)
Art. 1) DEPOSITIONS §§ 749-750
names of the plaintiff and defendant, and that of the officer before
whom it was taken, and is addressed to the clerk of the district
court where the case is pending, the title and cause are sufficiently
described.86
§ 749. Authentication
"Depositions taken pursuant to this article, by any judicial or
other officer herein authorized to take depositions, having a seal
of office, whether resident in this state or elsewhere, shall be ad-
mitted in evidence, upon the certificate and signature of such offi-
cer, under the seal of the court of which he is an officer, or his
official seal ; and no other or further act of authentication shall be
required. If the officer taking the same have no official seal, the
deposition, if not taken in this state, shall be certified and signed
by such officer, and shall be further authenticated, either by parol
proof, adduced in court, or by the official certificate, and seal of
the secretary of state or other officer of the state keeping the great
seal thereof, or of the clerk or prothonotary of any court having a
seal, attesting that such judicial or other officer was, at the time
of taking the same, duly qualified, and acting as such officer. But
if the deposition be taken within this state by an officer having no
seal, or within or without this state under a special commission,
it shall be sufficiently authenticated by the official signature of
the officer or commissioner taking the same." 87
§ 750. Certificate
"The officer taking the deposition shall annex thereto a certifi-
cate, showing the following facts: That the witness was first
sworn to testify the truth, the whole truth, and nothing but the
truth ; that the deposition was reduced to writing or taken in short-
hand and transcribed by some proper person, naming him; that
the deposition was subscribed in the presence of the officer certi-
fying thereto ; that the deposition was taken at the time and place
specified in the notice." 88
SB Whittaker v. Voorhees, 15 P. 874. 38 Kan. 71 : Babb v. Aldrich, 25 P. 558,
45 Kan. 218.
ST Rev. Laws 1910, § 5085.
ss Rev. Laws 1930, §. 5086.
Where a notice states that the deposition will be taken at the storehouse of
M., in Bismarck, Dakota territory, on the 13th day of April, between the
HON.PL.&PRAC.— 41 (641)
§§ 750-751 DEPOSITIONS AND AFFIDAVITS (Ch. 12
The certificate is defective, requiring the deposition to be sup-
pressed, where it fails to show the place of taking and the adverse
party was not present,39 where it shows, relative to the oath tak-
en, merely that deponents were sworn to testify the whole truth
of their knowledge touching the matter in controversy,40 and
where it fails to state by whom the deposition was reduced to writ-
ing.41 But mere informalities will be disregarded, and will not
require that the deposition be suppressed, where the adverse par-
ty appeared by counsel at the taking of the deposition and cross-
examined the witness.42
Failure to comply with additional provisions made by stipulation
of the parties will not require that the depositions be suppressed.43
Thus, that depositions were taken between 8 a. m. and 6 p. m., in-
stead of 9 a. m. and 4 p. m., as" stipulated in agreement, was not a
ground for their suppression.44
Testimony "on information and belief" is not sufficient to over-
come the certificate of a notary public before whom a deposition was
taken that he was not an attorney for either party, or otherwise in-
terested in the case.46
§ 751. When to be filed
"Every deposition intended to be read in evidence on the trial,
must be filed at least one day before the day of trial." 46
This means one clear day, both the day on which they are filed
and the day of trial being excluded.47 Where depositions are re-
hours of 8 a. m. and 6 p. m., and the certificate attached to the deposition
states that it was taken at the store of M., in Bismarck, Dakota territory,
on the 13th day of April, as specified in the notice attached, held, that "as
specified in the notice" relates to the place, the day, and the hours of the day,
as stated in the notice. Whittaker v. Voorhees, 15 P. 874, 38 Kan. 71.
39 Dunham v. Holloway, 2 Okl. 78, 35 P. 949.
40 Western Union Tel. Co. v. Collins, 25 P. 187, 45 Kan. 88, 10 L. R. A. 515 ;
Atchison, T. & S. F. R. Co. v. Pearson, 49 Pac. 681, 6 Kan. App. 825.
41 Atchison, T. &, S. F. R. Co. v. Pearson, 49 P. 681, 6 Kan. App. 825.
42 St. Louis & S. F. Ry. Co. v. French, 44 P. 12, 56 Kan. 584.
43 Knapp v. American Hand-Sewed Shoe Co., 66 P. 996, 63 Kan. 698.
44 Scott v. Vulcan Iron Works Co., 122 P. 186, 31 Okl. 334.
45 Wagstaff v. Challiss, 1 P. 631, 31 Kan. 212.
46 Rev. Laws 1910, § 5088; Chicago, R. I. & P. Ry. Co. v. Jackson, 63 Okl
32, 162 P. 823.
47 Garvin v. Jennerson, 20 Kan. 371.
(642)
Art.l) DEPOSITIONS §§ 751-753
ceived in time, and the clerk fails to mark them "Filed," they should
be received in evidence, if otherwise regular.48
Depositions may be treated as affidavits, and used in evidence in
a hearing upon a motion, although they have not been on file one
day before the time of such hearing.49
§ 752. Fees for taking
"The following fees shall be allowed for taking depositions in this
state, viz. : Swearing each witness, ten cents ; for each subpoena,
attachment or order of commitment, fifty cents ; for each hundred
words contained in such deposition and certificate, fifteen cents,
and no more ; and such officer may retain the same until such fees
are paid ; such officer shall also tax the costs of the sheriff "or
other officer who shall serve the -process aforesaid, and fees of the
witnesses, and may, also, if directed by the person entitled thereto,
retain such deposition until the said fees are paid." 80
There is no merit in exceptions to a deposition on the ground that
the attorney procuring its taking inclosed therewith a letter con-
taining a statement of the fees to the notary public, witnesses, and
stenographer.51
§ 753. Exceptions
"Exceptions to depositions as a whole shall be in writing, spec-
ifying the grounds of objections, and filed with the papers in the
cause before the commencement of the trial." 52
It is no excuse for failure to comply with this statute that counsel
for the party taking the deposition opened same and has ever since
had it in his possession.63
An objection to a deposition, because a United States revenue
stamp is not attached, must be made in writing and filed before the
commencement of the trial,54 as must exceptions to depositions on
the ground that the notice did not properly specify the action.55
Where depositions are filed on day of but before trial, as known
48 Hogendobler v. Lyon, 12 Kan. 276.
49 Bank of Santa Fe v. Haskell County Bank, 53 P. 132, 59 Kan. 354.
eo Rev. Laws 1910, § 5089.
si Chicago, R. I. & P. Ry. Co. v. Jackson, 63 Okl. 32, 162 P. 823.
»2 Rev. Laws 1910, § 5090.
63 Bagg v. Shoenfelt (Okl.) 176 P. 511.
6* MacRae v. Kansas City Piano Co., 68 P. 54. 64 Kan. 580.
BS Clark v. Ellithorpe, 51 P. 940, 7 Kan. App. 337.
(643)
§§ 754-756 DEPOSITIONS AND AFFIDAVITS (Ch. 12
to party against whom they are to be used, and where both parties
announce ready, and such party does not request additional time to
file exception, he waives time allowed by statute, and a formal
verbal objection when depositions are offered is properly over-
ruled.56
§ 754. Requisites and sufficiency
Where a party desires to object to a deposition, he must spec-
ify each question or answer on which he desires a ruling, and the
particular grounds thereof, unless he objects to the admissibility of
the deposition as a whole, in which case he should specify the
grounds therefor; a general objection is insufficient to exclude the
entire deposition because a part was incompetent.67
An objection to a deposition, based on the fact that the name of
the officer taking it is not indorsed on the envelope, containing it,
is not pointed out by a'n objection that the deposition was not sealed
up by the officer taking it.68.
§ 755. To be decided before trial
"The court shall, on motion of either party, hear and decide the
questions arising on exceptions to depositions as a whole, before
the commencement of the trial."69
§ 756. Incompetency and irrelevancy
Objections to the taking of depositions other than for incompe-
tency and irrelevancy are waived, unless made and filed before the
trial; 60 but the objections of incompetency and irrelevancy may be
made on the trial, without written objection filed before the trial.61
Such objections should be heard and decided usually during the
progress of the trial. The court can properly refuse to hear them
before the trial commences.62
By appearing at the taking of the deposition of an adverse wit-
ness, and not objecting to his testimony on the ground that it is in-
56 Wichita Falls & N. W. Ry. Co. v. Davern (Okl.) 177 P. 909.
57 State v. Simmons. 88 P. 57, 74 Kan. 799.
cs Neosho Valley Inv. Co. v. Hannum, 66 P. 631, 63 Kan. 621.
6» Rev. Laws 1910, § 5092.
eo Root v. Coyle, 82 P. 648, 15 Okl. 574; Rockford Ins. Co. v. Farmers'
State Bank, 31 P. 1063, 50 Kan. 427.
ex In re Schaffner's Estate, 141 P. 251, 92 Kan. 570.
«2 Tays v. Carr, 14 P. 456, 37 Kan. 141.
(644)
Art. 1) DEPOSITIONS §§ 756-757
competent, a party does not waive the right to make such objection
at the trial of the case, when such deposition is offered in evi-
dence.68
An objection to the incompetency of a witness making a deposi-
tion, not reaching the incompetency or irrelevancy of the evidence
given by him, should not be heard where no written exception to
the deposition is filed.64
§ 757. Motion to suppress — Form
A motion to suppress depositions must be in writing and be made
before trial. It is error to entertain such a motion after the jury
has been impaneled and sworn.65 A motion to suppress a deposi-
tion must clearly point out the objection.66
Depositions will not be suppressed, because not certified, sealed,
indorsed, transmitted, and opened as required by law, unless such
grounds are set up in motion to suppress, and unless record sup-
ports such ground.67
Where portions of a deposition are admissible, the deposition
should not be suppressed; 68 nor should a deposition be suppressed
because the officer taking it does not certify that he is not related
to either of the parties, unless there is some affirmative showing of
such relationship.69
It has been held not error to overrule a motion to quash a second
deposition, where it did not appear that the question and answer in
the original deposition differed from those in defendant's possession
and used in cross-examination at the trial.70
Where a deposition is taken without notice, and the opposing
party cross-examines the witness, and the testimony is taken by a
stenographer and transcribed and read by the witness and sub-
scribed in the presence of the officer, no objection being made to
the manner of taking the deposition that the deposition was not
es Griffith v. McCandless, 59 P. 729, 9 Kan. App. 794.
s* Crebbin v. Jarvis, 67 P. 531, 64 Kan. 885.
65 St. Louis & S. F. Ry. Co. v. Morse, 16 P. 452, 38 Kan. 271; Welch v.
Church, 55 Okl. 600, 155 P. 620; Bagg v. Shoenfelt (Okl.) 176 P. 511.
ee Neosho Valley Inv. Co. v. Hannum, 66 P. 631, 63 Kan. 621.
67 Oklahoma Hay & Grain Co. v. T. D. Randall & Co. (Okl.) 168 P. 1012.
68 Griggs v. Corson, 81 P. 471, 71 Kan. 884.
69 Eldridge v. Compton, 30 Okl. 170, 119 P. 1120, Ann. Cas. 1913B, 1055.
™ Chicago, R. I. & P. Ry. Co. v. Jackson, 63 Okl. 32, 162 P. 823.
(645)
§§ 757-758 DEPOSITIONS AND AFFIDAVITS (Ch. 12
written in the officer's presence will be deemed waived, and cannot
be raised for the first time to suppress the deposition.71
Overruling a motion, presented after the jury was sworn, to sup-
press depositions on the ground that the evidence was incompetent
and hearsay, and reserving a ruling on the evidence till offered at
the trial, is proper practice.72
MOTION TO SUPPRESS DEPOSITION
(Caption.)
Conies now the above named defendant, C. D., and moves the
court to suppress the deposition of E. F., taken on behalf of the
plaintiff, A. B., and filed herein on the day of , 19 — ,
for the following reasons, to wit:
1. That the notice to take said deposition was not served on this
defendant in the manner required by law.
2. That sufficient time was not allowed between the time of the
alleged service and the taking of said deposition to allow this de-
fendant to attend, by the usual route of travel, and one day for
preparation, exclusive of Sunday and the day of such alleged
service.
3. That said deposition shows that it was not taken on the
day of , 19 — , the date stated in the notice, but was taken
one day later, on the • day of , 19 — .
4. That the certificate to said deposition does not show that said
witness, E. F., was first duly sworn to testify the truth, the whole
truth, and nothing but the truth.
(Other reasons, if any.) X. Y., Attorney for Defendant.
§ 758. Objections at hearing
"Where the adverse party appears at the taking of the deposition,
no objections to questions propounded therein shall be considered
unless stated at the time and set forth in the deposition : Provided,
that it may be otherwise stipulated by the parties at the time of
taking the deposition, and such stipulation set forth in the deposition
and certified to by the officer taking the same." 7S
TiTrower v. Roberts, 30 Okl. 215, 120 P. 617.
72 Hilt v. Griffin, 90 P. SOS, 77 Kan. 783.
is Rev. Laws 1910, § 5091.
(646)
Art. 1) DEPOSITIONS §§ 758-761
An objection on the trial to the introduction of evidence contained
in a deposition must state the particular evidence objected to.7*
Objection to questions and answers in deposition, taken when
objector did not appear at the taking thereof, should be interposed
when question or answer is offered in evidence by the taker.75
But where both parties were represented at the taking, and there
was no objection to the questions and answers, objections made
to the questions at the trial should not be entertained.76
§ 759. Waiver of objections
Where a deposition is taken in the absence of the opposing par-
ty, nothing is waived, and the absent party has the right to presume
that the deposition will be taken in strict conformity with the
statute.77
Where a deposition has been read in evidence at one trial, with-
out objection, it is too late thereafter to raise purely technical objec-
tions apparent on the face of the deposition prior to the first trial.78
Where a plaintiff in an action takes testimony by deposition, and
much of such testimony is hearsay, and incompetent, and the de-
fendant offers and reads such deposition to the jury, he cannot be
heard to complain, pf the testimony which he himself offers.79
§ 760. Perpetuating testimony
The perpetuation of testimony is permitted only to prevent a
failure of justice.80
"The testimony of a witness may be perpetuated in the manner
hereinafter provided." 81
§ 761. Petition — Form
"The applicant shall file in the office of the clerk of the district
court a petition, to be verified, in which shall be set forth, specially,
the subject-matter relative to which testimony is to be taken, and
the names of the persons interested, if known to the applicant; and
T* Gano v. Wells, 14 P. 251, 36 Kan. 688.
75 Hart v. Frost (Okl.) 175 P. 257.
76 Oklahoma State Bank v. Buzzard (Okl.) 175 P. 750.
77 Atchison, T. & S. F. R. Co. v. Pearson, 49 P. 681, 6 Kan. App. 825.
78 Eldridge v. Compton, 30 Okl. 170, 119 P. 1120, Ann. Gas. 1913B, 1055.
7» Roller v. James, 49 P. 630, 6 Kan. App. 919.
so Guinan v. Readdy, 79 Okl. Ill, 191 P. 602.
si Rev. Laws 1910, § 5116.
(647)
§ 761 DEPOSITIONS AND AFFIDAVITS (Ch. 12
if not known, such general description as he can give of such per-
sons, as heirs, devisees, alienees or otherwise. The petition shall
also state the names of the witnesses to be examined, and the inter-
rogatories to be propounded to each ; that the applicant expects to
be a party to an action in a court of this State, in which such testi-
mony will, as he believes, be material, and the obstacles preventing
the immediate commencement of the action, where the applicant
expects to be plaintiff." 82
PETITION FOR PERPETUATING EVIDENCE
In re Application of A. B. to Perpetuate Evidence.
Comes now A. B., and respectfully represents and shows to the
court :
1. That your petitioner, A. B., expects to be a party to an action
in a court of this state, involving the title to the following described
real estate: (Describe same.)
2. That the names of all the persons who are or will be interested
in said action are, so far as the same are known to your petitioner,
as follows : (Naming them.)
3. That your petitioner believes that the testimony of C. D., and
E. F., of , will be material in said action, relative to (state
subject-matter relative to which testimony is desired to be taken).
4. That your petitioner desires that the testimony of said wit-
nesses concerning said matters be perpetuated, so that the same
may be available in said action, if any such action shall ever be be-
gun, and desires that same witnesses be examined and the following
interrogatories be propounded to each of said witnesses: (Set forth
interrogatories to be propounded.)
Wherefore your petitioner prays the court to make an order al-
lowing the examination of said witnesses, and fixing the time and
place of said examination and the time and manner in which the
parties interested shall be notified thereof, and that upon such ex-
amination the interrogatories above set forth be propounded to
each of said witnesses and their answers thereto taken, and that the
depositions of said witnesses when so taken be filed in this court.
(Verification.) X. Y., Attorney for Petitioner.
«2 Rev. Laws 1910, § 5117.
(648)
Art. 1) DEPOSITIONS § 762
§ 762. Order for examining witnesses — Form
"The court, or a judge thereof, in vacation, may forthwith make
an order allowing the examination of such witnesses. The .order
shall prescribe the time and place of the examination, how long the
parties interested shall be notified thereof, and the manner in which
they shall be notified." 88
ORDER FOR EXAMINING WITNESSES TO PERPETUATE TESTIMONY
In re Application of A. B. to Perpetuate Evidence.
Upon reading and filing the attached verified petition of A. B. to
perpetuate evidence, it appearing to the court that said petitioner
expects to be a party to an action in a court of this state involving
the title to the real estate therein described, and that the testimony
of C. D. and E. F., of , will be material to said action :
It is ordered that the — • day of , 19 — , at the hour of
o'clock M., at in the city of , in the
county of and state of , be and the same is hereby
fixed as the time and place when the deposition of said witnesses
shall be taken, and that of the county of and state of
• , is hereby commissioned, authorized, and empowered to take
said depositions, and that at said time and place said commissioner
shall propound to each of said witnesses the interrogatories set forth
in the attached petition, and set down in writing their answers there-
to. It is further ordered that a copy of this order shall be personally
served on , the parties interested in the subject-matter of said
depositions, at least days before said depositions are to be
taken, and that said parties, if they so desire, may file herein such
cross-interrogatories as they desire propounded to said witnesses,
such cross-interrogatories to be filed herein on or before the
day of , 19 — , and that said cross-interrogatories, if any there
be, shall be propounded to said witnesses, and their answers thereto
taken in the same manner as the interrogatories of the petitioner
herein. It is further ordered that said depositions, when so taken,
shall be returned by said commissioner to the court clerk of this
court, for the approval of this court.
Dated . , Judge.
ss Rev. Laws 1910, § 5118.
§§ 763-767 DEPOSITIONS AND AFFIDAVITS/ (Ch. 12
§ 763. Cross-interrogatories
"When it appears satisfactorily to the court or judge that the
parties interested cannot be personally notified, such court or judge
shall appoint a competent attorney to examine the petition, and
prepare and file cross-interrogatories to those contained therein.
The witnesses shall be examined upon the interrogatories of the
applicant, and upon cross-interrogatories, where they are required
to be prepared, and no others shall be propounded to them; nor
shall any statement be received which is not responsive to some one
of them. The attorney filing the cross-interrogatories shall be al-
lowed a reasonable fee therefor, to be taxed in the bill of costs." 84
§ 764. Before whom taken
"Such depositions shall be taken before some one authorized by
law to take depositions, or before some one specially authorized by
the court or judge, and shall be returned to the -office of the clerk of
the court in which the petition was filed." 85
§ 765. Filing and use — Costs
"The court or judge, if satisfied that the depositions have been
properly taken, and as herein required, shall approve the same and
order them to be filed; and if a trial be had between the parties
named in the petition, or their privies or successors in interest, such
depositions or certified copies thereof may be given in evidence
by either party, where the witnesses are dead or insane, or where
attendance for oral examination cannot be obtained or required;
but such depositions shall be subject to the same objections for
irrelevancy and incompetency as may be made to depositions taken
pending an action.86
"The applicant shall pay the costs of all such proceedings." 87
§ 766. Error waived by not excepting
"Errors of the court in its decisions upon exceptions to deposi-
tions, are waived, unless excepted to." 88
§ 767. When deposition may be used
"The deposition of any witness may be used only in the follow-
ing cases :
f
s* Rev. Laws 1910, § 5119. «? Rev. Laws 1910, § 5122.
as Rev. Laws 1910, § 5120. «» Rev. Laws 1910, § 5093.
se Rev. Laws 1910, § 5121.
(650)
Art. 1) DEPOSITIONS §§ 767-768
"First. When the witness does not reside in the county where
the action or proceeding is pending or is sent for trial by change of
venue, or is absent therefrom.
"Second. When, from age, infirmity or imprisonment, the witness
is unable to attend court or is dead.
"Third. When the testimony is required upon a motion, or in any
other case where the oral testimony of the witness is not requir-
ed." 89
§ 768. Unavailability of witness
"When a deposition is offered to be read in evidence, it must ap-
pear to the satisfaction of the court that for some legal cause the
attendance of the witness cannot be procured." 90
Hence a deposition cannot be read in evidence when the deponent
is in court and capable of being examined.81
It is error to permit the use of the deposition of a resident of the
county where it is not shown that his presence at the trial cannot
be had.92
No person can be compelled to attend for examination on the
trial of a civil action except in the county of his residence; and
the fact that a witness is temporarily in or passing through another
county at the time and place of the trial therein is no objection to
the reading of his deposition previously taken for use at such
trial.93
Where a witness does not reside in a county where a trial of a
civil action is to be held, and his deposition is regularly taken in
the county of his residence, and filed in the district court of the
proper county, it is not a good objection, when the deposition is of-
fered, merely to state "that the witness has been in attendance up-
on" the court, and is at present, it is believed, on his way to the
place of trial." 84 It is not prejudicial error to admit deposition of
ss Rev. Laws 1910, § 5073.
so Rev. Laws 1910, § 5087.
»i Chicago, K. & W. R. Co. v. Prouty, 40 P. 909, 55 Kan. 503.
92 Chicago, K. & N. Ry. Co. v. Brown, 24 P. 497, 44 Kan. 384; Frankhouser
v. Neally, 39 P. 700, 54 Kan. 744; Atchison, T. & S. F. R. Co. v. Snedegfer,
49 P. 103, 5 Kan. App. 700.
93 Waite v. Teeters, 14 P. 146, 36 Kan. 604.
»* Eby v. Winters, 33 P. 471, 51 Kan. 777.
(651)
§§ 768-770 DEPOSITIONS AND AFFIDAVITS (Ch. 12
resident of county usually employed outside the state, where both
parties have used their best efforts to compel his attendance.95
When a witness is not herself suffering from an infirmity at the
time of trial, the fact that, at the time of the taking of a deposition,
she was in attendance upon her sick husband is not ground for the
admission of such deposition.96
On petition after adjournment to vacate a judgment on the
ground of fraud, perjury, conspiracy, etc., the rule applies that affi-
davits and depositions cannot be used as original evidence when the
witness is present in court.97
§ 769. Deposition as evidence
"The deposition taken pursuant to this article shall be admitted
in evidence on the trial of any civil action or proceeding, pending
before any justice of the peace, mayor or other judicial officer, arbi-
trator or referee." 98
§ 770. May be read when
"When a deposition has been once taken, it may be read in any
stage of the same action or proceeding, or in any other action or
proceeding upon the same matter between the same parties, sub-
ject, however, to all such exceptions as may be taken thereto under
the provisions of this article." 99
A deposition taken at the instance of one party to an action, and
not used by him, may, if competent, be read in evidence by the
opposite party, against the objection of the party at whose instance
it was taken.1
Where a party takes a deposition on notice as provided by law,
but does not file it in court, it is not error to refuse to order the
deposition to be brought into court where the application is made
for the first time during the progress of the trial.2
In an action to set aside a deed, where plaintiff took the deposition
of a grantee, and filed it in court, but did not offer it in evidence,
»5 Griffith v. Midland Valley R. Co., 100 Kan. 500, 166 P. 467.
ee Boise v. Atchison, T. & S. F. R. Co., 51 P. 662, 6 Okl. 243.
, »T Fullenwider v. Ewing, 1 P. 300, 30 Kan. 15.
»8 Rev. Laws 1910, § 5083.
»» Rev. Laws 1910, § 5084.
1 Rucker v. Reid, 13 P. 741, 36 Kan. 468.
2 Martin v. Chicago, R. I. & P. Ry. Co., 105 P. 451, 81 Kan. 344, 27 L. R.
A. (N. S.) 164.
(G52)
Art. 1) DEPOSITIONS §§ 771-773
taking of the deposition was waiver of any objection to defendants'
testimony, and the deposition might properly be read in evidence
on behalf of the defendant grantee.8
§ 771. Admission of part of deposition
Where answers to questions on direct examination in a deposi-
tion are inadmissible and are excluded, the cross-examination on
the subject-matter so excluded is equally inadmissible.4
A portion of a deposition is admissible in evidence without the
remainder, if the portion so introduced is all deponent said on
the subject to which such portion relates, and, in the absence of a
showing to the contrary, it will be presumed that such was the
case.5
Permission to a party to offer in evidence part of a deposition
only, is not error where the adverse party is permitted to use all
or any part of the deposition as evidence.6
§ 772. Copies
Where the original of a deposition duly taken and filed with
the clerk of court is lost, a copy thereof, transcribed and attested by
the witness producing it, may be admitted as secondary evidence of
its contents.7
When a deposition is taken in a foreign jurisdiction, and the
witness produces a record and submits it to the notary, who takes
a copy, such copy is admissible on a reading of the deposition.8
§ 773. Interpleader
Where a party obtained permission to file an interplea in a case
where depositions are taken and are on file, he is bound with the
knowledge of the condition of the record, and such depositions
should not be excluded for the reason that the interpleader was not
served with notice of their taking.9
« Golder v. Colder, 102 Kan. 486, 170 P. 803.
* Bertenshaw v. Laney, 94 P. 805, 77 Kan. 497.
s Mecartney v. Smith, 62 P. 540, 10 Kan. App. 580 ; Sealey v. Smith (Okl.)
197 P. 490.
e Oklahoma State Bank v. Buzzard (Okl.) 175 P. 750.
7 Gilmore v. Butts, 59 P. 645, 61 Kan. 315.
s McCord-Collins Mercantile Co. v. Dodson, 121 P. 1085, 32 Okl. 561 ; T. D.
Turner & Co. v. Dodson, 121 P. 1087, 32 Okl. 566.
» Miller v. Campbell Commission Co., 74 P. 507, 13 Okl. 75.
(653)
§ 774 DEPOSITIONS AND AFFIDAVITS (Ch. 12
§ 774. Forms
NOTICE TO TAKE DEPOSITIONS
(Caption.)
The said plaintiff (or defendant), A. B., and his attorney of rec-
ord X. Y., will take notice that on the day of , A. D.
19 — , the defendant (or plaintiff) above named will take the deposi-
tion of sundry witnesses to be used as evidence on behalf of the
defendant (or plaintiff) in the trial of the above entitled cause, at
(state office or street number), in the city of , in the county
of — , in the state of , between the hours of eight o'clock
a. m. and six o'clock p. m. of said day, and that the taking of the
same will be adjourned and continued from day to day, at the same
place between the same hours, until they are completed.
G. H., Attorney for Defendant (or Plaintiff).
Service of the above notice is hereby acknowledged to have been
made on plaintiff (or defendant) the — day of , 19 — .
X. Y., Attorney for Plaintiff (or Defendant).
AFFIDAVIT OF SERVICE
State of Oklahoma,
County.
G. H., being duly sworn, states that he made service of the
within notice on the plaintiff, A. B., by delivering to X. Y., his at-
torney of record, a duplicate thereof at , State of Oklahoma,
on - day of , 19—. G. H.
Subscribed in my presence, and sworn to before me, , this
day of , 19—.
HEADINGS TO DEPOSITIONS
Depositions of witnesses taken to be used in an action pending in
the • court, within and for the county of , in the state
of Oklahoma, wherein is plaintiff, and is defendant.
In pursuance to the notice hereto attached and at the time and place
therein stated, the said , plaintiff, appeared in own
behalf (or by , attorney) and the said , defendant, in
own behalf (or by , attorney, or if the adverse party
does not appear nothing need be said as to his appearance), and
thereupon the said produced the following witnesses in or-
(654)
Art.l)
DEPOSITIONS
§ 774
der to wit: , of lawful age, who, being first duly sworn,
deposeth and saith ; also - — , who, being first duly
sworn, deposeth and saith, etc. (Where the witness is examined by
questions the form will be as the above, adding, after "saith," in
reply to the interrogatories pronounced, to wit, etc.)
CERTIFICATE ATTACHED TO DEPOSITION
I, (justice of the peace, judge, notary, etc.) within and for
the county of , in the state of Oklahoma, do hereby certify
that the above named , the witnesses whose names are sever-
ally subscribed to the foregoing depositions were by me first duly
sworn (or affirmed) to testify the truth, the whole truth, and noth-
ing but the truth, in the case aforesaid, and that the depositions by
them respectively subscribed were reduced to writing by ,
who is not attorney for of related to either of said parties or other-
wise interested in the event of said action or proceeding, and sub-
scribed by the respective witnesses in my presence, and the same
were taken on the day of , A. D., 19 — , between the
hours of 8 o'clock a. m. and 6 o'clock p. m., of said day at the office
of , in the town of , in the county of and
of , as specified in the notice thereto attached, and I am not
attorney for or related to either of said parties or otherwise in-
terested in the event of said action.
ENDORSEMENT ON ENVELOPE
In the Court of County, State of Oklahoma.
County,
-, Plaintiff.
v.
-, Defendant.
To the Court Clerk of
State of Oklahoma, Oklahoma.
K ss. : Signed .
(Deposition taken by me)
(Seal) Title of officer
(655)
§§ 775-776 DEPOSITIONS AND AFFIDAVITS (Ch. 12
ARTICLE II
AFFIDAVITS
Sections
775. Definition.
776. Use.
777. Jurat.
778. Before whom taken.
779. By whom made.
780. Forms.
§ 775. Definition
"An affidavit is a written declaration, under oath, made without
notice to the adverse party." 10
§ 776. Use
"An affidavit may be used to verify a pleading, to prove the
service of a summons, notice or other process in an action, to ob-
tain a provisional remedy, an examination of a witness, a stay of
proceedings, or upon a motion, or in any other case permitted by
law." X1
An affidavit may be used only in the cases enumerated in this
statute and in chancery proceedings, unless specially authorized by
law. It cannot be used in evidence where an issue is made and
triable.12
Where in specific performance, the plaintiff had furnished the
defendant an abstract showing title, ex parte affidavits accompany-
ing the abstract to show who were the heirs of a decedent were held
admissible.13
To be used as evidence an affidavit should state facts positively,
and not merely on belief.14
When a verified petition is used as an affidavit, its allegations
must be construed as those of an affidavit, and must be such state-
ments of fact as would be proper in the oral testimony of a witness.
Allegations which are simply conclusions of law, whether suffi-
cient or not as matter of pleading, are incompetent as testimony.16
10 Rev. Laws 1910, § 5068.
11 Rev. Laws 1910, | 5071.
12 Watkins v. Grieser, 11 Okl. 302, 66 P. 332.
is Barrel v. Neef, 102 P. 838, 80 Kan. 348.
i* Shanholtzer v. Thompson, 103 P. 595, 24 Okl. 198, 138 Am. St. Rep. 877.
10 State v. Missouri & K. Tel. Co., 77 Kan. 774, 95 P. 391.
(656)
Art. 2) AFFIDAVITS §§ 777-778
§ 777. Jurat
The statutory certificate for the authentication of depositions,
cannot be used on an ordinary affidavit, and no form of jurat to be
appended to such affidavits is prescribed by the Code.16
The fact that a notary public, before whom a claim of mechanic's
lien is verified, fails to add after his official signature the date of the
expiration of his commission, does not render such lien void ; since
the statute requiring such addition on the part of the notary does
not attempt to avoid the affidavit on account of such omission, but
simply subjects the notary to a penalty therefor.17
The words, "subscribed and sworn to before me," in the certifi-
cate of the officer before whom an affidavit is made, are a suffi-
cient compliance with the statute.18
If a declaration has been made under oath it is an affidavit though
no jurat be attached, the jurat being simply evidence that an oath
was duly administered.19
When a paper purporting to be an affidavit has been approved by
the court as such, and has been the basis of judicial action as if au-
thenticated, the omission of the jurat is a mere irregularity which
will not expose the proceeding to collateral attack.20
§ 778. Before whom taken
"An affidavit may be made in and out of this State, before any per-
son authorized to take depositions, and must be authenticated in
the same way, except as provided for the verification of plead-
ings." 21
It is improper for a lawyer to take acknowledgments to affidavits,
to be used in the trial of a case in which he is the attorney.22
Such affidavit is voidable, on being assailed for that reason,23 but
it may be amended,24 and, when amended and filed, it will relate
back to the original affidavit.25
IB James v. Logan, 108 P. 81, 82 Kan. 285, 136 Am. St. Rep. 105.
IT Phelps & Bigelow Windmill Co. v. Baker, 30 P. 472, 49 Kan. 434.
is Pallady v. Beatty, 15 Okl. 626, 83 P. 428.
is Id.
20 Id.
21 Rev. Daws 1910, § 5072.
22 Crawford v. Ferguson, 115 P. 278, 5 Okl. Cr. 377, 45 L. R. A. (N. S.) 519.
23 Shanholtzer v. Thompson, 103 P. 595, 24 Okl. 198, 138 Am. St. Rep. 877.
24 Swearingen v. Hows-er, 14 P. 436, 37 Kan. 126.
26 Board of Com'rs of Cheyenne County v. Walter, 112 P. 599, 83 Kan. 743.
HON.PL.& PRAC.-42 (G57)
§§ 779-780 DEPOSITIONS AND AFFIDAVITS (Ch. 12
§779. By whom made
Where a statute requires an affidavit to be made by the judgment
creditor or his attorney, such affidavit cannot be made by an agent
not an attorney.26
§ 780. Forms
AFFIDAVIT
State of Oklahoma,! *
0 s Y ss. :
County of . J
A. D., being first duly sworn, upon oath alleges and states: (Set
forth the facts concisely.) A. D.
, Subscribed and sworn to before me this day of ,
19—.
(If before notary, add:) J. B., (Official Title.)
My commission expires , 19 — .
ze in re Heath, 19 P. 926, 40 Kan. 333.
(658)
13Ch. ) TRIAL §§ 781-782
»
CHAPTER XIII
TRIAL
Sections
781-795. Article I — In general-
796-801. Article II. — Argument and conduct of counsel.
802-824. Article III. — Issues and trial thereof.
802. Division I. — Issues in general.
803-824. Division II. — Taking case or question from jury.
ARTICLE I
IN GENERAL
Sections
781. Definition.
782. Time of trial.
783. Waiver of right.
784. Docket.
785. Copy for bar.
786. Presence of judge.
787. Presence of parties and attorneys.
788. Conduct and remarks of judge.
789. Consolidation.
790- Separate trials — Several defendants.
791. Reporter — Duties.
792. Order of trial — Issues — Damages — Motions — Objections.
793. Waiver of right to object.
794. Issues — Trial by court or jury.
794a. Trial by court-
794b. Agreed statement of facts.
795. Submission without suit-
§ 781. Definition
"A trial is a judicial examination of the issues, whether of law
or fact, in an action." 1
§ 782. Time of trial
"Actions shall be triable at the first term of court, after or dur-
ing which the issues therein, by the time fixed for pleading are, or
shall have been made up. When the issues are made up, or when
the defendant has failed to plead within the time fixed, the cause
shall be placed on the trial docket, and if it be a trial case shall
stand for trial at such term ten days after the issues are made up,
i Rev. Laws 1910, § 4988,
(659)
§ 782 TRIAL (Ch. 13
and shall, in case of default, stand for trial forthwith. When any
demurrer shall be adjudged to be frivolous the cause shall stand
for hearing or trial in like manner as if an issue of fact had been
joined in the first instance." 2
When the issues have been fully made up, this statute has spent
its force, and any subsequent change in the issues does not neces-
sarily work a delay of the trial.8
Where a party to an action deliberately puts himself in default,
so far as he is concerned, the action may be tried at any time there-
after.4
2 Rev. Laws 1910, § 5043; Conwill v. Eldridge, 130 P. 912, 35 Okl. 537.
Where one defendant joined issue and another appeared at a term and
adopted the answer of his codefendant on condition that case immediately
proceed to trial, it was reversible error to overrule plaintiffs' motion to strike
case from trial docket and to compel them to go to trial over their objection.
Harn v. Interstate Building & Loan Co. (Okl.) 172 P. 1081.
Civ. Code Prac. § 315, provides for the making out of the trial docket 10
days before the first day of the term. A demurrer to a petition was over-
ruled and leave to answer given. Held, that the case was not triable on
the issues of fact joined at the term of the court wlien such ruling was
made. City of Eureka v. Ross, 67 P. 849, 64 Kan. 372.
Upon the overruling of a motion to quash a summons and set aside the
service, if it appears that the motion is not made in good faith or is frivolous,
it is within the discretion of the court to continue the case for the term,
or to assign it for hearing at the same term ; reasonable time being given to
make up the issues. Jones v. American Cent. Ins. Co., 1^9 P. 1077, 83 Kan.
44. Where the question of law raised on a motion to quash a summons and
set aside the service had been determined by the court about 16 years before
the motion was filed, and 22 days were given to make up the issues and pre-
pare for trial, the court did not abuse its discretion in assigning the case
for hearing at the same term after overruling the motion. Id.
Where defendants were required over their objection to defend the cause
upon its merits at a term when it was not triable except by consent, and
before the issues were framed, a new trial ought to be granted. Harris v.
Anthony Salt Co., 45 P. 58, 57 Kan. 24.
3 King v. King, 141 P. 788, 42 Okl. 405.
A case stands for trial when issues have been made up for 10 days, and
a motion directed to defendant's answer, filed beyond the time allowed for
filing pleadings, does not revive operation of statute. Blackert v. Lankford
(Okl.) 176 P. 532.
Any subsequent change in issues by new or amended pleadings does not
necessarily work a delay of trial. Childs v. Cook (Okl.) 174 P. 274 ; Swope
v. Burnham, 52 P. 924, 6 Okl. 736.
A motion directed to the answer, after the time allowed for filing pleadings
and more than ten days after the issues have been made up, does not prevent
the cause from standing for trial. Chicago, R. I. & P. Ry. Go. v. Pitchford,
44 Okl. 197, 143 P. 1146.
* Herman v. Gardener, 103 Kan. 659, 175 P. 971.
(660)
Art. 1) IN GENERAL §§ 782-786
When, a nonfrivolous demurrer has been overruled, the case is
not triable on issues of fact until 10 days after the filing of the an-
swer.5
The trial of an issue of fact, and the assessment of damages, in
any case, shall be in the order in which they are placed on the
trial docket, unless the court, in its discretion, shall otherwise di-
rect.6
§ 783. Waiver of right
The right of a litigant under this statute is waived by failing to
object that the case is improperly set for trial, and moving for a
continuance for absence of witnesses.7 Such right is waived where
defendant announces ready for trial ; 8 also where, upon a case be-
ing called, both parties announce ready and a jury is impaneled
and sworn and defendant amends with leave.*
§ 784. Docket
"A trial docket shall be made out by the clerk of court, at least
twelve days before the first day of each term of the court, and the
actions shall be set for particular days in the order prescribed by
the judge of the court, and so arranged that the cases set for each
day shall be considered as nearly as may be on that day." 10
§ 785. Copy for bar
' "The clerk shall make out a copy of the trial docket for the use
of the bar, before the first day of the term of court and cause the
same to be printed." 1X
§ 786. Presence of judge
During the trial it is error for trial judge to absent himself from
trial room so as to lose immediate and instant control of proceed-
ings.12
•
B City of Ardmore v. Orr, 129 P. 867, 35 Okl. 305.
e Burr v. Honeywell, 51 P. 235, 6 Kan. App. 783.
7 Conwill v. Eldridge, 130 P. 912, 35 Okl. 537.
s Chicago, R. I. & P. Ry. Co. v. Pitchford, 44 Okl. 197, 143 P. 1146.
» Oklahoma Trust Co. v. Stein, 136 P. 746, 39 Okl. 756.
10 Rev. Laws 1910, § 5040.
11 Rev. Laws 1910, § 5041.
12 Peters Branch of International Shoe Co. v. Blake (OkL) 176 P. 892.
(661)
§§ 787-788 TRIAL (Ch. 13
§ 787. Presence of parties and attorneys
When a cause is regularly set for trial, it is not trie duty of the
court to call counsel when absent, and it is no abuse of discretion
to proceed to trial when the cause is reached, where no postpone-
ment has been taken, and no leave of absence has been granted to
parties or their counsel.13
§ 788. Conduct and remarks of judge
The jury is the exclusive judge of the weight to be given the
testimony of any witness, and a remark or the demeanor of the
trial judge amounting to an opinion as to the truthfulness of a wit-
ness is reversible error.14
The court should not by his; remarks mislead a party into be-
lieving that the decision will be in his favor,15 but may reprimand
a party for trifling with the court,16 and may make mention of an
obvious fact.17 He may reprimand a witness who, contrary to
is North v. Hooker (Okl.) 172 P. 77; Buchanan v. Fireman's Ins. Co. of
Newark, N. J., 146 P. 411, 94 Kan. 132.
It is no abuse of discretion to proceed to trial in the absence of one of
the parties or his counsel, where no postponement had been granted or per-
mission given to be absent. Linderman v. Nolan, 83 P. 796, 16 Okl. 352;
Comstock-Castle Stove Co. v. Galland, 49 P. 690, 6 Kan. App. 831.
i* City of Newkirk v. Dimmers, 87 P. 603, 17 Okl. 525.
is During the progress of a trial to the court, the judge informed defendant,
before he had introduced all his evidence, that the court was ready to de-
cide the case without further evidence, and that he did not think additional
testimony would affect the decision, but would hear anything of a different
nature from that already offered. The evidence preponderated largely in
favor of defendant, and the decision of the court was against him. . Held,
that the remarks of the court had a tendency to mislead defendant into the
belief that the decision would be in his favor, and prevent him from hav-
ing a fair and impartial trial, and a new trial should be granted. Harrison
v. Harrison, 29 P. 572, 48 Kan. 443.
IB When plaintiff asks for continuance after jury is called, on the ground
that he is too ill to be present at the trial, but on examination states that
he is able to be about town, and finally that he is able to proceed to trial,
and then asks for delay to call his witnesses to determine whether he will
ask for a continuance on account of absent witnesses, it is not improper for
the court to characterize his conduct as trifling. Krapp v. Hauer, 16 P.
702, 38 Kan. 430.
3 1 Where the depositions of a witness for both parties were palpably con-
flicting, it was not prejudicial error for the court to remark that the wit-
ness "must be an awful liar." Connor v. Wilkie, 41 P. 71, 1 Kan. App. 492.
In an action against a levying officer for conversion, a remark of the court
to counsel for plaintiff that he was trying the case as though defendant were
(662)
Art. 1) IN GENERAL §§ 788-790
its admonition, persists in making voluntary statements not elicit-
ed by his examination.18
It is error for the court to comment in the presence of the jury
on the effect answers to special questions will have on the rights
of the parties.19
A remark of the court that he was going to take a recess, and
that he was tired of lawyers questioning witnesses and objecting
to everything, did not constitute reversible error.20
§ 789. Consolidation
An application for the consolidation of actions is a matter within
the discretion of the trial court.21
§ 790. Separate trials — Several defendants
"A separate trial between the plaintiff and any or all of several
defendants may be allowed by the court, whenever justice will be
thereby promoted." 22
It is within the discretion of a trial court to allow separate trials
to the several defendants, or to refuse the same.23 Its ruling will
never be reversed unless it can be clearly seen that it abused its
discretion.24
a common thief, trying to get away with somebody's property does not re-
quire a 'reversal. Cone v. Smyth, 45 P. 247, 3 Kan. App. 607.
is jEtna Life Ins. Co. v. Kramer (Okl.) 165 P. 179.
19 Atchison, IT. & S. F. R. Co. v. Ayers, 42 P. 722, 56 Kan. 176-
20 Love v. Reynolds. 128 P. 242. 36 Okl. 297.
21 Readicker v. Denning, 122 P. 103, 86 Kan. 617, judgment reversed on
rehearing 125 P. 29, 87 Kan. 523.
22 Rev. Laws 1910, § 4995.
23 Herbert v. Wagg, 117 P. 209, 27 Okl. 674.
The allowance of a separate trial is wholly within the discretion of the
trial court. Gregg v. Berkshire, 62 P. 550, 10 Kan. App. 579.
Where persons in possession of separate parts of tract without common in-
terest are joined in ejectment for whole tract, and where defendants rely upon
different sources of title, the court may order separate trials. Mullen v.
Carter (Okl.) 173 P. 512.
24 Hoskinson v. Bagby, 27 P. 110, 46 Kan. 758.
In suit to recover real estate, commission alleging a conspiracy between
vendor and purchaser, wherein vendor filed a cross-petition against purchaser,
the refusal of separate trials of the issues was a proper exercise of trial
court's discretion. Prather v. Eden, 171 P. 635, 102 Kan. 545.
In an action to recover damages occasioned by negligently setting out a
fire, in which a partnership, which was engaged in operating a railroad in
connection with a railroad company, was made defendant jointly, with the
railroad company, it is not prejudicial error, nor an abuse of discretion, for
(663)
§§ 791-792 TRIAL (Ch. 13
§ 791. Reporter— Duties
The statute making it the duty of the court reporter to take down
in shorthand all the proceedings upon the trial of any cause, as well
as statements of counsel, does not contemplate that the entire ar-
gument of the counsel to the jury should be taken down, but applies
to all statements which counsel have a right to have taken down
concerning the cause which might be properly made a part of the
case made for appeal.25
The matters which counsel may demand taken down by the ste-
nographer at the trial, are only such as may properly be made part
of the case-made, and do not include matters foreign to the case
being tried.26
It is error for county court to refuse to permit stenographer to
incorporate in records of trial all exceptions that attorney may de-
sire to reserve to action of court in giving or refusing instructions.27
Under the statute, the court on request must require the court
reporter to take and transcribe evidence.28
§ 792. Order of trial — Issues — Damages — Motions — Objections
"The trial of an issue of fact, and the assessment of damages in
any case, shall be in the order in which they are placed on the trial
docket, unless by the consent of the parties or the order of the court
they are continued or placed at the heel of the docket, unless the
court, in its discretion, shall otherwise direct. The court may, in
the trial court to refuse a separate trial to such partnership, for the reason
that a different rule as to the burden of proof applies to them than to the
railroad company, under the statute, where the evidence establishing the
origin of the fire, and the culpable negligence of the parties in starting it,
is clear, convincing and undisputed. Xatham v. Brown, 29 P. 400, 48 Kan. 190.
In an action on a promissory note against two defendants, one the guaran-
tor, and the other the maker, the latter pleaded want of consideration and
the fraud of his co-defendant in procuring the note as a defense, and asked
that the note sued on be declared void, and that he have judgment against
his co-defendant for the amount he had been obliged to pay in settlement
of another note given at the same time and in the same transaction with the
one sued on. Held, that said guarantor's demand for a separate trial of the
issues between himself and the maker of the note was properly overruled.
Crane v. Cox, 49 P. 796, 6 Kan. App. 405.
26pickinson v. Whitaker, 75 Okl. 243, 182 P. 901; Rev. Laws 1910, § 1786.
26 Dabney v. Hathaway, 51 Okl. 658, 152 P. 77.
27 Methvine v. Fisher (Okl.) 166 P. 702; Anoatubby v. Pennington, 46 Okl.
221, 148 P. 828.
28 Cherry v. Brown, 79 Okl. 215, 192 P. 227.
(664)
Art. 1) IN GENERAL § 792
its discretion, hear at any time a motion, and may by rule prescribe
the time for hearing motions." 29
This statute vests a large discretion in the trial court to dispose
of the causes in such order as will most speedily dispose of the busi-
ness before the court.80
Calling a case which stands on a day's calendar for trial without
notice to the attorney is no abuse of discretion, where no request
is made for postponement and no permission to be absent has been
given.31
"When the jury has been sworn, the trial shall proceed in the fol-
lowing order, unless the court for special reasons otherwise directs :
"First. The party on whom rests the burden of the issues may
briefly state his case, and the evidence by which he expects to
sustain it.
"Second. The adverse party may then briefly state his defense,
and the evidence he expects to offer in support of it.
"Third. The party on whom rests the burden of the issues must
first produce his evidence; after he has closed his evidence the
adverse party may interpose and file a demurrer thereto, upon the
ground that no cause of action or defense is proved. If the court
shall sustain the demurrer, such judgment shall be rendered for the
party demurring as the state of the pleadings or the proof shall
demand. If the demurrer be overruled, the adverse party will then
produce his evidence.
. "Fourth. The parties will then be confined to rebutting evidence
unless the court, for good reasons in furtherance of justice, per-
mits them to offer evidence in the original case.
"Fifth. When the evidence is concluded and either party desires
special instructions to be given to the jury, such instructions shall
be reduced to writing, numbered, and signed by the party or his
attorney asking the same, and delivered to the court. The court
shall give general instructions to the jury, which shall be in writing,
and be numbered, and signed by the judge, if required by either
party.
"Sixth. When either party asks special instructions to be given
to the jury, the court shall either give such instructions as re-
2» Rev. Laws 1910, § 5042.
«o Linderman v. Nolan, 83 P. 796, 16 Okl. 352.
« Lindsy v. Goodman, 57 Okl. 408, 157 P. 344.
(665)
§§ 792-794 TRIAL CCh. 13
quested, or positively refuse to do so ; or give the instructions with
modification in such manner that it shall distinctly appear what in-
structions were given in whole or part, and in like manner those
refused, so that either party may except to the instructions as asked
for, or as modified, or to the modification, or to the refusal. All
instructions given by the court must be signed by the judge; and
filed together with those asked for by the parties as a part of the
record.
"Seventh. After the instructions have been given to the jury the
cause may be argued." 82
The definition, timeliness, requisites, form, entry, materiality, and
withdrawal of exceptions is treated elsewhere.33
§ 793. Waiver of right to object
Where a party voluntarily goes to trial upon all the issues ten-
dered, this objection that the statutory order of procedure was not
observed, made at the time of the motion for a new trial, is too
late.84
Any error in trying issues between plaintiff, a garnishee, and in-
tervening claimants, before the entry of judgment against the prin-
cipal defendant, is waived by proceeding to trial without objection
or request for delay.35
§ 794. Issues — Trial by court or jury
"Issues of law must be tried by the court, unless referred. Issues
of fact arising in actions for the recovery, of money, or of specific
real or personal property, shall be tried by a jury, unless a jury
trial is waived, or a reference be ordered, as hereinafter pro-
vided." 36
"All other issues of fact shall be tried by the court, subject to
its power to order any issue or issues to be tried by jury, or refer-
red as provided in this Code." 37
32 Rev. Laws 1910, § 5002.
33 See post, § 2409 et seq.
34 Smith v. Smith, 89 P. 896, 75 Kan. 847.
as Greenwood County Bank v. O. B. Walker Telephone Co., 128 P. 357, 88
Kan. 287.
se Rev. Laws 1910, § 4993.
87 Rev. Laws 1910, § 4994.
(666)
Art. 1) IN GENERAL § 794a
§ 794a. Trial by court
"The provisions of this article respecting trials by jury apply,
so far as they are in their nature applicable to trials by the court." 88
"Upon the trial of questions of fact by the court, it shall not be
necessary for the court to state its findings, except generally, for
the plaintiff or defendant, unless one of the parties request it, with
the view of excepting to the decision of the court upon the ques-
tions of law involved in the trial ; in which case the court shall state
in writing, the conclusions of fact found, separately from the con-
clusions of law." 39
The refusal of the court to state findings of fact in writing and
conclusions of law on them, when requested so to do by either party
to a suit, before judgment, is reversible error.40 But a party cannot
ss Rev Laws 1910, § 5039.
3» Rev. Laws 1910, § 5017.
The fact that findings of fact and conclusions of law were prepared by coun-
sel at the request of the court, and, after an examination, were adopted, is
not objectionable. Howard v. Howard, 34 P. 1114, 52 Kan. 469.
It is proper for the trial court to call on the attorney of the successful par-
ty to write out findings of fact in the case in accordance with the decision as
announced orally. English v. English, 35 P. 1107, 53 Kan. 173.
Where the facts have been found at the trial, but are not reduced to writing
when judgment is rendered, they may thereafter be written out by the court,
by agreement of the parties, and filed as of the date of the judgment Ran-
dolph v. Campbell, 47 P. 560, 5 Kan. App. 880. An agreement by the parties
that the findings of fact may be written out and filed after the date of the
judgment cannot be established by parol, but must be shown by a duly-re-
corded order of court made pursuant to the agreement. Id.
40 Rogers v. Bonnett, 37 P. 1078, 2 Okl. 553 ; Bryan v. Okmulgee County
Business Men's Ass'n (Okl.) 176 P. 226; Insurance Co. of North America v.
Taylor, 124 P. 974, 34 Okl. 186 ; Thompson v. Russell, 32 P. 56, 1 Okl. 225.
Under the express provisions of Rev. Laws 1910, § 5017, the district court,
on a trial without a jury, should on request find the material facts established
by the evidence, so that exceptions may be taken to its view of the law in-
volved in the trial. Allen v. Wildman, 38 Okl. 652, 134 P. 1102.
On trial of a question of fact by the district court, it must, on request find
the material facts established by the. evidence, so that exceptions may be tak-
en to its views of the law involved in the trial. Shuler v. Lashhorn, 74 P.
264, 67 Kan. 694.
In a suit to abate a mill dam, which subjects the plaintiff's land to over-
flow, and for damages, the court may make findings of fact in addition to those
made by the jury. Drinkwater v. Sauble, 26 P. 433, 46 Kan. 170.
Refusal oa timely request to make findings of fact on material issuable mat-
ters put in issue by the pleading and on which evidence was introduced held
error. Nordman v. Johnson, 146 P. 1125, 94 Kan. 409.
Where a case is tried to the court, it is error to refuse to make separate
§ 794a TRIAL (Ch. 13
dictate how a fact shall be found,41 though he can and should make
a proper and timely request.42 It is not necessary for the court to
findings requested, or to make them so definite that the party may have a fair
opportunity to except on the conclusions of law involved. Vickers v. Buck's
Stove & Range Co., 79 P. 160, 70 Kan. 584.
A party to an action tried by the court without a Jury is entitled, on re-
quest, to have all or any of the issuable facts on which there is any evidence
found separate from the conclusions of law. Seward v. Rheiner, 43 P. 423, 2
Kan. App. 95.
Rev. Laws 1910, § 5017, as to separate findings of law and fact, where re-
quested, was intended to enable parties to have placed on record the facts
on which litigated rights depend, as well as court's conclusions of law, so
that exceptions thereto may be taken. Coleman v. James (Okl.) 169 P. 1064.
In an action without a jury, the court was asked to state its findings of
fact and conclusions of law separately, and acceded to the request, but sub-
sequently declined to make such findings and conclusions. Held, that the
record showing that the refusal was made with the consent of the plaintiff
in error was not ground of error. Sails v. Barons, 20 P. 485, 40 Kan. 697.
It is the duty of the court to comply with a request at the commencement
of a trial to prepare findings of fact and conclusions of law, and if such find-
ing state in separate paragraphs the facts presented so that they may be
readily understood, and so it will be apparent what conclusions were reached
and the facts upon which such conclusions were founded, it will be deemed a
sufficient compliance with the request, though some of the paragraphs contain
a compound of fact and law, and do not in every instance separate with tech-
nical accuracy the findings of fact from the conclusions of law. Harper v.
Harper, 113 P. 300, 83 Kan. 761.
« Caulk v. Lowe (Okl.) 178 P. 101.
Where, in a trial without a jury, the court states the findings and conclu-
sions contemplated by statute, error cannot be predicated on the court's re-
fusal to answer questions of fact. M. R. Smith Lumber Co. v. Russell, 144
P. 819, 93 Kan. 521.
42 Right of parties under Rev. Laws 1910, § 5017, to require special finding
of facts and separate conclusions of law, is waived, where no request is made
until after court has announced general findings and conclusions. German
State Bank of Elk City v. Ptachek (Okl.) 169 P. 1094.
In the absence of a special request for a finding on a material issue in a
case, it is not error for the court to fail to make such finding. Kellogg v. Bis-
santz, 32 P. 1090, 51 Kan. 418.
A request to the court to state separately findings of fact and conclusions
of law is too late, when made after the conclusion of the trial, and after a
general finding has been announced. Allen v. Dodson, 17 P. 667, 39 Kan. 220.
Where, in an action tried by the court without a jury, the judgment is
rendered on March 30, 1885, and the motion for a new trial is not argued and
decided until April 25, 1885, and no request or intimation is given to the court
by either party that it is desirable that the court should state its conclusions
of fact and law separately, in writing, before it announces its findings, and not
until the motion for a new trial is overruled and final judgment entered, the
request is made too late, and the court commits no error in refusing, upon a
Art. 1) IN GENERAL § 794a
state its findings, except generally, unless a request therefor was
made.48
The trial court's findings of fact, reasonably supported by evi-
dence, will not be disturbed.44
A general finding is a special finding of everything necessary to
sustain it.45 It has the weight of a verdict.46 But the court's opin-
ion does not constitute a finding of fact within this rule.47
request made at such time, to state in writing its findings. Wilcox v. Bying-
ton, 12 P. 826, 36 Kan. 212.
Where the trial of a case is submitted to the court without a jury, the court
may find generally, and without stating its conclusions of fact found separate-
ly from its conclusions of law, unless requested to find specially before the
general finding is made, and the judgment rendered thereon. Smythe v. Par-
sons, 14 P. 444, 37 Kan. 79.
Judgment will not be reversed for trial court's failure to make detailed spe-
cial findings of fact, where no findings were presented by parties, and where
court makes special findings, somewhat general in nature, but covering all is-
sues involved in action. Harris v. Morrison, 163 P. 1062, 100 Kan. 157.
A party violating a rule of court that an application for separate findings of
fact and conclusions of law shall be made before the introduction of evidence
cannot complain of the failure to comply with an untimely request for sepa-
rate findings of fact and conclusions of law. Smith v. City of Washington,
141 P. 250, 92 Kan. 646.
43 Cook v. State, 130 P. 300, 35 Okl. 653.
44 Union Sav. Ass'n v. Cummins, 78 Okl. 265, 190 P. 869.
Findings of fact and conclusions of law made in a will contest held too gen-
eral to meet requirements of Rev. Laws 1910, § 5017. Coleman v. James (Okl.)
169 P. 1064.
45 Miller v. Thompson, 80 Okl. 70, 194 P. 103; Myers v. Hubbard, 80 Okl.
97, 194 P. 433 ; Weaver v. Drake, 79 Okl. 277, 193 P. 45 ; Elwood Oil & Gas
Co. v. Gano, 76 Okl. 287, 185 P. 443; Theodore Maxfield Co. v. Andrus, 56 Okl.
247, 155 P. 1163; Shenners v. Adams, 46 Oki. 368, 148 P. 1023; Deskins v. Ro-
gers (Okl.) 180 P. 691; In re Hoover's Estate, 104 Kan. 635, 180 P. 275: Gor-
man v. Carlock (Okl.) 179 P. 38; Jackson v. Bates (Okl.) 170 P. 897; Daris
v. First State Bank of Norman, 51 Okl. 498, 152 P. 122 ; Conner v. Warner, 52
Okl. 630, 152 P. 1116 ; Limestone Rural Telephone Co. v. Best, 56 Okl. 85, 155
P. 901 ; Shawnee Life Ins. Co. v. Watkins, 53 Okl. 188, 156 P. 181 ; Tripp v.
Deupree, 60 Okl. 47, 158 P. 923 ; Schaf er v. Midland Hotel Co., 137 P. 664, 41
Okl. Ill ; J. I. Case Threshing Mach. Co. v. Lyons & Co., 138 P. 167, 40 Okl. '
356; D. J. Faour & Bros. v. Morad, 139 P. 833, 40 OkL 597; Wrought Iron
Range Co. v. Leach, 123 P. 419, 32 Okl. 706; Funk v. Shawnee Fire Ins. Co.,
125 P. 35, 87 Kan. 568; Brady v. Farmers' Co-op. Creamery & Supply Co.,
154 P. 220, 97 Kan. 13.
A general finding in favor of a prior settlement made of property rights by
46 Barnett v. Barnett, 78 Okl. 249, 189 P. 743.
47 Rogers v. Harris, 76 Okl. 215, 184 P. 459.
(609)
§ 794a TRIAL (Ch. 13
Findings of the trial court must be read as a whole to determine
their sufficiency.48
Where the court makes a general finding for plaintiff and certain
special findings, but fails to cover all the issues involved, and de-
fendant fails to call attention to the omission, his right to com-
plain of omission is waived.49 However, where the findings of fact
and conclusions of law fully protect the rights of parties, a refusal
to make further findings and conclusions is not error.50
A finding consisting only of conclusions from basic facts found
in detail cannot be upheld, where it is in conflict with them.51
Conclusions of law, based upon findings of fact outside the issues
raised by the pleadings, cannot be sustained, and will not support a
judgment.52
a written agreement between a husband and wife implied a finding that such
settlement was just. Howell v. Howell, 141 P. 412, 42 Okl. 286.
A general finding that plaintiff was entitled to land under her deed, held to
include a finding that the deed had been properly delivered to her, or that its
delivery had been ratified, where such facts were an essential part of her
claim. Oland v. Malson, 39 Okl. 456, 135 P. 1055.
A journal entry disclosing that "the evidence being heard and the argu-
ments of counsel and the court, being fully advised, doth find for the defend-
ant on the issues joined," constituted a finding for defendant on the disputed
facts in issue. Mason v. Harlow, 142 P. 243, 92 Kan. 1042, denying rehearing
139 P. 384, 91 Kan. 807.
A finding of the court that at the time of alleged contract, "plaintiff's mind
was in an abnormal condition, superinduced by drunkenness," is sufficiently
exact and certain to show that he was then mentally incapable of making a
contract. Franks v. Jones, 17 P. 663, 39 Kan. 236.
Though, in an action to determine adverse claims to a tract of school land,
the findings of fact do not specifically state which one of the several claim-
ants first settled thereon, a judgment against one of them necessarily deter-
mines the fact of whether he made the first settlement against him, where it
is essential to support the judgment, and is not in conflict with the findings
made. Christisen v. Bartlett, 95 P. 1130, 78 Kan. 118.
48 (Okl. 1897) El Reno Electric Light & Telephone Co. v. Jennison, 50 P.
144, 5 Okl. 759.
Findings of fact are to be construed t'ogether. Kuhn v. Johnson, 137 P. 990,
91 Kan. 188.
49 Simpson Tp. v. Hill, 137 P. 348, 40 Okl. 233.
Where a party is not satisfied with the findings of fact made by the trial
court, he should ask the trial court to make further findings or modify those
made. Cowling v. Greenleaf, 6 P. 907, 33 Kan. 570.
50 Goodman v. Malcolm, 58 P. 564, 9 Kan. App. 887.
si State v. Kirmeyer 128 P. 1114, 88 Kan. 589.
52 Newby v. Myers, 24 P. 971, 44 Kan. 477.
It is not proper that the findings be confined to the issues presented in the
(670)
Art. 1) IN GENERAL §§ 794a~794b
Where the conclusions of fact are inconsistent with the conclu-
sions of law, the conclusions of fact control.63
§ 794b. Agreed statement of facts
When the parties to an action agree to admit all the facts upon
which they desire to have the case submitted to the court, they have
agreed upon what the facts in the case are; and when such facts
. are communicated to the court for the purpose of having it draw
conclusions of law therefrom, and to render judgment thereon, they
become an agreed statement of facts.54
An "agreed statement of facts" is analogous to a special verdict,
and must state the ultimate facts.56
Where a case is presented on an agreed statement of facts, the
only question that can be considered is whether they require a judg-
ment for the plaintiff as a matter of law, and no inference of fact
can be drawn.66
Agreements made to avoid continuances, or for other specific
purposes, by their terms limited to particular occasions, possess
no force beyond the occasion or after the purpose has been accom-
plished.67
A written statement of facts, purporting to be the "facts in the
above-entitled cause," properly entitled, and signed by the parties
to a cause, or their attorneys, and filed in the cause for use as evi-
dence, and thereafter so used at the hearing in the probate court,
petition. If the findings are in response to the issues presented by all the
pleadings taken together, they are pertinent. Boynton v. Hardin, 58 P. 1007,
9 Kan. App. 166.
Where defendant, without objection, proved a set-off under a count to which
a demurrer had been sustained, after which the court treated the count as
part of the pleadings, a finding by the court allowing It was within the issues.
Barry v. Barry, 59 P. 685, 9 Kan. App. 884.
53 Board of Com'rs of Wyandotte County v. Arnold, 30 P. 486, 49 Kan. 279.
5* Noble v. Barter, 49 P. 794, 6 Kan. App. 823.
BS Longmeyer v. Lawrence, 50 Okl. 457, ICO P. 905.
ce Goodwin v. Kraft, 101 P. 856, 23 Okl. 329.
57 Loman v. Paullin, 51 Okl. 294, 152 P. 73.
Where, in an action to recover possession of improvements on a town lot,
the title to which is in controversy, stipulations are filed, reciting that a con-
test was then pending before the Secretary of the Interior, and judgment for
plaintiff is reversed, and on second trial plaintiff offers the former agreed
statement of facts, its exclusion was proper, where it is shown that after the
entering into of the stipulations the contest over the lot had been decided.
Capital Townsite Co. v. Brown, 126 P. 722, 34 Okl. 568.
(671)
§§ 794b-795 TRIAL (Ch. 13
is a general and solemn admission of the facts and binding upon the
district court upon appeal, and conclusive in all further proceedings
in the cause, unless some portions thereof are uncertain and of
doubtful interpretation, in which case evidence aliunde will be re-
ceived upon such points of doubtful and uncertain interpretation.68
A stipulation as to evidence should be so interpreted as to carry
into effect the intent of the parties and the promotion of a fair
trial.59
A stipulation by defendant that plaintiff is entitled to recover, un-
less an agreed state of facts constitutes a defense, waives any ques-
tion of variance.60
Where an action is tried on an agreed statement of facts and it re-
cites a statute of another state as a fact, counsel cannot claim that
there are other facts which the court will presume to exist.61
The matter of permitting a party to withdraw from a stipulation
concerning a pending case rests within the sound discretion of the
court62
Where parties stipulated what question should be submitted to
the court, it was not an abuse of discretion for the court to refuse to
permit one party to withdraw from the stipulation after the ques-
tion had been argued.68
In submitting an action by agreement, on the evidence before
the referee, plaintiff waived his motion for judgment on the find-
ings of the referee, and submitted the cause on the pleadings and
evidence to the court.64 .
§ 795. Submission without suit
"Parties to a question, which might be the subject of a civil ac-
tion, may without action agree upon a case containing the facts
upon which the controversy depends, and present a submission
of the same to any court, which would have jurisdiction if an ac-
es Blankinship v. Oklahoma City Light & Water Power Co., 43 P. 1088, 4
Okl. 242.
ea Chicago Live Stock Commission Co. v. Fix, 78 P. 316, 15 Okl. 37; Same
v. Connally, 78 P. 318, 15 Okl. 45.
so Brennan v. Shanks, 103 P. 705, 24 Okl. 563.
ei Williams v. Hirschfield, 122 P. 539, 32 Okl. 598.
ez Georgia Home Ins. Co. v. Halsey, 133 P. 202, 37 Okl. 678.
68 Georgia Home Ins. Co. v. Halsey, 133 P. 202, 37 Okl. 678.
«* Walker v. Walker, 88 P. 1127, 17 Okl. 467.
(672)
Art. 2) ARGUMENT AND CONDUCT OF COUNSEL § 796
tion had been brought. But it must appear, by affidavit, that the
controversy is real, and the proceedings in good faith to determine
the rights of the parties. The court shall thereupon hear and de-
termine the case, and render judgment as if an action were pend-
ing." 66
ARTICLE II
ARGUMENT AND CONDUCT OF COUNSEL
Sections
796. Opening statement.
797. Argument.
798. Right to open and close.
799. Retaliatory statements.
800. Conduct.
801. Objections and exceptions.
§ 796. Opening statement
The party who does not have the burden of proof must make his
statement immediately after that of the adverse party, unless the
court for special reason otherwise directs.66
Fullness or brevity of an opening statement is largely within
discretion and control of trial court.67
On a motion for judgment on the averments in the petition and
the opening statement of counsel, they should be liberally inter-
preted.68 However, if the plaintiff's counsel, in making the open-
ing statement of his case to the court and jury, admits or states
facts the existence of which absolutely precludes a recovery by
him, the court may close the trial at once, and give judgment
against plaintiff.69
es Rev. Laws 1910, § 5303.
66 Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606.
«7 Caldwell v. Skinner, 101 Kan. 32, 181 P. 568.
In making a statement of the case at the trial, either party may make a
statement as complete as he desires, or may omit any statement, at his dis-
cretion. Glenn v. Missouri Pac. Ry. Co., 124 P. 420, 87 Kan. 391, judgment
affirmed on rehearing 128 P. 362, 88 Kan. 235.
es Moffatt v. Fouts, 160 P. 1137, 99 Kan. 118.
6» Lindley v. Atchison, T. & S. F. R. Co., 28 P. 201, 47 Kan. 432; Coffeyville
Mining & Gas Co. v. Carter, 70 P. 635, 65 Kan. 565 ; Brashear v. Rabenstein,
80 P. 950, 71 Kan. 455 ; Missouri Pac. Ry. Co. v. Hartman, 49 P. 109, 5 Kan.
App. 581.
The statute authorizing a party on whom the burden rests to state his case
HON.PL.&PBAC.— 43 (673)
§ 796 TRIAL (Ch. 13
Objection to the plaintiff's opening statement, as not stating
facts constituting a cause of action, should be overruled, where the
lack of the fullness is supplied by the allegations of the petition.70
or, if the petition states a cause of action, it is error on motion of
the defendant, to dismiss the cause, and render judgment against
the plaintiff on the opening statement of the plaintiff's counsel.71
Oral admission of a material fact by the attorney in his opening
statement to the jury, if distinct and formal and made to dispense
with the proof of some fact at the trial, is binding upon the party
making it; 72 but, where the opening statement is not a solemn ad-
mission of some controverted question of fact, it is error to instruct
and the evidence by which he expects to sustain it is permissive only, and the
issues are made, not by it, but by the pleading, so that, if a party does make
such a statement, and there is a substantial variance between the statement
and the pleadings, it is no ground on which to base a motion for judgment
in favor of the opposite party unless such statement admits facts barring re-
covery. Stewart v. Rogers, 80 P. 58, 71 Kan. 53.
In action for damages for false representations inducing a purchase of an
interest in an insolvent business, refusal to direct a verdict upon the open-
ing statement of plaintiff's counsel held not an abuse of discretion. Abmeyer
v. German-American State Bank, 103 Kan. 356, 179 P. 368.
Motion for judgment on opening statement of counsel should be denied, un-
less such statement solemnly admits facts made to remove such facts from
controversy and which facts so admitted show that party making statement
is not entitled to recover. Brady v. Ratkowsky (Okl.) 171 P. 717. Opening
statement made by defendant in an action upon an account for goods sold held
not sufficient upon which to predicate a judgment for plaintiff. Id.
Where the petition alleges a cause of action, and reply to answer is suffi-
cient, a peremptory instruction for defendant on the pleadings and plaintiff's
opening statement is error, unless statement contains admissions barring a re-
covery. King v. Lane (Okl.) 169 P. 901, L. R. A. 1918C, 351.
Where defendant by answer admits the usurious character of a note and
denies no fact essential to plaintiff's recovery of the penalty provided for by
Const, art. 14, § 3, except knowledge of such usurious character, and in his
opening statement to the jury assumes the same attitude, a motion for a di-
rected verdict on the opening statement is properly granted. First State Bank
of Keota v. Bridges, 39 Okl. 355, 135 P. 378.
In a suit on an insurance policy, plaintiff's counsel, in stating his case to
the jury, said: "The reason that we make this proof is to show you that an
insurance company cannot issue a policy, take a man's money and give him
something in return which is absolutely worthless the moment it is issued —
not worth the paper it is written on." Held, that there was no prejudicial
error. Phenix Ins. Co. of Brooklyn v. Weeks, 26 P. 410, 45 Kan. 751.
70 Noble v. Frack, 48 P. 1004, 5 Kan. App. 786.
71 Sullivan v. Williamson, 98 P. 1001, 21 Okl. 844.
72 Hunt v. W. T. Rawleigh Medical Co. (Okl.) 176 P. 410.
(674)
Art. 2) ARGUMENT AND CONDUCT OF COUNSEL §§ 796~797
that it contains a conclusive admission, the question being one for
the jury.73
Where plaintiff's counsel in his opening statement recites a con-
dition of facts which would entitle him to recover only certain
damages, and such statement is a departure from the facts alleged
in the petition, it is prejudicial error to overrule an objection there-
to, and try the case without either having the petition amended or
striking out one or the other of such causes of action.74
Where, in ejectment, the counsel in his opening statement spoke
of the defendant's conversion of plaintiff's personalty, and the
court without objection permitted evidence as to damages for such
conversion, though it was not pleaded, the pleading should be con-
strued as broad enough to include those elements of damage, or it
should be considered that the issues were enlarged by consent of
parties.75
§ 797. Argument
A party is entitled to be heard by counsel in the argument of a
question of fact submitted to the jury.76
It is within the court's discretion to limit the time of argu-
ment;77 and where the case is tried by the court, and it is satis-
73 A distinct and formal oral admission of a material fact made in the
opening statement to dispense with proof is conclusive on the party making
same, but an alleged admission of doubtful meaning is not conclusive, espe-
cially where nullified by other statements. Patterson v. Morgan, 53 Okl. 95,
155 P. 694.
74 Hunter Milling Co. v. Allen, 69 P. 159, 65 Kan. 158.
That plaintiff in his petition designated certain property as "merchandise,"
while in his opening statement to the jury he referred to it as "household
goods," did not constitute such variance as to authorize the direction of a
verdict for defendant. Red Ball Transfer & Storage Co. v. Deloe, 30 Okl. 522,
120 P. 575.
7 s Custer v. Royse, 104 Kan. 339, 179 P. 353.
7 a Ely Walker Dry Goods Co. v. Blake, 59 Okl. 103, 158 P. 381.
In a case tried by jury, where particular questions of fact were allowed
and settled before argument, it was error for the court to refuse to allow coun-
sel, in argument, to call the attention of the jury to each question, or to sug-
gest or advise them what answers should be made thereto from the evidence
heard. Stacy v. Cook, 61 P. 399, 62 Kan. 50.
77 It was not an abuse of discretion to limit the argument of counsel to 15
minutes. Murphy v..Colton, 44 P. 208, 4 Okl. 181.
.The action of the court in limiting the time of argument of counsel held
not an abuse of discretion. Diamond v. Perry, 46 Okl. 16, 148 P. 88.
It is not an abuse of discretion, in an action tried by the court alone, where
(075)
§ 797 TRIAL (Ch. 13
fied as to the evidence and the law, it is not compelled to listen to
any argument.78
No error can be predicated on the interruption of counsel for
the purpose of excluding from the consideration of the jury im-
proper testimony admitted in his client's behalf; counsel being
permitted ample time thereafter to discuss the evidence properly
received in the case.79
The opening argument should be a complete presentation of the
counsel's theory of the case, and, when the opposing counsel elects
not to reply, no further argument by the opening counsel should
be allowed except in the discretion of the trial judge;80 but, if
the plaintiff's counsel is permitted to reargue the case, it is re-
versible error to refuse defendant's request to answer.81
only the construction of a plain, unambiguous statute is to be determined, to
refuse to hear arguments of counsel. Godfrey v. Wright, 56 F. 1051, 8 Okl.
151.
78 Barnes v. Benham, 75 P. 1130, 13 Okl. 582.
79 Dunn v. Jaffray, 13 P. 781, 36 Kan. 408.
so Atchison, T. & S. F. Ry. Co. v. Lambert, 123 P. 428, 32 Okl. 665.
Where on the trial the arguments are limited to one hour on each side,
and the party on whom rests the burden of the issue announces that he de-
sires to occupy only 30 minutes, and requests the court to inform him when
the time has expired, which the court does, and thereupon the attorney for
the opposing party asks that the case be submitted without further argument,
it is prejudicial error to permit another attorney to address the jury in be-
half of the first party. St. Louis & S. F. R. Co. v. Vanzego, 80 P. 944, 71 Kan.
427.
Where the trial court informs the attorneys that each side will be given an
hour and a quarter for argument, and plaintiff's attorney announces that he
will consume 30 minutes only in opening, and requests the court to notify him
when 30 minutes have expired, and the court acts upon his suggestion, defend-
ant's attorney, by waiving all argument upon his part, is not guilty of mis-
conduct, and the court does not commit error in refusing, in its discretion, fur-
ther time for plaintiff's attorney to argue his case. Southern Kansas Ry. Co.
v. Michaels, 30 P. 408, 49 Kan. 388.
On a trial without a jury, plaintiff's counsel waived argument and asked
defendant's counsel, in the presence of the court, if they wished to argue the
case. Defendant's counsel kept silent, and did not demand a right to argue,
and the court then decided the case. Held that, after the decision, defendant
could not content that he had not waived argument. Piatt v. Head, 10 P.
822, 35 Kan. 282.
si Plaintiff is not entitled to reargue the case after defendant has waived
argument ; and, where he is permitted to do so, it is reversible error to refuse
defendant's request to answer. Board of Com'rs of Nemaha County v. Albert,
51 P. 307, 6 Kan. App. 165.
(676)
Art. 2) ARGUMENT AND CONDUCT OF COUNSEL § 797
Permitting counsel to instruct the jury that it is improper to ar-
rive at a verdict by addition and division is not reversible error,
when he did not advise them how to reach a verdict. Judgment
51 P. 623, 6 Kan. App. 585, affirmed.82
In an action for injury by defendant's automobile, that certain
slight references to a casualty company were withdrawn with an
instruction to disregard them is not material error.83
In an action for personal injuries, a statement by the attorney
for the plaintiff, that, if the jury answer a certain special question
"yes," then their verdict must be for the defendant, is not ground
for reversal as stating to the jury that their answers to a special
question of fact must be consistent with their general verdict.84
In an action for personal injury from an automobile collision, it
is not error for counsel in his closing argument to comment on the
meaning of a statute when no objection is made thereto.85
In an action against a railroad company for personal injuries, a
statement of plaintiff's counsel in his argument that "it matters not
if this railroad company has among its stockholders counts and
princes and a young girl who has been sold to a count," though im-
proper, did not require a reversal, where the verdict was for a small
amount, and counsel failed to request the court to admonish the
jury not to consider same.86
Where the plaintiff, an employe of a railway-construction com-
pany, who was injured while at work on a tower wagon standing
on the tracks of a street railway over which cars were running,
brought action against both companies, and a dem'urrer by the
railway company to the evidence was sustained, it was proper for
the court to refuse to permit counsel for the construction company
in an argument to the jury to comment on that part of the petition
setting forth the averments against the railway company.87
Allowing plaintiff's attorney in his closing argument in a civil
82 Missouri, K. & T. Ry. Co. v. Steinberger, 55 P. 1101, 60 Kan. 856.
. ss Stafford v. Noble, 105 Kan. 219, 182 P. 650.
84 Missouri, K. & T. Ry. Co. v. Wade, 85 P. 415, 73 Kan. 359.
SB in action for personal injury from automobile collision, closing arguments
of plaintiffs counsel as to meaning of Gen. St. 1915, § 507, not then objected
to, held not unreasonable or unfair. Rudy v. Headley, 103 Kan. 417, 173 P.
913.
ss St. Louis, I. M. & S. Ry. Co. v. O'Connor, 142 P. 1111, 43 Okl. 268.
87 North American Ry. Const. Co. -v. Patry, 61 P. 871, 10 Kan. App. 55.
(677)
§§ 797-798 TRIAL (Ch. 13
action to accuse defendants, husband and wife, with being persist-
ent violators of the prohibitory law, and with having been in jail
for such offenses, is ground for reversal.88
Where, in an action against a city for damages sustained by
plaintiff falling into a ditch dug by an electric company under a
franchise, there was no issue involving indemnity by the electric
company to the city for any damages sustained by reason of its
negligence in constructing the ditch, the admission in evidence of
an ordinance containing a section by which the electric company
agreed to indemnify the city against such damages was not evi-
dence to prove the agreement of indemnity so as to justify argu-
ment of plaintiff's counsel that the city did not care whether judg-
ment went against it or not.89
The scope of argument of the counsel allows a reference to evi-
dence and deductions therefrom.90
§ 798. Right to open and close
The party bearing the burden of proof has the right to open and
close the argument,91 but such right my be waived by the absence
ss Bean v. Kinseder (Kan.) 135 P. 1180.
89 City of Shawnee v. Sparks, 110 P. 884, 26 Okl. 665, 28 L. R. A. (N. S.) 519,
Ann. Cas. 1912B, 505.
so Spann v. State, (Okl. Or. App.) 197 P. 531.
Where, in an action for injuries it Was proved that defendant sent its phy-
sician to attend plaintiff, argument of plaintiff's counsel, in which he sought
to draw deductions as to the reasons why defendant sent its physician, is not
error. Enid City Ry. Co. v. Reynolds, 126 P. 193, 34 Okl. 405.
»i Atchison, T. & S. F. Ry. Co. v. Lambert, 123 P. 428, 32 Okl. 665; Baugh-
man v. Baughman, 4 P. 1003, 32 Kan. 538 ; Degan v. Tufts, 56 P. 1126, 8 Kan.
App. 338; Congdon v. McAlester Carriage & Wagon Factory, 56 Okl. 201, 155
P. 597.
Where the pleadings do not disclose the exact amount plaintiff is entitled
to?, defendant, before being entitled to open and close the argument, should
admit such amount in open court. Where defendant failed, until after open-
ing statements were made and introduction of some evidence, to claim his
right to open and close the argument, the question of granting or refusing his
request rested in the court's discretion. Congdon v. McAlester Carriage &
Wagon Factory, 56 Okl. 201, 155 P. 597.
Where defendant to a suit for libel or slander pleads justification, he as-
sumes the burden of proof, and is entitled to open and close. Stith v. Fullin-
wieder, 19 P. 314, 40 Kan. 73.
Since, where the answer in an action on an accepted order admitted the
execution and acceptance of the order, but stated that plaintiff had wrong-
fully obtained possession of it, the burden was on defendant to prove that
(678)
Art. 2) ARGUMENT AND CONDUCT OP COUNSEL §§ 798~799
of a timely request,92 and by waiving the opening a party waives
a right to close, if the other party also waives argument.93
Where the party having the burden of proof makes an inade-
quate opening argument, and the opposing party does not reply,
no further argument should be allowed, unless the court in its dis-
cretion permits the opening party to make a further argument, in
which event the opposing party should be allowed to answer, and
the party upon whom the burden rests should be allowed to close.9*
When a case involves two causes of action and the burden in
the first is on plaintiff and in the second on defendant, it is not
important which litigant opens and closes so long as each has a
fair opportunity to argue his side.95
§ 799. Retaliatory statements
An irrelevant statement of counsel in condemnation of defend-
ants for violating the prohibitory laws is not ground for reversal,
where it is to some extent induced by argument of opposing coun-
sel.96
A new trial will not be granted because counsel for plaintiff made
improper statements to the jury, where defendant's counsel also
made improper statements, and both were equally at fault.97
the possession was wrongfully acquired, defendant had the right to open and
close. Bartholomew v. Fell, 139 P. 1016, 92 Kan. 64.
In an action on note where an averment of partnership of defendants was
denied under oath but admitted before trial, plaintiff was not entitled to the
opening and closing. Murchison v. Nies, 123 P. 750, 87 Kan. 77.
The party upon whom rests the burden of proof may open and close the
argument. Bass & Harbour Furniture & Carpet Co. v. Harbour, 140 P. 956,
42 Okl. 335* Where defendant, without objection, assumes the burden of
proof in the introduction of evidence, his answer will J)e treated as amended
to sustain his right to open and close.
92 Congdon v. McAlester Carriage & Wagon Factory, 56 Okl. 201, 155 P.
597 ; Lynde-Bowman-Darby Co. v. Huff, 124 P. 1085, 33 Okl. 239.
93 St. Louis & S. F. R. Co. v. Johnson, 86 P. 156, 74 Kan. 83.
a* Fire Ass'n of Philadelphia v. Farmers' Gin Co., 39 Okl. 162, 134 P. 443.
95 White v. White, 160 P. 993, 99 Kan. 133.
96 Bean v. Kindseder, 139 P. 1024, 92 Kan. 254, reversing judgment on re-
hearing 135 P. 1180.
97 Atchison, T. & S. F. R. Co. v. Dickerson, 45 P. 975, 4 Kan. App. 345.
(679)
§§ 800-801 TRIAL (Ch. 13
§ 800. Conduct
That counsel for the plaintiff in a personal injury case repeated-
ly asked that the jury might be permitted to examine plaintiff's
hip in the jury room is not ground for reversal.98
In negligence cases where there may be indemnity insurance,
and questions to jurors as to whether they are interested in in-
demnity insurance companies are therefore competent, counsel
cannot be charged with misconduct in asking such questions on the
ground that they are asked for the purpose of prejudicing jurors."
§ 801. Objections and exceptions
Statements of a case at the commencement of the trial are not
pleadings, and cannot be attacked by demurrer.1
A mere exception to the language of counsel in his argument to
the jury, which is not preceded by any ruling of the court, is in-
sufficient to raise a question as to the propriety of the language
used.2
It is error for the trial court to refuse and neglect to sustain an
objection to prejudicial remarks of counsel and to neglect to prop-
erly admonish the jury in regard thereto.3
An attempt by the plaintiff's counsel to state that the defendants
were indemnified against any loss, which was stopped by the court
and the jury carefully instructed to disregard same is not so preju-
dicial as to require the discharge of the jury.4
«s Missouri Pac. Ry. Co. v. Johnson, 53 P. 129, 59 Kan. 776.
«» Swift & Co. v. Platte, 74 P. 635, 68 Kan. 1.
1 Glenn v. Missouri Pac. Ry. Co., 124 P. 420, 87 Kan. 391, judgment affirm-
ed on rehearing 128 P. 362, 88 Kan. 235. ^
2 City of Kansas City v. McDonald, 57 P. 123, 60 Kan. 481, 45 L. B. A. 429.
3 St. Louis & S. F. R. Co. v. Stacy, 77 Okl. 165, 171 P. 870.
* Russell v. Watts, 150 P. 600, 96 Kan. 275.
(680)
Art. 3) ISSUES AND TRIAL THEREOF §§ 802-803
ARTICLE III
ISSUES AND TRIAL THEREOF
DIVISION I.— ISSUES IN GENERAL
Sections
802. Issues not pleaded.
DIVISION II. — TAKING CASE OB QUESTION FROM JURY
803. In general.
804. Retrial.
805- Questions of law and fact.
806. Negligence in general.
807. Contributory negligence — Assumption of risk.
808. Agency.
809. Will contest.
810- Malicious prosecution.
811. Libel and slander.
812. Weight of evidence and credibility of witnesses.
813. Uncontroverted evidence.
814. Motions and demurrer.
815. Demurrer to evidence.
816. Effect as admission.
817. What rulings proper.
818- Cure of error.
819. Trial by court.
820. Ruling and judgment sustaining demurrer.
821. Form.
822. Direction of verdict.
823. Effect of motion.
824. Form of motion.
v
DIVISION I. — ISSUES IN GENERAL
§ 802. Issues not pleaded
"There can be no feigned issues; but a question of fact, not
put in issue by the pleadings, may be tried by a jury upon an order
for the trial, stating distinctly and plainly the question of fact to
be tried; and such order is the only authority necessary for a
trial." 5
DIVISION II. — TAKING CASE OR QUESTION FROM JURY
§ 803. In general
A demurrer to the evidence may be sustained, a nonsuit granted
defendant, or a verdict may be directed in favor of either of the par-
o Rev. Laws 1910, § 4652.
(681)
§ 803 TRIAL (Ch. 13
ties when the testimony is insufficient to support a different ver-
dict.6 In other words, where there is any evidence tending to sup-
port the issues in the case, although slight, it should be submitted
to the jury, and it is error to order a nonsuit or direct a verdict.7
« Holm v. Waters, 56 P. 507, 8 Kan. App. 859 ; Tingling v. Redwine, 69 P.
810, 12 Okl. 64; Kentucky Refining Co. v. Purcell Cotton Seed Oil Mills, 73
P. 945, 13 Okl. 220; Watkins v. Havighorst, 74 P. 318, 13 Okl. 128; Pringey
v. Guss, 86 P. 292, 16 Okl. 82, 8 Ann. Cas. 412.
7 Sullivan v. Phoenix Ins. Co., 8 P. 112, 34 Kan. 170 ; Benninghoff v. Cub-
bison, 26 P. 14, 45 Kan. 621; McMullen v. 'Carson, 29 P. 317, 48 Kan. 263;
Snyder v. Stribling, 89 P. 222, 18 Okl. 168, judgment affirmed Same v. Rosen-
baum, 30 S. Ct. 73, 215 U. S. 261, 54 L. Ed. 186.
The court should not take the case from the jury unless, as a matter of
law, no recovery can be had upon any view which can properly be taken of
the evidence. St. Louis & S. F. Ry. Co. v. Knowles, 51 P. 230, 6 Kan. App.
790; Union Tp. v. Hester, 54 P. 923, 8 Kan. App. 725.
Where plaintiff has made a prima facie case, it is error to take the case
from the jury. Terry v. Anderson, 51 P. 800, 6 Kan. App. 921.
The court is not justified in taking a case from the jury where the state
of proof is such that reasonable minds might reach different conclusions from
the evidence offered. Chicago, R. I. & P. Ry. Co. v. Wood, 72 P. 215, 66 Kan.
613; Lane v. Choctaw, O. & G. R, Co., 91 P. 883, 19 Okl. 324; Duncan v.
Huse, 85 P. 589, 73 Kan. 432 ; Avery v. Union Pac. R. Co., 85 P. 600, 73 Kan.
563 ; Darling v. Atchison, T. & S. F. Ry. Co., 93 P. 612, 76 Kan. 893, rehear-
ing denied 94 P. 202, 76 Kan. 893 ; Crane v. Cox, 49 P. 796, 6 Kan. App. 405 ;
Cole v. Missouri, K. & O. R. Co., 94 P. 540, 20 Okl. 227, 15 L. R. A. (N. S.)
268; St. Louis- & S. F. R. Co. v. Jamieson, 95 P. 417, 20 Okl. 654; Citizens'
Bank of Wakita v. Garnett, 95 P. 755, 21 Okl. 200; Missouri, K. & T. Ry.
Co. v. Walker, 113 P. 907, 27 Okl. 849.
Where there is some evidence tending to support the affirmative of an issue
it cannot be taken from the jury. Harter v Atchison, T. & S. F. R. Co., 38
P. 778. 55 Kan. 250; City of Ft. Scott v. Peck, 50 P. 870, 58 Kan. 816; Loob
v. Fenaughty, 55 P. 841, 60 Kan. 570; Gifford v. Griffin Ice Co., 66 P. 998,
63 Kan. 716; Burnett V. Hinshaw, 67 P. 1101, 64 Kan. 886; Electric Ry.,
Light & Ice Co. v. Brickell, 85 P. 297, 73 Kan. 274 ; Steelsmith v. Union Pac.
R. Co., 40 P. 992, 1 Kan. App. 10; City of Wichita v. Coggshall, 43 P. 842,
3 Kan. App. 540; Hagan v. American Building & Loan Ass'n, 43 P. 1138,
2 Kan. App. 711 ; Cherokee & P. Coal & Mining Co. v. Britton, 45 P. 100, 3
Kan. App. 292; Niagara Ins. Co. v. Knapp, 47 P. 628, 5 Kan. App. 880; Skin-
ner v. Mitchell, 48 P. 450, 5 Kan. App. 366 ; Atchis-on, T. & S. F. R. Co. v.
Chenoweth, 49 P. 155, 5 Kan. App. 810; Hanlen v. Baden, 49 P. 615, 6 Kan.
App. 635 ; St. Louis & S. F. Ry. Co. v. Toomey, 49 P. 819, 6 Kan. App. 410 ;
McCormick. Harvesting Mach. Co. v. Hayes, 53 P. 70, 7 Kan. App. 141;
Weatherford v. Strawn, 55 P. 485, 8 Kan. App. 206; Douglass v. Muse, 55
P. 856, 8 Kan. App. 856; Continental Ins. Co. of New York v. Gaston, 56 P.
1129, 8 Kan. App. 857; City of Atchison v. Acheson, 57 P. 248, 9 Kan. App.
33 ; Gilmore v. Bank of Garnett, 63 P. 89, 10 Kan. App. 496 ; Suess* v. Board
of Com'rs of Lane County, 63 P. 451, 10 Kan. App. 583; Burnett v. Hinshaw,
(682)
Art. 3) ISSUES AND TRIAL THEREOF § 803
But where the only issue under the evidence is one of law, the court
may withdraw the case from the jury and render judgment.8
Where, in a civil case, it is sought to prove a fact by circum-
stantial evidence, and the circumstances taken separately or col-
lectively reasonably tend to support the facts sought to be proved,
it is a question for the jury to determine which of two theories the
circumstances tend more reasonably to support.9
The court must construe unambiguous written instruments in-
troduced in evidence, and instructions submitting to jury construc-
tion of such written instruments constitute error.10
63 P. 461, 10 Kan. App. 583; Belcher v. Whitlock, 56 P. 23, 6 Okl. 691;
Myers v. First Presbyterian Church of Perry, 69 P. 874, 11 Okl. 544.
It is error to withdraw from a jury the consideration of a material issue
of fact Richardson v. Fellner, 60 P. 270, 9 Okl. 513; Farmers' State Bank
v. Spencer, 73 P. 297, 12 Okl. 597.
It is only where a statement or admission made to a jury will as a matter
of law preclude a party from recovering on his cause or defense that the
court has authority to withdraw such cause or defense from the jury. Hall
v. Davidson, 84 P. 556, 73 Kan. 88.
Where an issue of fact is presented in respect to whether a writing was
delivered upon a condition precedent to its effectiveness, it is- error to so in-
struct as to take such issue from the jury. Williamson v. Scully, 52 OkL
531, 152 P. 839.
s Akin v. Baldwin Piano Co., 62 Okl. 239, 162 P. 221.
Where no question of fact arises in a case, and the only question to be
decided is one of law alone, it is not error for the trial judge to discharge
the jury, and decide the case. Brown v. Cory, 59 P. 1097, 9 Kan. App. 702.
In suit by trustee in bankruptcy to quiet title and to cancel deed to bank-
rupt's wife, with cross-petition claiming title, undisputed evidence showing
that deed was void raised no issue for jury as to wife's right to recover
property, and court properly discharged jury and rendered judgment for
plaintiff, in view of Rev. Laws 1910, § 4993. Plante v. Robertson (Okl.) 175
P. 840.
Where, in replevin, limitations had been suspended pending the removal
of property from the state, and since its return three years had not expired,
the court did not err in refusing to submit the issue of limitations. Vaut v.
Gatlin, 31 Okl. 394, 120 P. 273.
a Missouri, K. & T. Ry. Co. v. Simerly (Okl.) 180 P. 551.
10 Littlefield Loan & Investment Co. v. Walkley & Chambers (Okl.) 166 P. 90.
Ordinary railroad rules as to operation of trains at crossings, etc., con-
taining no term the meaning of which is not clear, ought to be so interpreted
by the court, which must determine in every instance whether it needs any
evidence in aid of interpretation. Missouri, K. & T. Ry. Co. v. Missouri Pac.
Ry. Co., 103 Kan. 1, 175 P. 97.
The question whether certain written correspondence discloses a settlement
between the parties at a certain time is for the court to determine, and not
for the jury. Dobbs v. Campbell, 72 P. 273, 66 Kan. 805.
(683)
§§ 803-805 TRIAL (Ch. 13
What is the law of another state, though a question of fact, is
ordinarily determined by the court without a jury.11
§ 804. Retrial
"In all cases where the jury are discharged during the trial, or
after the cause is submitted to them, it may be tried again imme-
diately, or at a future time, as the court may direct." 12
§ 805. Questions of law and fact
Where the evidence is conflicting on any issue, the determination
of such issue is a question of fact, which in a jury trial should be
submitted to jury, and not be decided by the court as a matter of
law, by taking the case or issue from the jury, directing a verdict,
or sustaining a demurrer to the evidence.13
11 Hutchings, Sealy & Co. v. Missouri, K. & T. Ry. Co., 114 P. 1077, 84
Kan. 479, 41 L. R. A. (N. S.) 500, rehearing denied 121 P. 360, 86 Kan. 585.
12 Rev. Laws 1910, § 5009.
13 Katterhenry v. Williamson (Okl.) 190 P. 404.
Where evidence presents issue of fact,_whether clear or obscure, it is duty
of court to submit it to jury. Blair v. Lewis, 57 Okl. 707, 157 P. 905 ; State
Bank of Westfield v. Kiser, 46 Okl. 180, 148 P. 685.
Whether' the cause of action sued on is the same on which a former sxiit
was based, and whether the former suit was disposed of before the second
was commenced, are questions of fact properly submitted to a jury. Ball v.
Biggam, 49 P. 678, 6 Kan. App. 42.
Meld for tJie jury. — Whether plaintiff was guilty of contributory negligence,
and whether defendant was negligent. Clark v. St. Louis & S. F. R. Co.,
108 P. 361, 24 Okl. 764.
Which carrier's negligence was the proximate cause of plaintiff's injury.
Atchison, T. & S. F. Ry. Co. v. St. Louis & S.-^F. Ry. Co., 41 Okl. 80, 135 P.
353, 48 L. R. A. (N. S.) 509.
Whether persons whose negligent acts caused injury were in employ or
acting under direction of defendant railroad. Gulf, C. & S. F. Ry. Co. v.
Beasley (Okl.) 168 P. 200.
Compress company's negligence in weighing cotton. Sapulpa Co. v. Kimball
& Reading, 59 Okl. 93, 158 P. 935.
Defendant's negligence in allowing oil to overflow a question for the jury.
Standard Oil Co. v. Glenn (Okl.) 176 P. 900.
The railroad's negligence in starting a train. St. Louis & S. F. R. Co. v.
Cole, 49 Okl. 1, 149 P. 872, L. R. A. 1915F, 866.
In an action under the federal Employers' Liability Act (U. S. Comp. St.
§§ 8657-8665), that provision of the Oklahoma Constitution (Const, art. 23,
§ 6) requiring submission to the jury of the defense of assumption of risk
does not apply. Chicago, R. I. & P. Ry. Co. v. Jackson, 61 Okl. 146, 160
P. 736.
Whether the building material placed in a street by an abutting owner
remained in the street an unreasonable time, and whether reasonable care
was exercised to prevent interference with the property or business of an
(684)
Art. 3) ISSUES AND TRIAL THEREOF § 805
j
adjacent owner. Culbertson v. Alexander, 87 P. 863, 17 Okl. 370, 10 Ann.
Cas. 916.
In an action for the price of goods sold, whether an order was accepted
on the terms proposed, and whether there was a delivery. Humphrey v. Tim-
ken Carriage Co., 75 P. 528, 12 Okl. 413.
What constitutes a reasonable time within which objection must be made
to a statement of account. Lamont Mercantile Co. v. Piburn, 51 Okl. 618, 152
P. 112.
In a physician's action for services rendered in attending an injured em-
ploye1 of defendant at the request of defendant's agent, whether defendant
was notified of plaintiff's employment. Roff Oil & Cotton Co. v. King, 46
Okl. 31, 148 P. 90.
Which parent had the care of a minor during parents' separation. Alberty
v. Alberty (Okl.) 180 P. 370.
Plaintiff's right in replevin for two mules claimed under a chattel mort-
gage. Gerlach Bank of Woodward v. Herd, 60 Okl. 186, 159 P. 901.
The question of actual and punitive damages. Edwards v. Warnkey, 66
P. 987, 63 Kan. 889.
WThile malice may be inferred from tne intentional use of a deadly w.eapon,
the weight to be given it is for the jury considering the character of the in-
strument, the manner of its use, and attending circumstances. Eckerd v.
Weve, 118 P. 870, 85 Kan. 752, 38 L. R. A. (N. S.) 516.
The question whether it was intended to waive the limitation of time
within which to make claim for damages to live stock, ot. Louis & S. F. R.
Co. v. James, 128 P. 279, 36 Okl. 196 ; St. Louis & S. F. R. Co. v. Ladd, 124
Pac. 461, 33 Okl. 160.
Whether there was an implied waiver of a stipulation limiting the time
to sue under a live stock transportation contract. St. Louis, I. M. & S. Ry.
Co. v. Patterson (Okl.) 177 P. 898.
The reasonableness of a provision for notice to carrier of injury to a ship-
ment of cattle. St. Louis & S. F. R. Co. v. Ladd, 124 P. 461, 33 Okl. 160.
Whether stock when received by the carrier was in-bad condition. Wichita
Falls & N. W. Ry. Co. v.,Benton (Okl.) 167 P. 633. *
The questions of what is a reasonable time for transportation of cattle and
the sufficiency of the excuse for the delay. Dickinson v. Seay (Okl.) 175
P. 216.
Whether a carrier of an intrastate shipment of cattle exercised ordinary
care in dipping them. Missouri, K. & T. Ry. Co. v. Williamson (Okl.) 180
P. 961.
The question of the defendant carrier's negligence in transporting cattle.
St. Louis & S. F. R. Co. v. Shepard, 139 P. 833, 40 Okl. 589.
Whether property was listed with an agent, and whether the agent's serv-
ices were the procuring cause of the sale. Harris v. Owenby, 58 Okl. 667,
160 Pac. 596 ; Chickasha Inv. Co. v. Phillips, 58 Okl. 760, 161 P. 223 ; Yar-
borough v. Richardson, 38 Okl. 11, 131 P. 680 ; Eichoff v. Russell, 46 Okl. 512,
149 P. 146.
The question whether brokers had acted in bad faith. Heath v. Chowning,
142 P. 1108, 43 Okl. 274.
The questions of the terms on which property was listed and the procuring
cause of the sale. Schlegel v. Fuller, 48 Okl. 134, 149 P. 1118.
Terms of a sale. Culbertson v. Mann, 30 Okl. 249, 120 P. 918.
Whether a contract for the sale of realty making time of payment of the
(G85)
§ 805 TRIAL (Ch. 13
essence was forfeited, or performance waived, and an extension of time
granted. Livengood v. Ball, 63 Okl. 90, 162 P. 766.
The issue of the lessor's infancy. Giles v. Latimer, 137 P. 113, 40 Okl. 301.
Whether goods purchased were accepted. Goldstandt-Powell Hat Co. v.
Cuff, 91 P. 862, 19 Okl. 243.
Whether representations constituted a fraud on the vendee. Abmeyer v.
First Nat. Bank of Horton, 92 P. 1109, 76 Kan. 877.
Whether legal services were authorized by defendant. Turner v. Maxey,
45 Okl. 125, 144 P. 1064.
The questions of undue influence and testamentary capacity. Bilby v.
Stewart, 55 Okl. 767, 153 P. 1173.
Whether a flood was so unusual as to amount to an act of God. Chicago,
R. I. & P. Ry. Co. v. McKone, 127 P. 488, 36 Okl. 41, 42 L. R. A. (N. S.) 709.
Whether the complainant was guilty of laches was one of fact. Osincup
v. Henthorn, 130 P. 652, 89 Kan. 58, 46 L. R. A. (N. S.) 174, Ann. Cas. 1914C,
1262.
Whether a new promise was made which operated to renew the claim.
Higgins v. Butler, 62 P. 810, 10 Okl. 345.
Whether an officer taking an acknowledgment to a deed is financially or
beneficially interested in the transaction. Hilsmeyer v. Blakej 125 P. 1129,
34 Okl. 477.
Whether the payee of a note assigned by him with guaranty of payment
was entitled to relief because of the holder's negligence in forcing collection
on the assignor's demand while the makers of the note were solvent. Stetler
v. Boling, 52 Okl. 214, 152 P. 452.
Whether plaintiff had relinquished his parental control and turned over
to another the duty of support and education. Shawnee-Tecumseh Traction
Co. v. Campbell, 53 Okl. 172, 155 P. 697.
Whether consent to an operation was implied from the circumstances.
Rolater v. Strain, 137 P. 96, 39 Okl. 572, 50 L. R. A. (N. S.) 880.
Whether a warehouseman used ordinary care in protecting meats placed
in cold storage. Muskogee Crystal Ice Co. v. Riley Bros., 108 P. 629, 24 Okl.
114.
Whether a person who, in self-defense, shot at an assailant, and, missing
him, accidentally wounded a bystander, was guilty of negligence. Shaw v.
Lord, 137 P. 885, 41 Okl. 347, 50 L. R. A. (N. S.) 1069, Ann. Cas. 1916C, 1147.
Whether or not there has been a material alteration in a note after de-
livery. Cavitt v. Robertson, 142 P. 299, 42 Okl. 619.
Whether a fence through which a hog broke was proof against all except
breachy hogs, and whether a particular hog was more than ordinarily
breachy. Sharrock v. Pryor, 128 P. 243, 36 Okl. 305.
Whether plaintiff was misinformed or misled by the carrier's servants as
to the regular stopping place of the train and whether he was thereby in-
duced to believe that the train would stop at his destination. Chicago, R. I.
& P. Ry. Co. v. Sheets, 54 Okl. 586, 154 P. 550.
Whether a second mortgage constituted payment or merely renewal of a
first mortgage. Ford v. Coweta Hardware Co., 49 Okl. 523, 153 P. 865.
Not held for jury. — Where contract is in writing, or its terms are undis-
puted, though resting in parol, and where but one inference can be drawn
from evidence, court must determine whether relation is that of employer and
(686)
Art. 3) ISSUES AND TRIAL THEREOF § 805
This rule has been applied to cases wherein are presented various
defenses,14 such as fraud,15 bad faith, forgery,10 usury,17 insufficient
independent contractor, or master and servant. Gulf, C. & S. F. Ry. Co. v.
Beasley (Okl.) 168 P. 200.
In action for injuries against railroad and employe, where railroad, if lia-
ble at all, is liable on the principle of respondeat superior, and the court
directs verdict for defendant employe, it is error to submit issue of negli-
gence of railroad. Kansas City, M. & O. Ry. Co. v. Leuch, 60 Okl. 19, 158
P. 1146.
i* Under evidence authorizing conflicting inferences, the. question whether
the parties intended that acceptance of an offer to sell goods should be made
by some other means than through the mail was for the jury. Farmers' Prod-
uce Co. v. McAlester Storage & Commission Co., 48 Okl. 488, 150 P. 483,
L. R. A. 1916A, 1297 ; Same v. Central Fruit & Produce Co., 48 Okl. 754, 150
P. 664.
In the original seller's action against a second purchaser who had assumed
the original obligation held error to instruct as a matter of law that de-
fendant was so subrogated to the original purchaser's right on a warranty
in the sale. Walrus Mfg. Co. v. McMehen, 136 P. 772, 39 Okl. 667, 51 L. R. A.
(N. S.) 1111.
Where, in an action to recover a publicly offered prize, plaintiff's right to
recover depends upon whether the prize has been awarded under stated con-
ditions and the testimony is conflicting, the issue is for the jury. Southwest-
ern Land Co. v. McCallam, 136 P. 1093, 41 Okl. 657.
is In action on a note defended on ground of payee's fraud in obtaining it,
question whether any suspicious facts and circumstances amounted to bad
faith, though the holder was guilty of gross negligence, was for the jury.
Mangold & Glandt Bank v. TJtterback (Okl.) 174 P. 542.
In a suit on an insurance policy, evidence held insufficient to take to the
jury insured's contention that a compromise agreement was not binding be-
cause the result of fraud, or not his free act. Pacific Mut. Life Ins. Co. of
California v. Coley, 62 Okl. 161, 162 P. 713.
In an action on notes, evidence held sufficient to take the case to the jury
on the question whether the execution of the notes was obtained by fraud.
Gilpin v. Netograph Mach. Co., 108 P. 382, 25 Okl. 408, 29 L. R. A. (N. S.)
477 ; Edwards v. Miller, 30 Okl. 442, 120 P. 996 ; Jef ress v. Phillips, 31 Okl.
202, 120 P. 916.
Whether a sale contract, for breach of which the action was brought, was
procured by fraud without having been read by defendant, held a question
for the jury. George O. Richardson Machinery Co. v. Duncan, 46 Okl. 21,
148 P. 80.
Where an injured person has been given eight days within which to decide
whether he would accept an offer of settlement, and after acceptance he re-
is Where plaintiff in ejectment claims to be a purchaser in good faith and
there is evidence from which bad faith may reasonably be inferred, such as
a forgery in the second degree under Rev. Laws 1910, § 2646, it is error to
sustain a demurrer to defendant's evidence and take the case from the jury.
Baldridge v. Sunday (Okl.) 176 P. 404.
17 See note 17 on following page.
(687)
§ 805 TRIAL (Ch. 13
execution of a written instrument,18 accord and satisfaction,19 ac-
ceptance, and waiver.20 It has been applied to such issues as the
ceives its benefits for several months, evidence that he was told he would
be stricken from the pay roll unless he signed the settlement is insuflicient
to justify the submission of the cause to the jury on the issue of fraud in the
procurement of the compromise. Pioneer Telephone & Telegraph Co. v. Gri-
der, 124 P. 949, 44 Okl. 206.
17 Where interest reserved by note and mortgage is shown by their terms
to be within the legal limit, question as to whether amount charged borrower
was in good faith claimed as a commission or was an evasion of the law
against usury was for the jury. Tuttle v. F. O. Finerty & Co. (Okl.) 171 P. 39.
Whether the fact that a note for a loan was made to surety on borrower's
note and by indorsement to the lending bank constituted a bona fide sale of
note at a discount to the bank, or was a device by which bank collected usu-
rious interest, held for the jury. Bristow v. Central State Bank (Okl.) 173
P. 221.
The question of intent in usury cases is a question of fact for the jury, un-
less it clearly appears from the face of the instrument itself that usury has
been charged. Deming Inv. Co. v. Grigsby (Okl.) 163 P. 530. Borrower's con-
tract to pay all future taxes assessed against all interest in realty owned by
him, including the interest granted to the lender by virtue of mortgage, was
not conclusively an usurious contract. Id.
Whether a collateral instrument or commissions were taken and reserved
with intent to charge usury, and whether the transaction was a device to
evade the law against usury, held to be a question of fact, where the prin-
cipal instruments were valid on their face. Garland v. Union Trust Co., 49
Okl. 654, 154 P. 676.
is Under conflicting evidence in a controversy between a purchaser and
mortgagee, held, that the questions whether the original mortgage bore a seal,
no seal being shown by the mortgage as recorded, and whether the purchaser
had actual knowledge of the mortgage, were for the jury. Rollow v. Frost
& Saddler, 54 Okl. 578, 154 P. 542.
19 Where accord and satisfaction was set up as a defense held, that wheth-
er there was a meeting of minds on the new promise and whether it was
intended to discharge the prior obligation necessary to such defense was a
question of fact. Gentry v. Fife, 56 Okl. 1, 155 P. 246.
Whether a note of a debtor taken for a pre-existing debt extinguishes the
debt is a question of fact for the jury. Ohio Cultivator Co. v. Dunkin (Okl.)
168 P. 1002.
20 Mere occupancy and use of a building by an owner does not, as a matter
of law, constitute an acceptance and waiver of nonperformance by the con-
tractor, or ordinarily justify an inference of acceptance. Wiebener v. Peo-
ples, 44 Okl. 32, 142 P. 1036, Ann. Gas. 1916E, 748. Mere part payment does
not as a matter of law constitute an acceptance of the work of constructing
a building, and a waiver of nonperformance, except, perhaps, to the extent of
such payment where such acceptance and waiver is consistent with all the
pertinent facts. Id.
Waiver, involving intention to abandon or relinquish a right, is a question
for the jury. American Cent. Ins. Co. of St. Louis, Mo., v. Sinclair, 61 Okl.
17, 160 P. 60.
(688)
Art. 3) ISSUES AND TRIAL THEREOF § 805
reasonableness of a contract provision for notice,21 delivery of the
contract sued on,22 abandonment of contract 23 and of contract
rights,24 fraud and misrepresentation,25 abandonment of a home-
stead,20 good faith,27 mutual mistake,28 existence of facts -essential
to a valid marriage,29 and to rights, duties, and liabilities as be-
tween carrier and passenger under the circumstances of particular
21 Whether the time provided by a contract of shipment for giving notice
to the railroad company of injury to the shipment is reasonable is a question
of fact. St. Louis & S. F. R. Co. v. Phillips, 87 P. 470, 17 Okl. 264.
22 Where the pleadings and evidence presented an issue of fact whether the
contract sued on was delivered on a condition precedent to its effectiveness,
it was error to so instruct as to take such issue from the jury. Rutherford
v. Holbert, 142 P. 1099, 42 Okl. 735, L. R. A. 1915B, 221.
23 Whether a contract is abandoned is a question of fact, to be determined
from all the circumstances of the particular case. Martin v. Spaulding, -137
P. 882, 40 Okl. 191.
2* Under conflicting evidence, held, that whether a transaction constituted
a relinquishment by the buyer of his contract rights or an oral sale of the
personal property, valued at $150, back to the seller, which would be void
under the statute of frauds (Rev. Laws 1910, § 941), was for the jury. Elsing
v. Noah, 51 Okl. 558, 152 P. 101.
25 in action for fraud and deceit by which value of corporate stock or
plaintiff was destroyed, where there was evidence of promises and represen-
tations by defendants on which he relied and which were untrue, peremptory
instruction for defendants was error. Harbison v. White, 56 Okl. 566, 156
P. 335.
26 Elliott v. Bond (Okl.) 176 P. 242.
The issue whether or not a homestead has been abandoned presents a ques-
tion of fact for the jury. Carter v. Pickett, 39 Okl. 144, 134 P. 440.
Upon issue whether or not a homestead has been abandoned, the main
question is that of the real intent of homestead claimant, determination of
which involves a question of fact. Russell v. Roller (Okl.) 174 P. 560; Mc-
Canimon v. Jenkins, 44 Okl. 612, 145 P. 1163.
27 The good faith and genuineness of a sale, and all the circumstances
which tend to exhibit the transaction in its true light, are for the jury, who
must find from the evidence whether the sale was in good faith, and wheth-
er there was a sufficient change of possession as against the seller's creditors.
Masters v. Teller, 56 P. 1067, 7 Okl. 668, 8 Okl. 271.
2 s Where a contracting party had weak eyes, was a poor reader, and was
misled by a statement of the other party, whether he was entitled to relief for
mutual mistake was for the jury. McDonald v. McKinney Nursery Co., 44
Okl. 62, 143 P. 191.
29 Where, in an action to recover land, the issue of heirship depended upon
the validity of a marriage, the existence of facts essential to a valid marriage
under the Creek laws and whether a marriage was to be inferred from cohabi-
tation and reputation were questions, for the jury. Fender v. Segro, 137 P.
103, 41 Okl. 318.
HON.PL.& PEAC.— 44 (689)
§ 805 TRIAL (Ch. 13
cases;30 also as between carrier and shipper,81 rights and liabilities
so Where one who had been carried on a freight train for less than full fare
was informed when the train reached a station that he could be carried no
further, and that he must procure .& ticket, held that the question whether
he was a passenger in going to the station #s directed was for the jury-
Chicago, R. I. & P. Ry. Co. v. Shadid, GO Okl. 188, 159 P. 913.
In an action for injuries to a passenger, evidence held sufficient to carry
the question of defendant's negligence to the jury. St. Louis & S. F. R. Co. v.
Walker, 122 P. 492, 31 Okl. 494.
Where plaintiff's evidence in a passenger's action for injuries made out a
prima facie, case, the court properly refused to take the case from the jury,
though such evidence was rebutted by that of the carrier. St. Louis & S. F.
R, Co. v. Pitts, 140 P. 144, 40 Okl. 685, L. R. A. 1916O, 348.
Derailment. — Whether the evidence rebutted the presumption of the car-
rier's negligence, arising from the derailment of a train, held a question for
the jury. Midland Valley R. Co. v. Hilliard, 46 Okl. 391, 148 P. 1001.
Infirm passenger. — Whether passenger comes, within excepted class so as to
impose duty on carrier to give special assistance is ordinarily for jury. St.
Louis & S. F. Ry. Co. v. Dobyns, 57 Okl. 643, 157 P. 735.
Whether a passenger, by reason of sickness, age, or infirmity, comes within
the class as to whom carrier owes a duty to assist in alighting from a train,
Is for the jury. Dickinson v. Tucker (Okl.) 176 P. 949. Carrier's duty to assist
sick, aged, or infirm passengers to alight depends upon the circumstances of
case; but, where there is no evidence that a passenger falls within such ex-
ception to general rule, the submission of carrier's negligence in not assisting
him to alight is reversible error. Id.
In action for damages for wrongful ejection from a train, held, that whether
plaintiff, by reason of infirmity, was, in exception to the general rule, entitled
to personal service or attention, was for the jury. Dickinson v. Bryant (Okl.)
172 P. 432, L. R. A. 1918E, 978.
Injuries vn> alighting. — Evidence in a passenger's action for injuries, re-
ceived while alighting from a train held sufficient to warrant submitting to
the jury whether plaintiff's injuries were caused by defendant's negligence.
Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okl. 1, 134 P. 388, Ann. Cas. 1915D,
760.
Where plaintiff, with assurance of defendant's conductor that he will have
time to do so, goes into a train to assist his wife and children to a seat, and
the train starts, and he attempts to get off at the vestibule at which he en-
tered, but the door is closed and the brakeman directs him to the next vesti-
bule door, and in getting off he is injured, it cannot be said as a matter of
law that the negligence of defendant was not the proximate cause of his
injury. Chicago, R. I. & P. Ry. Co. v. McAlester, 39 Okl. 153, 134 P. 661.
Whether a person who had entered a train to assist a passenger was negll-
si Where a carrier seeks to avoid liability on account of a snowstorm, and
the evidence is conflicting as to whether the carrier, notwithstanding the
storm, could have prevented the loss by ordinary care, the court should re-
fuse a peremptory instruction for defendant. St. Louis & S. F. Ry. Co. v.
Dreyfus, 141 P. 773, 42- Okl. 401, L. R. A. 1915D, 547.
(690)
Art. 3) ISSUES AND TRIAL THEREOF § 805
as between the insurer and the insured,32 whether a promise is orig-
gent in attempting to alight from the train while it was moving held for the
jury. St. Louis & S. F. R. Co. v. Isenberg, 48 Okl. 51, 150 P. 123.
It is not contributory negligence per se for a person to alight from a moving
street car, and the question of such negligence depends on the speed, the plac?,
and other circumstances. Oklahoma Ry. Co. v. Boles, 30 OkJ. 764, 120 P. 1104.
Evidence held sufficient to go to jury on question of whether defendant
railroad, through its agents, had notice that deceased entered the train to seat
his wife, a passenger. Chicago, R. I. & P. Ry. Co. v. Brooks (Okl.) 179 P. 924.
Evidence held sufficient to go to jury on question of carrier's negligence in
suddenly starting train without allowing reasonable time for deceased to
procure a seat for his wife, a passenger, and leave train in safety. Id.
Place of waiting and riding. — In an action by a passenger for injuries claim-
ed to be the result of the carrier's failure to furnish a sufficient waiting room,
the question whether the injuries were from resulting exposure held for the
jury. Chicago, R. I. & P. Ry. Co. v. Gilmore, 52 Okl. 296, 152 P. 1096.
Whether the place on a railway station platform, where an implied invitee
was injured was a place where she would naturally and ordinarily be likely
to go held a question for the jury. St. Louis & S- F. R. Co. v. Stacy, 77 Okl.
165, 171 P. 870.
That a negro passenger waiting for a train in a cold, negro waiting room de-
clined to accept the invitation of defendant's station agent to pass through
the waiting room for white persons and sit by the fire in his office, held not to
render her, as a matter of law, guilty of contributory negligence, which was
the proximate cause of her suffering from cold. St. Louis, I. M. & S. Ry. Co.
v. Lewis, 136 P. 396, 39 Okl. 677.
In railway mail clerk's action for personal injury, evidence held sufficient
to take case to jury on question of defendant's negligence in failing to fur- ,
nish a car properly heated, in consequence of which clerk contracted a severe
cold developing into facial paralysis. St. Louis & S. F. R. Co. v. McClain, 60
Okl. 75, 162 P. 751. In railway's mail clerk's action for personal injury, evi-
dence held to take case to jury on the question whether defendant's negligence
was proximate cause of the injury. Id.
A passenger on a box car who places himself near the open door while
the train is slackening speed for his destination cannot recover for injuries re-
ceived by being thrown out of the car by the stoppage of the train. Atchison.
T. & S. F. R. Co. v. Johnson, 41 P. 641, 3 Okl. 41.
Under the statutes it was not negligence per se for a passenger on a mixed
railroad train to occupy a seat in a baggage car. Lane v. Choctaw, O. & G. R.
Co., 91 P. 883, 19 Okl. 324.
Whether a train was overcrowded or rules posted warning passengers not
to ride in baggage cars are questions for the jury and not the court. Lane
v. Choctaw, O. & G. R. Co., 91 P. 883, 19 Okl. 324.
s 2 Application for insurance. — The intent of insured, and whether certain
answers given to the questions in the application were false, held a question
of fact. Shawnee Life Ins. Co. v. Watkins, 53 Okl. 188, 156 P. 181.
In an action on an insurance policy, where a false and fraudulent misrep-
resentation is alleged and the evidence is conflicting, the question is for the
jury. Springfield Fire & Marine Ins. Co. v. Null, 133 P. 235, 37 Okl. 665.
The questions of the falsity of statements contained in an insurance policy
(691)
§ 805 TRIAL (Ch. 13
inal or collateral,33 loss of earning capacity,34 extent of injury,35
and of the applicant's intent in making them are ordinarily for the jury. Con-
tinental Casualty Co. v. Owen, 38 Okl. 107, 131 P. 1084. Under the evidence
in an action on an accident insurance policy, held a question for the jury
whether insured was suffering from a "defect in the body," within the mean-
ing of that phrase in his statement indorsed on the policy. Id.
The truth of warranties in an application for insurance held for the jury
under conflicting evidence. National Council, Knights and Ladies of Security,
v. Owen, 47 Okl. -±64, 149 P. 231.
A representation in a fire policy if false and material avoids the policy,
though the question of falsity and materiality is ordinarily for the jury.
Orient Ins. Co. v. Van Zandt-Bruce Drug Co., 50 Okl. 558, 151 P. 323.
In action upon life policy defended on ground that insured's statements
were false, the materiality of such statements and the insured's intent to de-
ceive are questions for the jury. American Bankers' Ins. Co. v. Hopkins (Okl.)
169 P. 489.
Whether a statement of insured, in an application for a life policy warrant-
ed to be true, is untrue is ordinarily a question for the trier of facts. Na-
tional Union v. Kelley, 140 P. 1157, 42 Okl. 98.
In action on benefit certificate, truth or falsity of warranties in application
is for the jury, where the evidence conflicts. National Council Knights and
Ladies of Security v. Owen, 61 Okl. 256, 161 P. 178.
Proof of loss. — Whether a statement made in the proof of loss was material,
false to assured's knowledge, and willfully made with intent to deceive, held
for the Jury. Royal Ins. Co. Limited v. Scritchfield, 51 Okl. 523, 152 P. 97.
Life insurance. — The good faith of insured, a bank cashier, in issuing a
draft for his premium held a question for the jury. Mutual Life Ins. Co. v.
Chattanooga Savings Bank, 47 Okl. 748, 150 P. 190, L. R. A. 1916A, 669.
Evidence in an action on a life policy, held to require submission to the
33 The question whether a verbal promise to repay borrowed money is origi-
nal or collateral is for the jury. Waldock v. First Nat. Bank of Idabel, 143
P. 53, 43 Okl. 348. Under the evidence, held that the question whether W.'s
promise to repay money advanced to R. was an original or collateral promise
was for the jury. Id.
Evidence held to present a question of fact whether a promise to pay for
advancements to be made to another was primary or collateral. Richardson
v. Parker, McConnel & Co., 125 P. 442, 33 Okl. 339.
s* Proof of loss of earning capacity need not be wholly clear to go to the
jury. Muskogee Electric Traction Co. v. Eaton, 49 Okl. 344, 152 P. 1109.
ss in an injury action, where nonexpert witnesses testified that the injury
was permanent, and plaintiff's injured hand was exhibited to the jury in
corroboration thereof, and several expert witnesses testified that the injury
was slight, and that there was a complete recovery, the extent of the injury
was a question for the jury. Coalgate Co. v. Bross, 107 P. 425, 25 Okl. 244,
138 Am. St. Rep. 915.
Evidence in a passenger's action for injuries held insufficient to warrant
submitting to the jury, as elements of plaintiff's damages, whether she suffer-
ed from kidney disease and paralysis as a result of her injuries; and hence in-
structions withdrawing these elements from the jury were improperly refused.
Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okl. 1, 134 P. 388, Ann. Cas 1915D
760.
(692)
Art. 3) ISSUES AND TRIAL THEREOF § 805
amount of damages,36 rights and liabilities as between employer
and employe,37 or heirs, representatives, and next of kin of the em-
ploye,38 and the proximate cause of injury.89
jury of the question whether insured was in such mental condition as to be
incapable of agreeing to cancellation of policy. Jones v. New York Life
Ins. Co., 122 If. 702, 32 Okl. 339.
Submission of question as to whether local council had waived conditions of
contract, notwithstanding court predicated ,its authority on wrong section of
by-laws, was not error, especially where result would have been same. Na-
tional Council of Knights and Ladies of Security v. Fowler (Okl.) 168 P. 914,
6 A. L. R. 591.
In an action for death benefit, where there was conflicting evidence as to
Issue whether insured was in good health when reinstated, case was properly
submitted to tne jury. Modern Brotherhood of America v. Beshara, 59 .Okl.
187, 158 P. 613.
Fire insurance. — What constitutes a reasonable time within which a demand
must be made to entitle the insured to appraise and inspect is ordinarily for
the jury. Springfield Fire & Marine Ins. Co. v. Hays & Son, 57 Okl. 266, 156 P-
673, L. R. A. 1917A, 1078.
Evidence held sufficient to take to the jury the question whether insured
complied with a "book warranty clause" of the policy. Scottish Union & Na-
tional Ins. Co. v. Moore Mill & Gin Co., 143 P. 12, 43 Okl. 370.
In an action on an insurance policy, evidence held sufficient to take to the
jury the question of waiver of the iron-safe clause of the policy. Gish v. In-
surance Co. of North America, 87 P. 869, 16 Okl. 59, 13 L. R. A. (N. S.) 826.
Accident insurance. — In an action on an accident policy exempting the in-
surer from liability for injury resulting from unnecessary exposure to dan-
ger, where the facts are such that reasonable men may fairly differ upon the
question as to whether insured died of injuries resulting from such cause, the
question is for the jury. Pacific Mut. Life Ins. Co. v. Adams, 112 P. 1026, 27
Okl. 496.
Burglary insurance. — Evidence, in an action on a policy against burglary of
a safe by the use of tools or explosives, held to authorize submitting to the
jury the question whether the safe was opened by such means. Fidelity &
Casualty Co. of New York v. First Bank of Fallis, 142 P. 312, 42 Okl. 662.
s e The amount of damages recoverable in an action for wrongful death is
a question for the jury. Missouri, K. & T. Ry. Co. v. West, 38 Okl. 581, 134
P. 655.
Where it is apparent that there was some loss of profits by breach of war-
ranty of fitness of article for particular purpose, it is for the jury to
determine what the loss probably was. Bishop-Babcock-Becker Co. v. Estes
Drug Co., 63 Okl. 117, 163 P. 276.
37 Where, in an employe's action for injuries, reasonable men might fairly
differ as to whether defendant's negligence was shown, the court properly re-
fused to direct a verdict for defendant. Frisco Lumber Co. v. Thomas, 142 P.
310, 42 Okl. 670.
Whether a master has been negligent is ordinarily for the jury. Interstate
Compress Co. v. Arthur, 53 Okl. 212, 155 P. 861. Where the standard of the
88-38 see notes 38 and 39 on pages 696 to 698.
(693)
§ 805 TRIAL (Ch. 13
master's duty Is not fixed, but variable with the circumstances and incapable
of being determined as a matter of law, the question whether such duty has
been complied with must, if authorized by the evidence, be submitted to the
jury. The question of the master's negligence becomes one of law only, where
the facts are such that all reasonable men must draw the same conclusions,
and then only when no recovery can be had on any view of the facts which
the evidence tends to establish. Id.
In servant's action for injury, where facts are such that reasonable men
may fairly differ as to defendant's primary negligence, question is for the
jury. Chicago, R. I. & P. Ry. Co. v. Pruitt (Okl.) 170 P. 1143; Missouri, O. &
G. Ry. Co. v. West, 50 Okl. 521, 151 P. 212.
Evidence in a railroad employe's action for injuries received in interstate
commerce held to authorize the overruling of defendant's demurrer to the
evidence and denial of his motion for a directed verdict. St. Louis & S. F. R.
Co. v. Brown, 45 Okl. 143, 144 P. 1075.
In servant's action, question of master's negligence held for jury. Sulzberger
& Sons Co. of Oklahoma v. Strickland, 60 Okl. 158, 159 P. 833.
In action by servant for personal injuries, evidence held sufficient to go to
jury on question of defendant's negligence. Chicago, R. I. & P. Ry. Co. v.
Mayfield, 63 Okl. 71, 162 P. 486.
In a mine employe's action for injuries from the derailment of a coal car
the question whether the engineer was negligent was for the jury. Great
Western Coal & Coke Co. v. Malone, 136 P. 403, 39 Okl. 693.
Under the evidence in an engineer's action for injuries to his eye from the
explosion of an inadequate water glass which the fireman was attempting to
put in place, held, that the question of the negligence of the master and of the
fireman was' for the jury. Chicago, R. I. & P. Ry. Co. v. De Vore, 143 P. 864,
43 Okl. 534, L. R. A. 1915F, 21.
In an employe's action for injuries received while fixing a coupler, defend-
ant's negligence held for the jury. St. Louis & S. F. R. Co. v. Brown, 45 Okl.
143, 144 P. 1075.
Whether defendant's engineer was negligent under the doctrine of discov-
ered peril, held for the jury. Chicago, R. I. & P. Ry. Co. v. pond, 47 Okl. 161,
148 P. 103. Whether the engineer, in violation of the Federal Safety Ap-
pliance Act of March 2, 1893, as amended by acts approved April 1, 1896, and
March 2, 1903 (U. S. Comp. St. §§ 8605-8615), failed to use a continuous power
brake with which the train was equipped, held for the jury. Id.
In action for injuries to employg, evidence held to present a question for
the jury whether defendant was guilty of negligence. Enid City Ry. Co. v.
Webber, 121 P. 235, 32 Okl. 180, Ann. Cas. 1914A, 569.
Whether a master was negligent in the purchasing and furnishing of lubri-
cating oil for use of miners in a coal mine is primarily one of fact for the
jury. Hailey-Ola Coal Co. v. Parker, 122 P. 632, 32 Okl. 642, 40 L. R. A. (N.
S.) 1120.
Where the negligence complained of is failure to furnish sufficient assistants
to enable plaintiif to perform his work, the question is for the jury where
there is any evidence that defendant failed to perform such duty, and that such
failure pi-oduced the injury, and could have been reasonably anticipated.
Chicago, R. I. & P. Ry. Co. v. Ashlock, 129 P. 726, 36 Okl. 706.
Whether the master is negligent in failure to see that fellow servant's previ-
ous experience qualifies him for duties to which he is assigned is for the jury.
E. Van Winkle Gin & Machine Works v. Brooks, 53 Okl. 411, 156 P. 115L'
(694)
Art. 3) ISSUES AND TRIAL THEREOF § 805
Evidence held to take to jury question whether master failed to 'exercise rea-
sonable care to provide plaintiff safe fellow servants. Id.
Whether an employe's injury is due to negligence of the employer in failing
to furnish competent fellow servants sufficient in number, or to some other
cause, is for the jury, where there is any evidence tending to support such
cause of action. Sulzberger & Sons Co. v. Hoover, 46 Okl. 792, 149 P. 887.
Whether an employer has made reasonable investigation into the character,
skill, and qualifications of a servant is a question of fact for the jury. Ardmore
Oil & Milling Co. v. Robinson, 116 P. 191, 29 Okl. 79.
Existence and nature of relationship. — In servant's action for injury, evi-
dence held sufficient to justify court in submitting issue of relationship to jury.
Wolverine Oil Co. v. Kingsbury (Okl.) 168 P. 1021.
In an action for injuries, held that, whether the relation of master and serv-
ant existed between plaintiff and defendant was for the jury. Muskogee Elec-
tric Traction Co. v. Cox, 49 Okl. 365, 153 P. 125.
Under conflicting evidence, the question whether an injured employ^ is
protected by the federal Employers' Liability Act (U. S. Comp. $t. §§ 8657-
8665) or by local law may be for the jury. Chicago, R. I. & P. R. Co. v. Feld-
er, 56 Okl. 220, 155 P. 529.
Scope and nature of employment. — In servant's action for injury, issues as
to nature of his employment and extent of his duty and authority held to
present questions of fact for jury. Sandals v. Mizpah- Mining Co. (Okl.)» 168
P. 808.
In an action for the death of a servant killed while employed by an elec-
tric company in locating "trouble" on electric wires, evidence held sufficient to
to go to the jury. Fisher v. Prairie, 109 P. 514, 26 Okl. 337.
In an action by a servant for injuries from a defective electric wire pole ob-
tained secondhand from another company by plaintiff's foreman, evidence held
sufficient to go to a jury on the question whether the foreman was acting
within his authority in obtaining the pole and giving it to the members of
his gang. Choctaw Electric Co. v. Clark, 114 P. 730, 28 Okl. 399.
Safe place and appliances. — Under conflicting evidence, the question wheth-
er an employer has negligently failed to furnish a reasonably safe place in
which to work is for the jury. Producers' Oil Co. v. Eaton, 44 Okl. 55, 143 P
9; Chicago, R. I. & P. Ry. Co. v. Townes, 143 P. 680, 43 Okl. 568.
In action for damages proximately resulting from master's failure to prop-
erly safeguard machinery, as required by Rev. Laws 1910, § 3746, where
such failure is specifically denied, the question of the master's negligence is
for the jury. Maxia v. Oklahoma Portland Cement Co. (Okl.) 176 P. 907.
In an action for injuries to an employe in a mine, where the evidence tend-
ed to show that timberman, before dislodging loose rock from the roof of the
mine, warned plaintiff, but did not give him sufficient time to reach a point of
safety, a demurrer to the evidence held properly overruled. Creek Coal Min-
ing Co. v. Paprotta (Okl.) 175 P. 235.
In brakeman's action for injury from master's alleged negligence in fur-
nishing a brake wheel too small, and in having the brake set too tight, evi-
dence held insufficient to go to the jury. Chicago, R. I. & P. Ry. Co. v. Hes-
senflow (OkL) 170 P. 1161.
Where the evidence in an employe's action for injuries showed a flagrant
violation of the Factory Act, the court properly refused to direct a verdict for
defendant. Pioneer Hardwood Co. v. Thompson, 49 Okl. 502, 153 P. 137.
Evidence in an employe's action for injuries from negligent failure of de-
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§ 805 TRIAL (Ch. 13
fendant to comply with the Factory Act held to authorize submitting the
cause to the jury on plaintiff's theory. Planters' Cotton & Ginning Co. v.
Penny, 53 Okl. 136, 155 P. 516.
In absence of rule or recognition requiring use of longer route, question
whether continued use of route across elevator implied notice on part of
master and consent thereto is for jury, though master would then owe duty of
making passage safe by lighting. Prickett v. Sulzberger & Sons Co., 57 Okl.
567, 157 P. 356.
Whether maintenance by railway of temporary water plug or other ob-
struction near track, endangering operatives in their usual and necessary du-
ties, is negligence, is for the jury. Midland Valley R. Co. v. Ogden, 60 Okl.
74, 159 P. 256.
In action by railroad employe1 claimed to have resulted from defective
brake, evidence held sufficient to take to jury question of primary negligence
of defendant. Lusk v. White, 58 Okl. 773, 161 P. 541.
Whether defendant had failed to furnish an injured servant a reasonably
safe place in which to work held for the jury. Oklahoma Portland Cement
Co. v. Brown, 45 Okl. 476, 146 P. 6. The character of the work held not so
complex as to require the master to prescribe rules and regulations, as a mat-
ter of law. Id.
Whether a spreader was such a guard for a circular saw as is required by
ReV. Laws 1910, § 3746, held for the jury. Jones v. Oklahoma Planing Mill
& Mfg. Co., 47 Okl. 477, 147 P. 999.
Plaintiff, an employe" of defendant railway company, was engaged under
the supervision of defendant's foreman to load loose dirt into cars of defend-
ant at the bottom of an embankment on its line of railway. The embankment
was from 10 to 14 feet high, and sloped from the top outward toward the
track to the bottom at an angle of about 45 degrees- On the day preceding the
accident employe's of the company, under the direction of the same foreman,
had gone on top of the embankment, and with line bars and picks had dug
six or seven holes three or four feet deep, about two and a half to three feet
back from the edge of the embankment, and had cut the roots of a tree
standing thereon which extended out through the top dirt of the bank, hold-
ing it in place. Plaintiff had never worked at this place before the day of the
accident, and had worked there only a few hours on said day before the ac-
cident occurred. The evidence tended to show that he had no knowledge of
such acts of tne employe's on the day previous, or of the condition of the
embankment resulting therefrom, and that the same were not obvious to him
upon ordinary observation, and he was not informed thereof by defendant.
Plaintiff was injured by the sliding of the top dirt of the embankment down
upon him and breaking his leg. Held, that the court did not err in submit-
ting to the jury the question whether plaintiff's injury resulted from the neg-
ligence of defendant. Ft. Smith & W. R. Co. v. Ketis, 110 P. 661, 26 Okl. 696.
In an injury action by a servant evidence of the master's neglect in failing
to provide a reasonably safe appliance for performance of the work required
of the servant held insufficient to go to the jury. Solts v. Southwestern Cot-
ton Oil Co., 115 P. 776, 28 Okl. 706.
as in action for damages for death of employe" from defendant's negligence,
held, that demurrer to plaintiff's evidence was properly overruled, and that
defendant's request for peremptory instructions was properly denied. Lusk
v. Phelps (Okl.) 175 P. 756.
In action for death of oil company's servant by gas asphyxiation held, on
(696)
Art. 3) ISSUES AND TRIAL THEREOF § 805
the evidence, that court could not say that master's culpability might not be
reasonably inferred by jury, where servant had received no special warning
as to particular dangers, wbeu circumstances made such information neces-
sary to enable him to comprehend dangers. Silurian Oil Co. v. Morrell (Okl.)
176 P. 964.
In action for the death of section foreman killed while removing his motor-
car from the track, evidence held sufficient to go to the jury on the question of
the primary negligence of the railroad company. Dickinson v.^Granbery (Okl.)
174 P. 776.
In action for death of a brakeman, held on the evidence, that the negli-
gence of defendant, an interstate carrier, in failing to equip freight cars with
automatic couplings as required by Federal Safety Appliance Act March 2,
1893 (U. S. Comp. St. §§ 8605-8612) was for the jury. Chicago, R. I. & P. Ry.
Co. v. Ray (Okl.) 168 P. 999.
, In, an action based on the Federal Employers' Liability Act (U. S. Cornp. St.
§§ 8657-8665) and violation of the Safety Appliance Act of March 2, 1893, as
amended by Acts approved April 1, 1896, and March 2, 1903 (U. S. Comp. St.
§§ 860&-8615) held that whether deceased was an independent contractor was
for the court. Chicago, R. I. & P. Ry. Co. v. Bond, 47 Okl. 161, 148 P. 103. Un-
der the evidence in an action based on jthe Federal Employers' Liability Act.
held, that whether deceased was killed while engaged in interstate commerce
was for the jury. Id.
In an action for the death of a miner killed by a lump of coal falling down a
shaft, the question of defendant's negligence held for the jury. Osage Coa>
& Mining Co. v. Miozrany, 143 P. 185, 43 Okl. 453. Whether defendant was
negligent in failing to furnish an appliance for the protection of a miner from
coal falling down a shaft, held for the jury. Id.
Where, in an action for the death of an employe" from a freight elevator
accident, there was evidence reasonably tending to prove that the accident
was due to negligent construction of the elevator track, and that defendant's
rule, prohibiting persons riding on the elevator except at their own risk, had
been abandoned, the question of the cause of the injury was for the jury.
Selden-Breck Const. Co. v. Linnett, 38 Okl. 704, 134 P. 956.
Where, in an action for the death of an employe from a freight elevator
accident there was evidence reasonably tending to prove that the accident
was due to negligent construction of the elevator track, and that defendant's
rule, prohibiting persons riding on the elevator except at their own risk, had
been abandoned, the question of defendant's negligence was for the jury.
Selden-Breck Const. Co. v. Linnett, 38 Okl. 704, 134 P. 956.
Where an employe" is killed, the jury may infer, from proof of the manner
of the occurrence and its surroundings, the cause of the accident, provided the
inference is a reasonable one. St. Louis & S. F. Ry. Co. v. Clampitt, 55 Okl.
686, 154 P. 40. Under the evidence, in an action for the death of a brake-
man killed by falling under a moving train, held that whether the accident
was caused by a defective platform was for the jury, though there was no di-
rect evidence that such defect caused Iris fall. Id.
Evidence, in action for wrongful death of mine driver in defendant's em-
ploy, held to make defendant's negligence a question for the jury. Folsom-
Morris Coal Mining Co. v. Dillon (Okl.) 162 P. 696.
39 The proximate cause of an injury is ordinarily a question for the jury.
St. Louis & S. F. R. Co. v. Davis, 132 P. 337, 37 Okl. 340.
Where, in an employe's action for injuries, defendant's negligence was ad-
(097)
§ 805 TRIAL (Ch. 13
Where the construction of a contract is a mixed question of law
and fact, it is for the jury.40 But the court should determine the
mitted, the question of plaintiff's contributory negligence was for the jury
under Const, art. 23, § 6. Revel v. Pruitt, 142 P. 1019, 42 Okl. 696.
What was the proximate cause of a servant's death is for the jury. Coal-
gate Co. v. Hurst, 107 P. 657, 25 Okl. 588, writ of error dismissed 32 S. Ct.
838, 225 U. S. 697, 56 L. Ed. 1262.
Whether failure of employer to comply with positive statute relating to
safety of employs was proximate cause of injury is question for jury Har-
riss-Irby Cotton Co. v. Duncan, 57 Okl. 761, 157 P. 746.
In action by railroad employ^, claimed to have resulted from defective
brake, evidence held sufficient to take to jury question whether defendant's
negligence was the proximate cause of the injury- Lusk v. White, 58 Okl.
773, 161 P. 541.
Evidence in an employe's action for injury held to warrant submission of
the question of defendant's negligence. Missouri, O. & G. Ry. Co. v. Miller, 45
Okl. 173, 145 P. 367. Under the evidence in an action for injuries from slipping
on a pile of coal and falling under a train, held, that the question of the proxi-
mate cause was for the jury. Id.
In suit for personal injuries, question whether defendant's negligence is
proximate cause of injury should be left to jury where evidence is conflicting,
or men of ordinary intelligence might differ as to its effect. Clinton & O. W.
Ry. Co. v. Dunlap, 56 Okl. 755, 156 P. 654.
The question of whether or not defendant's negligence was the proximate
cause of plaintiff's injury is for the jury, where the evidence is conflicting.
St. Louis & S. F. R. Co. v. Darnell, 141 P. 785, 42 Okl. 394.
What constitutes want of ordinary care on the part of a plaintiff, and
whether the same is the proximate cause of the injury, are questions for the
jury. St. Louis & S. F. R. Co. v. Elsing, 132 P. 483, 37 Okl. 333.
The question of what is the proximate cause of an injury, or what is the
immediate or proximate result of a given act, is ordinarily one of fact for
the jury. Atchison, T. & S. F. Ry. Co. v. St. Louis & S. F. Ry. Co., 41 Okl.
80, 135 P. 353, 48 L. R. A. (N. S.) 509.
In action for personal injury in crossing accident, evidence held sufficient
to carry case to jury upon question whether defendant's negligence was the
proximate cause of injury. Ft. Smith & W. Ry. Co. v. Hutchinson (Okl.) 175 P.
922. In action for personal injury, the submission of question, whether in-
jury resulted from plaintiffs act in jumping from wagon, was not error,
where there was evidence from which jury might have found that she at-
tempted to jump from wagon, though she did not jump clear but fell and had
to be helped to ground. Id.
In an action for injuries to a child, from the negligent operation of a train,
held, that the proximate cause of the injury was for the jury under the facts
shown. St. Louis & S. F. R. Co. v. Hodge, 53 Okl. 427, 157 P. 60.
In an action for injuries to persons on the track, evidence held to raise an
issue as to whether the negligence of plaintiff or of the railroad company was
the proximate cause of the injury sufficient to take it to the jury. Chicago,
R. I. & P. Ry. Co. v. Martin, 141 P. 276, 42 Okl. 353.
40 Kingfisher Mill & Elevator Co. v. Westbrook (Okl.) 192 P. 209.
(698)
Art. 3) ISSUES AND TRIAL THEREOF § 805
effect as a matter of law of undisputed facts,41 the construction of
a clear and unambiguous contract,42 not dependent on extrinsic
facts in dispute,43 whether action for breach of contract is barred
41 Where the facts are undisputed, it is for the court to determine as a
question of law whether such facts show such actual and continued change of
possession as will render a transfer of the personal property valid as
against creditors of the seller. Cochran Grocery Co. v. Harris, 116 P. 185, 28
Okl. 715.
Corap. Laws 1909, § 2933. providing that every transfer of personalty is
conclusively presumed, if made by a person having possession, not accompanied
by immediate delivery, and followed by actual change of possession, to be
void against creditors, does not apply to a mortgagee's sale, and does not ren-
der such sale void as a matter of law, though the purchaser leaves the prop-
erty in possession of the mortgagor. Taylor v. Wooden, 30 Okl. 6, 118 P. 372,
36 L. R. A. (N. S.) 1018.
42 Brown v. Coppadge, 54 Okl. 88, 153 P. 817; Waldrep v. Exchange State
Bank of Keifer (Okl.) 197 P. 509.
Whether a party to an unambiguous contract is an independent contractor
is a question of law to be determined by the court from an inspection of the
cdiitract in the light of surrounding circumstances. Pressley v. Incorporated
Town of Sallisaw, 54 Okl. 747, 154 P. 660.
When a letter is introduced to show a promise or agreement, it is generally
the court's duty to construe the terms of the letter, and not to submit it to
the jury. Comanche Mercantile Co. v. Wheeler & Motter Mercantile Co., 55
Okl. 328, 155 P. 583.
Where a contract consists of letters and telegrams containing no technical
words or terms of art and not dependent upon extrinsic facts for its meaning,
its construction is wholly for the court. J. Rosenbaum Grain Co. v. Higgins,
136 P. 1073, 40 Okl. 181; American Jobbing Ass'n v. James, 103 P. 670, 24 Okl.
460; Brown v. Davidson, 142 P. 387, 42 Okl. 598.
Whether work sued for comes within the contract relied upon for recovery,
and whether the value of the work is to be measured by the contract, are
questions of law. Oklahoma County v. Blakeney, 48 P. 101, 5 Okl. 70.
Where the contract consists of several written instruments, it is the duty
of the court to determine what the contract is. Bales v. Northwestern Consol.
Milling Co., 96 P. 599, 21 Okl. 421.
43 The determination of the meaning of a written contract is ordinarily a
question for the court, and not one of fact for the jury, but where the con-
struction depends upon extrinsic facts as to which there is a dispute, its con-
struction is a mixed question of law and fact, and is for the jury under
proper instructions from the court. Rider v. Morgan, 31 Okl. 98, 119 P., 958.
Where a contract of employment is in writing, the question of the relation
between the parties is ordinarily for the court, but if oral and the evidence
is conflicting, or where the written contract has been modified by the practice
under it, the question is for the jury. Chicago, R. I. & P. Ry. Co. v. Bennett,
128 P. 705, 36 Okl. 358. Where a contract of employment is oral, and there
is no dispute as to its terms, or only one inference can be drawn, the ques-
tion of the relation created is for the court. Id.
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§ 806 TRIAL (Ch. IS
by limitations,44 whether correspondence constitutes a contract,45
whether a contract is against public policy,46 and the validity of a
deed, where the pertinent facts are not in dispute.47
§ 806. Negligence in general
Negligence is always a question for the jury when reasonable
men may differ as to the facts or inferences to be drawn.48
It is only where the facts are such that' all reasonable men must
44 Froage v. Webb (Okl.) 165 P. 150.
45 Where a transaction consists entirely of letters and telegrams, the ques-
tion whether such correspondence constitutes a contract is for the court.
J. Rosenbaum Grain Co. v. Higgins, 136 P. 1073, 40 Okl. 181; American
Jobbing Ass'n v. James, 103 P. 670, 24 Okl. 460; Atwood v. Rose, 122 P.
929, 32 Okl. 355.'
46 Whether a contract is against public policy is for the court. Huber v.
Gulp, 46 Okl. 570, 149 P. 216. Evidence in an action on a contract, made by
defendant in an alienation suit, to reimburse the wife for the amount she
might lose by a settlement with her busbar '. held to show the contract with
sufficient definiteness to require submission of the case to the jury. Id.
47 Where cancellation of a deed is sought because not joined in by the
husband, execution and acknowledgment thereof by the wife being admitted,
its validity is for the court. Wesley v. Diamond, 44 Okl. 484, 144 P. 1041.
48 Chicago, R. I. & P. Ry. Co. v. Schands, 57 Okl. 688, 157 P. 349; Chicago,
R. I. & P. R. Co. v. Felder, 56 Okl. 220, 155 P. 529; Chicago, R. I. & P. Ry.
Co. v. Rogers, 60 Okl. 249, 159 P. 1132; Rock Island Coal Mining Co. v.
Davis, 44 Okl. 412, 144 P. 600; St. Louis & S. P. R. Co. v. Williams, 122
P. 152, 31 Okl. 450; Muskogee Vitrified Brick Co. v. Napier, 126 P. 792,
34 Okl. 618; Mean v. Callison, 116 P. 195, 28 Okl. 737; Neeley v. South-
western Cotton Seed Oil Co., 75 P. 537, 13 Okl. 356, 64 L. R. A. 145; Okla-
homa Gas & Electric Co. y. Lukert, 84 P. 1076, 16 Okl. 397; Choctaw, O. &
W. Ry. Co. v. Wilker, 84 P. 1086, 16 Okl. 384, 3 L. R. A. (N. S.) 595; Home
Oil & Gas Co. v. Dabney, 79 Kan. 820, 102 P. 488 ; St. Louis & S. F. R. Co.
v. Copeland, 102 P. 104, 23 Okl. 837; Patterson v. Missouri, K. & T. Ry. Co.,
104 P. 31, 24 Okl. 747.
St. Louis, I. M. & S. Ry. Co. v. Weldon, 39 Okl. 369, 135 P. 8.
In action for injuries to a child from the exhaust pipe of a stationary
engine extending out of a building, whether the premises constituted an at-
tractive nuisance and defendant was guilty of negligence in respect thereto,
held for the jury. Chicago, R. I. & P. Ry. Co. v. Wright, 62 Okl. 134, 161
P. 1070.
In an action for injuries from falling into an excavation on a lot adjoining
premises occupied by plaintiff, due to the giving way of a path which ran
near the edge of the excavation, the question whether defendants were neg-
ligent in failing to wall up such excavation held for the jury. Connally v.
Woods, 39 Okl. 186, 134 P. 869. Where an occupant of premises adjoining a
lot upon which an excavation has recently been made is injured from fall-
ing into the excavation while following a path near its edge, which path
gives way for want of lateral support, and it appears that she had been ac-
(700)
Art. 3) ISSUES AND TRIAL THEREOF § 806
draw the same conclusion from them, that the question of negli-
gence is ever considered as one of law for the court.49 However,
customed to use this path for several months, she is not guilty of contribu-
tory negligence, as a matter of law. Id.
Issues as to negligence and contributory negligence and the proximate
cause of an injury are for the jury, where the evidence is conflicting, and
where different minds might reasonably draw different conclusions. St.
Louis & S. F. R. Co. v. Copeland, 102 P. 104, 23 Okl. 837 ; Harris v. Missouri,
K. & T. Ry. Co., 103 P. 758, 24 Okl. 341, 24 L. R. A. (N. S.) 858.
Streets and parking places. — In action against a city for damages for fall-
ing into open catch-basin on public street, evidence held sufficient, as against
a 'demurrer to the evidence, to charge city with notice of open condition of
catch-basin. City of Ada v. Smith (Okl.) 175 P. 924.
In action against city for personal injury to servant of abutting owner
impliedly authorized to enter parking space to mow grass thereon, held, on
the evidence, that city's negligence in not keeping space in a condition rea-
sonably safe for use was for jury. City of Shawnee v. Drake (Okl.) 171 P.
727, L. R. A. 1918D, 810.
Railroad and crossing accidents. — In an action for injury, at a r'ailroad
crossing, held, on the evidence, that court did not err in submitting the ques-
tion of negligence to the jury. Ft. Smith & W. R. Co. v. Moore (Okl.) 169
P. 904.
Evidence held to present question for jury whether there was excessive
speed of train by which plaintiff crossing the track was injured. Chicago,
R. I. & P. Ry. Co. v. Barton, 59 Okl. 109, 159 P. 250.
Under the evidence in an action against a railroad company, for injuries
from failure to restore a highway to proper condition, held, that whether the
highway had been restored, as required by Comp. Laws 1909, §§ 1360, 7498,
was for the jury. St. Louis & S. F. R. Co. v. Bell, 58 Okl. 84, 159 P. 336,
L. R. A. 1917A, 543.
Evidence, in an action for damages from collision between a train and
plaintiff's wagon at a crossing, held sufficient to take the case to the jury
on the question of negligence and contributory negligence. St. Louis & S.
F. R. Co. v. Clark, 142 P. 396, 42 Okl. 638.
Under the evidence, in an action for injuries from being thrown from a
buggy on a dark night into an open unguarded sewer at an unlighted rail-
road crossing, held, that the question of the defendant railway company's
negligence was for the jury. • St. Louis, I. M. & S. Ry. Co. v. O'Connor, 142
P. 1111, 43 Okl. 268.
Whether defendant's violation of an ordinance requiring safety gates and
competent persons to operate same caused plaintiff's injury was for the jury.
St. Louis & S. F. R. Co. V. Hart, 45 Okl. 659, 146 P. 436.
In an action for injuries at a crossing, evidence held sufficient to take to
the jury the question of proximate cause. St. Louis & S. F. Ry. Co. v. Krai,
122 P. 177, 31 Okl. 624.
Where, in an action for death at a crossing, the evidence is conflicting as to
whether the engineer used ordinary care to prevent injuring the man, the
,48 St. Louis-San Francisco Ry. Co. v. Teel (Okl.) 198 P. 78; Prickett v.
Sulzberger & Sons Co., 57 Okl. 567, 157 P. 356.
(701)
§ 806 TRIAL (Ch. 13
negligence is so much a mixed question of law and fact that courts
are seldom justified in saying that all reasonable men will agree
question was for the jury. Atchison, T. & S. F. Ry. Co. v. Baker, 130 P.
577, 37 Okl. 48.
Where a, footpath across and along a railroad track has been habitually
used by the public for many years, it is a question of fact whether the rail-
road company has not acquiesced in such use. Wilhelm v. Missouri, O. &
G. Ry. Co., 52 Okl. 317, 152 P. 1088, L. R. A. 1916C, 1029.
In action for the death of a telegraph company's employ§ struck by de-
fendant's train, evidence as to whether engineer and fireman saw deceased
in a place of peril in time to have avoided the injury by the exercise of
ordinary care held to make a question for the jury. Lusk v. Haley, 75 Okl.
206, 181 P. 727.
"Whether certain place constitutes part of station grounds, or public high-
way, where railway company is by statute exempt from maintaining fence, is
a question of fact for the jury. Missouri, K. & T. Ry. Co. v. Bandy, 75 Okl,
57, 181 P. 313.
In an action against a railroad company for injuries to cattle, because of
unfenced station grounds, the question of the necessity of such grounds is
for the jury. Dickinson v. Stewart (Okl.) 174 P. 233. In an action against
a railroad company for injuries to cattle, because of unfenced station grounds,
where there is no evidence controverting the necessity of such grounds, the
court must instruct for defendant. Id.
Where in a stock-killing case, plaintiff's right of recovery depended on neg-
ligence, and there was no evidence of negligence or circumstances from
which negligence might reasonably be inferred, the court should have directed
a verdict for defendant. Ft. Smith & W. R. Co. v. Dixon, 51 Okl. 722, 152
P. 350.
Where uncontroverted evidence of engineer and fireman shows that they
did all they could have done on discovering cow on track to prevent injury,
verdict should be directed for railroad. Missouri, K. & T. Ry. Co. v. Raines,
59 Okl. 52, 158 P. 936.
Whether a railroad company is liable for injuries caused to stock in a
field, frightened by steam, is for the jury where reasonable men might differ
as to the conclusions to be drawn from the circumstances. Chicago, R. I.
& P. R. Co. v. Hine, 59 Okl. 143, 158 P. 597.
Question whether the place of accident was such as Rev. Laws 1910, §
1435 (Comp. Laws 1909, § 1389), required to be fenced or was a part of the
station grounds or she is unable to consent. People v. MacDonald, 140 P.
256, 167 Cal. 545.
Where, in an action for the killing of a hog struck by a train, the uncon-
tradicted evidence showed that the railroad company had used ordinary
care to prevent the injury, it was error to refuse a peremptory instruction for
defendant. St. Louis & S. F. R. Co. v. Higgs, 141 P. 10, 42 Okl. 171.
Where, in a stock-killing case, there is no evidence of negligence or circum-
stances from which negligence may be reasonably inferred, a verdict should
be directed for defendant. Missouri, K. & T. Ry. Co. v. Box, 48 Okl. 402,
150 P. 111.
Where the testimony of the engineer and fireman is positive that the
alarm was sounded, emergency brakes applied as soon as stock was discovered
(702)
Art. 3) ISSUES AND TRIAL THEREOF § 806
with them on question whether given facts constitute ordinary
care.50 Where standard and measure of duty is defined by law,
and is same under all circumstances, its omission is negligence, and
may be so declared- by court.51 Where the standard of duty to use
care is not fixed, and shifts with circumstances, it is not determin-
able as matter of law, and must be submitted to jury.62
The jury has no exclusive province, unless there is an issue as to
the existence of such an act of omission or commission as in law
would constitute negligence.58
It has been held a question for the jury whether a city had suffi-
cient notice of defects in its public ways.54
on the track, and everything possible done, and there is no testimony to
show negligence, the court should direct a verdict for defendant. St. Louis
& S. F. R. Co. v. Webb, 128 P. 252, 36 Okl. 235.
Where, in an action for killing plaintiff's horse, there was no evidence
from which negligence on defendant's part could be inferred, the court
should have directed verdict for defendant. St. Louis & S. F. R. Co. v. Mc-
Clelland, 128 P. 1081, 36 Okl. 573.
In an action by a widow for killing of her husband by defendant's train,
evidence held not to warrant submission of the last clear chance rule. Mis-
souri, O. & G. Ry. Co. v. Lee (Okl.) 175 P. 367.
Fires. — It was a question of fact whether the company was negligent in
permitting inflammable material to accumulate on the right of way. Missouri,
O. & G. Ry. Go. v. Gentry, 122 P. 537, 31 Okl. 579. Allowing combustible
material to accumulate on right of way is not negligence per se, and the
railway company is not negligent unless such accumulations w^ere such as
would not have been permitted by an ordinarily prudent man on his own
premises. Id.
Where it appeared that a fire was started on the right of way by a loco-
motive, held the province of the jury to determine whether the presumption of
negligence was overcome. St. Louis, I. M. & S. Ry. Co. v. Marlin, 128 P.
108, 33 Okl. 510.
so Prickett v. Sulzberger & Sons Co., 57 Okl. 567, 157 P. 356.
sild.
52 id; Littlejohn v. Midland Valley R. Co., 47 Okl. 204, 148 P. 120.
B3 Smith v. Acme Milling Co., 126 P. 190, 34 Okl. 439.
It is only when the facts are such that all reasonable men must draw the
same conclusions that the question of negligence, other than failure to per-
form a statutory duty, becomes a question of law for the court. Farrier v.
Colorado Springs Rapid Transit Ry. Co., 95 P. 294, 42 Colo. 331, 126 Am. St.
Rep. 158; Missouri, K. & T. Ry. Co. v. Shepherd, 95 P. 243, 20 Okl. 626;
Metropolitan Ry. Co. y. Fonville, 91 P. 902, 19 Okl. 283; Sans Bois Coal
^Bellevue Gas & Oil Co. v. Carr (Okl.) 161 P. 203; City of Lawton v.
Hills, 53 Okl. 243, 156 P. 297; Cleveland Trinidad Paving Co. v. Mitchell,
140 P. 416, 42 Okl. 49; City of Woodward v. Bowder, 46 Okl. 505, 149 P. 138.
(703)
§ 807 TRIAL (Ch. 13
§ 807. Contributory negligence — Assumption of risk
"The defense of contributory negligence or of assumption of risk
shall, in all cases whatsoever, be a question of fact, and shall, at
all times, be left to the jury." 5B
This provision is not merely declaratory of the common law, but
requires that these defenses be left to the jury in all cases.56 It
has been frequently applied in actions for injuries to employes,57
and other persons; 58 as has the general rule requiring submission
Co. v. Janeway, 99 P. 153, 22 Okl. 425 ; Independent Cotton Oil Co. v. Beach-
am, 31 Okl. 384, 120 P. 969.
Where from the evidence, though undisputed, reasonable men might draw
different conclusions as to negligence or contributory negligence, such ques-
tions are for the jury. Sans Bois Coal Co. v. Janeway, 99 P. 153, 22 Okl. 425.
55 Const. Okl. art. 23, § 6; Wichita Falls & N. W. Ry. Co. v. Groves (Okl.)
196 P. 677; Hailey-Ola Coal Co. v. Morgan, 39 Okl. 71, 134 P. 29; City of
Ada v. Smith (Okl.) 175 P. 924.
In view of this provision, the jury's finding is conclusive upon the court.
Dickinson v. Cole (Okl.) 177 P. 570.
56 Dickinson v. Cole (Okl.) 177 P. 570; Dickinson v. Whitaker, 75 Okl. 243,
182 P. 901; Lusk v. Phelps (Okl.) 175 P. 756; St. Louis & S. F. R. Co. v.
Long, 137 P. 1156, 41 Okl. 177, Ann. Cas. 1915C, 432; St. Louis & S. F. R.
Co. v. Hart, 45 Okl. 659, 146 P. 436; Oklahoma Ry. Co. v. Milam, 45 Okl.
742, 147 P. 314 ; Chicago, R. I. & P. Ry. Co. v. Hill, 129 P. 13, 36 Okl. 540, 43
L. R. A. (N. S.) 622; Thorp v. St. Louis & S. F. R. Co. (Okl.) 175 P. 240; St.
Louis & S. F. R. Co. v. Boush (Okl.) 174 P. 1036 .
The court should not instruct that certain circumstances or facts do or
do not constitute contributory negligence. Wichita Falls & N. W. Ry. Co.
v. Woodman, 64 Okl. 326, 168 P. 209.
67 Oklahoma Coal Co. v. Corrigan (Okl.) 168 P. 1024 ; Chicago, R. I. &
P. Ry. Co. v. Warren, 63 Okl. 190, 163 P. 705; St. Louis & S. F. R. Co. v.
Long, 137 P. 1156, 41 Okl. 177, Ann. Cas. 1915C, 432 ; .Osage Coal & Mining
Co. v. Sperra, 142 P. 1040, 42 Okl. 726 ; Sulsberger & Sons Co. v. Castleberry,
139 P. 837, 40 Okl. 613; Frisco Lumber Co. v. Thomas, 142 P. 310, 42 Okl.
670; Dewey Portland Cement Co. v. Blunt, 38 Okl. 182, 132 P. 659; Chicago,
R. I. & P. R. Co. v. Duran, 38 Okl. 719, 134, P. 876; Petroleum Iron Works
Co. v. Wantland, 114 P. 717, 28 Okl. 481 ; Chicago, R. I. & P. R. Co. v. Felder,
56 Okl. 220, 155 P. 529; Dickinson v. Whitaker, 75 Okl. 243, 182 P. 901 ; Mid-
land Valley R. Co. v. Cox (Okl.) 170 P. 485; Sandals v. Mizpah Mining Co.
(Okl.) 168 P. 808.
<>8 In action for injuries from falling into excavation in a street, held,
that a refusal to instruct on contributory negligence of which there was evi-
dence was error, under Const, art. 23, § 6. City of Poteau v. Delaney, 48
Okl. 361, 150 P. 208.
Whether the negligence of the chauffeur was to be imputed to deceased,
who was riding with him on invitation of the owner of the car, held a ques-
tion of law for the court and not one of contributory negligence for the jury,
(704)
Art. 3) ISSUES AND TRIAL THEREOF § 807
to the jury of all controverted questions of fact, including contribu-
tory negligence and assumption of risk.59 In a few instances it
under Const, art. 23, § 6. St. Louis & S. F. K. Co. v. Bell, 58 Okl. 84, 159
P. 336, L. R. A. 1917A, 543.
Under Const, art. 23, § 6 (Williams Ann. Const. § 355), providing that the
defense of contributory negligence shall always be left to the jury, it is
error to take the case from the jury, where there is any competent testimony
which, when considered in the light most favorable to plaintiff, reasonably
tends to show a primary negligence. Anthony v. Bliss, 39 Okl. 237, 134
P. 1122.
Where, in an action for personal injuries at a crossing, the evidence was
conflicting as to whether plaintiff looked and listened before crossing the
track, the question of contributory negligence was for the jury under Wil-
liams' Ann. Const, art. 23, § 6. Midland Valley R. Co. v. Shores, 136 P. 157,
40 Okl. 75, 49 L. R. A. (N. S.) 814.
As contributory negligence is, under Const, art. 23, § 6, a question of fact,
court, in motorman's action for injury from collision with defendant's en-
gine, properly left that question to jury under proper instructions. St. Louis
& S. F. Ry. Co. v. McFall, 63 Okl. 124, 163 P. £69.
59 Personal injuries, — A person who receives an injury on account of a de-
fective sidewalk is not necessarily precluded from recovering damages there-
for merely because of his previous knowledge of the defect, but such knowl-
edge is an element for the jury to consider in determining the question of
ordinary care. City of Ottawa v. Black, 61 P. 985, 10 Kan. App. 439; Pit-
man v. City of El Reno, 37 P. 851, 2 Okl. 414, judgment reversed Pittman v.
Same, 46 P. 495, 4 Okl. 638.
It is not contributory negligence per se to use a sidewalk with knowledge
of its defective condition. City of Highlands v.' Raine, 47 P. 283, 23 Colo.
295 ; City of Guthrie v. Finch, 75 P. 288, 13 Okl. 496.
The question as to whether or not the whole width of a street of a city
must be kept in a safe condition for travel is a question of fact for the jury.
City of Guthrie v. Swan, 41 P. .84, 3 Okl. 116. Where, in an action for a
fall received in passing over a partially graded street at night, on which
there were no barriers, the evidence was conflicting as to the condition of
the street, and as to whether it was lighted, and plaintiff claimed not to know
the condition of the street, the question of contributory negligence is for the
jury. Id.
Where a traveler on horseback, passing along a street, saw a light, which
he presumed to be a danger signal, some 40 feet from him, and, failing to
slacken speed to investigate, fell into an excavation which extended beyond
the signal, the question of his contributory negligence was for the jury. City
of Oklahoma City v. Welsh, 41 P. 598, 3 Okl. 288.
Whether one injured while walking on a sidewalk at night, with knowledge
that it is defective, and looking for the defect at the time, is guilty of con-
tributory negligence, is a question for the jury. Pitman v. City of El Reno,
37 P. 851, 2 Okl. 414, judgment reversed Pittman v. City of El Reno, 46 P.
495, 4 Okl. 638.
Where, in an action against a city for injuries resulting from a defective
sidewalk, defendant demurred to the evidence, which showed contributory
negligence, it was the duty of the court under Code 1890 to say whether or
HON.PL.& PBAC.-^S (705)
§ 807 TRIAL (Ch. 13
t
has been applied in actions for damages to property.80 It does
not apply, however, where there is no evidence of negligence by the
defendant.61
not plaintiff was guilty of contributory negligence as a matter of law. Pitt-
man v. City of El Reno. 46 P. 495, 4 Okl. 638.
The plaintiff tripped in the darkness over a piece of wire stretched across
the sidewalk, in connection with a building in process of construction. The
usual city electric light near that point was not burning, and there was no
danger signal. The plaintiff's testimony was that she was passing quietly
and carefully along ; that she passed the point several times a day, but had
not seen the sidewalk in that condition before, nor knew that the sidewalk
had been taken up; and that, as well as she could see, there was plenty of
room to walk. Held, that the question of her negligence was for the jury.
City of Guthrie v. Thistle, 49 P. 1003, 5 Okl. 517.
The sufficiency of a highway is usually a mere question of fact to be de-
termined by the jury under the evidence concerning its actual condition.
City of Guthrie v. Swan, 51 P. 562, 5 Okl. 779. Plaintiff was injured while
passing by a point of danger upon one of defendant's streets. She was not
acquainted with the danger. The night was particularly dark. She was
walking slowly and carefully. There were no lights — either danger signals
or the usual electric light — near the point. No barriers to protect travelers
from the place of danger were erected. When she discovered an obstruction,
60 In an action against a railroad company for failure to ship certain seed,
the question of contributory negligence in exposing the seed to rains, and
permitting it to remain so exposed for a period during which rains would
likely fall upon it, whereby it would heat and spoil, thereby contributing to
the injury, is for the jury. Chicago, R. I. & P. R. Co. v. Beatty, 116 P. 171,
27 Okl. 844.
Where, in an action for damages to an automobile at a crossing, there
was evidence tending to prove that defendant's negligence proximately caused
the injury, it was not error, under Const, art. 23, § 6 (Williams' Ann. Const. §
355), to overrule defendant's demurrer to the evidence and motion to instruct
a verdict, regardless of any evidence of plaintiff's contributory negligence.
St. Louis & S. F. R. Co. v. Model Laundry, 141 P. 970, 42 Okl. 501. Evidence
in an action for damages to an automobile at a crossing held sufficient to take
to the jury the question whether defendant was guilty of negligence proxi-
mately causing the injury. Id. Under the evidence in an action for damages
to an avitomobile at a crossing, held not error to submit to the jury the ques-
tion whether plaintiff might recover, regardless of his contributory negligence
by reason of defendants having been guilty of willful and wanton negligence
proximately causing the injury. In an action for damages to an automobile
at a crossing, a mere inference of discovery of peril in time for defendant
to have avoided the collision by ordinary care, predicated alone on certain
circumstances and contradicted by the engineer's positive testimony, held
too improbable to warrant submitting to the jury the question of discovered
peril.
ei Barnsdall Oil Co. v. Ohler, 48 Okl. 651, 150 P. 98; Phoenix Printing Co.
v. Durham, 122 P. 708, 32 Okl. 575, 38 L. R. A. (N. S.) 1191; Chicago, R. I.
& P. Ry. Co. v. Barton, 59 Okl. 109, 159 P. 250.
(706)
Art. 3) ISSUES AND TRIAL THEREOF § 807
On the issue of an employe's assumption of risk in an action un-
der the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-
8665), where the evidence is such that all reasonable men must
she stepped down from the sidewalk, and out into the road, where she thought
it was smooth. She thought it was only down about a foot, but it proved
to be two or three feet, and, in doing so, she was injured. Held, that the
question of contributory negligence was for the jury. Id.
The sufficiency of notice to fasten liability upon a city 'for a defective side-
walk is a question of fact to be determined by the jury under all the cir-
cumstances surrounding the particular case. Town of Norman v. Teel, 69
P. 791, 12 Okl. 69. Whether a person injured by a defective sidewalk was
in the exercise of ordinary care at the time of the injury is a question of
fact for the jury. Id.
Negligence is generally for jury, and when competent evidence thereof has
been admitted, it is only where standard of duty may be determined as mat-
ter of law, or where on undisputed facts reasonable men could not draw dif-
ferent conclusions, that courts may take question from jury. City of Cush-
ing v. Stanley (Okl.) 172 P. 628.
The determination as to what constitutes ordinary care, reasonable pru-
dence, and the like is for the jury, unless the facts are such that all rea-
sonable men must draw the same conclusion. Dickinson v. Granbery (Okl.)
174 P. 776.
Negligence is ordinarily a question of fact for the jury, and where the
standard of duty is not fixed, but shifts with the circumstances of the case,
and where the evidence is su.TScient, whether duty has been complied with
is for the jury. Ponca City Ice Co. v. Robertson (Okl.) 169 P. 1111.
Where issue of contributory negligence is raised by pleadings, and there is
any evidence to support defense, question is for jury. Enid Mill & Elevator
Co. v. Kester, 59 Okl. 13, 157 P. 355.
The fact that plaintiff complained to defendant of the defect in a tank
placed by defendant in plaintiffs kitchen held not to establish contributory
negligence as matter of law precluding recovery for injuries received by the
falling of the tank. Moore v. Johnson, 136 P. 422, 39 Okl. 587.
Whether the plaintiff in a personal injury case has exercised ordinary care
to avoid injury is for the jury. Cleveland Trinidad Paving Co. v. Mitchell,
140 P. 416, 42 Okl. 49.
In an action for injuries, the questions of negligence and contributory neg-
ligence are primarily for the jury, and only become questions of law when
there is no dispute in the evidence and but one inference can be reasonably
drawn therefrom. Kimic v. San Jose-Los Gatos Interurban Ry. Co., 104 P.
986, 156 Cal. 379 ; Rudd v. Byrnes, 105 P. 957, 156 Cal. 636, 26 L. R. A. (N. S.)
134, 20 Ann. Cas. 124; St. Louis & S. F. R. Co. v. Loftis, 106 P. 824, 25
Okl. 496.
Where the evidence is conflicting, or where the facts are undisputed, and
different minds might reasonably draw different conclusions from them, the
question of negligence is for the jury, and hence it was not negligence per
se for a person approaching a railroad crossing, who had once looked and
listened at a distance of about 50 feet from the track, and seeing no train
approaching within the distance of 500 or 600 feet, for which distance the
(707)
§ 807 TRIAL (Ch. 13
reach the same conclusion, the question is one of law; but, where
the facts are controverted, or where different inferences may be
drawn therefrom, the question is for the jury.62
view was unobstructed, to attempt to cross without again looking and listen-
ing. Clark v. St. Louis & S. F. R. Co., 108 P. 361, 24 Okl. 764.
Failure of a person, driving a wagon which was struck by a street car at a
street intersection, to look and listen held not contributory negligence per
se. Chickasha St. Ry. Co. v. Marshall, 141 P. 1172, 43 Okl. 192. Under con-
flicting evidence, in an action for injuries from collision between a street
car and a wagon, held, that the questions of defendant's negligence and plain-
tiff's contributory negligence were for the jury. Id.
Injuries to employes. — Where it is contended that injured servant was
guilty of negligence, that question is for jury under proper instructions.
Sulzberger & Sons Co. of Oklahoma v. Strickland, 60 Okl. 158, 159 P. 833;
Chicago, R. I. & P. Ry. Co. v. Lillard, 62 Okl. 63, 161 P. 779; Dickinson v.
Granbery (Okl.) 174 P. 776; Oklahoma Coal Co. v. Corrigan (Okl.) 168 P.
1024; San Bois Coal Co. v. Resetz, 143 P. 46, 43 Okl. 384; Missouri, O. &
G. Ry. Co. v. Miller, 45 Okl. 173, 145 P. 367 ; Choctaw Cotton Oil Co. v. Pope,
47 Okl. 333, 148 P. 170; Enid City Ry. Co. v. Webber, 121 P. 235, 32 Okl. 180,
Ann. Cas. 1914A, 569 ; Chicago, R. I. & P. Ry. Co. v. Hill, 129 P. 13, 36 Okl.
540, 43 L. R. A. (N. S.) 622; Chicago, R. I. & P. Ry. Co. v. Wright, 39 Okl. 84,
134 P. 427.
It is not negligence per se for foreman of section crew to risk his life in
attempting to protect the crew and passengers of an approaching train from
danger. Dickinson v. Granbery (Okl.) 174 P. 776. t
Assumption of risk held for the jury. St. Louis & S. F. R. Co. v. Brown,
45 Okl. 143, 144 P. 1075 ; Choctaw Cotton Oil Co. v. Pope, 47 Okl. 383, 148 P.
170; Chicago, R. I. & P. Ry. Co. v. Lillard, 62 Okl. 63, 161 P. 779; Chicago,
R. I. & P. Ry. Co. v. Rogers, 60 Okl. 249, 159 P. 1132; Sandals v. Mizpah
Mining Co. (Okl.) 168 P. 808.
In action for the death of a railroad employ^ killed by the overturning of
a locomotive, evidence held to justify the submission of assumption of risk
to the jury. Kansas City, M. & O. Ry. Co. v. Roe (Okl.) 180 P. 371.
In determining assumption of risk, whether an employ^ was inexperienced
or ignorant of the dangers incident to his employment, whether he was act-
ing under his master's orders, and whether the danger was so apparent that
he should have refused to obey the orders, are questions for the jury. Enid
Electric & Gas Co. v. Decker, 128 P. 708, 36 Okl. 367.
The question whether a servant saw and appreciated the danger caused
by his master's negligence held for the jury. Missouri, K. & T. Ry. Co. v.
Hudson (Okl.) 175 P. ,743, 9 A, L. R. 223.
An employs not engaged in making a reasonably safe place dangerous, or
an obviously dangerous place safe, was not, as a matter of law, when in-
jured by its condition injured by a risk incident to his employment. Chicago,
R. I. & P. Ry. Co. v. Townes, 143 P. 680, 43 Okl. 568.
62 Kansas City, M. & O. Ry. Co. v. Roe (Okl.) 180 P. 371.
In an action under the federal Employers' Liability Act (U. S. Comp. St.
§§ 8657-8665), where all the evidence, including that of plaintiff, showed a
(708)
Art. 3) ISSUES AND TRIAL. THEREOF §§ 807-808
Whether an injured party has exercised ordinary care to prevent
or-lessen his damage is a question of fact.63
§ 808. Agency
Under conflicting evidence on the question of agency, such ques-
tion is for the jury,84 as is also the extent of the agent's authority.65
clear case of assumption of risk, it is improper to deny motion for directed
verdict. Chicago, R. I. & P. Ry. Co. v. Jackson, 61 Okl. 146, 160 P. 736.
In an action for injuries to an employs of an interstate carrier, where the
evidence was undisputed, and the injury did not result from a violation of
the safety act, the employees assumption of risk is a question of law. St.
Louis & S. F. R. Co. v. Snowden, 48 Okl. 115, 149 P. 1083.
In action under federal Employers' Liability Act, where evidence is un-
disputed and injury is not caused by any violation of state statutory pro-
visions for protection of employes, assumption of risk is a question of law;
Const, art. 23, § 6, not applying. Chicago, R. I. & P. Ry. Co. v. Hessenflow
(Okl.) 170 P. 1161.
Under Const, art. 23, § 6, whether the risk is an ordinary risk of employ-
ment under federal Employers' Liability Act, or is an ordinary risk known
to servant or with knowledge of which he is chargeable is for the jury.
Chicago, R. I. & P. Ry. Co. v. Ward (Okl.) 173 P. 212, certiorari granted 39
S. Ct. 10, 248 U. S. 555, 63 L. Ed. - — .
Under federal Employers' Liability Act, the questions whether an employe"
becomes aware of employer's negligence and risks arising therefrom, or wheth-
er the danger is so obvious that one of ordinary prudence under circumstances
would have realized it, are for the jury. Wichita Falls & N. W. Ry. Co. v.
Davern (Okl.) 177 P. 909.
ss Blake v. Atlas Supply Co., 51 Okl. 426, 152 P. 81.
64 Iowa Dairy Separator Co. v. Sanders, 140 P. 406, 40 Okl. 656; Central
Mortgage Co. v. Michigan State Life Ins. Co., 143 P. 175, 43 Okl. 33 ; Brow-
nell v. Moorehead (Okl.) 165 P. 408; Massachusetts Bonding & Ins. Co. v.
Vance (Okl.) 180 P. 693 ; Leasure v. Hughes (Okl.) 178 P. 696.
The apparent authority of an agent is for the jury under all the facts and
circumstances shown. St. Louis Cordage Mills v. Western Supply Co., 54 Okl.
757, 154 P. 646 ; Reeves & Co. v. Phillips, 53 Okl. 375, 156 P. 1179.
Question of agency is to be determined by jury upon all facts and circum-
stances connected with transaction, under proper instructions as to the law.
Emerson-Brantingham Implement Co. v. Ritter (Okl.) 170 P. 482.
Where, in a guardian's action on a note, purchasers thereof from a third
person to whom the note had been entrusted for sale intervened, claiming to
own the note, and the evidence was conflicting, held, that whether such third
person was agent of plaintiff or of the interveners was for the jury. Case v.
Posey, 55 Okl. 163, 154 P. 1165.
es Massachusetts Bonding & Ins. Co. v. Vance (Okl.) 180 P. 693; Central
Mortgage Co. v. Michigan State Life Ins. Co., 143 P. 175, 43 Okl. 33.
Question of extent of agent's authority is to be determined by jury upon
all facts and circumstances connected with transaction, under proper instruc-
tions as to the law. Emerson-Brantingham Implement Co. v. Ritter (Okl.) 170
P. 482.
(709)
§§ 808-809 TRIAL (Ch. 13
That one purports to act as agent for another, stating at the
time that he is the agent, is not sufficient evidence on which to
submit the question of agency.66
§ 809. Will contest
Under conflicting evidence in a will contest,67 the due execu-
tion of the will,68 testamentary capacity,69 and undue influence 7y
are questions for the jury; but the interpretation of a will is a
se R. p. Smith Sons & Co. v. Raines Dry Goods Co., 130 P. 133, 37 Okl. 39.
67 in determining whether the evidence of contestants in a will contest is
sufficient to require submission tA the jury, the same rule applies as in ordi-
nary civil cases, so that all the evidence in favor of contestants must be taken
as true, and all contradictory evidence disregarded, and, if there is any sub-
stantial evidence tending to prove contestants' case, it must be submitted to
the jury. In re Arnold's Estate, 82 P. 252, 147 Cal. 583.
Where on the first appeal the evidence was held insufficient to warrant de-
uyiiig probate, and the contestant on the second trial introduced no further
evidence, direction of verdict for the proponent was proper. In re Stone's Es-
tate, 174 Cal. 778, 164 P. 643.
68 In re Cullberg's Estate, 169 Cal. 365, 146 P. 888.
ealn re Dole's Estate, 81 P. 534, 147 Cal. 188.
A finding of testamentary incapacity will not be disturbed, where it Is rea-
sonably supported by evidence. Bilby v. Stewart, 55 Okl. 767, 153 P. 1173.
The evidence presented by will contestants should be viewed most favorably
to them, and all contradictory testimony disregarded before directing a non-
suit. In re Ross' Estate, 159 P. 603, 173 Cal. 178. Testator's testamentary ca-
pacity held a jury question where he died 9 days after making the will, was
86 years old, had suffered two paralytic strokes, and was unable to remember
or carry on a connected conversation. Id.
TO in re Daly's Estate, 114 P. 787, 15 Cal. App. 329; In re Welch's Will, 91
P. 336, 6 Cal. App. 44.
The court has no authority to grant a nonsuit except in the cases specified
in Code Civ. Proc. § 581, which does not include the withdrawal from the jury
of an issue of undue influence, in a will contest, for alleged lack of sufficient
evidence to support it. In re Higgins' Estate, 104 P. 6, 156 Cal. 257; In re
Caspar's Estate, 155 P. 631, 172 Cal. 147; In re Flint's Estate, 179 Cal. 552,
177 P. 451.
Where there is no evidence which would justify a finding that undue influ-
ence was exercised in procuring the execution of a will such issue should not
be submitted to the jury, since the presumption of undue influence is not raised
by proof of interest and opportunity alone. In re Nelson's Estate, 64 P. 294,
132 Cal. 182.
That the jury in a will contest did not find against proponents on the is-
sue whether the will was procured by fraud did not preclude it from con-
sidering evidence of fraud as bearing on the issue of undue influence. In re
Snowball's Estate, 107 P. 598, 157 Cal. 301.
(710)
Art. 3) ISSUES AND TRIAL THEREOF §§ 809-811
matter of law, to be determined from the language used and the
facts and circumstances in proof.71
Where an application for the probate of a will is contested and
tried before a jury ultimate facts only for the jury's finding, as to
whether decedent was competent to make a will, and whether his
mind was free from fraud, should be submitted, and not mere evi-
dentiary facts, from which the court is required to reach a conclu-
sion as a matter of law.72
§ 810. Malicious prosecution
In an action for malicious prosecution, what constitutes probable
cause is a question of law for the court; 73 but whether certain facts
necessary to constitute probable cause exist is for the jury.74
§ 811. Libel and slander
Whether a publication is libelous or privileged is for the court,
where the language used is clear and the facts relative thereto are
uncontroverted.75
, Whether a fact which gives a publication a privileged character
claimed for it is established by evidence is for the jury, and where
evidence is conflicting court may instruct as to facts constituting a
conditionally privileged communication, and leave jury to find
whether those facts are proven.76
71 In re Seay's Estate, 180 Cal. 304, 181 P. 58.
72 In re Benton's Estate, 63 P. 775, 131 Cal. 472.
78 Ball v. Rawles, 28 P. 937, 93 Cal. 222, 27 Am. St. Kep. 174; Lacey v. Por-
ter, 37 P. 635, 103 Cal. 597; Bell v. Keepers, 14 P. 542, 37 Kan. 64; Hopkins v.
Stites (Okl.) 173 P. 449 ; Goad v. Brown (Okl.) 175 P. 767 ; Robberson v. Gib-
son, 62 Okl. 306, 162 P. 1120; Dunnington v. Loeser, 48 Okl. 636, 149 P. 1161,
rehearing denied 48 Okl. 636, 150 P. 874 ; Eastin v. Stockton Bank, 4 P. 1106,
66 Cal. 123, 56 Am. Rep. 77; Fulton v. Onesti, 6 P. 491, 66 Cal. 575; Smith v.
Liverpool & London & Globe Ins. Co., 40 P. 540, 107 Cal. 432; Seabridge v.
McAdam, 41 P. 409, 108 Cal. 345 ; Parli v. Reed, 2 P. 635, 30 Kan. 534 ; Mi-
chael v. Matson, 105 P. 537, 81 Kan. 360, L. R, A. 1915D, 1.
T* Drumm v. Cessnurn, 58 Kan. 331, 49 P. 78; Atchison, T. & S. F. R. Co.
v. Smith, 55 P. 272, 60 Kan. 4; Hess v. Oregon German Baking Co., 49 P. 803,
31 Or. 503.
" Spencer v. Minnick, 139 P. 130, 41 Okl. 613.
Whether the published article is libelous per se is a question of law for the
court. McKenney v. Carpenter, 141 P. 779, 42 Okl. 410.
Where a publication is conditionally privileged, it is a matter of law for the
court to determine whether there is any evidence of malice, and, if there is
none, to direct the verdict for defendant. Tuohy v. Halsell, 128 P. 126, 35
Okl. 61, ^3 L. R. A. (N. S.) 323, Ann. Cas. 1916B, 1110.
76 Bland v. Lawyer-Cuff Co. (Okl.) 178 P. 885.
Where there is no dispute as to what the publication was, when or about
(711)
§§811-812 TRIAL (Ch. 13
Where the defamatory words are not actionable per se, the court
must construe the words, and the jury must determine the intent.77
It is the duty of the court to determine whether the language used
in the publication can fairly or reasonably be construed to have the
meaning imputed to it in the petition;78 but where the evidence
wholly fails to connect any of the defendants by positive testimony
with acts charged, demurrer to evidence should have been sus-
tained.79
§ 812. Weight of evidence and credibility of witnesses
The weight and sufficiency of evidence 80 and the credibility of
witnesses, where the evidence is conflicting, are for the jury,81
what it was made, and the language is unambiguous, the question Whether
the publication was privileged was for the court. Cobb v. Oklahoma Pub. Co.,
140 P. 1079, 42 Okl. 314. Under conflicting evidence in an action for libel for
publishing a report of proceedings, held not error to submit to the jury wheth-
er the report was fair or made with malicious intent, and whether plaintiff
was falsely charged with crime. Id.
Where there is no dispute as to the circumstances under which a publica-
tion was made, the question whether the occasion was privileged is for the
court, but, if the facts giving the publication a privileged character are es-
tablished by evidence, the question is for the jury under an instruction as to
what facts constitute privilege. Hubbard v. Cowling, 129 P. 714, 36 Okl. 603.
Where the language of an alleged libel is clear and unambiguous, and the
facts are uucontroverted with reference to whether or not it was libelous, or
its publication privileged, such questions are for the court and not the jury.
Bodine v. Times-Journal Pub. Co., 110 P. 1096, 26 Okl. 135, 31 L. R. A. (N. S.j
147.
In an action for libel under Rev. Laws 1910, § 4959, evidence held to require
submission of case to jury. Dawkins v. Billingsley (Okl.) 172 P. 69, 12 A. L.
R. 144.
77 Phoenix Printing Co. v. Robertson, 80 Okl. 191, 195 P. 487.
78 Kee v. Armstrong, Byrd & Co., 75 Okl. 84; 182 P. 494, 5 A. L. R. 1349.
79 Hall v. Taylor, 59 Okl. 207, 158 P. 373.
so Missouri, K. & T. R. Co. v. L. A. Watkins Merchandise Co., 92 P. 1102, 76
Kan. 813 ; Strickler v. Gitchel, 78 P. 94, 14 Okl. 523 ; Silverwood v. Carpenter,
51 Okl. 745, 152 P. 381.
If it is necessary for the court to weigh the evidence and the facts are such
that reasonable minds might disagree, it is a question for the jury. Farmers'
Nat. Bank of Tecumseh v. McCall, 106 P. 866, 25 Okl. 600, 26 L. R. A. (N. S.)
£17.
si Silverwood v. Carpenter, 51 Okl. 745, 152 P. 381; Folley v. Chicago, R. I.
& P. Ry. Co., 84 P. 1090, 16 Oki. 32; Quapaw Mining Co. v. Cogburn, 78 Okl.
227, ICO P. 416.
Where the only testimony is that of an interested party and is inconsistent,
the court should not direct a verdict. Moore v. First Nat. Bank of Iowa City,
(712)
Art. 3) ISSUES AND TRIAL THEREOF §§ 812~813
regardless of the fact that the larger number of witnesses testified
for one side.82
Where different persons might reasonably draw different in-
ferences from undisputed facts, the proper inference is a question
of fact for the jury.83
It is the province of a jury to decide upon what facts have been
proven, but not to decide upon what an admitted fact tends to
prove.84
§ 813. Uncontroverted evidence
The rule that matters shown by uncontroverted evidence need
not be submitted to the jury 85 is not absolute ; for, when undisput-
121 P. 626, 30 Okl. 623. The credibility of witnesses and effect to be given to
inconsistent testimony held questions of fact. Id.
It is the duty of the court to submit a question of fact to the jury, where
the evidence in regard thereto is conflicting. Robinson v. Lamoureaux, SO P.
595, 71 Kan. 850 ; Sun Ins. Office of London v. Western Woolen Mill Co., 82 P.
513, 72 Kan. 41 ; Taylor v. Insurance Co. of North America, 105 P. 354, 25 OkL
92, 138 Am. St. Rep. 906.
Where issues of fact are presented by the pleadings and supported by con-
flicting evidence the case is for the jury. Adams v. Coon, 129 P. 851, 36 Okl
644, 44 L. R. A. (N. S.) 624.
Where plaintiff's evidence reasonably tends to sustain the issues, and de-
fendant's evidence conflicts therewith, the question is for the jury. Gann v,
Ball, 110 P. 1067, 26 Okl. 26 ; Midland Savings & Loan Co. v. Sutton, 30 OkL
448, 120 P. 1007.
Questions raised between allegations in original petition and testimony de-
nying or explaining allegations is one of fact for the jury. Letcher v. Ma-
loney (Okl.) 172 P. 972.
82 Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606.
ss Kemp v. Chicago, R. I. & P. Ry. Co., 138 P. 621, 91 Kan. 477.
An inference reasonably, though not necessarily, deducible from the evi-
dence, will not be withdrawn from the jury. Miller v. Marriott, 48 Okl. 179,
149 P. 1164.
In suit for conversion by mortgagee whose mortgage, prior in date, was
not witnessed or acknowledged, though filed, against a junior mortgagee who
properly recorded his mortgage and sold property and applied proceeds on
his debt, and who had seen senior mortgage on file, but deemed it void, wheth-
er he was not put upon inquiry which would have shown prior mortgage was
for jury, and directed verdict for him was error. Blevins v. W. A. Graham
Co. (Okl.) 182 P. 247.
In an action against a carrier for negligently billing a shipment for a wrong
destination, the issue whether the agent of the company was negligent, or
whether the shipper was negligent in failing to examine the bill of lading, was
for the jury. Ft. Smith & W. Ry. Co. v. Harrison, 39 Okl. 1, 133 P. 222.
s* Atchison, T. & S. F. R. Co. v. Lamoreux, 49 P. 152, 5 Kan. App. 813.
ss Facts established by uncontroverted evidence need not be submitted to
the jury for finding. Byers v. Ingraham, 51 Okl. 440, 151 P. 1061.
(713)
§§ 813-815 TRIAL (Ch. 13
ed facts are capable of more than one reasonable inference, the
question is for the jury.86 ,
Even though testimony is undisputed it should be so convincing
that all reasonable men must draw same conclusion from facts
proven before the court can sustain a demurrer to the evidence or
direct verdict.87
§ 814. Motions and demurrer
Where at the close of all the evidence the defendant demurs to
the plaintiff's evidence, the demurrer will be treated as a motion to
direct a verdict in the defendant's favor.88
A motion for a nonsuit is in effect but a demurrer to the evi-
dence.89
A motion to withdraw a case from the jury and render judgment
for the plaintiff upon all the evidence presents to the court the
same question as a motion to direct the verdict in favor of the
moving party, and this should be dorie where the party on whom
rests the burden of proof has wholly failed to present any evidence
to support his case, and there are no disputed facts for the jury
to pass upon.90
A motion to direct a verdict in favor of the defendant is substan-
tially equivalent to a demurrer to the plaintiff's evidence.91
§ 815. Demurrer to evidence
When the party on whom rests the burden of proof has closed
his evidence, the adverse party may interpose a demurrer thereto
upon the ground that no cause of action or defense is proved.92
A demurrer in the language of the statute is sufficient.93
so Waldrep v. Exchange State Bank (Okl.) 197 P. 509.
87 City of Durant v. Allen (Okl.) 168 P. 205.
A demurrer to the evidence will not be sustained, nor will a verdict be di-
rected, unless the evidence, though undisputed, is so convincing that all rea-
sonable men must draw the same conclusion from it. Rogers 'v. O. K. Bus &
Baggage Co., 46 Okl. 289, 148 P. 837, Ann. Cas. 1917B, 581.
Where defendant offered no evidence in rebuttal, but denied plaintiff's case,
sschickasha Inv. Co. v. Phillips, 58 Okl. 760, 161 P. 223; Nail v. State
(Okl.' Cr.) 192 P. 592.
s» Lyon v. Lyon, 39 Okl. Ill, 134 P. 650.
00 Frick v. Reynolds, 52 P. 391, 6 Okl. 638.
01 Sullivan v. Phenix Ins. Co. of Brooklyn, 8 P. 112, 34 Kan. 170.
»2 Rev. Laws 1910, § 5002, subd. 3.
»s Hargrove v. Bourne, 47 Okl. 484, 150 P. 121.
(714)
Aft. 3) ISSUES AND TRIAL THEREOF § 815
A demurrer to the evidence will not reach a misjoinder 8* or de-
fect of parties.95
Where an answer contains several defenses, and at the conclu-
sion of defendants' evidence plaintiff interposes a demurrer to the
evidence, and the court sustains it as to one defense and overrules
it as to the other, it does not withdraw from the jury the evidence
applicable to the remaining defenses.96
It is not error to sustain a demurrer to the evidence on behalf
of a part of the defendants, where there is no evidence tending to
prove a cause of action against them.97
That defendant elicits from plaintiff's witness at the end of the
cross-examination testimony in support of the defense does not
preclude him from challenging the sufficiency of plaintiff's testi-
mony by demurrer, or the court from deciding whether plaintiff's
evidence was sufficient to establish a cause of action.98
It is not error for the trial court to overrule a demurrer to the
evidence where such demurrer does not tender all of the evidence
in the case.99
In a personal injury action, if the facts proved are sufficient to sus-
tain a verdict upon a demurrer filed to the evidence by the defend-
ant, it is the duty of the court to call a jury to assess the damages, or
assess the damages itself.1
On a demurrer to plaintiff's evidence in a personal injury action,
it is competent to consider the entire conduct of the trial by de-
fendant, its pleading, cross-examination of witnesses, and admis-
sions; and if these, coupled with the deductions which may be
drawn from the evidence, establish a responsibility, the demurrer
must be -overruled.2
and plaintiff's evidence was such that men of ordinary intelligence might
draw different conclusions direction of verdict for plaintiff was error. Re-
serve Loan Life Ins. Co. v. Isom (Okl.) 173 P. 841.
94 Groenmiller v. Kaub, 73 P. 100, 67 Kan. 844.
as Larimore v. Miller, 96 P. 852, 78 Kan. 459.
96 Troutman v. Behoteguy, 76 P. 446, 69 Kan. 176.
»7 Barnes v. Davis, 30 Okl. 511, 120 P. 275.
»8 Arnold v. C. Hoffman & Son Milling Co., 143 P. 413, 93 Kan. 54.
99 City of Oklahoma City v. Welsh, 41 P. 598, 3 Okl. 288.
i Pitman v. City of El Reno, 37 P. 851, 2 Okl. 414, judgment reversed Pitt-
man v. Same, 46 P. 495, 4 Okl. 638.
a Shawnee Light & Power Co. v. Sears, 95 P. 449, 21 Okl. 13.
(715)
§§ 815-816 TRIAL (Ch. 13
Where one is sued on a note and on the trial fails to prove any de-
fense, a demurrer to his evidence should be sustained and judgment
rendered for plaintiff.8
§ 816. Effect as admission
A demurrer to the evidence admits all facts which the evidence
tends to establish and all reasonable inferences therefrom,4 in-
cluding legal presumptions and admissions, either in the pleadings
or otherwise,5 and withdraws unfavorable evidence adduced by the
demurrant.6
3 Willoughby v. Ball, 90 P. 1017, 18 Okl. 535.
* D'Yarmett v. Cobe, 51 Okl. 113, 151 P. 589; McKone v. McConkey, 77 Old.
3, 185 P. 520; Wm. Cameron & Co. v. Henderson, 140 P. 404, 40 Okl. 648;
Crow v. Crow, 139 P. 122, 40 Okl. 455; Midland Valley R. Co. v. Larson, 138
P. 173, 41 Okl. 360 ; Sartain v. Walker, 60 Okl. 258, 159 P. 1096; Ft. Smith & W.
R. Co. v. Knott, 60 Okl. 175, 159 P. 847 ; Midland Valley R. Co. v. Ogden, 60 Okl.
74, 159 P. 256; Rose v. Woldert Grocery Co., 54 Okl. 566, 154 P. 531; Marshall
Mfg. Co. v. Dickerson, 55 Okl. 188, 155 P. 224; Helm v. Mickleson (Okl.) 170
P. 704; Felt v. Westlake (Okl.) 174 P. 1041; St. Louis & S. F. R, Co. v. Snow-
den, 48 Okl. 115, 149 P. 1083; Miller v. Marriott, 48 Okl. 179, 149 P. 1164;
J. I. Case Threshing Mach. Co. v. Rennie (Okl.) 177 P. 548 ; Anthony v. Bliss,
39 Okl. 237, 134 P. 1122; Ziska v. Ziska, 95 P. 254, 20 Okl. 634, 23 L. R. A. (N.
S.) 1 ; Shawnee Light & Power Co. v. Sears, 95 P. 449, 21 Okl. 13; Anderson v.
Kelly, 57 Okl. 109, 156 P. 1167; Wolf v. Washer, 4 P. 1036, 32 Kan. 533;
Christie v. Barnes, 6 P. 599, 33 Kan. 317 ; Beutel v. Standou, 7 Kan. App. 813.
53 P. 836; Jaffray v. Wolf, 1 Okl. 312, 33 P. 945; Myers v. First Presbyterian
Church of Perry, 69 P. 874, 11 Okl. 544 ; Edmisson v. Drumm-Flato Commis-
sion Co., 73 P. 958, 13 Okl. 440; (1905) Conklin v. Yates, 83 P. 910, 16 Okl. 266;
Mentze v. Rice, 172 P. 516, 102 Kan. 855 ; Smith v. Rockett, 79 Okl. 244, 192
P. 691 ; Kline v. Kollman, 79 Okl. 179, 192 P. 208 ; Boatman v. Coverdale, 80
Okl. 9, 193 P. 874 ; Singer v. Citizens' Bank of Headrick, 79 Okl. 267, 193 P. 41.
A demurrer by defendant to the evidence admits the truth of all the evi-
dence offered on the part of plaintiff, together with such inferences and con-
clusions as may reasonably be drawn therefrom. Flesher v. Callahan, 122 P.
489, 32 Okl. 283.
It is only where the evidence and all the inferences therefrom are insuffi-
cient to support a verdict for plaintiff that demurrer thereto can properly be
sustained. Petroleum Iron Works Co. v. Bullington, 61 Okl. 311, 161 P. 538.
The test on demurrer to evidence is that all the facts which the evidence
tends to prove and reasonable inferences therefrom, are admitted, and court
cannot weigh conflicting evidence, but must treat as withdrawn that which is
most favorable to demurrant. Rawlings v. Ufer, 61 Okl. 299, 161 P. 183.
B Bean v. Rumrill (Okl.) 172 P. 452.
e Lyon v. Lyon, 39 Okl. Ill, 134 P. 650.
Under the provisions of St. 1890 relative to procedure, where defendant de-
murs to the evidence, only such evidence as tends to make out plaintiff's case
Art. 3) ISSUES AND TRIAL THEREOF § 817
§ 817. What rulings proper
A demurrer to the evidence should be sustained where all the
evidence and inferences deducible therefrom would not support a '
judgment for the adverse party.7
can beiconsidered, and defendant's evidence must be regarded as withdrawn.
Jaffray v. Wolf, 4 Okl. 303, 47 P. 496.
On a demurrer to evidence only evidence favorable to the demurree is con-
sidered. Smith v. Rockett, 79 Okl. 244, 192 P. 691 ; Missouri Can Co. v. Ross,
83 P. 616, 72 Kan. 669.
7 Hargrove v. Bourne, 47 Okl. 484, 150 P« 121; Grossman Co. v. White, 52
Okl. 117, 152 P. 816; Duncan v. Keechi Oil & Gas Co., 75 Okl. 98, 181 P. 709;
Vinita Electric Light, Ice & Power Co. v. Carpenter, 46 Okl. 561, 149 P. 126 ;
Remarkis v. Reid, 64 Okl. 104, 166 P. 728; Burton v. Doyle (Okl.) 165 P. 169;
Bell v. Lynde-Bowman Darby Co., 38 Okl. 172, 132 P. 477 ; Eoff v. Lair (Okl.)
156 P. 185; Farmers' State Bank of Jefferson v. Jordon, 61 Okl. 15, 160 P. 53;
New York Plate Glass Ins. Co. v. Wright, 61 Okl. 47, 160 P. 54; Kiff v. At-
chison, T. & S. F. R. Co., 4 P. 401, 32 Kan. 263; Gollober v. Lindner, 53 P.
774, 7 Kan. App. 812; Archer v. United States, 60 P. 268, 9 Okl. 569; Schump
Land Co. v. Probst, 139 P. 1024, 92 Kan. 103 ; Shawnee Fire Ins. Co. v. Thomp-
son & Rowell, 30 Okl. 466, 119 P. 985.
In an action to foreclose a mortgage after the death of the makers, where
the guardian ad litem of the defendant minor heirs of the makers files a gen-
eral denial, and the only evidence is that of the execution of the note and
mortgage, it is error to overrule a demurrer to the evidence. Sims v. Hedges,
123 P. 155, 32 Okl. 683.
Where a petition, in a widow's action for death of her husband, alleged that
no administrator had been appointed and plaintiff offered no proof thereof,
it was error to overrule defendant's demurrer to the evidence. Frederick Cot-
ton Oil & Mfg. Co. v. Clay, 50 Okl. 123, 150 P. 451.
In action for breach of oral contract to put down well and to furnish cas-
ings, etc., where petition showed cause of action was barred, and did not al-
lege written acknowledgment of liability within limitations, held, that over-
ruling of demurrer to evidence was error. Froage v. Webb (Okl.) 165 P. 150.
In action by Indian for possession of certain realty claimed under and
through plaintiff's security deed and to cancel instruments in writing alleged
to cloud plaintiff's title held, in view of Rev. Laws 1910, §§ 1156, 1158, relat-
ing to security deeds and notice that the sustaining of a demurrer to plaintiff's
evidence was error. Armstrong v. Phillips, 76 Okl. 192, 181 P. 715.
Where plaintiff sued for negligent injuries, alleging two causes of action,
one of which was for willful and wanton negligence, and the evidence failed
to show willfulness or wantonness, a demurrer to the evidence as to that cause
of action was improperly overruled. Whitman v. Atchison, T. & S. F. Ry. Co.,
116 P. 234, 85 Kan. 150, 34 L. R. A. (N. S.) 1029, Ann. Cas. 1912D, 722.
None of the testimony given for plaintiffs, in an action to hold defendant
liable for work done by them, being substantially inconsistent with their other
testimony that they were subcontractors of one who, to their knowledge, was
an independent contractor for doing the work for defendant, a demurrer to
(717)
§ 817 TRIAL (Ch. 13
When a party upon whom rests the burden of the issues, upon
a trial introduces evidence which, uncontroverted, establishes a
cause of action in his favor, and then proceeds to introduce evidence
which prima facie defeats his cause of action, and then rests his
the evidence was properly sustained. Carter v. Prairie Oil & Gas Co-, 104 P.
563, 80 Kan. 792.
In action against drawee bank, buyer, and its agent to recover price of cer-
tain hogs, evidence held insufficient to entitle plaintiff to recover against the
bank and the buyer, so that its demurrer to the evidence was properly sus-
tained. Schenbeck v. First Nat. Bank (Okl.) 169 P. 619, L. R. A. 1918B, 1066.
Where the question to be determined was whether a sale of wheat was ac-
companied by immediate delivery and change of possession, and there was no
evidence from which it could be fairly inferred that any open positive change
ever took place, and there was no such evidence of delivery as the circum-
stances of the case would reasonably allow, the court, on demurrer to the evi-
dence, was bound to hold it as a matter of law that the attempted sale was
fraudulent as to the creditors of the vendor. Walters v. Ratliff, 61 P. 1070,
10 Okl. 262.
In suit to set aside for insufficient delivery, a deed delivered to third person
for delivery to grantees at death of grantor, where at grantor's death deed
was turned over to grantees and administratrix of grantor, who placed it of
record, demurrer to evidence was properly sustained. Shaffer v. Smith, 53
Okl. 352, 156 P. 1188.
Where a petition in an action for the recovery of money alleged that de-
fendant appropriated it to his own use, and the evidence does not reasonably
tend to show such appropriation, it is not error to sustain a demurrer there-
to. Norman v. Groves, 97 P. 561, 22 Okl. 98.
In stockholder's action to enjoin other stockholders, and for a receivership
and a winding up of the corporation, demurrer to plaintiff's evidence held
properly sustained. Bell v. Northrop-Bell Oil & Gas Co. (Okl.) 171 P. 1115.
In an action for damages by a wife against her husband's parents for alien-
ating her husband's affections, evidence that defendants gave their sou a
home, but refused the same to plaintiff; that they had both told her, in her
husband's presence, that she was filthy and dirty, and unfit to raise a family;
and that plaintiff's father-in-law told a third person, who had given to plain-
tiff a temporary home, that he had been trying to separate his son and plain-
tiff for some time, and had succeeded, and that now he intended to keep them
apart, is insufficient, as against a demurrer to the evidence. Sheriff v. Sheriff,
56 P. 960, 8 Okl. 124.
Where a petition states a cause of action, although plaintiff is mistaken as
to amount of recovery to which he is entitled, and his evidence reasonably
tends to support allegations of petition, a demurrer to the evidence should
not be sustained. Deming Inv. Co. v. Britton (Okl.) 179 P. 468.
In action for specific performance of agreement between plaintiff's mother
and defendant that defendant and her husband would take plaintiff into their
home and raise her as their own child, and that on their death she would in-
herit as their child as if they died intestate, demurrer to plaintiff's evidence
held properly sustained. Pantel v. Bower, 104 Kan. 18, 178 P. 241.
(718)
Art. 3) ISSUES AND TRIAL THEREOF § 817
case, and the opposite party demurs to the evidence, it is error for
the court to overrule the demurrer and to render judgment in
favor of the party who produced the evidence.8
On a demurrer to the evidence, that of the party against whom
demurrer is sought should be given full credence and considered
in the most favorable light.9
The court may disregard incompetent testimony admitted over
proper objections.10 Conflicting evidence cannot be weighed.11
Therefore a demurrer to the evidence, or a motion to direct a ver-
dict, should not be sustained where there is any substantial con-
flict in the evidence.12
The credibility of a witness cannot be considered,13 nor should
the court determine which one of several fair inferences may be
drawn from the proven facts.14 The sufficiency of the evidence, in
law, is the only question.15
Where evidence is conflicting it is error to sustain a demurrer to
the evidence, however strongly the preponderance may be against
« Kibby v. Gibson, 83 P. 968, 72 Kan. 373.
9 Maryland Casualty Co. v. Cherryvale Gas, Light & Power Co., 162 P. 313,
99 Kan. 563, L. R. A. 1917C, 487; Starkweather v. Dunlap, 103 Kan. 425, 173
P. 1122 ; Bushey v. Coffman, 173 P. 341, 103 Kan. 209; Matassarin v. Wichita
R. & Light Co., 163 P. 796, 100 Kan. 119 ; Feighley v. C. Hoffman & Son Mill-
ing Co., 165 P. 276, 100 Kan. 430.
Where the petition states a cause of action and the proof fairly sustains
same, a demurrer to the evidence should be overruled. T. H. Rogers Lumber
Co. v. M. W. Judcl Lumber Co., 52 Okl. 387, 153 P. 150.
10 Fuss v. Cocannouer (Okl.) 172 P. 1077; Nance v. Oklahoma Fire Ins. Co.,
31 Okl. 208, 120 P. 948, 38 L. R. A. (N. S.) 426; Felt v. Westlake (Okl.) 174
P. 1041.
On a demurrer to evidence the trial court may disregard incompetent evi-
dence. Thorp Oil & Specialty Co. v. Home Oil Refining Co., 79 Okl. 225, 192
P. 573 ; Gillett v. Burlington Ins. Co., 36 P. 52, 53 Kan. 108.
11 Moss v. Hunt, 40 Okl. 20, 135 P. 282 ; Edmisson v. Drumm-Flato Commis-
sion Co., 73 P. 958, 13 Okl. 440; Mottin v. Board of Com'rs of Leaven worth
County, 133 P. 165, 89 Kan. 742 ; Kerr v. Kerr, 116 P. 880, 85 Kan. 460 ; Buoy
v. Clyde Milling & Elevator Co., 75 P. 466, 68 Kan. 436; Coon v. Atchison, T.
& S. F. Ry. Co., 89 P. 682, 75 Kan. 282; Jones v. Adair, 91 P. 78, 76 Kan. 343;
Hennis v. Bowers, 100 P. 71, 79 Kan. 463 ; St. Louis & S. F. Ry. Co. v. Toom-
ey, 49 P. 819, 6 Kan. App. 410; Fuller v Torson, 56 P. 512, 8 Kan. App. 652:
Hyland v. Atchison, T. & S. F. Ry. Co., 151 P. 1107, 96 Kan. 432.
12 Collier v. Gannon, 137 P. 1179, 40 Okl. 275.
is Terry v. Kansas Gravel Co., 143 P. 485, 93 Kan. 125.
i* Kerr v. Kerr, 116 P. 880, 85 Kan. 460.
is Wolf v. Washer, 4 P. 1036, 32 Kau. 533; Coy v. Missouri Pac. Ry. Co., 76
P. 844, 69 Kan. 321.
(719)
§ 817 TRIAL (Ch. 13
the party on whom rests the burden of the issues in the opinion of
the court.16
The demurrer should be overruled, where any question of fact is
presented.17
Where the declaration states a cause of action in tort, and fails to
state any facts sounding in contract, and the evidence fails to prove
the tort, but tends to prove a right of action on contract, the court
should sustain a demurrer to the evidence.18
On the other hand, judgment on the evidence should not be ren-
dered where a jury is a matter of- right, and there is evidence au-
thorizing submission of the case to the jury.19
A demurrer to plaintiff's evidence should not be sustained where
such evidence does not clearly disprove or fail to establish his
is Wingfield v. McClintock, 113 P. 394, 85 Kan. 207, judgment affirmed on
rehearing 116 P. 488, 85 Kan. 452.
On a demurrer to evidence, the question of preponderance of evidence has
no bearing. The evidence must have failed utterly to prove the facts at issue.
Brown v. Atchison, T. & S. F. Ry. Co., 1 P. 605, 31 Kan. 1.
The court must be able to say as a matter of law that the party introducing
the evidence has not proved his case. 'Conklin v. Yates, 83 P. 910, 16 Okl. 266.
It is error to sustain a demurrer to the evidence because of contradictious
between plaintiff's testimony in chief and on cross-examination, if there is
any evidence whatever to support plaintiff's claim. Acker v. Norman, 84 P.
531, 72 Kan. 586.
It is error to sustain a demurrer to plaintiff's evidence because it is con-
flicting and certain portions of plaintiff's own testimony conflict with other
portions thereof. Smith v. Schriver, 138 P. 584, 91 Kan. 582.
17 Thurston v. Fritz, 138 P. 625, 91 Kan. 468, 50 L. R. A. (N. S.) 1167, Ann.
Gas. 1915D, 212.
A demurrer to evidence of a partner that he did not authorize his copartner
to sign the note sued on is properly overruled, where such evidence has any
probative value and tends to show nonliability of demurrant. Exchange State
Bank v. Jacobs, 156 P. 771, 97 Kan. 798.
18 Ellis v. Flaherty, 70 P. 586, 65 Kan. 621.
i» O'Neal v. Bainbridge, 146 P. 1165, 94 Kan. 518, Ann. Gas. 1917B, 293;
Wichita Falls & N. W. Ry. Co. v. Puckett, 53 Okl. 463, 157 P. 112 ; Zehr v.
Champlin, 60 Okl. 242, 159 P. 1185; St. Louis & S. F. R. Co. v. Akard, 60 Okl.
4, 159 P. 344 ; Thorne v. Milliken, 57 Okl. 735, 157 P. 914 ; Rentie v. McCoy,
128 P. 244, 35 Okl. 77; A very v. Howell, 153 P. 532, 96 Kan. 657; Lyon v.
Lyon, 39 Okl. Ill, 134 P. 650.
Where all the evidence and the reasonable inferences therefrom in defend-
ant's favor taken as true, will warrant a verdict in his favor, it is error to
sustain plaintiff's demurrer to such evidence. Moppin v. Norton, 137 P. 1182,
40 Okl. 284, Ann. Cas. 1915D, 1042.
(720)
Art. 3) ISSUES AND TRIAL THEREOF § 817
right of recovery.20 It should be overruled, unless there has been
a total failure upon the part of plaintiff to prove a case, or some
material fact in issue.21
20 Walsh v. Kansas Fuel Co., 137 P. 941, 91 Kan. 310, 50 L. R. A. (X. S.)
686; McCall Bros. v. Farley & Skinner, 39 Okl. 389, 135 P. 339; Mentze v.
Rice, 172 P. 516, 102 Kan. 855; Holmes v. Culver, 133 P. 164, 89 Kan. 698;
Chase v. Atchison, T. & S. F. Ry. Co., 79 P. 153, 70 Kan. 546 ; Davis v. Atchi-
son, T. & S. F. Ry. Co., 104 Kan. 604, 180 P. 195; Home v. Hegwer Salt &
Lumber Co., 35 P. 200, 52 Kan. 617; Jackson v. Uncle Sam Oil Co. of Kansas,
156 P. 756, 97 Kan. 674; Brownson v. Perry, 81 P. 197, 71 Kan. 578; Mulvane
v. Sedgley, 61 P. 971, 10 Kan. App. 574, judgment affirmed 64 P. 1038, 63
Kan. 105, 55 L. R. A. 552; Hughes v. Delautre, 108 P. 803, 82 Kan. 548; Lew-
is v. Harvey, 101 Kan. 673, 168 P. 856; Bushey v. Coffman, 173 P. 341, 103
Kan. 209.
A demurrer to the plaintiff's evidence will not be sustained, where there are
inferences favorable to the plaintiff. Singer v. Citizens' Bank of Headrick, 79
Okl. 267, 193 P. 41.
In an action for conspiracy to defraud plaintiff of his stock in a bank and
oust him from his position as president, held that a demurrer to plaintiff's
evidence was properly overruled. Felt v. Westlake (Qkl.) 174 P. 1041.
In an action for an assault, where plaintiff and one other witness testified
that the assault was committed, a demurrer to evidence on the ground that
no cause of action was proved was properly overruled. Willet v. Johnson,
76 P. 174, 13 Okl. 563.
Where, in an action for damages to a shipment of sheep from delay in fur-
nishing a car, the evidence reasonably tended to show that plaintiff had sus-
21 Brown v. Atchison, T. & S. F. Ry. Co., 1 P. 605, 31 Kan. 1; Gardner v.
King, 15 P. 920, 37 Kan. 671 ; Wilson v. Beck, 24 P. 957, 44 Kan. 497.
A demurrer to evidence reasonably sustaining a petition stating a cause of
action should be overruled. Missouri, O. & G. Ry. Co. v. Smith, 55 Okl. 12,
155 P. 233; Alexander Drug Oo. v. O'Dell, 52 Okl. 662, 153 P. 114; Hess v.
Sturdavent, 59 Okl. 239, 158 P. 905; Sartain v. Walker, 60 Okl. 258, 159 P.
1096 ; Lisle v. Anderson, 61 Okl. 68, 159 P. 278, L. R, A. 1917A, 128 ; Anoatub-
by v. Pennington, 46 Okl. 221, 148 P. 828; First State Bank of Addington v.
Latimer, 48 Okl. 104, 149 P. 1099; Wm. Cameron & Co. v. Henderson, 140 P.
404, 40 Okl. 648; King v. City of Parsons, 149 P. 699, 95 Kan. 654; Horine v.
Hammond, 146 P. 1144, 94 Kan. 579 ; Anderson v. Heasley, 148 P. 738, 95 Kan.
572 ; Moore v. Moore, 150 P. 230, 93 Kan. 697, 96 Kan. 95 ; Kansas City, Ft.
S. & G. R. Co. v. Foster, 18 P. 285, 39 Kan. 329; Cargill Commission Co. v.
Mowery, 161 P. 634, 99 Kan. 389, judgment modified on rehearing, 162 P. 313,
99 Kan. 389; State v. Gerhards, 16£ P. 1149, 99 Kan. 462; Litsch v. Kansas
Gas & Electric Co., 148 P. 632, 95 Kan. 496 ; Brown v. Cruse, 90 Kan. 306, 133
P. 865.
Where there is a variance in the reply from the cause of action stated in
the petition, and the burden of proof is on the defendant, and evidence is of-
fered which would sustain a partial defense to the cause of action as modi-
fied by the reply, a demurrer should not be sustained to the evidence. Marion
Mfg. Co. v. Bowers, 80 P. 565, 71 Kan. 260.
HON.PL.& PBAC.— 46 (721)
§§ 817-818 TRIAL (Ch. 13
A demurrer to the evidence should be overruled, where the evi-
dence, with the inferences deducible therefrom, is sufficient to sup-
port a verdict for the party offering same.22
§ 818. Cure of error
Any error in overruling demurrer at close of plaintiff's case is
cured, where testimony introduced by defendant supplies any de-
ficiencies in testimony of plaintiff.23
tained the damages claimed, and that defendant unlawfully caused same, a
demurrer to the evidence was properly overruled. Midland Valley R. Co. v.
Larson, 138 P. 173, 41 Okl. 360.
In an action by a principal against his agent to recover in part certain
commission alleged to have been erroneously paid, where on answer and coun-
terclaim for the balance the original action is dismissed, and the case is tried
'on the counterclaim, and the evidence of plaintiff shows that defendant, while
his agent in the purchase of lands, unknown to him, received a commission
from the agents of the vendor, is a sufficient defense to the action on the
counterclaim, and a demurrer to such evidence was wrongfully sustained.
Plotner v. Chillson & Chillson, 95 P. 775, 21 Okl. 224, 129 Am. St. Rep. 776.
In an action for damages for the wrongful cutting of timber on plaintiff's
land, held, that court properly overruled demurrer to plaintiff's evidence.
Kilgore v. Rowland (Okl.) 172 P. 43.
In action upon notes for balance due after crediting proceeds of chattel
mortgage, held, that demurrer to plaintiff's evidence was improperly sustain-
ed, in view of admissions made by demurrer. J. I. Case Threshing Mach. Co.
v. Rennie (Okl.) 177 P. 548.
In suit by surviving husband to quiet title, the sustaining of a demurrer to
his evidence was error, where he testified that the realty was purchased after
his marriage to defendants' mother, and with proceeds of sale of property
owned by him before marriage, excepted from antenuptial contract. Watson
v. Stone (Okl.) 171 P. 336.
In chattel mortgagee's action for conversion of mortgaged property then
in mortgagor's possession, evidence on theory of a suit to impress a trust on
proceeds of sale did not support the cause of action, and the overruling of a
demurrer thereto was error. First Nat. Bank v. City Nat. Bank of Welling-
ton, Tex. (Okl.) 175 P. 253.
22 Reynolds v. Brooks, 49 Okl. 188, 152 P. 411.
Unless the evidence and all the justifiable inferences are insufficient to sup-
port a verdict for plaintiff, it is not error to overrule a demurrer thereto.
Baker-Hanna-Blake Co. v. Paynter-McVicker Grocery Co. (Okl.) 174 P. 265.
In replevin for possession of more than one item of property, if the evidence
supports plaintiff's right to recover any one item, a general demurrer to the
evidence is properly overruled. Hamilton v. Brown, 31 Okl. 213, 120 P. 950.
23 Beard v. Davis, 57 Okl. 17, 156 P. 631; Rutledge v. Jarvis, 60 Okl. 66, 158
P. 586 ; Gulf, C. & S. F. Ry. Co. v. Beasley (Okl.) 168 P. 200.
Where demurrer to plaintiff's evidence was overruled, and defendant there-
after offered eivdence on same points and cause was submitted without ex-
(722)
Art. 3) ISSUES AND TRIAL THEREOF § 819
§ 819. Trial by court
A demurrer to the evidence may be entertained on a trial by the
court without a jury.24
While the statute does not expressly authorize a demurrer to evi-
dence in cases tried to the court without a jury, that practice is
followed by the courts.25
In such case the court's ruling must be tested by the same rules
as obtain in jury cases, unless he sustains the demurrer and it
affirmatively appears that he afterwards weighed all the evidence
as upon final submission.26
In a suit in equity tried to the court, where there is any evidence
reasonably tending to establish plaintiff's petition, it is error to
sustain a demurrer to the evidence.27
ception to sufficiency of evidence and it sustained the judgment, it will not
be disturbed. Glaze v. Metcalf Thresher Co. (Okl.) 168 P. 219.
Where trial court overruled demurrer to plaintiff's evidence, and thereafter
both parties introduced further and additional evidence sufficient to make out
a case for plaintiff, a judgment in his favor will not be disturbed, though orig-
inal evidence was insufficient. Tankersley v. Castanien, 63 Okl. 18, 162 P.
191. 1
24 Chicago Lumber Co. v. Merrimack River Sav. Bank, 34 P. 1045, 52 Kan.
410.
23 Bailey v. Privett, 64 Okl. 56, 166 P. 150.
Where trial is had to the court, it is not error to weigh plaintiff's evidence
at the close thereof and pronounce judgment for defendant. Tiger v. Ward,
60 Okl. 36, 158 P. 941.
Court trying action without a jury must eventually weigh testimony to de-
termine where preponderance is, and may do so at earliest possible time when
plaintiff's rights will not be thereby cut off or impaired, and. when plaintiff
has put in all his proof his rights will not be impaired if court then deter-
mines what has been proven. Lowrance v. Henry, 75 Okl. 250, 182 P. 489.
26 Rev. Laws 1910, § 5002, relative to demurrers to evidence, does not ex-
pressly authorize such demurrer in cases tried to the court, and the judge in
such case may decline to pass upon a demurrer. A demurrer to the evidence,
in an action for divorce, withdraws, and requires the court to ignore, a prop-
osition of reconciliation made by deniurrant during the trial. Lyon v. Lyon,
39 Okl. Ill, 134 P. 650.
In considering a demurrer to evidence in an action tried to the court, it
must consider as true all portions of the evidence tending to prove the alle-
gations of the petition. Wehe v. Mood, 75 P. 476, 68 Kan. 373.
In deciding a demurrer to plaintiffs' evidence, in a court case, the court
cannot weigh conflicting evidence or treat the case as submitted by defendant
on plaintiffs' showing, but must consider as true all the evidence tending to
prove the petition. Farnsworth v. Clarke, 62 P. 655, 62 Kan. 264; Kerr v.
Kerr, 101 P. 647, 80 Kan. 83.
27 Fish v. Sims, 141 P. 980, 42 Okl. 535.
(723)
§§ 820-822 TRIAL (Ch. 13
§ 820. Ruling and judgment sustaining demurrer
On sustaining a demurrer to the evidence the court should speci-
fy the defect in the proof if an essential fact has been omitted and
its view of the law if the controlling question be one of law.28 Such
judgment as the pleadings and proof demand should be rendered
without submitting any issue to the jury, since the effect of the
demurrer is to refer to the court the application of the law to the ad-
mitted facts.29
Where the court sustains a demurrer to the evidence, it may
properly withdraw the case from the jury and render such judgment
for demurrant as the pleadings and proof may demand.80
§ 821. Form
DEMURRER TO EVIDENCE (ORAL)
And now comes the defendant and demurs to the evidence in-
troduced on behalf of the plaintiff, for the reason that the matters
and facts shown in evidence by said plaintiff are not sufficient in
law to maintain the issue on the part of the plaintiff, and are in-
sufficient to support a cause of action in favor of plaintiff and
against the defendant, and that the defendant is not bound by law
to answer the same.
§ 822. Direction of verdict
It is error for the trial court, of its own motion, to direct a ver-
dict for the plaintiff before the defendant has rested his case.31
A case must be clear and certain to sustain a direction of the
verdict.32 It is the duty of the court in directing a verdict to lay out
of consideration incompetent evidence received over objection.33
The question presented on a motion to direct a verdict is whether,
admitting the truth of all the evidence in favor of the party
against whom the motion is directed, and the reasonable inferences
as Holmes v. Culver, 133 P. 164, 89 Kan. 698.
2» Courtney v. Gibson, 52 Okl. 769, 153 P. 677.
so Terry v. Haynes, 60 Okl. 34, 158 P. 1195.
si Williamson v. Hollo way (Okl.) 172 P. 44.
32 Damerson v. McClaren, 116 P. 792, 29 Okl. 340.
s s Hathaway v. Hoffman, 53 Okl. 72, 153 P. 184; Great Western Coal &
Coke Co. v. McMahan, 143 P. 23, 43 Okl. 429; Clinton Nat. Bank v. McKennon,
110 P. 649, 26 Okl. 835; Offutt v. Wagoner, 30 Okl. 458, 120 P. 1018.
(724)
Art. 3) ISSUES AND TRIAL THEREOF § 822
and conclusions, there is enough competent evidence to sustain ver-
dict.34
Where the evidence is conflicting, all facts and inferences in con-
flict with the evidence against which the action is to be taken must
s* Gwinnup v. Walton Trust Co. (Okl.) 172 P. 936; Bowles v. Biffles, 50 Okl.
587, 151 P. 193; Supreme Tribe of Ben Hur v. Owens, 50 Okl. 629, 151 I'. I'.ts.
L. R. A. 1916A, 979 ; Shields v. Smith, 50 Okl. 548, 151 P. 207 ; Wichita Falls
& N. W. Ry. Co. v. D. Cawley Co. (Okl.) 172 P. 70 ; Chickasha Inv. Co. v. Phil-
lips, 58 Okl. 760. 161 P. 223; Homeland Realty Co. v. Robison, 136 P. 585, 39
Okl. 591; Jones v. First State Bank of Bristow, 136 P. 737, 39 Okl. 784 ; Moore
v. First Nat. Bank of Iowa City, 121 P. 626, 30 Okl. 623; St. Louis & S. F. R.
Co. v. Posten, 124 P. 2, 31 Okl. 821 ; T. S. Reed Grocery Co. v. Miller, 128 I*.
271, 36 Okl. 134.
In ruling on motion for directed verdict, all evidence unfavorable to the
party against whom the verdict is sought, as well as incompetent evidence,
must be disregarded. Sartain v. Walker, 60 Okl. 258, 159 P. 1096; Buckeye
Engine Co. v. City of Cherokee, 54 Okl. 509, 153 P. 1166 ; Booker Tobacco Co.
v. Walker, 38 Okl. 47, 131 P. 537; Frick-Reid Supply Co. v. Hunter, 47 Okl.
151, 148 P. 83 ; Bank of Commerce of Ralston v. Gaskill, 44 Okl. 728, 145 P.
1131; Frisco Lumber Co. v. JThomas, 142 P. 310, 42 Okl. 670; Duncan Cotton
Oil Co. v. Cox, 139 P. 270, 41 Okl. 633; Continental Ins. Co. v. Chance, 48 Okl.
324, 150 P. 114 ; Phinnie v. Atkinson (Okl.) 177 P. Ill ; Oklahoma Automobile
Co. v. Goulding (Okl.) 176 P. 400 ; Smith v. Hutchison Box Board & Paper Co.,
101 Kan. 274, 166 P. 484 ; Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P.
606; Stothard v. Junior Coal & Mining Co., 160 P. 213, 98 Kan. 756; Case v.
Posey, 55 Okl. 163, 154 P. 1165 ; Haddock v. Sticelber & Mong (Okl.) 165 P.
1138 ; Fox v. Campbell, 30 P. 479, 49 Kan. 331 ; Fidelity Mut. Life Ins. Co.
v. Stegall, 111 P. 389, 27 Okl. 151; Chestnutt-Gibbons Grocer Co. v. Consum-
ers' Fruit Co., 44 Okl. 318, 144 P. 591 ; Hanna v. Mosher, 98 P. 358, 22 Okl.
501; St. Louis & S. F. Ry. Co. v. Clampitt, 55 Okl. 686, 154 P. 40; Abbott v.
Dingus, 44 Okl. 567, 145 P. 365 ; First State Bank of Addington v. Lattimer,
48 Okl. 104, 149 P. 1099; Kinney v. Grooms, 63 Okl. 164, 163 P. 531; Gregory
v. Harper, 51 Okl. 419, 152 P. 70.
In an action for services rendered by attorneys under a written contract,
where defendants alleged a failure of consideration, and that the contract
had been procured by false representations, and introduced evidence to sus-
tain their pleas, it was error to instruct to find for plaintiff. Conner v. Apple
& Franklin, 141 P. 424, 42 Okl. 292.
Where plaintiff in an action against an officer for an illegal attachment
made a prima facie showing of ownership and right of possession of the prop-
erty attached as that of another, and the attachment under which the officer
justified was held void, it is error to direct a verdict for the oflBcer. Hagar v.
Haas. 71 P. 822, 66 Kan. 333.
In an action on a note, held, on the evidence, that directed verdict for plain-
tiff against all of the defendants was error; there being some evidence to
sustain defense of certain of them. Phelps v. Womack (Okl.) 167 P. 478.
Under the evidence in a wife's action against her husband, held, that plain-
tiff was not entitled to a directed verdict for money expended by her in dis-
(725)
§ 822 TRIAL (Ch. 13
be eliminated from consideration, leaving that evidence only which
is favorable to the party against whom the motion is directed.35
It is error to direct a verdict where there is a controverted ques-
tion of material fact,36 or any theory of the. case under which the
charging her husband's debt and purchasing pro'perty for him ; the case being
for the jury. Sodowsky v. Sodowsky, 51 Okl. 689, 152 P. 390.
Where an Indian minor died in October, 1908, leaving a father and mother
surviving, and in 1910 the mother and sister gave plaintiff the lease on which
he relied, and there was no evidence of the father's death, an instruction to
mid for plaintiff was erroneous. Aldridge v. Whitten, 56 Okl. 694, 156 P. 667.
Where, in a pledgee's action against an innocent purchaser from the pledg-
er, there was evidence that pledgor obtained possession by larceny from the
pledgee, it was error to direct a verdict against the pledgee. State Nat. Bank
of Shawnee v. McMahan, 45 Okl. 585, 146 P. 1.
Counterclaim. — Where a counterclaim states a good cause of action against
plaintiff, though not a proper counterclaim in the action, and plaintiff alleges
an affirmative defense, but offers no evidence to support it, a directed verdict
for plaintiff on the issues joined is error. Brisley v. Mahaffey, 64 Okl. 319,
167 P. 984.
35 Baker v. Nichols & Shepard Co., 65 P. 100, 10 Okl. 685; Harris v. Mis-
souri, K. & T. Ry. Co., 103 P. 758, 24 Okl. 341, 24 L. R. A. (N. S.) 858 ; Solts
v. Southwestern Cotton Oil Co., 115 P. 776, 28 Okl. 706; Chicago, R. I. & P.
Ry. Co. v. McCulley, 30 Okl. 178, 120 P. 279 ; Cooper v. Flesner, 103 P. 1016, 24
Okl. 47, 23 L. R. A. (N. S.) 1180, 20 Ann. Gas. 29.
On a motion to direct a verdict only the evidence favorable to the opposing
party should be considered. Ferris v. Holiman, 78 Okl. 251, 190 P. 409.
se Terry v. Gravitt, 56 Okl. 769, 156 P. 633; Johnson v. Rudsisill, 51 Okl.
480, 152 P. 93 ; Chicago, R. I. & P. Ry. Co. v. Brown, 55 Okl. 173, 154 P. 1161 ;
Burke v. Smith, 57 Okl. 196, 157 P. 51 ; Phoenix Ins. Co. of Hartford v. Newell,
60 Okl. 207, 159 P. 11£7; Modern Brotherhood of America v. Beshara, 142 P.
1014, 42 Okl. 684 ; Hogan v. Milburn, 44 Okl. 641, 146 P. 5 ; Brown & Bridge-
man v. Western Casket Co., 30 Okl. 144, 120 P. 1001; Wade v. Sumner, 30 Okl.
784, 120 P. 1011; Schaefer v. Arkansas Valley Interurban Ry. Co., 104 Kan.
740, 181 P. 118; Fulsom-Morris Coal & Mining Co. v. Mitchell, 132 P. 1103,
37 Okl. 575; Gamble v. Riley, 39 Okl. 363, 135 P. 390; Young v. Irwin, 79
I'. 678, 70 Kan. 796 ; Kelley v. Ryus, 29 P. 144, 48 Kan. 120.
Where there is any evidence reasonably tending to establish plaintiff's claim,
it is error to direct a verdict for defendant. Scott v. Moore, 52 Okl. 200, 152
P. 823.
Where there was evidence fairly tending to support defendants' contention,
it was error to direct a verdict for plaintiff. Citizens' State Bank of Grain-
field v. Houser, 148 P. 740, 95 Kan. 351.
It is error to direct a verdict when there is a disputed question of fact
touching the amount which plaintiff should recover. Brown v. Baird, 48 P.
180, 5 Okl. 133.
Where the evidence is conflicting, and such that the jury might reasonably
find for plaintiff a less sum than directed, it is error to direct a verdict for
plaintiff for a specific sum. Miller v. Oklahoma State Bank of Altus, 53 Okl.
616, 157 P. 767.
In personal isjury case, where amount of damage was not precisely ueter-
(726)
Art. 3) ISSUES AND TRIAL THEREOF § 822
opposite party could recover.37 In other words where the evidence
clearly shows plaintiff is entitled to recover, and the only dispute
is as to immaterial issues, it is not error to direct a verdict, and
where the evidence is undisputed on all the issues necessary for
plaintiff's recovery, the court should instruct to find for plaintiff,
though there may be a dispute in the evidence as to other imma-
terial issues.38 However, where evidence on certain issues clearly
establishes plaintiff's right to recover, verdict may be directed for
plaintiff notwithstanding other conflicts.39
A verdict should be directed only when the facts are such that all
reasonable men must draw the same conclusion from them,40 and
mined, It was not error for court to overrule defendant's motion for instruct-
ed verdict for plaintiff in given sum. Bartlesville Zinc Co. v. James (Okl.) 166
P. 1054.
Refusal to direct a verdict for a street car passenger injured in attempting
to alight held not error, where the evidence was conflicting as to negligence
and contributory negligence. Christian v. Union Traction Co., 154 P. 271, 97
Kan. 46.
Where the evidence as to every issue of fact was conflicting, court under
Rev. Laws 1910, § 4993, cannot direct verdict. Abraham v. Southwestern Cot-
ton Oil Co. (Okl.) 169 P. 618.
In action for compensation for procuring exchange of land, where question
of condition of agreement between the principal and brokers was controverted,
both in pleadings and in testimony, direction of verdict for plaintiffs was er-
ror. \ Campbell v. Thomas, 56 Okl. 779, 156 P. 647.
87 Sovereign Camp, Woodmen of the World, v. Welch, 83 P. 547, 16 Okl. 188.
Where the evidence was sufficient to support a verdict for plaintiff, the
court properly refused to withdraw the case and render judgment and in-
struct for defendant. City of Ardmore v. Fowler, 54 Okl. 77, 153 P. 1117.
Where the evidence of defendant reasonably tends to support his answer
and cross-petition, it is error to instruct a verdict for plaintiff. Fakler v.
Summer Mercantile Co., 55 Okl. 264, 155 P. 559.
as Choctaw, O. & G. R. Co. v. Garrison, 90 P. 730, 18 Okl. 461.
39 Dickerson v. Incorporated Town of Eldoraro, 64 Okl. 142, 166 P. 708.
Where plaintiff under the pleadings is entitled to recover unless certain af-
firmative defenses are sustained and where no evidence was produced reason-
ably tending to support such defenses, a verdict should be directed for plain-
tiff. Conwill v. Eldridge (Okl.) 177 P. 79; Frank H. Harrah & Co. v. First
Nat. Bank of Tonkawa, 26 Okl. 620, 110 P. 725 ; Offutt v. Wagoner, 30 Okl. 458,
120 P. 1018 ; Fitzpatrick v. Nations, 30 Okl. 462, 120 P. 1020.
40 Continental Casualty Co. v. Owen, 38 Okl. 107, 131 P. 1084; Campbell v.
Thomas, 56 Okl. 779, 156 P. 647.
The court may direct a verdict only where the evidence is undisputed or
such that the court would set aside a verdict in opposition to it. Moore v.
First Nat. Bank of Iowa City, 121 P. 626, 30 Okl. 623.
Where the evidence of plaintiff was sufficient to support his action, and
(727)
§ 822 TRIAL (Ch. 13
not when it is necessary to weigh the evidence to determine where
the preponderance lies.41 On the other hand where the facts are un-
disputed or of such conclusive character that the court in its discre-
tion would be compelled to set aside a verdict returned in opposi-
tion thereto, a verdict may be directed.42
there was no substantial evidence for defendant, it was error to refuse to in-
struct to find a verdict for plaintiff. Hussey v. Blaylock, 38 Okl. 204, 132 P.
821.
A verdict cannot be peremptorily instructed against a party where the evi-
dence would sustain one in his favor. Jones v. Citizens' State Bank, 39 Okl.
393, 135 P. 373.
Where the evidence reasonably tends to establish the truth of the allega-
tions of a petition stating a cause of action, it is error to instruct a verdict for
defendant. Stewart v. Lafayette, 55 Okl. 411, 153 P. 847.
Where there is any evidence tending reasonably to sustain the petition, ver-
dict should not be directed, the jury being the sole judges of the facts and in-
ferences to be drawn therefrom. Midland Valley R. Co. v. Rippe, 61 Okl. 314,
161 P. 233.
Where evidence in a shipper's action for damages to stock does not show
negligence by carrier refusal of peremptory instruction for defendant held
error. St. Louis & S. F. R. Co. v. Waggoner, 52 Okl. 1, 152 P. 448.
41 Freeman-Sipes Co. v. Henson, 110 P. 909, 26 Okl. 799; Lower v. Shorthill,
103 Kan. 534, 176 P. 107; National Council of Knights and Ladies of Securi-
ty v. Fowler (Okl.) 168 P. 914.
Evidence in an action for breach of a building contract and for compensa-
tion for extra work held to reasonably sustain the allegations of plaintiff's
petition and render erroneous the direction of a verdict for defendant. Stew-
art v. Lafayette, 55 Okl. 411, 153 P. 847.
42 Sartain v. Walker, 60 Okl. £58, 159 P. 1096; Ewing v. United States, 89
P. 593, 11 Ariz. 1; Hanenkratt v. Hamil, 61 P. 1050, 10 Okl. 219; Neeley v.
Southwestern Cotton Seed Oil Co., 75 P. 537, 13 Okl. 356, 64 L. R. A. 145;
Guss v. Federal Trust Co., 91 P. 1045, 19 Okl. 138; Murphy v. Cobb, 5 Colo.
281; Denver Jobbers' Ass'n v. Rumsey, 71 P. 1001, 18 Colo. App. 320; Haner
v. Northern Pac. Ry. Co., 62 P. 1028, 7 Idaho, 305 ; Barr v. Irey, 45 P. Ill, 3
Kan. App. 240; St. Louis & S. F. R. Co. v. Bloom, 39 Okl. 78, 134 P. 432; Vin-
son v. Los Angeles Pac. R. Co., 82 P. 53, 147 Cal. 479; Sanders v. Chicago, R.
I. & P. Ry. Co., 61 P. 1075, 10 Okl. 325; Conklin v. Yates, 83 P. 910, 16 Okl.
266; Creagh v. Equitable Life Assur. Soc., 52 P. 526, 19 Wash. 108; Chicago,
R, I. & P. Ry. Co. v. McCulley, 30 Okl. 178, 120 P. 279.
The direction of a verdict for defendants held not error, where there was
no evidence, tending to support plaintiffs cause of action. Stroud v. Elliott,
45 -Okl. 447, 145 P. 804.
Where plaintiff's evidence made out a case, and defendants introduced, no
evidence in rebuttal, the court properly instructed a verdict for plaintiff.
Moore v. Leigh-Head & Co., 48 Okl. 228, 149 P. 1129.
Where the evidence was insufficient to sustain a verdict for plaintiff, a ver-
dict was properly directed for defendant. Flamm v. Wineland, 139 P. 961, 41
Okl. 688.
A peremptory instruction may and should be given, when the evidence in
(728)
Art. 3) ISSUES AND TRIAL THEREOF § 822
Where there is no competent testimony offered sustaining aver-
ments of plaintiff's petition, it is not error to direct verdict for de-
fendant.43
favor of one of the parties is uncontradicted. Smoot & Abbott v. W. L. Moody
& Co., 125 P. 1134, 34 Okl. 522 ; Eminent Household of Columbian Woodmen
v. Prater, 133 P. 48, 37 Okl. 568.
Where plaintiff offers no evidence even reasonably tending to support his al-
legations, it is not error to direct a verdict for defendants. Burris v. Leet,
51 Okl. 741, 152 P. 352.
43 Grand Lodge K. P. of North America, etc., v. Farmers' & Merchants' Bank
of Boley, 64 Okl. 225, 166 P. 1080.
Where the evidence for plaintiff is sufficient to prove his cause of action,
and there is no substantial evidence for defendant, it is not error to direct a
verdict for plaintiff. Cockrell v. Schmitt, 94 P. 521, 20 Okl. 207, 129 Am. St.
Eep. 737.
AVhere the only defense is the statute of limitations, and the undisputed
evidence shows that plaintiff's cause of action is not barred by the statute,
it is error to refuse a peremptory instruction for plaintiff. Fidelity & Deposit
€o. v. Sheahan, 133 P. 228, 37 Okl. 702, 47 L. R. A. (N. S.) 309.
Where the petition, in a widow's action for death of her husband, alleged
that no administrator had been appointed and there was no proof thereof, it
was error to refuse a peremptory instruction for defendant. Frederick Cot-
ton Oil & Mfg. Co. v. Clay, 50 Okl. 123, 150 P. 451.
Where demurrer to plaintiff's evidence was properly overruled and defendant
failed to introduce new evidence, a verdict was properly directed for plain-
tiff. Kilgore v. Rowland (Okl.) 172 P. 43.
Where the evidence introduced by plaintiff fails to support the allegations
of the bill of particulars, it is the duty of the court, on motion, to instruct the
jury to return a verdict for defendant. Barr v. Irey, 45 P. Ill, 3 Kan. App.
240.
In a suit for the price of a car of flour, where there was a plea of payment
and a cross-action in damages alleging that the flour was defective, and its use
injurious to defendant in his business as a baker, where the evidence proved
payment, it was error to refuse to instruct to find for defendant on his plea, of
payment, and that nothing remained to consider except the issues on his cross-
petition. Bales v. Northwestern Consol. Milling Co., 96 P. 559, 21 Okl. 421.
It is not error to instruct the jury to return a verdict for defendant, where
the action is founded on a specific agreement, and plaintiff's evidence shows
that its performance had by consent of both parties been waived and a differ-
ent agreement had been made. Peckinpaugh v. Lamb, 79 P. 673, 70 Kan. 799.
Where plaintiff has clearly made out his case, and there is no contrary evi-
dence, it is proper for the court to direct a verdict in his favor. Hillis v. First
Nat. Bank, 38 P. 565, 54 Kan! 421.
Where plaintiff sues to recover possession of real estate as his homestead,
but on the trial offered no proof to sustain such claim, it is not error to direct
a verdict against him. KeUey v. Reynolds, 128 P. 116, 35 Okl. 37.
Where, in a purchaser's suit to recover the purchase money paid, it ap-
peared that the contract provided that the money should be returned upon a
failure to do certain things, and the undisputed evidence showed such failure,
(729)
§ 822 TRIAL (Ch. 13
Where the evidence on behalf of plaintiff is sufficient to prove
his cause of action, and there is no substantial evidence offered by
a directed verdict for plaintiff was proper. Farm Land Mortgage Co. v.
Wilde, 136 P. 1078^ 41 Okl. 45.
Where, in an action for legal services, plaintiffs' testimony showed that two
defendants had paid their share of the fee, a verdict was properly directed
for such defendants. Kappler v. Storm, 54 Okl. 493, 153 P. 1142.
Where the payment of a sum certain is a condition precedent to a right to
surrender a lease, and on a suit for rent a prior surrender is pleaded, but
there is no evidence that said sum certain was ever paid or tendered, it was
not error to direct a verdict for plaintiff. Burress v. Diem, 101 P. 1116, 23 Okl.
776.
Where evidence fails to show malice in instituting proceedings and absence
of probable cause, it is the duty of the court, on request, to direct a verdict
for defendant. Jones Leather Co. v. Woody (Okl.) 169 P. 878.
Where the undisputed evidence showed that the purchaser was in default
and had been for some time before the vendor's action in eiectment, and where
no defense was offered, a directed verdict for the vendor was proper. Lons-
dale v. Reinhard (Okl.) 176 P. 924.
In action involving title to realty where uncontradicted evidence shows the
legal and equitable title in plaintiffs and defendant offers no evidence to show
a superior title in himself or any defense, it is not error to instruct a verdict
for plaintiff. Longest v. Langford (Okl.) 172 P. 927.
Where plaintiff's evidence is uncontradicted, and not inherently improbable,
and is sufficient to prove its case, and defendant offers no evidence, it is not
error to instruct for plaintiff. Hamilton v. Blakeney (Okl.) 165 P. 141.
Direction of verdict in an action on a verified account held not error, where
defendant offered no evidence controverting plaintiff's right to recover. N. S.
Sherman Mach. & Iron Works v. R. D. Cole Mfg. Co., 51 Okl. 353, 151 P. 1181.
Bills and notes. — Where two parties are jointly sued on a note and on an
account, and the evidence shows that both signed the note, but there is no evi-
dence of liability of one party on the account, the court should instruct that
such party is not liable. Stuckey v. Irwin, 163 P. 621, 100 Kan. 57.
, In action on note for price of land, where there was no proof of rescission
or abandonment of contract, verdict was properly directed for plaintiff. Soot-
er v. Janes, 57 Okl. 368, 157 P. 28£.
In an action on a draft by the holder thereof who acquired it for value be-
fore maturity without notice against an indorser from whom the draft is ob-
tained by fraud, the knowledge of the facts which would put a prudent man
on inquiry is not sufficient to defeat the right to recover, and the court may di-
rect a verdict for the holder where the circumstances are not sufficiently
strong for it to be said as a matter of law that bad faith may be reasonably
inferred therefrom. Forbes v. First Nat. Bank of Enid, 95 P. 785, 21 Okl. 206.
Under the evidence in an action on a negotiable note, held that the court
should have instructed that plaintiff was an innocent purchaser and that the
defenses set up were not available. Showalter v. Webb, 141 P. 439, 42 Okl.
297.
Under Rev. Laws 1910, § 4759, where in an action against an indorser who
files an unverified answer plaintiff introduces the note in evidence and d*-
(730)
Art. 3) ISSUES AND TRIAL THEREOF • § 822
defendant the court may properly instruct the jury to return a ver-
dict for plaintiff.44
fendant offers no testimony, the court may direct a verdict for plaintiff.
Home v. Oklahoma State Bank of Atoka, 139 P. 992, 42 Okl. 07.
Where there is no substantial evidence to authorize a verdict for a defend-
ant, in an action against him on a negotiable note, bought by plaintiff in good
faith before maturity, it is not error for the court to direct a verdict for
plaintiff for the full amount thereof. McCormick v. Holmes, 21 P. 108, 41
Kan. 265.
On the trial to a jury of a suit on a note, the court has the right to com-
pute the amount of recovery, and direct a verdict, when the state of the evi-
dence justifies it. MacRitchie v. Johnson, 30 P. 477, 49 Kan. 321.
Insurance. — Where the uncontradicted evidence showed, as to the only issue
involved, that the insurance policy sued on had been issued and was in effect,
it was error to deny a directed verdict for plaintiff. Van Arsdale-Osborne
Brokerage Co. v. Wiley, 140 P. 153, 40 Okl. 651.
In an action on a fidelity bond, where the giving of the bond, the defalca-
tion, and the amount thereof were admitted, defendant claiming that the
plaintiff had breached the warranties, the burden of proof on this issue be-
ing on the defendant, and where the evidence, with all the inferences that
the jury would properly gather from it, was insufficient to support a verdict
for the defendant, so that such a verdict, if returned, must be set aside, the
court is not bound to submit the case to the jury, but may direct a verdict for
the plaintiff, providing his case has been properly made out. Southern Sure-
ty Co. v. Tyler & Simpson Co., 30 Okl. 116, 120 P. 936.
Where the widow of insured in an action on a policy introduces evidence
that the insured made application for a "Standard Life Insurance Policy," and
that such policy was delivered to insured, and rests her case, and defendant
introduces conclusive proof that the policy was not a standard policy, but a
"sub-standard policy," differing in many important particulars from that call-
ed for by the application, it is not error to direct a verdict for defendant.
Keel v. New York Life Ins. Co., 94 P. 177, 20 Okl. 195.
Where, in an action on a life insurance policy, the only defense was fraud
in the procurement of the insurance, and there was no evidence to establish it,
it was proper to direct a verdict for plaintiff. Eminent Household of Colum-
bian Woodmen v. Prater, 133 P. 48, 37 Okl. 568.
Where, in an action on a fire policy requiring proofs of loss, there was no
evidence that such proofs were furnished a demurrer to the evidence and. a
motion for an instructed verdict for defendant should have been sustained.
Palatine Ins. Co. v. Lynn, 141 P. 1167, 42 Okl. 486.
Where the petition and evidence show a cause of action on a life policy
which is incontestable after two years from date of issue, and the only defense
is breach of warranties pleaded more than two years after its date, the court
should direct a verdict for plaintiff. Mutual Life Ins. Co. of New York v.
Buford, 61 Okl. 158, 160 P. 928.
Negligence. — Where the evidence failed to show causal connection between
44 Ketchum v. Wilcox, 48 P. 446, 5 Kan. App. 881 ; Irwin v. Dole, 52 P. 916,
7 Kan. App. 84; Underwood v. Stack, 46 P. 1031, 15 Wash. 497; Carmack v.
Drum, 67 P. 808, 27 Wash. 382.
(731)
§§ 822-823 TRIAL (Ch. IS
Where defendant, by his answer and evidence, admits all the
allegations of plaintiff's petition, the court may instruct the jury
to return a verdict for plaintiff.45
When the evidence shows without dispute that the plaintiff is
entitled to recover and the defendant elects to stand upon a de-
murrer to the evidence, it is proper to direct a verdict for the
plaintiff.46
§ 823. Effect of motion
Where an answer denying execution of a note is not verified as
required by statute, but plaintiff joins issue thereon by general de-
nial in reply, a motion to direct a verdict for plaintiff after the
close of the evidence does not question the sufficiency of the an-
swer.47
A motion by each party that a verdict be directed is not a waiv-
er of the right to have the facts passed upon by the jury, or an
agreement to submit them to the trial judge if the motion be de-
nied.48
the negligence averred and the damages suffered, the court should direct a
verdict for defendant. Patterson v. Seals, 51 Okl. 347, 151 P. 591.
Where the evidence does not entirely fail to show negligence by defendant,
the court should submit the case to the jury, but where the evidence fails en-
tirely to show negligence, a verdict should be instructed for defendant. New
York Plate Glass Ins. Co. v. Katz, 51 Okl. 713, 15£ P. 353.
A verdict held properly directed in an action by a miller whose han'd was
<lrawn into the hopper of a mill by a coil of wire which he was attempting
to remove, in the absence of proof that the presence of the wire was the result
of defendant's negligence. Smith v. Acme Milling Co., 34 Okl. 439, 126 P. 190.
In action by widow for wrongful death of husband, where petition alleges
that no personal representative has been appointed, and issue is properly rais-
ed thereon by answer, and there is no proof of such allegation, it is error to
refuse to peremptorily direct verdict for defendant. Chicago, R. I. & P. Ry.
Co. v. Brooks, 57 Okl. 163, 156 P. 362.
Where the evidence fails to show causal connection between the negligence
alleged and the injuries suffered, the court should on request direct a verdict
for the defendant employer. Sallisaw Cotton Oil Co. v. Holland, 56 Okl. 428,
156 P. 174.
Where there is no evidence of negligence or from which negligence might
be reasonably inferred, a verdict should be directed for defendant. St. Louis
& S. F. R. Co. v. Smith, 137 P. 357, 41 Okl. 314.
45 Gifford v. Ammer, 54 P. 802, 7 Kan. App. 365.
46 Watkins v. School Dist. No. 104 of Crawford County, 85 Kan. 760, 118 P.
1069.
47 Jones v. Citizens' State Bank, 39 Okl. 393, 135 P. 373.
48 Midland Valley R. Co. v. Lynn, 38 Okl. 695, 135 P. 370; Farmers' Nat.
(732)
Art. 3) ISSUES AND TRIAL THEREOF § 824
§ 824. Form of motion
MOTION FOR DIRECTED VERDICT (ORAL,)
Comes now the plaintiff and moves the court to direct the jury
to return a verdict -in favor of plaintiff and against the defendant,
for the reason that the evidence clearly shows that plaintiff is entitled
to recover and that no evidence has been introduced reasonably sup-
porting any defense on behalf of the defendant, and that no material
question is put in issue by the evidence.
Bank v. McCall, 25 Okl. 600, 106 Pac. 866, 26 L. R. A. (N. S.) 217; Hogan v.
Milburn, 44 Okl. 641, 146 P. 5; Smith v. Hutchison Box Board & Paper Co.,
101 Kan. 274, 166 P. 484 ; Taylor v. Wooden, 30 Okl. 6, 118 P. 372, 36 L. R. A.
(N. S.) 1018; Bartlesville Zinc Co. v. James (Okl.) 166 P. 1054.
(733)
•I
§§ 825-826 WITNESSES (Ch.14
CHAPTER XIV
WITNESSES
Sections
825-840. Article I. — Procuring attendance and testimony.
841-859. Article II. — Examination of witnesses.
841-852. Division I. — Direct examination.
853-858- Division II — Cross-examination.
859. Division III. — Redirect examination.
860-874. Article III. — Competency and privilege.
875-888. Article IV — Credibility and impeachment.
ARTICLE I
PROCURING ATTENDANCE AND TESTIMONY
Sections
825. Taking testimony — Modes.
826. Oath— Interpreter.
827. Subprena — Issuance.
828. Contents — Duces tecum.
829. Service.
830. Disobedience of — Contempt.
831. Forms-
832. Attachment for nonattendance.
833. Punishment.
834. Requisites of — Form.
835. Prisoners as witnesses.
836- Custody.
837. Attendance.
838. Of adverse party.
839. Witness may demand fees.
840. Refusal to testify — Contempt.
§ 825. Taking testimony — Modes
"The testimony of witnesses is taken in three modes:
"First. By affidavits.
"Second. By deposition.
"Third. By oral examination." 1
§ 826. Oath — Interpreter
"Before testifying, the witness shall be sworn to testify to the
truth, the whole truth, and nothing but the truth. The mode of
i Rev. Laws 1910, § 5067.
(734)
Art. 1) PROCURING ATTENDANCE AND TESTIMONY §§ 827~829
administering an oath shall be such as is most binding on the con-
science of the witness. An interpreter may be sworn to interpret
truly, whenever necessary." 2
§ 827. Subpoena — Issuance
"The clerks of the several courts shall, on application of any per-
son having a cause or any matter pending in the court, issue a
subpoena for witnesses, under the seal of the court, inserting all
the names required by the applicant in one subpoena, which may
be served by the sheriff or any constable of the county, or by the
party, or any other person in the manner provided in section 5054.
When a subpoena is not served by the sheriff or constable, proof
of service shall be shown by affidavit; but no costs of service of
the same shall be allowed, except when served by an officer." 3
§ 828. Contents — Duces tecum
"The subpoena shall be directed to the person therein named, re-
quiring him to attend at a particular time and place, to testify as
a witness ; and it may contain a clause directing the witness to
bring with him any book, writing or other thing, under his con-
trol, which he is bound by law to produce as evidence." *
§ 829. Service
"Service of subpoenas for witnesses in civil and criminal actions
in the district, superior, county and justice of the peace courts of
this state shall be made by the officer, or other person making the
service, by either personal service of such subpoena containing
the time, place and the name of the court, and the action in which
he is required to testify, or by mailing a copy thereof by regis-
tered mail, not less than three days before the trial day of the
cause upon which said witness is required to attend, and the per-
2 Rev. Laws 1910, § 5066.
s Rev. Laws 1910, § 5051.
4 Rev. Laws 1910, § 5052.
Where, upon the application of the plaintiff, a subpoena Is directed to the
defendant in the action, requiring him to attend upon the trial to testify as
a witness, and the subpoena requires the witness to bring with him a written
memorandum under his control, which is competent evidence on the part of
the plaintiffs, and such witness appears, is sworn as a witness, and has the
memorandum under his control and in his hands while upon the witness stand,
it is error for the court to refuse to make him produce it as evidence in the
case. Marsh v. Davis, 6 P. 612, 33 Kan. 326.
(735)
§§ 830-831 WITNESSES (Ch. 14
son making such service shall make a return thereof showing the
manner of service, and if the same be by registered mail, he shall
file with such return the registry receipt: Provided, that the per-
son or county attorney issuing the prsecipe for a subpoena shall
state therein the manner in which the witness or witnesses shall be
served, and the officer or person serving such subpoena shall serve
the same in the manner directed by the prsecipe, and make his re-
turn in accordance therewith : Provided, further, that if the prsec-
ipe calls for serving such subpoena by registered letter, then the
clerk shall serve the same as provided for the serving of jurors." 5
§ 830. Disobedience of — Contempt
"Disobedience of a subpoena, or refusal to be sworn or to answer
as a witness, or to subscribe a deposition, when lawfully ordered,
may be punished as a contempt of the court or officer by whom his
attendance or testimony is required." 6
§ 831. Forms
SUBPCENA
(Caption.)
To Greeting:
You are hereby commanded to appear before the court of
county, at the court house of said county, at , on the
day of , 19 — , at o'clock m., to testify
as a witness in the above entitled case pending in said court, on
the part of the and not depart without leave of court.
Hereof fail not, under penalty of law.
In witness whereof, I have hereunto set my hand and official
seal in the city of this day of , 19 — .
• , Court Clerk,
(Seal.) By , Deputy.
OFFICER'S RETURN
Received this writ this day of , 19 — , at
o'clock, m. , 19 — , served the same by leaving a
copy thereof with the indorsement thereon duly certified to the
within named , , 19 — , at the usual place of residence
5 Sess. Laws 1913, p. 113, § 2, amending Sess. Laws 1910, ch. 51, § 2 (Rev.
Laws 1910, § 5054) effective March 20, 1913.
e Rev. Laws 1910, § 5057.
(736)
Art.l) PROCURING ATTENDANCE AND TESTIMONY §§ 831-832
of the within named witness ; by , 19 — , I cannot find
the within named in my county.
: , Sheriff,
By Under Sheriff (Deputy).
RETURN OF SUBPOENA SERVED BY REGISTERED MAII,
State of Oklahoma,
County of
I hereby certify that on the day of , 19 — , I served
the within subpoena on A. B., by mailing a true and certified copy
thereof, with all of the indorsements thereon, by registered mail,
addressed to the said A. B., at , his usual place of residence,
the registry receipt being attached hereto and filed herewith.
, Court Clerk,
(Seal.) By , Deputy.
PR^CIPE FOR SUBPCENA — CIVIL
State of Oklahoma,
,~t r SS. •
County.
In the District Court of County.
A. B., Plaintiff, 1
v. I Praecipe.
C. D., Defendant]
To the Clerk of Said Court :
You are hereby directed to issue a subpoena for E. F., G. H., and
M. N. to appear in said court on the of , 19 — , at
o'clock m., to testify on the part of said plaintiff (or
defendant) in the above entitled cause.
Dated this day of , 19—.
X. Y., Attorney for Plaintiff (or Defendant).
§ 832. Attachment for nonattendance
"When a witness fails to attend in obedience to a subpoena (ex-
cept in case of a demand and failure to pay his fees), the court or
officer before whom his attendance is required may issue an at-
tachment to the sheriff, coroner or constable of the county, com-
manding him to arrest and bring the person therein named before
the court or officer, at a time and place to be fixed in the attach-
HON.PL.&PBAC.-47 (737)
§§ 833-834 WITNESSES (Ch. 14
ment, to give his testimony and answer for the contempt. If the
attachment be not for immediately bringing the witness before
the court or officer, a sum may be fixed in which the witness may
give an undertaking, with surety, for his appearance ; such sum
shall be indorsed on the back of the attachment ; and if no sum
is so fixed and indorsed, it shall be one hundred dollars. If the
witness be not personally served, the court may, by a rule, order
him to show cause why an attachment should not issue against
him." 7
§ 833. Punishment
"The punishment for the contempt mentioned in the preceding
section, shall be as follows: When the witness fails to attend, in
obedience to the subpoena (except in case of a demand and failure
to pay his fees), the court or officer may fine the witness in- a sum
not exceeding fifty dollars. In other cases the court or officer
may fine the witness in a sum not exceeding fifty dollars, or may
imprison him in the county jail, there to remain until he shall sub-
mit to be sworn, testify or give his deposition. The fine imposed
by the court shall be paid into the county treasury, and that im-
posed by the officer shall be for the use of the party for whom the
witness was subpoenaed. The witness shall, also, be liable to the
party injured for any damages occasioned by his failure to attend,
or his refusal to be sworn, testify or give his deposition." 8
A party to a suit may be called as a witness by his adversary,
and his disobedience of the summons may be punished in contempt
proceedings.9
Disobedience of a subpoena is not a direct contempt which may
be summarily punished, but is an indirect contempt committed
out of the presence of the court, and therefore punishable only by
formal accusation, arrest, plea, and trial.10
§ 834. Requisites of — Form
"Every attachment for the arrest, or order of commitment to
prison of a witness by a court or officer, pursuant to this article,
must be under the seal of the court or officer, if he have an official
7 Rev. Laws 1910, § 5058.
s Rev. Laws 1910, § 5059.
» In re Abbott, 54 P. 319, 7 Okl. 78.
10 State v. Anders, 68 P. 668, 64 Kan. 742.
(738)
Art. 1) PROCURING ATTENDANCE AND TESTIMONY §§834~836
seal, and must specify, particularly, the cause of arrest or commit-
ment ; and if the commitment be for refusing to answer a question,
such question must be stated in the order. Such order of commit-
ment may be directed to the sheriff, coroner or any constable of
the county where such witness resides, or may be at the time, and
shall be executed by committing him to the jail of such county, and
delivering a copy of the order to the jailor."11
ATTACHMENT FOR NOXATTENDANCE OF WITNESS
(Caption.)
The State of Oklahoma to the Sheriff of - - County— Greeting :
You are hereby commanded to attach A. D., and bring him forth-
with personally before this court, at the city of , in said
county and state, to answer to this court for certain contempts
against this court, in not obeying its writ of subpoena, commanding
him to appear on the day of — — , 19 — -, before the said
court, to testify in an action there to be tried between , plain-
tiff, and , defendant; and you are further commanded to
detain said A. D. in your custody until he shall be discharged by
this court ; and have you then and there this writ.
Witness the Honorable - judge of said courtt, at , on
the day of , 19 — .
, Court Clerk,
(Seal.) By - — Deputy.
Allowed this day of , 19 — .
, Judge.
§ 835. Prisoners as witnesses
"A person confined in any prison in this State may, by order of
any court of record, be required to be produced for oral examina-
tion in the county where he is imprisoned, but in all other cases
his examination must be by deposition." 12
§ 836. Custody
"While a prisoner's deposition is being taken, he shall remain in
the custody of the officer having him in charge, who shall afford
reasonable facilities for the taking of the deposition." 13
11 Rev. Laws 1910, § 5061.
12 Rev. Laws 1910, § 5062.
is Rev. Laws 1910, § 5063.
(739)
§§ 837-839 WITNESSES (Ch. 14
§ 837. Attendance
"A witness shall not be obliged to attend for examination on the
trial of a civil action except in the county of his residence, nor to
attend to give his deposition out of the county where he resides, or
where he may be when the subpoena is served upon him." 14
§ 838. Of adverse party
A party may compel his adversary, either at the trial or by depo-
sition, to testify as a witness in the same manner and subject to
the same rules as other witnesses, and by the service of a sub-
poena may compel the production of any book, writing, or other
thing under his control.15
§ 839. Witness may demand fees
"A witness may demand his traveling fees and fee for one day's
attendance, when the subpoena is served upon him; and if the
same be -not paid, the witness shall not be obliged to obey the sub-
poena. The fact of such demand and nonpayment shall be stated
in the return." 16
There is no law making a county liable for the fees of witnesses
required to attend before the grand jury, or in criminal causes- in
any of the courts.17 A county is not a party to a criminal prose-
cution, and is not liable for fees of witnesses attending before the
grand jury or a court in a criminal case, in the absence of a stat-
ute imposing such liability.18
In an action to recover for services as a witness, where the de-
fense was that the services were a mere gratuity, with the under-
standing at the time of performance that they were not to be paid
for, and there was evidence tending to establish such a defense, it
is error for the court to refuse to instruct the jury as to the princi-
ple that no recovery can be had for services gratuitously perform-
ed.19
"At the commencement of each day after the first day, a witness
may demand his fees for that day's attendance, in obedience to a
i* Rev. Laws 1910, § 5055.
IB Landon v. Morehead, 126 P. 1027, 34 Okl. 701.
m Rev. Laws 1910, § 5056.
i • Board of Com'rs of Greer County v. Watson, 54 P. 441, 7 Okl. 174.
is id.
" Stadel v. Stadel, 20 P. 475, 40 Kan. 646.
(740)
Art. 2) EXAMINATION OF WITNESSES §§ 840-841
subpoena ; and if the same be not paid, he shall not be required to
remain." 20
§ 840. Refusal to testify — Contempt
Where a witness persists in attempting to evade examination,
it is the court's duty to reprimand him, and, if necessary, punish
him for contempt.21
ARTICLE II
EXAMINATION OF WITNESSES
DIVISION I.— DIRECT EXAMINATION
Sections
841. Mode of testifying.
842. Questions.
843. Leading questions.
844. Hostile witnesses.
845. Repetition.
846. Interrogation by court.
847. Responsiveness of answer.
848. Aids to explain testimony — Diagrams — Computation.
849. Refreshing memory.
850- Memoranda as evidence.
851. Stenographer's notes.
852. Recalling witnesses.
DIVISION 11.— CBOSS-EXAMINATION
853- Extent of cross-examination.
854. Limitation to subjects of direct examination.
855. Collateral and irrelevant matters.
856. Character witness.
857. Cross-examination of party.
858- Recalling witness.
DIVISION III. — REDIBECT EXAMINATION
859. Scope and extent.
DIVISION I. — DIRECT EXAMINATION
§ 841. Mode of testifying
It is within the discretion of the court to permit a witness to tes-
tify in a narrative form, and not in answer to questions.22
20 Rev. Laws 1910, § 5065.
21 Ostendorf v. State, 128 P. 143, 8 Okl. Cr. 360.
Where a witness persists in a refusal to answer a question, he may be pun-
22 Maier v. Randolph, 6 P. 625, 33 Kan. 340. "
(741)
§§ 841-843 WITNESSES (Ch. 14
Testimony is not necessarily incompetent because given in a
dramatic and hysterical manner.23
Permitting a witness to be led to correct an erroneous omission
of the word "not," so as to make his testimony conform to that
of all the other witnesses, including the party objecting, is not an
abuse of discretion.24
§ 842. Questions
A witness may be questioned in his examination in chief as
to his residence, occupation, and positions held by him..25
Permitting plaintiff to be asked as to conversation between him-
self and defendant is not error, where the question does not nec-
essarily call for anything that is not competent evidence.26
It is error to ask a witness on direct examination if he has heard
the testimony of a prior witness as to a material fact, and if such
testimony is correct.27
§ 843. Leading questions
The allowance or exclusion of leading questions is within the
discretion of the court.28 But this discretion must be exercised
with care and without abuse.29
ished for contempt, as the pertinency of the question asked was for the de-
termination of the court, and not the witness. Hanson v. Sward, 140 P. 100,
92 Kan. 1. Imprisonment may be imposed, not only to punish a witness for
contumacy, but to compel him to obey a lawful order, and produce testimony
which the court deems necessary. Id. ; Ex parte Hanson, 105 P. 694, 80 Kan.
783.
Refusal to answer questions in a criminal proceeding is a criminal con-
tempt, and the punishment therefor is governed by the Criminal Code, and
where the statute limits the punishment it must conform to such limitation.
Ex parte Gudenoge, 100 P. 39, 2 Okl. Cr. 110. A direct contempt consists of
disorderly and insolent behavior during the session of the court and in its im-
mediate view of the unlawful and willful refusal of a person to be sworn as
a witness and the refusal to answer a proper question. Id.
23 Stafford v. Noble, 105 Kan. 219, 182 P. 650.
24 Smith v. Gillis, 51 Okl. 134, 151 P. 869.
25 Muskogee Electric Traction Co. v. Rye, 47 Okl. 142, 148 P. 100.
26 Mullarky v. Manker, 102 Kan. 92, 170 P. 31.
27 Missouri, K. & T. Ry. Co. v. Lycan, 47 P. 526, 57 Kan. 635.
28 Ellison v. Beannabia, 46 P. 477, 4 Okl. 347.
Where a witness for the state testified to a scuffle, it was error to exclude
as leading a question asking defendant whether a scuffle had preceded the
shooting. State v. Alexander, 131 P. 139, 89 Kan. 422.
29 An objection to a question inquiring of relatrix as to the possibility of a
date being other than as to which she had testified held properly sustained ;
(742)
Art. 2) EXAMINATION OF WITNESSES §§ 843~846
Where a witness was an illiterate Mexican it was not an abuse
of discretion to permit leading questions to be put to him, so
that the interpreter might the better render the same into the
Mexican language, and the witness might better understand them.30
§ 844. Hostile witness.
Leading questions must not be asked a witness by the party
calling him, unless he appears hostile, when the rule may be relax-
ed by the court;31 that is, where a witness is unwilling and hos-
tile to the party calling him, and his answers are evasive, he may
be examined in the' manner of a cross-examination.32 The extent
to which he may be examined rests generally in the discretion of
the court.33
§ 845. Repetition
Where a question has been asked and answered without objec-
tion, it is not error to sustain an objection to practically the same
question.34
§ 846. Interrogation by court
The trial court may in its discretion aid in eliciting material mat-
ter suggested by the evidence by interrogating a witness,35 but in
the question being leading and substantive. State v. Creager, 155 P. 29, 97
Kan. 334.
In a case tried by the district court without a jury on a petition to vacate
a judgment, and for a new trial, a question was asked by the counsel of the
then defendant, the original plaintiff, of the then defendant himself, who was
then testifying as a witness with respect to a matter which was competent to
be proved in the case, but the question was to some extent leading, and as-
sumed a certain fact which probably had not yet been proved, and probably
should not have been proved ; and the answer to the question was with refer-
ence to that portion of the question which was proper to be proved. Held,
that the court erred in permitting the question to be asked in the form in
which it was asked. Fullenwhler. v. Ewing, 1 P. 300, 30 Kan. 15.
A question asked a witness regarding an alleged dying declaration of dece-
dent, "Didn't he say, 'He murdered. me. doctor?'" was leading, and an objec-
tion on that ground should have been sustained. Mulkey v. State, 113 P. 532.
5 Okl. Cr. 75.
so Ellison v. Beannabia, 46 P. 477, 4 Okl. 347.
siOstendorf v. State, 128 P. 143, 8 Okl. Cr. 360; Gardner v. Stat< 115 P.
607, 5 Okl. Cr. 531.
32 State v. Hughes, 56 P. 142, 8 Kan. App. 631.
33 State v. Hamilton, 87 P. 363, 74 Kan. 461.
34 Ferris v. Shandy (Okl.) 174 P. 1060; State v. Sweet, 101 Kan. 746, 168 P.
1112 ; Hughes v. Ward, 16 P. 810, 38 Kan. 452.
35 De Ford v. Painter, 41 P. 96, 3 Okl. 80, 30 L. R. A. 722.
§§ 847-849 WITNESSES (Ch. 14
such a manner as will not tend to prejudice the jury against the
rights of the parties,36 or indicate his opinion as to the merits or
the credibility of witnesses.37
§ 847. Responsiveness of answer
An answer by the adverse party or by a hostile witness should,
on request, be withdrawn from the jury, where it is not responsive
to the question.38 But where no request has been made for such
withdrawal, an objection to the question does not justify a revers-
al.89
Where one of parties is an attorney at law and testifies in his
own behalf, he is governed by the same rules as other witnesses,
and should not be allowed to make argument while testifying.40
§ 848. Aids to explain testimony — Diagrams — Computation
It is not error to permit the owner of land, while testifying as a
witness in his own behalf, to introduce in evidence a diagram
drawn by himself showing the location of his various improve-
ments on the land, his house, barn, orchard, meadow, cultivated
land, etc., and the relative location of the railroad over the land
with respect to these improvements, and to permit the witness to
refer to the diagram in his testimony.41 Nor is it error to permit a
competent witness to compute, in the presence of the court and
jury, the aggregate amount of an inventory, introduced to show the
amount of the loss, and state the result to the jury.42
§ 849. Refreshing memory
A witness who makes memoranda of events at the time of their
occurrence, is permitted to refer, when under examination, to such
memoranda, to refresh his memory.43 He may be permitted to re-
fresh his memory from a writing or memorandum made by himself
3« Howard v. Territory, 79 P. 773, 15 Okl. 199 ; Miller v. Territory, 85 P.
239, 15 Okl. 422, judgment reversed 149 F. 330, 79 C. C. A. 268, 9 Ann. Gas.
389 ; Going v. Shelton (Okl.) 176 P. 962 ;' Clark v. Phelps, 10 P. 107, 35 Kan.
43 ; State v. Keehn, 118 P. 851, 85 Kan. 765.
sr Smith v. State, 12 Okl. Cr. 513, 159 P. 941.
ss Chicago, K. & W. R. Co. v. Muller, 25 P. 210, 45 Kan. 85.
so Chicago, K. & W. R. Co. v. Woodward, 27 P. 836, 47 Kan. 191.
40 Bilby v. Owen (Okl.) 181 P. 724.
*i Chicago, K. & W. R. Co. v. Dill, 21 P. 778, 41 Kan. 736.
42 German Ins. Co. of Freeport, 111., v. Amsbaugh, 55 P. 481, 8 Kan. App. 197.
« Sanders v. Wakefield, 20 P. 518, 41 Kan. 11.
Art. 2) EXAMINATION OP WITNESSES § 849
shortly after the occurrence of the fact to which it relates ; but it
is only when the memory needs assistance that resort may be had
to these aids, and, if the witness has an independent recollection of
the facts inquired about, there is no necessity nor propriety in his
inspecting any writing or memorandum.44
It is immaterial whether the memoranda is in such form as to be
competent as independent evidence or not, providing he, after re-
ferring to same, has any independent recollection of the subject-mat-
ter.45 He may refresh his recollection from a -memorandum made
under his direction;46 that is, written memoranda of events per-
tinent to the issues in a cause, made at the time of their taking
place, when shown by the oath of the person making them that
they were correct when made, may be referred to, to refresh the
memory of a witness, and may be introduced in evidence, not as
independent proof, but to supply the details of what the witness
has sworn,47 even though made by another.48
An attorney, in stating what a witness, since deceased, testified
•4;4 State v. Baldwin, 36 Kan. 1, 12 Pac. 318.
In a shipper's action for damages to a shipment of cattle, the report of a
commission company was competent as a memorandum to refresh plaintiff'*
memory touching sums realized for the dead and crippled cattle for which
suit was brought. Cockrill v. Missouri, K. & T. Ry. Co., 136 P. 322, 90 Kan.
650.
In a prosecution for larceny of a state warrant and for obtaining a state
•warrant) by false representations as to the amount of printing done for the
state, held that, though a witness retained no independent recollection of the
amount of printing done, he could refresh his memory by consulting entries in
defendant's books on the witness stand. State v. Rule, 11 Okl. Cr. 237, 144
P. 807.
45 McNeely v. Duff, 31 P. 1061, 50 Kan. 488.
46 Wilkes v. S. V. Clark Coal & Grain Co., 148 P. 768, 95 Kan. 493.
Where, during the trial, an officer who has taken goods on legal process is
testifying, it is not error to permit him to refresh his memory from a copy
of his return of the process, made by a typewriter in his presence and under
his direction. Flohr v. Territory, 78 P. 565, 14 Okl. 477.
47 First Nat. Bank v. Yeoman, 78 P. 388, 14 Okl. 626.
A witness who stepped land and made memoranda of its dimensions in steps
at the time may refresh his memory as to the number of steps by reference
to such memoranda. Elwell v. Purcell, 140 P. 412, 42 Okl. 1.
4.8 Where it appears from the evidence that witnesses have an independent
recollection as to the transactions connected with the shipment and sale of a
lot of hogs, they may refresh their memory as to the number of hogs, and sell-
ing price, by referring to a memorandum made by another. Western Union
Tel. Co. v. Collins, 53 P. 74, 7 Kan. App. 97.
(745)
§§ 849-851 WITNESSES (Ch. 14
to at a former trial, may refresh his recollection from a bill of ex-
ceptions, or may read from it, if he knew, when he drew it, that
it stated the testimony of the deceased witness.49
Any writing used by a witness to refresh his memory must be
produced and shown to the adverse party, if he requires it, who
may cross-examine the witness thereon.50
§ 850. Memoranda as evidence
A memorandum made under a witness' directions may be re-
ceived in evidence.51
Where it is not shown that the memoranda were made contem-
poraneously with the happening of the events which they describe,
and that the events were correctly recorded, it is error to admit
them in evidence.52
Where voluminous memoranda as to the number and kinds of
trees planted under a contract with a city had been made by wit-
nesses, who at the trial had no independent recollection of the
facts, but could testify that they knew of the truth and accuracy of
the statements in the memoranda when they were written, and that
they were correctly written, both the testimony of the witnesses
and the memoranda were properly received in evidence.53
§ 851. Stenographer's notes
The rule requiring the best evidence to be produced is not vio-
lated by permitting the official court stenographer to read from his
notes the testimony of a witness in a former trial, taken and re-
corded by him at the time, and sworn to by him to be correct, even
though he has no independent recollection of such testimony, and
cannot refresh his memory from such notes.54
A stenographer who took testimony of a witness at a former trial
may refresh his memory from the longhand transcript of the evi-
4» Solomon R. Co. v. Jones, 8 P. 730, 34 Kan. 443.
50 Atchison, T. & S. F. R. Co. v. Hays, 54 P. 322, 8 Kan. App. 545.
6i Wilkes v. S. V. Clark Coal & Grain Co., 95 Kan. 493, 148 P. 768.
Book entries held admissible as a means of verifying what a witness stated
from memory as to the transactions shown by the entries^ State v. Rule, 11
Okl. Cr. 237, 144 P. 807.
52 First Nat. Bank of Enid v. Yeoman, 78 P. 388, 14 Okl. 626.
53 City of Garden City v. Heller, 60 P. 1060, 61 Kan. 767.
54 Cutler v. Territory, 56 P. 861, 8 Okl. 101.
(746)
Art- 2) EXAMINATION' OF WITNESSES §§ 852-853
dence taken.55 Where the stenographer's shorthand notes of tes-
timony have been transcribed in longhand, and at the time of so
doing he made duplicate carbon copies of the same, such duplicate
copies are not copies in the sense in which the word is ordinarily
used, and the use of such carbon by a stenographer testifying from
which to refresh his memory is not error.69
§ 852. Recalling witnesses
The refusal to permit a witness who has testified for defendant,
and who, after the rebuttal testimony 6f plaintiff has been intro-
duced, is recalled by defendant for further redirect examination
to testify in respect to a matter concerning which he has been ex-
amined when first on the witness stand, is not error.57
DIVISION II. — CROSS-EXAMINATION
t
§ 853. Extent of cross-examination
The latitude on cross-examination must depend on the circum-
stances of the case, and rests largely in the discretion of the trial
court.58 However, it is the duty of the trial court to confine the
cross-examination of witnesses to proper channels.50
35 Harmon v. Territory, 79 P. 765, 15 Okl. 147.
5« Id.
57 St. Louis & S. F. Ry. Co. v. Vance, 58 P. 233, 9 Kan. App. 565.
^8 State v. Ross, 94 P. 270, 77 Kan. 341; Hamilton v. Miller, 26 P. 1030. 46
Kan. 486; Cobb v. Oklahoma Pub. Co., 140 P. 1079, 42 Okl. 314; Patton v. Un-
ion Traction Co., 101 Kan. 388, 167 P. 1041 ; State v. Allen, 160 P. 795, 98 Kan.
778. 99 Kan. 187.
That considerable latitude, was allowed in the cross-examination of a wit-
ness did not constitute errpr. State v. Patterson, 157 P. 437, 98 Kan. 197.
Illustrations. — Where, in an agent's action for compensation and for an ;i<--
59 Scott v. State, 13 Okl. Cr. 225, 163 P. 553.
Where, on trial for selling intoxicating liquor, a witness for the state n^
tified that he bought beer from the defendant, which he drank, he cannot, on
cross-examination, be asked to drink from a bottle of strange liquor proffered
him, and state if it is the same as that he had previously purchased. State v.
Snyder, 74 P. 231, 67 Kan. 801.
An objection to cross-examination which required a party to compare cer-
tain gin weights of cotton with compi-ess weights thereof and to make mathe-
matical calculation and state result was properly sustained. Sapulpa Co. v.
Kimball & Reading, 59 Okl. 93, 158 P. 935.
Refusal to permit further cross-examination of a witness held not an abuse
of discretion, where defendant's counsel did not state, that the facts sought
had come to his knowledge since he announced that he did not desire to cros»-
examine further. State v. Arch, 157 P. 1198, 98 Kan. 404.
(747)
§ 853 WITNESSES (Ch. 14
On cross-examination, a witness may be asked questions to test
his knowledge as to the matters concerning which he has testified,
or to elicit evidence favorable to the cross-examiner, if the ques-
counting. his testimony was not clear, it was error to refuse to permit him
to be cross-examined as to how much he had paid to defendant's former man-
ager who had left the state and to whom plaintiff testified on direct examina-
tion he had paid over certain collections. Weleetka Light & Water Co. v. Bur-
leson, 142 P. 1029, 42 Okl. 748. On cross-examination of a plaintiff claiming
a salary for personal services, it is proper to direct questions against the claim
and manner and form of performance of such services, and against faithful-
ness in such performance. Id.
Where defendant's wife testified that he was at home with his family at
the time of the larceny but left early the following morning, it was compe-
tent for the state to ask on cross-examination how long it was after the com-
mission of the crime before defendant returned. Jones v. State, 137 P. 121,
10 Okl. Or. 216, affirming judgment on rehearing 136 P. 182, 10 Okl. Or. 216.
Where a witness testified on direct examination that he was acting at the
instance of an attorney when he procured a statement from plaintiff as to
his injuries, it was proper to elicit from him 'on cross-examination that the
attorney represented an insurance company. Reynolds v. New Century Min.
Co., 133 P. 844, 90 Kan. 208.
Where a witness of the state testifies to a transaction, the defendant on
cross-examination may bring out all the facts in connection with such trans-
action within the knowledge of the witness. Rogers v. State, 127 P. 365, 8
Okl. Cr. 226. Where the state has placed a witness on the stand, and the
issue is self-defense, defendant can ask witness on cross-examination as to
whether deceased drank any intoxicating liquor while he was with him. Id.
Where a witness testified to a transaction or a part of it, the opposing party
may on cross-examination bring out anything that happened during the time
covered by the testimony. Id.
A question inquiring of relatrix if she had not testified a certain way in
another court held proper cross-examination. State v. Creager, 155 P. 29, 97
Kan. 334.
In an action against a railroad for personal injury, where the issue was
whether the train dispatcher was negligent in giving an order to a conductor
to meet another train composed of two sections, and to establish the negli-
gence of the train dispatcher the conductor testified that, until he. saw the
second section of the train he had orders to meet, he had no knowledge that
said section was on the road, held, that on cross-examination it was compe-
tent to ask him if he understood the signals carried by the first section ; if, by
those signals, he knew there was a second section following, which had the
right to the road ; and if he had the right to leave the station in the face of
the signals carried by the first section. Hannibal & St. J. R. Co. v. Kanaley,
17 P. 324, 39 Kan. 1.
In an action against a sheriff for the value of goods seized by him under
an attachment and sold, plaintiff claimed to have bought the goods from the
debtor prior to the levy of attachment, and to have paid for the same by the
execution and delivery to the insolvent debtor of two notes, signed by him-
self, one for $1,100 and the other for $1,200, and that the $1,100 note was de-
(748)
Aft. 2) EXAMINATION OF WITNESSES § 853
tions are not otherwise objectionable.60 He may be asked any
question which reasonably tends to explain his testimony in chief,81
but should not be asked questions which are full of insulting insin-
uations and intimations that he is guilty of crime.62
Great latitude should be allowed on the cross-examination of a
witness where it is claimed, that his testimony is affected by the
friendship or enmity he has toward either party in the action ; and,
as a general rule, the party against whom a witness is produced
livered to parties who had indorsed for the insolvent debtors as collateral se-
curity for such indorsements. Held that it is error for the trial court, when
one of such persons was on the witness stand, to refuse to permit the attor-
ney for the sheriff to ask him if the note was paid, and how paid, and by
whom paid ; and it is also error to refuse to make the purchaser answer ques-
tions as to whether or not there was also an understanding between him and
the insolvent debtor that, if he lost this suit, he would not have to pay the
)$1,200 note, and as to whether the $1,200 note was paid, or was to be paid.
De Ford v. Orvis, 21 P. 1105, 42 Kan. 302.
In an action attacking a bill of sale as fraudulent, where a witness testifies
for the parties upholding the bill that about the time it was made executions
were issued against him, that he was in possession of the property, and that
his attorney came to his place, and drew up the bill, it is competent on cross-
examination to ask him if the bill was not given simply as security. McClus-
key v. Cubbison, 57 P. 496, 8 Kan. App. 857. It is proper to ask such witness
whether he and the attorney had made an inventory of the goods, as show-
ing whether the transaction was unusual or not. Id.
In replevin, defendant admitted receiving certain money at the time a mort-
gage was executed by him, but contended that no part thereof was intended
to be secured by such mortgage. Held that on cross-examination of plaintiff,
defendant could bring out facts tending to show that independent of the
mortgage, moneys loaned to defendant were paid by him to plaintiff. First
Bank of Hoffman v. Harrison, 116 P. 789, 29 Okl. 302.
In a homicide case, where accused offered a witness who testified that he
had heard decedent make threats against accused, and that witness commu-
nicated such threats to accused before the difficulty occurred, the state on
cross-examination could ask such witness what accused said, if anything,
when he was informed of the alleged threats. Smith v. State, 114 P. 350, 5
Okl. Or. 282.
Where attachment affidavit states grounds which are conceded to be un-
true, and affiant is witness for plaintiff, it is not error to permit cross-exam-
ination as to falsity of statements in the affidavit. Farmers' Product & Sup-
ply Co. v. Bond, 61 Okl. 244, 161 P. 181.
In action for injuries in runaway caused by fright of horse at escaping
steam, cross-examination of plaintiff as to the disposition of the horse was
proper. Talliaferro v. Atchison, T. & S. F. By. Co., 61 Okl. 27, 160 P. 69.
so Policy v. Kansas City Oil Co., 131 P. 577, 89 Kan. 272.
61 Hopkins v. State, 9 Okl. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736.
62 Hager v. State, 10 Okl. Cr. 9, 133 P. 263.
(749)
§ 853 WITNESSES (Ch. 14
has a right to show everything which may in the slightest degree
affect his credibility.63
Where a witness is incompetent, for want of knowledge, to tes-
tify concerning the matters as to which he is called, and testifies to
nothing material to the issue, it is not error to refuse to permit him
to be cross-examined.04 Likewise where a voluntary statement is
made by a witness upon immaterial matter, though such statement
is not objected to, it is not error for the court to refuse to permit
a cross-examination with regard to the matter referred to therein.03
On the question of the quantum of damages recoverable, where
the testimony consists mostly of expressions of opinion, great lati-
tude of cross-examination is permissible.66 An attorney, whose
claim of lien upon a fund is denied because the court is convinced
that he has performed no services entitling him thereto, has no
standing to complain of a refusal to allow him to cross-examine
.the makers of affidavits used by other claimants.67
The trial court should exercise sound discretion in limiting the
cross-examination of plaintiffs witnesses testifying as to value of
property when it is sought to draw out a detailed description of
various other properties in the vicinity.68
In a personal injury case, the plaintiff, on cross-examination,
should be required to answer the question whether he is willing
to submit to a physical examination by reputable physicians, acting
under the appointment of the court.69
Where an action is commenced by the holder of a note claiming
to be an innocent purchaser, who, instead of resting on the prima
facie effect of the note, presents the payee as a witness to establish
his ownership and right to negotiate such note, the witness will
be subject to a cross-examination as in other cases.70
«3 State v. Collins, 5 P. 368, 33 Kan. 77.
On cross-examination of state's witness, the defendant may show bias and
contradictory statements. Yoder v. State (Okl. Cr. App.) 197 P. 848.
e* Watkins v. United States, 50 P. 88, 5 Okl. 729.
65 Cone v. Smyth, 45 P. 247, 3 Kan. App. 607.
ee Central Branch U. P. R. Co. v. Andrews, 2 P. 677, 30 Kan. 590.
67 Ricardo v. Central Coal & Coke Co., 171 P. 351, 102 Kan. 170.
es Wichman v. Kansas City, M. & O. Ry. Co., 114 P. 212, 84 Kan. 339.
6» Chicago, R, I. & P. Ry. Co. v. Hill, 129 P. 13, 36 Okl. 540, 43 L. R. A. (N.
S.) 622; Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okl. 1, 134 P. 388, Ann.
Cas. 1915D, 760.
v. Dial, 93 P. GOG, 77 Kau. 8.
(750)
Art. 2) EXAMINATION OF WITNESSES §§ 853~854
Where a witness on direct examination is interrogated relative to
a conversation, the opposing party may draw out all the material
portions of such conversation pertinent to the issues on cross-ex-
amination, and the acts and conduct of a witness variant from his
testimony, and inconsistent therewith, may be shown to weaken
his testimony.71
Where material testimony of a witness for the state was declared
by the witness to rest on a memorandum made by him in a book
not produced in court, it was error to limit the cross-examination
in respect to the alleged memorandum book.72
§ 854. Limitation to subjects of direct examination
Except as affecting his credibility,73 a witness cannot be proper-
ly cross-examined as to matters not directly connected with the
facts testified to in chief,74 although the matters concern transac-
tions connected with the facts in controversy.76
71 Gibbons v. Territory, 115 P. 129, 5 Okl. Cr. 212.
72 State v. Shew, 57 P. 137, 8 Kan. App. 679.
73 Reeves & Co. v. Brown, 102 P. 840, 80 Kan. 292.
The exceptions are where the questions tend to show interest, bias, or prej-
udice, or to explain, modify, or qualify former statements. Lawder v. Hin-
derson, 14 P. 164, 36 Kan. 754.
The extent of the cross-examination of a witness, though extending to mat-
ters not inquired about in the examination in chief, is largely within the dis-
cretion of the court. Harrold v. Territory, 89 P. 202, 18 Okl. 395, 10 L. R. A.
(N. S.) 604, 11 Ann. Cas. 818, judgment reversed 169 F. 47, 94 C. C. A. 415, 17
Ann. Cas. 868. The cross-examination of a witness should be confined to mat-
ters concerning which the witness has been examined in chief, but he may
be asked any question which reasonably tends to explain, contradict, or dis-
credit his testimony or to test his memory or veracity. Id.
74 Kuhn v. Johnson, 137 P. 990, 91 Kan. 188; Chicago, R. I. & P. Ry. Co. v.
Beatty, 34 Okl. 321, 118 P. 367, 42 L. R. A. (N. S.) 984 ; Maier v. Randolph, 6
P. 625, 33 Kan. 340 ; Prosser v. Pretzel, 55 P. 854, 8 Kan. App. 856 ; Woods v.
Faurot, 77 P. 346, 14 Okl. 171 ; State v. Hoerr, 129 P. 153, 88 Kan. 573 ; Coon
v. Atchison, T. & S. F. Ry. Co., 89 P. 682, 75 Kan. 282.
In an action against a city for personal injuries caused by a defective side-
walk, a question on cross-examination as to whether the street, at the place
where the accident occurred, was not lighter than elsewhere, is properly ex-
cluded when there was nothing said in regard to light in the direct examina-
tion of the witness. City of Atchison v. Rose, 23 P. 561, 43 Kan. 605.
The testimony of a witness upon direct examination merely identifying a
certificate of deposit of money, and the signature of the payee thereof, with
a statement that such certificate had been paid by the bank issuing it, does
75 State v. Long, 103 Kan. 302, 175 P. 145.
(751)
§§ 854-855 WITNESSES (Ch. 14
A party desiring his testimony as to other facts should make
him his own witness.76 However, this rule should be enforced
with discretion.77
, The cross-examination of a witness is not to be confined to the
particular questions asked, nor the precise subject called to his
attention on direct examination, but may extend to any matter not
foreign to the subject-matter of such examination and tending to
limit, explain, or modify it, and testimony tending to show the in-
terest or bias to witness or lack of it, drawn out on cross-examina-
tion, is not collateral.78
§ 855. Collateral and irrelevant matters
Cross-examination as to purely collateral or irrelevant matters
should not be permitted.79
not authorize a cross-examination as to the ownership of the money repre-
sented by it. Wright v. Wright, 50 P. 444, 58 Kan. 525.
In replevin by a wife to recover property seized by a creditor of the hus-
band, where the husband testified for plaintiff only as to the demand and the
bringing of suit, he could not be cross-examined as to previous statements
made by him concerning the property. Butler v. Cooper, 42 P. 839, 3 Kan.
App. 145.
In a will contest the court properly confined the cross-examination to mat-
ters covered by the direct examination. Kerr v. Kerr, 116 P. 880, 85 Kan. 460.
It is not error to allow a witness for the plaintiff, who, in his direct ex-
amination, testifies that he collected certain freight bills of the defendant, to
tell the amount he so collected, on cross-examination. E. Rothschild & Bros,
v. Hays, 59 P. 660, 9 Kan. App. 193.
76 Seifert v. Schaible, 105 P. 529, 81 Kan. 323.
77 The course and extent of the cross-examination of a witness, relative to
matters not inquired about in his examination in chief, is largely within the
sound discretion of the trial court. Hopkins v. State, 9 Okl. Or. 104, 130 P.
1101.
78 Gibbons v. Territory, 115 P. 129, 5 Okl. Or. 212.
7» In a prosecution for statutory rape, where evidence has been introduced
in corroboration of the complaining witness, it is not necessarily error to sus-
tain objections to questions asked of her on cross-examination as to her re-
lations with other men; no attempt being made to show any other paternity
of the child born to her. State v. Gereke, 86 P. 160, 74 Kan. 196, judgment
reversed on rehearing Same v. Gerike, 87 P. 759, 74 Kan. 196.
In an action to recover damages for an assault, it was not error to refuse
to allow defendant to cross-examine one of plaintiff's witnesses by asking if
the manner and actions of plaintiff led the witness to believe that, if she got
the gun, she would shoot defendant, where defendant's answer averred that
he struck plaintiff, if at all, while repelling an assault on himself, as the evi-
'clence called for was immaterial. Allen v. Lizer, 58 P. 238, 9 Kan. App. 548.
It was shown on cross-examination of one of the state's witnesses that such
(752)
Art. 2) EXAMINATION OF WITNESSES §§ 856~858
§ 856. Character witness
Where a witness testifies as to defendant's general reputation,
considerable latitude may be given in cross-examination as to his
opportunity for knowledge thereof.80
Witnesses who have testified favorably to defendant's general
reputation as to peace and good conduct may be asked on cross-
examination whether they have not heard reports of particular acts
inconsistent with such reputation.81
§ 857. Cross-examination of party
The latitude allowed in the cross-examination of a party as a wit-
ness, tending to test his veracity or on matters directly connected
with the subject of his examination in chief, rests in the sound dis-
cretion of the trial court, and will not be controlled on appeal, ex-
cept in cases of abuse of discretion.82
§ 858. Recalling witness
The court may in its discretion permit a witness to be recalled
for further cross-examination.83
witness had been charged with bastardy, tried, and acquitted. Held, that a
question as to who made the complaint was immaterial. State v. Stockman,
58 P. 1006, 9 Kan. App. 888.
In prosecution for manslaughter, cross-examination of defendant's witness
as to his statement in another's presence that he knew that defendant would
kill deceased, tending only to prove witness' opinion, was collateral and ir-
relevant. Willis v. State, 13 Okl. Cr. 700, 167 P. 333.
Cross-examination of deputy sheriff to show that justice of peace receiving
defendant's waiver of examination had filed no bond since his last election
was properly excluded. State v. Sweet, 101 Kan. 746, 168 P. 1112. In prose-
cution for murder, cross-examination of state's witnesses as to some "Bill
Smith" who was in neighborhood when murder was committed, and as to
whether such p man later appeared with scratches on his face and a black eye,
was improper.* Id.
Whether a fact inquired of on cross-examination is collateral depends upon
whether the examining party might prove it as a part of his case to establish
his plea. Willis v. State, 13 Okl. Cr. 700, 167 P. 333. '
so state v. Pipes, 70 P. 363, 65 Kan. 543.
A witness in a criminal case, who testified to the fair reputation of defend-
ant for honesty, may be cross-examined as to whether he had not heard of de-
fendant's being arrested for larceny. State v. McDonald, 46 P. 966, 57 Kan.
537.
*i State v. Killion,. 148 P. 643, 95 Kan. 371.
82 Bassett v. Glass, 70 P. 336, 65 Kan. 500.
Questions propounded on cross-examination of plaintiff as to conversations
SB state v. Lewis, 43 P. 265, 56 Kan. 374.
HON.PL.& PEAC.— 48 (753)
§ 859 WITNESSES (Ch. 14
DIVISION III. — REDIRECT EXAMINATION
§ 859. Scope and extent
Where a matter of evidence is brought out for the first time on
the cross-examination of a witness, the other party may re-examine
upon the same matter.84
Where a witness takes the stand and testifies as to matters about
which he is competent to testify, and the other party on cross-
examination inquires of him, over the objections of the party pro-
ducing him, as to matters about which he is incompetent to testify,
such party will not be heard to say that the court committed error
in permitting such witness on redirect examination to explain the
transactions elicited on cross-examination, even though as to such
matters the witness was incompetent.85 But matters which are
entirely new, so far as his testimony is concerned, cannot be brought
out on redirect examination.86
It was error, in an action against a railroad company to recover
damages resulting from a fire set by a locomotive, to permit a wit-
ness who testified for plaintiff to explain his apparent hostility to
the company by stating that it had refused to settle claims inter-
posed against it by him on an equitable basis.8.7
between him and third persons were properly excluded. Musick v. Enos, 148
P. 624, 95 Kan. 397.
Where plaintiff was called as a witness by defendant in an action for the
death of her husband at a street crossing and testified that she had often been
over it with him, she was properly allowed on cross-examination to testify
that he always drove carefully and at night always stopped to look and listen.
Fike v. Atchison, T. & S. F. Ry. Co.. 133 P. 871, 90 Kan. 409.
s* Hamilton v. Miller, 26 P. 1030, 46 Kan. 486.
ss Veseley v. Engelkeinier, 61 P. 924, 10 Okl. 290.
se In February, C. purchased goods from plaintiff company on credit, and
in the following May made a contract with plaintiff's agent, which was in-
tended by both parties to be a sale of the property back to plaintiff. On a
trial for the conversion of the goods, one of defendants, who took possession
under a mortgage from C., was asked on his redirect examination if he took
an inventory of the stock at the time he took possession of it, which was the
time of the alleged conversion, and, having answered in the affirmative, was
asked to state its actual cash value at that time which was objected to as not
proper redirect examination. Held that, as on his examination in chief the
witness was not asked in regard to the value of the prbperty, and the ques-
tion involved new facts so far as his testimony was concerned, the objection
was properly sustained. Robinson v. Peru Plow & Wheel Co., 31 P. 988, 1
Okl. 140.
87 Atchisou, T. & S. F. R. Co. v. Briggs, 43 P. 289, 2 Kan. App. 154.
(754)
Art. 3) COMPETENCY AND PRIVILEGE § 860
ARTICLE III
«
COMPETENCY AND PRIVILEGE
Sections
860. In general.
861. Knowledge — Signature — Books and accounts.
862. Persons Interested.
863. Adverse party.
864. Incompetents.
865. Husband and wife.
866. Attorney and client.
867. Clergyman or priest.
868. Physician and patient.
869. Construction of statutes.
870. Conviction of crime.
871. Self-incrimination.
872. Waiver.
873. Transactions with decedent.
874. Witness privileged from being sued.
§ 860. In general
The competency of a witness is for the court and not for the
jury.88
One entirely ignorant of the meaning of the ceremony of admin-
istering an oath is not a competent witness.89
A witness is not rendered incompetent to testify by reason of his
disbelief in the existence of God.00
The trial judge cannot, over objection, give material testimony
for a litigant.91
The secrecy imposed by the common law and statutes on pro-
ceedings before a grand jury will not prevent the public or an indi-
vidual from proving by members of the jury what passed before it
when, after the purpose of secrecy has been effected, such disclo-
ss Western Nat. Life Ins. Co. v. Williamson-Halsell-Frazier Co., 131 P. <><ti.
37 OkL 213.
When a witness is objected to on the ground that he or she is incompetent
by reason of want of intelligence, it is the province of the trial court to de-
termine the witness' competency. Adams v. State, 114 P. ,'547, 5 Qkl. Cr. 347.
so Lee v. Missouri Pac. Ry. Co., 73 P. 110, 67 Kan. 402, 63 L. R. A. 271.
so Dickinson v. Beal, 62 P. 724, 10 Kan. App. 233.
91 Powers v. Cook, 48 Ok). 43, 149 P. 1121, L. R. A. 1917F, 766.
A district judge is not competent as a witness in a cause tried before him.
Gray v. Crockett, 10 P. 452, 35 Kan. 66, rehearing denied 12 P. 12!). :\'j Kan.
686.
(755)
§§ 860-861 WITNESSES (Ch. 14
sure becomes necessary in the furtherance of justice or the protec-
tion of public or individual rights.92
Where a defendant is prosecuted for perjury, members of the
grand jury are competent witnesses to testify orally as to the state-
ments made by the defendant before the grand jury.93
§ 861. Knowledge — Signature — Books and accounts
A witness must have actual knowledge of the facts about which
he is called upon to testify.94
92 state v. Campbell, 85 P. 784, 73 Kan. 688, 9 L. R. A. (N. S.) 533, 9 Ann.
<?as. 1203.
93 Pilgrim v. State, 104 P. 383, 3 Okl. Or. 49.
94 On a trial for obtaining property by means of a worthless check, the
cashier of the bank on which it was drawn, under whose supervision the
bank's books were kept, was competent to testify that defendant had no mon-
ey subject to check, though his knowledge was gained from the books. State
v. McCormick, 46 P. 777, 57 Kan. 440, 57 Am. St. Rep. 341.
It is not error to refuse to permit a witness to testify as to the grade or
value of cotton in Galveston, where he did not class the cotton at the time
it was shipped by 'him, and did not know its' value at the time in question.
Smoot & Abbott v. W. L. Moody & Co., 125 P. 1134, 34 Okl. 522.
Where it is not shown that a party is acquainted with, or has any knowl-
edge whatever of, the chattel mortgage records or of any records of the reg-
ister of deeds' office, except that he has -inspected the records, and he is not
the register of deeds, or any deputy thereof, it is not error to refuse to allow
him to testify that a certain mortgage is not recorded. Buxton v. Alton-Daw-
son Mercantile Co., 90 P. 19, 18 Okl. 287.
Carriers. — In an action against a connecting carrier for loss of goods, a
witness who had no knowledge of the weight of the car when delivered to the
connecting carrier, and had never been in its employ, and was not connected
with the execution of the waybill, could not testify as to the weight of the
car from the bill when received by the connecting carrier. St. Louis, I. M. &
S. Ry. Co. v. Carlile, 128 P. 690, 35 Okl. 118.
Where a person has lived several months on a farm near a railroad cross-
ing of a public highway, and his business requires him to cross the track fre-
quently, and he is able to tell the time the regular trains pass the crossing,
he is competent to testify whether a particular train is an irregular or extra
one. Missouri Pac. Ry. Co. v. Stevens, 12 P. 25, 35 Kan. 622.
In an action for damages from delay in a shipment of cattle, a witness could
testify as to what was a reasonable time to transport cattle between two cer-
tain points, where the question was objected to, "unless the witness knows
exactly the time our trains are run" between those points. St. Louis & S. F.
R. Co. v. Peery, 138 P. 1027, 40 Okl. 432.
Reputation. — It is a sufficient predicate for admission of reputation evidence
that witness has sworn that he knows general reputation of place involved in
prosecution for unlawful possession of liquors for the particular kind of bus-
iness, provided such general reputation relates to time of offense and to lo-
"cality, and is material. Ward v. State, 15 Okl. Cr. 150, 175 P. 557.
(756)
Art. 3) COMPETENCY AND PRIVILEGE §§ 861-862
Before a witness can testify to a signature on a written instru-
ment, it must appear that the witness saw the instrument execut-
ed, that he was acquainted with the signature of the party, or that
he is competent to testify by reason of comparison with other sig-
natures known to be genuine.95
A witness who has not kept the books or the pay rolls, and who
has no recollection of the facts independently of them, cannot state
the contents of such books or pay rolls.96
It is not competent to prove the condition of a long account be-
tween a bank and one of its customers by the oral testimony of the
cashier of the bank, where it is not shown that the cashier is the
bookkeeper, or that* the books are kept under his supervision, or
that he has any knowledge of .such books.97
An objection to evidence on the ground that it is incompetent
does not go to the competency of the witness.98
§ 862. Persons interested
"No person shall be disqualified as a witness in any civil action or
proceeding, by reason of his interest in the event of the same, as
a party or otherwise, or by reason of his conviction df a crime ; but
such interest or conviction may be shown for the purpose of af-
fecting his credibility." 99
It is not improper for officers charged with the enforcement of the
law to employ detectives to procure evidence for the prosecution of
those who violate the law, so as to render their testimony inadmis-
sible.1
"Nothing in the preceding section contained shall, in any man-
ner, affect the laws now existing, relating to the settlement of
06 Miller v. Thompson, 50 Okl. 643, 151 P. 192.
so Paola Gas Co. v. Paola Glass Co., 44 P. 621, 56 Kan. 614, 54 Am. St Rep.
598.
97 Mann v. Second Nat. Bank of Springfield, 10 P. 150, 34 Kan. 746.
»8 City of Topeka v. Griffey, 51 P. 296, 6 Kan. App. 920.
90 Rev. Laws 1910, § 5046.
Under Code Civ. Proc. § 317 (Gen. St. 1909, § 5911), witnesses are not dis-
qualified, though directly or indirectly interested in outcome of lawsuit ; their
interest affecting only their credibility. Meador v. Manlove, 156 P. 731, 97
Kan. 706 ; Hess v. Hartwig, 112 P. 99, 83 Kan. 592.
That purchases of liquors were made by persons seeking to ascertain M the
seller was engaged in the unlawful sale thereof does not render the testimony
of such purchasers incompetent. State v. Spiker, 129 P. 195, 88 Kan. 644.
i De Graff v. State, 103 P. 538, 2 Okl. Cr. 519.
(757)
§§ 863-865 WITNESSES (Ch. 14
estates of deceased persons, infants, idiots or lunatics, or the attes-
tation of the execution of last wills and testaments, or of convey-
ances of real estate, or of any other instrument required by law to be
attested." 2
§ 863. Adverse party
"Any party to a civil action or proceeding may compel any ad-
verse party or person, for whose benefit such action or proceeding
is instituted, prosecuted or defended, at the trial, or by deposition,
to testify as a witness in the same manner, and subject to the same
rules, as other witnesses." 3
§ 864. Incompetents
Among the persons incompetent to testify are "persons who are
of unsound mind at the time of their production for examination," 4
and "children under ten years of age who appear incapable of re-
ceiving just impressions of the facts respecting which they are ex-
amined, or of relating them truly." 5
The question of the competency of a witness of tender age is ad-
dressed to the trial court's discretion,13 and may be determined during
its examination rather than before its examination.7
§ 865. Husband and wife
Husband and wife are incompetent to testify "for or against each
other, except concerning transactions in which one acted as the
- Rev. Laws 1910, § 5047.
s Rev. Laws 1910, § 5048.
'* Code Civ. Proc. (St. 1893) § 335, relating to the competency as witnesses
of "persons of unsound inind," means persons whose minds are so defective
that they cannot correctly relate facts, and do not understand or realize what
they are saying or doing. The trial court must determine, on examination of
the witness, and from other evidence, if necessary, as to his competency. City
of Guthrie v. Shaffer, 54 P. 698, 7 Okl. 459.
s Rt\v, Daws 1910, § 5050.
G Seigler v. State, 11 Okl. Or. 131, 145 P. 308.
The question of the competency of a Avitness under ten years of age is ad-
dressed peculiarly to the discretion of the trial court. Darneal v. State, 14
Okl. Cr. 540, 174 P. 290, 1 A. L. R. G38; Collins v. State, 15 Okl. Cr. 9(5, 375
P. 124.
Whether child of fiva years is competent to testify is ordinarily question for
final .determination by trial court. State v. Gaunt, 157 P. 447, 98 Kan. 180.
A nine year old child held competent to testify. Walker v. State, 12 Okl.
Cr. 179, 153 P. 209.
- State v. Douglas, 37 P. 172, 53 Kan. 6G9.
(758)
Art. 3) COMPETENCY AND PRIVILEGE § 865
agent of the other, or when they are joint parties and have a joint
interest in the action; but in no case shall either be permitted to
testify concerning- any communication made by one to the other
during the marriage, whether called while that relation subsisted,
or afterwards." 8
8 Rev. Laws 1910, § SOfiO; Xix v. Gilmer, 50 P. 131, 5 Okl. 740; Hampton v.
State, 123 P. 571, 7 Okl. Cr. 291. 40 L. R. A. (N. S.) 43.
Husband and wife are incompetent to testify for and against each other,
except in transactions in which one acted as the agent of the other, or where
they have a .joint interest in the action. St. Louis & S. F. R. Co. v. Bloom,
39 Okl. 78, 134 P. 432; Herron v. M. Ruraley Co., 116 P. 952, 29 Okl. 317;
Wade v. Sunnier, 30 Okl. 784, 120 P. 1011.
Husband held an .incompetent witness to testify for or against his wife in
action in ejectment and to quiet title, where main issue was whether convey'
auce of wife's property executed by herself and husband was a deed or a mort-
gage. Thomas v. Halsell. 63 Okl. 203, 164 P. 458.
Where two defendants are sued jointly, and a joint answer and defense are
made by them, the wife of one is not competent to testify to a matter sus-
taining the joint defense, and which necessarily affects the right of her hus-
band equally with that of his codefendant. Arn v. Mathews, 18 P. 65, 39 Kan.
272.
Where, in an action to set aside a will, the principal legatee died pending
the action, and a revivor was had in the name of his widow, who was his ex-
ecutor and sole heir at law, she was not incompetent as a witness because
the widow of one of the original parties, where she did not testify to any com-
munications between herself and husband during their marriage. Harper v.
Harper, 113 P. 300, 83 Kan. 761.
In an action to set aside a fraudulent conveyance, the wife of the grantee
is not competent to testify either in behalf of her husband or the grantor, no
(evidence being admissible in behalf of the latter, he not being a necessary
party. Metzger v. Burnett, 48 P. 599, 5 Kan. App. 374.
In replevin against a married woman, unless her husband is a party to the
action, or has a joint interest therein, or is his wife's agent, he is incompe-
tent as a witness for plaintiff. Flohr v. Schwartzberg, 59 P. 666, 9 Kan. App.
215.
On appeal from a judgment of a justice of the peace, the wife of appellant,
who was made a party in the justice court and filed a general denial, but
against whom no judgment was rendered, will not be allowed to testify in
favor of her husband, on the ground that she was a party to the suit in jus-
tice court, and intends to perfect an appeal, since no appeal will lie on her
part. Xutt v. Gaddis, 59 P. 727, 10 Kan. App. 358.
Motion to strike out testimony of plaintiff, in action of slander, as to com-
munication of use of alleged words to her, held properly overruled. Ramsey
v. Partridge, 121 P. 343, 86 Kan. 398.
When a wife testifies upon direct examination, without objection, that she
heard of the making of threats to arrest and imprison her husband, without
stating from whom she heard them, and that in consequence she became so
alarmed concerning him that she executed a mortgage upon her homestead,
(759)
§ 865 WITNESSES (Ch. 14
For a husband or wife to be competent to testify for or against
each other, it is essential, not only that they be joint parties, but
also that they have a joint interest in the action.9
against her judgment and will, in order to insure his safety, her evidence, as
to the bare fact of what she heard, is not rendered incompetent by a disclo-
sure upon cross-examination that she heard it as a communication from her
husband. State Bank v. Hutchinson, 61 P. 443, 62 Kan. 9.
Joint parties and interest. — A wife held not an incompetent witness where
she was a joint party plaintiff with her husband and had a joint interest in
the action. Ray v. Navarre, 47 Okl. 438, 147 P. 1019'; Stewart v. Riddle, 76
Okl. 70, 184 P. 443 ; Young v. Blackert, 51 Okl. 285, 151 P. 1057.
A wife who, jointly with her husband, signed certain warranty deeds mate-
rial to the issues, and who joined with her husband as plaintiff, and against
whom defendants prayed judgment for breach of warranty, was competent to
testify. West & Russell v. Rawdon, 130 P. 1160, 33 Okl. 399.
A wife who is a co-plaintiff with her husband, in an action to enjoin the
sale under execution of their homestead, is a competent witness. Zimmerman
v. Clarke, 58 P. 277, 9 Kan. App. 889.
As the husband and wife are jointly interested in an appeal by both from
an award in condemnation proceedings of part of the homestead, owned by
the wife, but occupied by both as a residence, the husband is a competent wit-
ness on the trial of the appeal. Chicago, K. & W. R. Co. v. Anderson, 21 P.
1059, 42 Kan. 297.
A mother was not rendered incompetent by Gen. St. 1909, § 5915, from tes-
tifying, in an action by her son against the estate of his deceased father for
services, that her husband in his lifetime had told her that the son's services
were worth $30 per month, and that he would get it when he died, etc., since
such evidence was not for or against the deceased husband ; his interest hav-
ing upon his decease passed to others. In re Schaffner's Estate, 141 P. 251,
92 Kan. 570.
After marriage terminated. — A woman cannot testify against her former
husband concerning any communication made by one to the other while the
marriage relation existed. Adkins v. Wright, 131 P. 686, 37 Okl. 771.
A husband can in no case testify concerning any communication made by
his wife to him during the marriage, whether called while that relation sub-
sisted or afterwards. Herron v. M. Rumley Co., 116 P. 952, 29 Okl. 317.
Criminal cases. — In the prosecution of a father for willfully failing to prop-
erly support his children, the wife is a competent witness against him. Hunter
v. State, 10 Okl. Cr. R. 119, 134 P. 1134, L. R. A. 1915A, 564, Ann. Gas. 1916A,
612.
In a prosecution for the sale of liquor, where the state's witness testified
» Guthrie v. Mitchell, 38 Okl. 55, 132 P. 138. In an action by a married
woman suing for rents and profits on her land, she was not entitled under
Comp. Laws 1909, § 5842, making a husband competent to testify for his wife
concerning a transaction in which he acted as her agent, to have her hus-
band measure the land, and then testify as to the number of acres ascertained
by such measurements, where the opposite party was not a party to the meas-
urement. Id.
(760)
Art. 3) COMPETENCY AND PRIVILEGE § 865
Husband and wife are competent witnesses for or against each
other concerning transactions in which one acted as the other's
agent,10 but the fact of such agency must be established before the
testimdny is offered.11
that the sale was made by defendant's wife at his home, she is a competent
witness in his behalf. Tucker v. State, 125 P. 1089, 7 Okl. Cr. 634, denying
rehearing 124 P. 1134, 7 Okl. Cr. 634.
The prosecutrix, when a married woman, is incompetent to testify to non-
access of the husband during the period within which the child must have
been begotten, or to any facts or circumstances from which such nonaccess
may be inferred. Bell v. Territory, 56 P. 853, 8 Okl. 75.
In a criminal prosecution, where a letter previously written and sent by
the defendant to his wife, is not in the custody or control of either the de-
fendant or his wife, nor in the custody or control of any agent or representa-
tive of either, but is in the custody and control of a third person, who is call-
ed as a witness for the prosecution in the case, such letter may be used in the
case as evidence against the defendant. Connella v. Territory, 86 P. 72, 16
Okl. 365.
In a prosecution for adultery the injured spouse is a competent witness.
Kitchens v. State, 140 P. 619, 10 Okl. Cr. 603 ; Mitchell v. Same, 140 P. 622,
10 Okl. Cr. 697 ; Heacock v. State, 112 P. 949, 4 Okl. Cr. 606.
Under Cr. Code Kan. § 215 (Gen. St. Kan. 1909, § 6791), held not error to
permit defendant's wife to testify to a conversation with him. State v. Mar-
see, 144 P. 833, 93 Kan. 600.
ioTreiber v. McCormack, 136 P. 268, 90 Kan. 675, Ann. Cas. 1915B, 943;
Stewart v. Riddle, 76 Okl. 70, 184 P. 443 ; Lowman v. Elaine County Bank,
139 P. 952, 40 Okl. 519.
The husband is a competent witness to testify on behalf of his wife in trial
of a civil action, where the evidence discloses that he acted as her agent in
reference to matters to which his evidence is directed, notwithstanding Rev.
Laws 1910, § 5050. Bagg v. Shoenfelt (Okl.) 176 P. 511.
The wife is a competent witness in behalf of her husband in regard to trans-
actions in which she acted as his agent. Bell v. Day, 57 P. 1054, 9 Kan. App.
Ill ; Armstrong, Byrd & Co. v. Crump, 106 P. 855, 25 Okl. 452.
Defendant's wife was not competent to testify about any personal transac-
tion between defendant and herself unless she was an agent in the transac-
tion, under Rev. Laws 1910, § 5050. Johnson v. Walters, 59 Okl. 233, 158 P.
914.
A husband, acting as the agent of his wife, was a competent witness on her
behalf as to all matters covered by such agency. Wiggins v. Foster, 55 P. 350,
8 Kan. App. 579.
In an action in which the husband is a party, a wife who has had charge
of lier husband's money is competent to testify as to the fact that it was
loaned ; the loaning being within the scope of her agency. Green v. McCrack-
en, 67 P. 857, 64 Kan. 330.
Where the wife of one of the parties is produced as a witness on behalf of
her husband to prove an admission by the adverse party that money being
11 Fulkerson v. Kilgore, 64 P. 5, 10 Okl. 655.
(701)
§ 865 WITNESSES (Ch. 14
The rule that an agency resting in parol can generally be proved
by testimony of either the principal or the person claiming to act
as agent applies when the purported agent is either the husband or
wife of principal.12
Although the wife of a party is not competent to testify unless
she is the agent of her husband, or has a joint interest in the action,
a party can offer his wife as a witness and have her examined as to
her competency, and it is not error to permit preliminary questions
and answers to determine whether or not she acted as her hus-
band's agent.13 Where a husband merely authorizes his wife to act
as his agent for a specific purpose, he may so testify.14
A wife may testify concerning a transaction in which she acted
as her husband's agent, though her "husband was present when the
transaction occurred.15
That a husband under his wife's direction searched for a witness
paid by the husband to him was all that was due, it is not sufficient to render
her competent as a witness that she wrote the receipt for the money and usu-
ally did her husband's writing and sometimes did other business for nim,
but it must appear that she was engaged in the settlement of the accounts be-
tween her husband and the adverse party and that she had general special
authority from him to do so. Gulliford v. McQuillen, 89 P. 927, 75 Kan. 454.
In an action to recover for forcible eviction, plaintiff claiming to be in law-
ful possession of a farm under a verbal lease from defendant, held, that there
was no competent evidence that the wife was the agent of her husband as to
such lease so as to render admissible in evidence against him declarations and
admissions made in his absence. Hayes v. Funk, 99 P. 1131, 79 Kan. 416.
i2Bagg v. Shoenfelt (Okl.) 176 P. 511.
A husband may testify for his wife as to any business transacted by him
for her as her agent. Smith v. Travel, 94 P. 529, 20 Okl. 512. A husband is
a competent witness to testify that he acted as agent of his wife. Id.
A husband or wife is competent to show his or her authority to act as
agent of the other. Wichita & W. R. Co. v. Kuhn, 16 P. 75, 38 Kan. 104, judg-
ment reversed on rehearing 17 P. 322, 38 Kan. 675 ; Paulsen v. Hall, 18 P. 225,
39 Kan. 365.
A wife may testify in Tier own behalf, in a suit between herself and another,
to the creation by her of an agency in her husband, and to its execution by
him. McAdow v. Hassard, 48 P. 846, 58 Kan. 171.
i» Wade v. Sumner, 30 Okl. 784, 120 P. 1011.
Evidence on the question of the wife's competency to testify held to show
that she acted as her husband's agent in the transaction on which her testi-
mony was sought. Western Nat. Life Ins. Co. v. Williamson-Halsell-Frazirr
Co., 131 P. 691, 37 Okl. 213.
I* Bell v. Day, 57 P. 1054, 9 Kan. App. 111.
10 Western Nat. Life Ins. Co. v. Williamsou-Halsell-Frazier Co., 131 P. .691,
37 Okl. 213.
(762)
Art. 3) COMPETENCY AND PRIVILEGE § 865
did not render him competent to testify on his wife's behalf as her
agent, to a 'conversation between himself and the witness for the
purpose of impeaching the witness.16
Where a husband accompanies his wife to hear a conversation be-
tween her and a third person, he is not acting as her agent in such
sense as to make him competent as a witness.17
Where an action is brought by the wife, and the husband, who
is not a party or interested in the action, is introduced as a wit-
ness in her behalf, the examination of such witness must be con-
fined strictly to transactions in which the husband acted as the
agent of the wife.18
W'here, in absence of. the husband from home, the wife acts in
the protection of property owned by him and within the home
limits, she is acting as his agent, and is a competent witness in an
action by or against him as to conversations with regard to such
property.19
A husband acting for his wife's interest in a homestead, and
whose acts were ratified with knowledge, was her agent and
competent to testify in regard thereto.20
The fact that, in an action against a husband and wife judgment
is first rendered against the husband, does not make him any less
a joint party with her, so as to render him an incompetent wit-
ness.21
Where a married woman was defendant in foreclosure, and h'er
cross-petition was dismissed and she was dismissed out of the
case, the testimony of her husband was competent.22
ie,Muskogee Electric Traction Co. v. Mclntire, 133 P. 213, 37 Okl. 684, L.
R. A. 1916C, 351.
IT Fish v. Bloodworth, 129 P. 32, 36 Okl. 586.
is Council Grove, O. C. & O. Ry. Co. v. Center, 22 P. 574, 42 Kan. 438.
It is not error to permit the husband of plaintiff to testify on the trial of *
an action by her, where he has acted as her agent as to matters to which her
evidence is directed. Bland v. Peters, 30 Okl. 70S, 120 P. 631.
is Calloway & Son v. Wrench (Okl.) 175 P. 209.
Where, in the husband's absence, the wife acts in protection of property
claimed by him, though without express direction, she is a competent wim<->>.
in an action by or against him, as to what she does and says in relation there-
with. McDonald v. Cobb, 52 Okl. 581, 153 P. 138.
20 State Mut. Ins. Co. v. Green, 62 Okl. 214, 166 P. 105. L. R. A. 1917F, 663.
21 Atchison Sav. Bank v. Means, 58 P. 989, 61 Kan. 857.
22 Van Valkenburg v. Lynde, 66 P. 994, 63 Kan. 887.
(763)
§ 865 WITNESSES (Ch. 14
A husband is a competent witness in an action brought by his
wife as an executrix of the estate of a deceased person.23
The wife is incompetent to testify, where the husband is inter-
ested in the result of the case, though the action is in the name of
a third party.24
The clause forbidding a husbaad or wife testifying concerning
communications made by one to the other during marriage is not '
affected by their being joint parties and jointly interested in the
action, or by one having acted as the agent of the other.25
A husband cannot testify to a communication made by him to his
wife concerning property claimed by her.26
In an action by a husband for alienating the affections of his wife,
he is not incompetent to testify as to transactions or communica-
tions not had by him with his wife.27
A conversation between husband and wife in the presence or hear-
ing of another is not a confidential communication.28
The wife of one who is interested in an action only as the next
friend of a minor plaintiff is a competent witness in the case.29
In husband's action for personal injury, the wife was a competent
*,
23 Van Fleet v. Stout, 24 P. 960, 44 Kan. 523.
24 Western Nat. Life Ins. Co. v. Williamson-Halsell-Frazier Co., 131 P. 691,
37 Okl. 213.
25 Marshall v. Marshall, 80 P. 629, 71 Kan. 313.
The plaintiff caused the deposition of one of the defendants to be taken
prior to the trial, in which the witness gave testimony concerning communi-
cations had with her husband during the marriage, and prior to his death.
Held, that the testimony falls within the prohibition of the Code which for-
bids husband or wife "to testify concerning any communication made by one
to the other during marriage, whether called while that relation subsisted or
afterwards," and its admission over the objection of the defendants was er-
ror. French v. Wade, 11 P. 138, 35 Kan. 391.
26 Van Zandt v. Schuyler, 43 P. 295, 2 Kan. App. 118.
Under Civ. Code, § 323, providing that in no case can either the husband
or wife testify concerning any communication made by one to the other dur-
ing the marriage, a husband cannot so show his life interest in property stand-
ing in his wife's name. Chicago, K. & N. Ry. Co. v. Ellis, 34 P. 352, 52 Kan. 48.
27 Roesner v. Darrah, 70 P. 597, 65 Kan. 599.
Husband suing for damages for the alienation of the affections of his wife
and her seduction is a competent witness, except as to his transactions or
communications with her. Potter v. Womach, 63 Okl. 107, 162 P. 801.
28 State Bank v. Hutchinson, 61 P. 443, 62 Kan. 9; State v. Gray, 39 P. 1050,
55 Kan. 135.
29 Potter v. Stamfli, 44 P. 46, 2 Kan. App. 788.
(764)
Art. 3) COMPETENCY AND PRIVILEGE §§ 865~866
witness to testify as to the fact of her telephone conversation with
defendant's wife, and to detail the message received for her hus-
band.30
The mother, who was divorced from the child's alleged father, is
a competent witness as to the child's paternity.81
That husband and wife were not married at the time the trans-
action occurred does not qualify them.32
The. incompetency of a husband to testify must be raised by objec-
tion to competency as a witness, and not merely by an objection to
the competency, relevancy, or materiality of the testimony.38
The prohibition against husband and wife being witnesses against
each other is for the benefit of the husband and wife, and may be
waived.34
§ 866. Attorney and client
It is also incompetent for an attorney to testify "concerning any
communications made to him by his client, in that relation, or his
advice thereon, without the client's consent." 85
so Brownell v. Moorehead (Okl.) 165 P. 408.
si Lyon v. Lash, 99 P. 598, 79 Kan. 342.
32 Sands v. David Bradley & Co., 129 P. 732, 36 Okl. 649, 45 L. R. A. (N. S.)
396.
In an action under Rev. Laws 1910, § 5281, for wrongful death, by a woman
suing as widow of decedent, and as next friend to his children, the testimony
of her present husband was incompetent under Rev. Laws 1910, § 5050, where
he had not acted as her agent and was not a party. Smith v. Chicago, R. I.
& P. Ry. Co., 142 P. 398, 42 Okl. 577.
The statute does not prevent one from testifying against the other after
the marriage relation has terminated regarding independent facts which are
not privileged communications. Adkins v. Wright, 131 P. 686, 37 Okl. 771.
Where plaintiff offers a witness in his behalf and defendant objects on the
ground that she is the wife of the plaintiff, it is not error to admit in evidence
a decree of divorce to show that the relations theretofore existing between
them had been dissolved, and that she was a competent witness for plaintiff.
Easterly v. Gater, 87 P. 853, 17 Okl. 93, 10 Ann. Cas. 888.
33 Muskogee Electric Traction Co. v. Mclntire, 133 P. 213, 37 Okl. 684, L. R.
A. 1916C, 793.
In an action to cancel a mortgage by a husband and his wife, the objection
that the testimony of the wife was incompetent was not well taken. Hartzell
v. Hartzell, 141 P. 772, 42 Okl. 390. An objection to a wife as a witness be-
cause incompetent, to be available must be made on the ground of her in-
competency. An objection on the ground that the testimony is incompetent
does not raise the question of the competency of the witness. Id.
s* Hampton v. State, 123 P. 571, 7 Okl. Cr. 291, 40 L. R. A. (N. S.) 43.
35 Rev. Laws 1910, § 5050.
An attorney is incompetent to testify as. to confidential communications with
(765)
§ 866 WITNESSES (Ch. 14
A communication from a client to his attorney may be admitted
in evidence, but the attorney, without his client's consent, is pre-
vented from testifying concerning such communication.30 No one
other than the client or one in privity with him can raise the ques-
tion of privilege between client and attorney ; S7 nor can an attor-
ney disclose privileged matter as a basis for an opinion that a client
was of unsound mind at the time of a consultation had with him.38
However, an attorney may express an opinion regarding the sanity
of his client, from observations made in common with others in a
nonprofessional capacity, or from facts which did not come to his
knowledge because his professional advice had been sought.89
An attorney may testify that a certain person is his client, for
this is not a privileged communication.40
his client. Pearson v. Yoder, 39 Okl. 105, 134 P. 421, 48 L. R. A. (N. S.) 334.
Ann. Cas. 1916A, 62.
Good-faith communications between an attorney and his client, relating to
the best method of protecting the client's interests, are privileged. Emerson
v. Western Automobile Indemnity Ass'n, 105 Kan. 242, 182 P. 647.
An attorney cannot testify concerning any communication made to him by
a client or his advice thereon without the client's consent. Brown v. State,
9 Okl. Cr. 382, 132 P. 359.
Communications made by complaining witness to the prosecuting attorney
as to his knowledge of matters relating to probable guilt are privileged, and
cannot be given in evidence over his objection in an action against him for
malicious prosecution. Michael v. Matson, 105 P. 537, 81 Kan. 360, L. R. A.
1915D, 1.
In a proceeding by writ of error coram nobis to obtain relief from a sen-
tence of imprisonment imposed seven years before on a plea of guilty obtain-
ed by duress, the deposition of plaintiff in the proceeding, who was still in
prison, and not present at the trial, stated that one K. had never acted as
his attorney, but on the trial K. testified that he was counsel for plaintiff
when a certain conversation between them occurred. Held, that the action of
the lower court in excluding this conversation as a privileged communication
would not be disturbed. State v. Calhoun, 32 P. 38, 50 Kan. 523, 34 Am. St.
Rep. 141, 18 L. R. A. 838.
This statute is but declaratory of the common law, and is for the benefit of
the client, and not the attorney. Evans v. State, 115 P. 809, 5 Okl. Cr. 643,
34 L. R. A. (N. S.) 577. v
36 Tays v. Carr, 14 P. 456, 37 Kan. 141.
37 Matthews v. McNeill, 157 P. 387, 98 Kan. 5.
38 Sheehan v. Allen, 74 P. 245, 67 Kan. 712.
3» Sheehan v. Allen, 74 P. 245, 67 Kan. 712.
40 Arkansas City Bank v. McDowell, 52 P. 56, 7 Kan. App. 568.
Where a will is attacked for alleged undue influence, evidence of the attor-
ney who drew the will as to who gave him the data therefor, and whose in-
structions he followed in preparing the same, was not objectionable as a dis-
(766)
Art. 3) COMPETENCY AND PRIVILEGE § 866
In order for a communication from a client to his attorney to
be confidential, and to impose upon the attorney the duty of not dis-
closing the same, it must be of a confidential chaVacter and so re-
garded, at least by the client, at the time, and must relate to a mat-
ter which is in its nature private and properly the subject of con-
fidential disclosure.41
Communications made to an attorney who was acting for both
parties, and made in the presence of both parties, are not privi-
leged.42
An attorney may be compelled to produce papers belonging to
his client, where the knowledge of their contents is accessible to
others or to the public.43 He may be compelled to produce any
paper in his possession belonging to his client, which the client him-
self could be compelled to produce.44
An attorney may testify in behalf of his client, and the fact that
his compensation as an attorney in the action is contingent on the
result of the litigation does not render him incompetent, but goes
to his credibility.43
Where statements are made to an attorney when no employment
as an attorney is suggested or anticipated, and the relation of at-
closure of confidential communications. Kerr v. Kerr, 116 P. 880, 85 Kan.
460.
41 In re Elliott, 84 P. 750, 73 Kan. 151.
42 Sparks v. Sparks. 32 P. 892, 51 Kan. 195.
Testimony of an attorney who acted for grantor and grantee in preparing
a contract as to a conveyance in fraud of the grantor's creditors held not
privileged. Chicago Lumber Co. v. Cox, 147 P. 67, 94 Kan. 563.
4s Pearson v. Yoder, 39 Okl. 105, 134 P. 421, 48 L. R. A. (N. S.) 334, Ann.
Oas. 1916A, 62.
44 Id.
After a party to a cause has voluntarily procured a reading of his un-
filed pleading by a nonprofessional stranger, has published its contents in a
newspaper interview, and spread it on the record of a court of general juris-
diction, in pleading against the attorney who assisted in preparing it, the
privileged character of the document is waived, and the attorney is released
from the confidential relation he bore before its publication, and his produc-
tion of it for use in evidence against the party is not a breach of privilege.
In re Burnette, 85 P. 575, 73 Kan. 609.
45 Central Branch Union Pac. R. Co. v. Andrews, 21 P. 276, 41 Kan. 370.
Code Civ. Proc. Kan. § 321 (Gen. St. Kan. 1909, § 5914), does not prohibit
an attorney from testifying relative to the preparation and execution of a
will drawn by him. including information imparted by testator, in a proceed-
ing to contest the will for fraud and undue influence. Black v. Funk, 143 P.
426, 93 Kan. 60.
§ 866 WITNESSES (Ch. 14
torney and client does not exist, the communications are not priv-
ileged.46
Professional communications between a lawyer and his client
are not privileged, when such communications are had for the pur-
pose of being guided or assisted in the commission of a crime.47
The rule that privilege may not be urged respecting communica-
tions relating to perpetration of fraud is limited, ordinarily, to cases
of actual fraud involving moral turpitude.48
An attorney is employed in his professional capacity when he is
voluntarily listening to his client's preliminary statement, and it
is not necessary that any retainer should have been promised,
charged, or demanded, and it makes no difference, though the serv-
ices are gratuitous.49
Where a client testifies as to confidential communications made
by her to her attorney and as to his advice thereon, this operates as
a consent that the attorney may testify as to what actually tran-
spired between him and his client.50
46 State v. Herbert, 66 P. 235, 63 Kan. 516 ; Robinson's Ex'rs v. Blood's
Heirs, 62 P. 677, 10 Kan. App. 576.
A lawyer, who prepared a contract for decedent, may testify as to a con-
versation with the decedent when the contract »vas executed, to show that
the deceased knew and understood the contents of the contract, if the rela-
tion of attorney and client did not exist between the witness and the dece-
dent. Grimshaw v. Kent, 73 P. 92, 67 Kan. 463.
Where a person communicated to an attorney certain facts, which became
Important as evidence against the person making them in an action subse-
quently brought in which he was a party, and the attorney, without the con-
sent of the person making such communication, was called by the adverse
party as a witness, and the court excluded such testimony as being privileged,
it was error, where the advice of the attorney was gratuitously given, and it
was not known that he was an attorney, and the communications were not
made under the seal of professional confidence. Union Pac. R. Co. v. Day,
75 P. 1021, 68 Kan. 726.
There was no relation of attorney and client between the defendants in a
prosecution for criminal libel and the prosecuting officer, so as to exclude evi-
dence of such officer, as to communications falsely charging a third person
with crime. State v. Wilcox, 132 P. 982, 90 Kan. 80, 9 A. L. R. 1091.
47 Morris v. State, 115 P. 1030, 6 Okl. Cr. 29.
48 Emerson v. Western Automobile Indemnity Ass'n, 105 Kan. 242, 182 P.
647.
49 Evans v. State, 115 P. 809, 5 Okl. Or. 643. 34 L. R. A. (N. S.) 577.
so Brown v. State, 9 Okl. Cr. 382, 132 P. 359.
In a partition suit, that defendants had taken and filed, but had not used,
the deposition of a witness claimed to be incompetent under Code Civ. Proc.
Kan. § 321 (Gen. St. Kan. 1915, § 7223), respecting communications by a cli-
(768)
Aft. 3) COMPETENCY AND PRIVILEGE §§ 867~868
§ 867. Clergyman or priest
It is incompetent for a clergyman or priest to testify "concerning
any confession made to him in his professional character in the
course of discipline enjoined by the church to which he belongs,
without the consent of the person making the confession." 81
§ 868. Physician and patient
It is incompetent for a physician or surgeon to testify "concern-
ing any communication made to him by his patient with reference
to any physical or supposed physical disease, or any knowledge ob-
tained by a personal examination of any such patient: Provided,
that if a person offer himself as a witness, that is to be deemed
a consent to the examination; also, if an attorney, clergyman or
priest, physician or surgeon on the same subject, within the mean-
ing of the last three subdivisions of this section." °2
This provision of the Code merely grants a privilege to render
physicians and surgeons incompetent to testify to certain commu-
nications.153
ent to his attorney, constituted a waiver of the privilege. Watson v. Wat-
son, 104 Kan. 578, 180 P. 242.
In an action in conversion, where conspiracy is charged, it is not error to
permit an attorney to testify that he had advised one of the defendants that
an abstract of title showed defective title, for the purpose of showing notice
of bad title ; no objection being made that the conversation was privileged.
American Trust Co. v. Chitty, 129 P. 51, 36 Okl. 479.
51 Rev. Laws 1910, § 5050.
52 Rev. Laws 1910, § 5050.
ss Armstrong v. Topeka Ry. Co., 144 P. 847, 93 Kan. 493.
In bastardy proceedings, where the relatrix and the defendant agreed that
a physician should make an examination for the purpose of determining the
duration of pregnancy, statements made by the relatrix to the physician dur-
ing the examination as to the date of her first intercourse with defendant
were competent. Clark v. State, 61 P. 814, 8 Kan. App. 782.
Statements made by an injured employe" to a surgeon called to attend him
as to the position of the employe1 immediately preceding the accident are not
privileged. Kansas City, Ft. S. & M. R. Co. v. Murray, 40 P. 646, 55 Kan.
336.
Code Civ. Proc. Kan. § 323, as amended in 1909 (Code Civ. Proc. Kan. § 321
[Gen. St. Kan. 1909, § 5915]), do not excuse a physician from testifying as
to the time, manner, and circumstances of a street car accident resulting in
injuries to a passenger. Armstrong v. Topeka Ry. Co., 144 P. 847, 93 Kan. 493.
A physician was employed to attend a patient, and afterwards the family
physician took charge of the case. Within a few hours the physician first
called again visited the patient, when a statement was made as to the cause
of the injury. The patient stated that he regarded the doctor as his physi-
HON.PL.& PBAC.-^9 (769)
§ 868 WITNESSES (Ch. 14
Testimony of a physician as to any communication made by his
patient as to her disease, or knowledge obtained by him, may be giv-
en, if the patient testifies on the same subject.64
So, too, the heirs at law of one who has been treated by a physi-
cian may waive the privilege of making a physician incompetent
to testify to any knowledge obtained in his professional capacity
from his patient.55
A physician is not incompetent to testify as to communications
by a patient or to knowledge obtained by a personal examination,
where third persons were present.50
cian, but the doctor stated that he did not regard himself as such. Held,
that the exclusion of the statement as privileged was not error. E. Patter-
son & Son v. Cole, 73 P. 54, 67 Kan. 441.
s* Roeser v. Pease, 131 P. 534, 37 Old. 222 ; Fulsom-Morris Coal & Mining
Co. v. Mitchell, 132 P. 1103, 37 Okl. 575.
Where plaintiff testified as to the nature of her injuries, and the time and
place of treatment, she waived the privilege granted by Comp. Laws 1909,
§ 5842, and rendered admissible the testimony of her physician on these sub-
jects. City of Tulsa v. Wicker, 141 P. 963, 42 Okl. 539.
Where, in personal injury action, plaintiff testified that he had never suf-
fered similar injury prior to accident, and denied that he had stated to his
physician that he had suffered a similar injury, physician called by plaintiff
as witness may be cross-examined as to such statement. Chicago, R. I. & P.
Ry. Co. v. Hughes, 64 Okl. 74, 166 P. 411.
An applicant for life insurance may contract with the insurer waiving the
privilege afforded him by Code Civ. Proe. § 323 (Gen. St. 1901, § 4771), ren-
dering a physician incompetent to testify to professional communications
from his. patient. Metropolitan Life Ins. Co. v. Brubaker, 96 P. 62, 78 Kan.
146, 18 L. R. A. (N. S.) 362, 130 Am. St. Rep. 356, 16 Ann. Cas. 267.
A patient's consent that his physician shall testify to confidential commu-
nications is implied from failure to object when the physician is called to
testify, provided the patient has opportunity to make objection. Id.
A physician may, with his patient's consent, testify to confidential commu-
nications. Id.
Under Code Civ. Proc. 1901, § 323, as amended in 1909 (Code Civ. Proc. §
321 [Gen. St. 1909, § 5915]), the giving of testimony by a patient without ob-
jection is equivalent to consent that the physician may testify to the same
matter. Id.
55 Bruington v. Wagoi\er, 164 P. 1057, 100 Kan. 10, 439.
The heirs at law of one who has been treated by a physician may waive
the provisions of the statute making a physician incompetent to testify to
any knowledge obtained in his professional capacity from the patient. Fish
v. Poorman, 116 P. 898, 85 Kan. 237.
66 In re Swartz's Will, 79 Okl. 191, 192 P. 203.
(770)
Art. 3) COMPETENCY AND PRIVILEGE §§ 869-871
§ 869. Construction of statutes
Statutes in derogation of the competency of witnesses will be
strictly construed in favor of competency.57
Statutes excluding certain persons from testifying will be strictly
construed, and the exclusion will not be extended by implication to
a class not named, but a witness will be deemed competent unless
clearly rendered incompetent by the terms of the statute.88
§ 870. Conviction of crime
The fact that a witness has been convicted of any felony except
perjury does not disqualify him.59
§ 871. Self-incrimination
No person shall be compelled to give evidence which will tend
to incriminate him, except as i - the Constitution provided. A per-
son having knowledge of facts that tend to establish the guilt of
any other person charged with an offense shall not be excused from
giving testimony on the ground that it may tend to incriminate
him, but no person shall be prosecuted on account of any transac-
tion concerning which he may so testify. A person under examina-
tion before a county judge in an investigation into supposed vio-
lations of the prohibitory law is not obliged to answer questions,
where his answers will tend to incriminate him, unless the inquisi-
tion is held to inquire into a complaint made, supported by affidavit
charging an offense against the prohibitory law.60
57 Armstrong v. Topeka Ry. Co., 144 P. 847, 93 Kan. 493.
s s Savage v. Modern Woodmen of America, 113 P. 802, 84 Kan. 63, 33 L.
R. A. (N. S.) 773.
It is not against public policy to require a banker to disclose the amount
of a depositor's balance, nor are the transactions between him and the depos-
itor privileged in a legal sense. In re Davies, 75 P. 1048, 68 Kan. 791.
59 price v. State, 9 Okl. Cr. 359, 131 P. 1102.
St. 1893, § 2578, providing that a person sentenced to imprisonment for life
is deemed civilly dead, does not affect his competency as a witness. Martin
v. Territory, 78 P. 88, 14 Okl. 598. St. 1893. § 4209, provides that no person
shall be disqualified as a witness because of his conviction of a crime, but
such conviction may be shown to affect his credibility. Section 5207 provides
that the rules of evidence in civil cases except as otherwise provided are appli-
cable to criminal cases. Held, that one under sentence for life is not dis-
qualified from testifying in a criminal case. Id.
eo EX parte Gudenoge, 100 P. 39, 2 Okl. Or. 110.
Const. Bill of Rights, §§ 21, 27.
In inquisition under Laws 1917, c. 39S, to determine origin of a fire, a wit-
(771)
§ 871 WITNESSES (Ch. 14
The manifest purpose of the constitutional provisions, both of
the United States and of the state, is to prohibit the compelling of
evidence of a self-criminating kind from a witness.61
No statute, which leaves a party or witness the subject of pros-
ecution after he answers the incriminating question put to him, can
have the effect of supplanting the privilege conferred by the Con-
stitution, but to be valid the statute must afford absolute immunity
against future prosecution.62 The constitutional provisions must
be construed as declaring that no evidence obtained from a witness
by means of a judicial proceeding shall be given in evidence, or
in any manner used against him in any criminal proceeding or for
the enforcement of any penalty or forfeiture.63
The privilege against self-crimination does not protect the offi-
cers of an insolvent institution in resisting production of the books,
ness may claim his constitutional privilege of refusing to give incriminating
answers. State v. Harris, 103 KanN347, 175 P. 153.
A justice of the peace, acting as a coroner at an inquest for murder, can-
not compel a witness to answer incriminating questions. Faucett v. State,
10 Okl. Or. Ill, 134 P. 839, L. R. A. 1918A, 372.
Where a defendant offers the testimony of a codefendant jointly indicted
with him, it is not error to refuse to compel the witness to answer any ques-
tion which the witness claims will incriminate him, and which he declines to
answer on that ground. Anderson v. State, 126 P. 840, 8 Okl. Or. 90, Ann.
Gas. 1914O, 314.
Where, in a prosecution for bastardy, a witness declines to answer the
question as to whether he had intercourse with the relatrix, on the ground
that his answer might render him liable to a criminal prosecution, he can-
not be required to answer if it reasonably appear that the answer would
expose him to such prosecution, or if the fact on which he is interrogated
would lead to his conviction of a crime. Stevens v. State, 32 P. 350, 50
Kan. 712.
It is improper for prosecuting attorney to demand accused in the presence
of the jury to produce any document referred to containing evidence tending
to incriminate him. Crump v. State, 124 P. 632, 7 Okl. Cr. R. 535.
Code, Kan. § 482, "in aid of execution," authorizing the district judge to
require a judgment debtor to appear before him to answer concerning his
property, which he unjustly refuses to apply towards the satisfaction of a
judgment rendered against him, and to order any money in his actual pos-
session and under his control, not exempt by law, to be applied to the satis-
faction of the judgment under which the proceedings are had, and to enforce
said orders by proceedings for contempt in case of refusal or disobedience,
does not violate Bill of Rights, § 10, providing that no person shall be a wit-
ness against himself. In re Burrows, 7 P. 148, 33 Kan. 675.
61 Ex parte Gudenoge, 100 P. 39, 2 Okl. Cr. 110.
62 Id.
es Id.
(772)
Art. 3) COMPETENCY AND PRIVILEGE §§ 871-872
records, and papers, because such documents may tend to incrim-
inate them.64
A state statute providing that no person giving evidence shall be
prosecuted for any violation of the act about which he may tes-
tify, a witness cannot refuse to testify on the claim that the im-
munity afforded does not afford protection against the possibility
of his evidence being used against him in a prosecution for vio-
lations of a federal statute.65 This is because the privilege cannot
be claimed by a witness when by the terms of an immunity stat-
ute the immunity afforded is coextensive with the constitutional
privilege of silence.66
§ 872. Waiver
Where a defendant exercises his privilege to testify in his own
feehalf, he waives his constitutional privilege and is -subject to the
same rules of cross-examination as other witnesses.67
The election to testify having once been made, the privilege of
not testifying is waived at every subsequent stage.08 However,
e* Burnett v. State, 129 P. 1110, 8 Okl. Cr. 639, 47 L. R. A. (N. S.) 1175.
65 State v. Jack, 76 P. 911, 69 Kan. 387, 1 L. R. A. (N. S.) 167, 2 Ann. Gas.
171, judgment affirmed Jack v. State of Kansas, 26 S. Ct. 73, 199 U. S. 372,
50 L. Ed. 234, 4 Ann. Gas. 689 ; In re Bell, 76 P. 1129, 69 Kan. 855.
66 Id.
Laws 1897, p. 485, c. 265, § 10, providing for the examination of witnesses as
to their knowledge of violations of the anti-trust law, and declaring that any
person subpoenaed and examined shall not be liable to criminal prosecution
for any violation of the act about which he may testify, affords to the wit-
ness an immunity coextensive with the constitutional privilege that no per-
son shall be a witness against himself, so that he cannot claim the privilege
of that provision. Id.
67 Smith v. State, 14 Okl. Cr. 348, 171 P. 341.
Where a party jointly charged with defendant, but not himself on trial,
voluntarily elects to become a witness, he cannot claim on cross-examination
any exemptions from answering incriminating questions growing out of the
transaction under consideration. Bryan v. State, 11 Okl. Cr. 180, 144 P. 392.
The defendant as a witness is subject to the ordinary rules of evidence.
McNeill v. State (Okl. Cr. App.) 192 P. 256.
The privilege does not bar such evidence, but merely gives a right which
may be waived if not asserted in ample time. Scribner v. State, 9 Okl. Cr.
465, 132 P. 933, Ann. Cas. 1915B, 381.
es State v. Simmons, 98 P. 277, 78 Kan. 852.
Where a prisoner on trial for a crime voluntarily takes the stand, he
waives all privileges to which he is entitled by remaining silent, and may be
asked if he has not made certain statements inconsistent with his testimony
in the cause, and if he admits doing so, he may show the conditions under
(773)
§ 873 WITNESSES (Ch. 14
this privilege of a witness is personal to the witness, and not avail-
able to accused as a basis of objection.69
§ 873. Transactions with decedent
"No party to a civil action shall be allowed to testify in his own
behalf, in respect to any transaction or communication had person-
ally by such party with a deceased person, when the adverse party
is the executor, administrator, heir at law, next of kin, surviving
partner or assignee of such deceased person, where such party has
acquired title to the cause of action immediately from such deceased
person ; nor shall the assignor of a thing in action be allowed to
testify in behalf of such party concerning any transaction or com-
munication had personally by such assignor with a deceased per-
son in any such case; nor shall such party or assignor be com-
petent to testify to any transaction had personally by such party of
assignor with a deceased partner or joint contractor in the ab-
sence of his surviving partner or joint contractor, when such sur-
viving partner or joint contractor is an adverse party. If the testi-
mony of a party to the action or proceeding has been taken, and
he afterwards die, and the testimony so taken shall be used after
his death, in behalf of executors, administrators, heirs at law, next
of kin, assignee, surviving partner or joint contractor, the other
party, or the assignor, shall be competent to testify as to any and
all matters to which the testimony so taken relates." 70
This statute operates to disqualify such a witness rather than to
restrict his testimony as evidence.71 The word "transaction," with-
in the meaning of this statute, means a matter participated in by
the witness and the decedent.72
which they .were made, and if he denies such statements, the prosecution on
rebuttal may prove them, though they would not have been admissible had ho
remained silent, because not voluntary. Harrold v. Territory, 89 P. 202, 18
Okl. 395, 10 L. R. A. (N. S.) 604, 11 Ann. Cas. 818, judgment reversed 169 F.
47, 94 C. O. A. 415, 17 Ann. Cas. 868.
Under Rev. Laws 1910, §§ 5046, 5881, 5882, where a codefendant avails him-
self of the privilege given by section 5881, to become a witness, he is a com-
petent witness for all purposes, either for or against himself, or for or
against his codefendant. Buxton v. State. 11 Okl. Or. 85, 143 P. 58.
ea Castleberry v. State, 139 P. 132, 10 Okl. Cr. 504.
TO Rev. Laws 1910, § 5049.
71 Hunger v. Myers, 153 P. 497, 96 Kan. 743.
72 Words and Phrases, vol. 6, pp. 5365, 5366 ; vol. 8, p. 7061.
This statute should be strictly construed. Sarbach v. Sarbach, 122 P. 1052,
(774)
Art. 3) COMPETENCY AND PRIVILEGE § 873
This statute does not prohibit a party to such action from testi-
fying as to any matter relevant to the issues therein, except as to
transactions or communications had personally with the deceased.73
86 Kan. 894. It applies to the testimony of a widow in a suit against the
administrator of her husband's estate. .Vance v. Whitten, 51 Okl. 1, 151 P.
567.
In an action on a rejected claim against an estate, plaintiff's testimony as
to the transactions involved in such claim had personally with the deceased
was properly excluded. .Richardson v. Strother, 55 Okl. 348, 155 P. 528.
No party may testify in his own behalf as to transaction with decedent
when adverse party is executor, personal representative, heir, next of kin,
surviving partner, or assignee of decedent, where party has acquired title to
cause of action from decedent. Lindsey v. Goodman, 57 Okl. 408, 157 P. 344.
No party may testify in his own behalf as to any transaction had with a
deceased person when the adverse party is the representative of the deceas-
ed person. Wadleigh v. Parker, 124 P. 957, 34 Okl. 213.
No party may testify in his own behalf as to any transaction with a de-
ceased person when the adverse party is the executor, administrator, heir at
law, next of kin, surviving partner, or assignee of the deceased person, where
they have acquired title to the cause of action from such deceased person.
MacDonald v. McLaughlin, 123 P. 158, 32 Okl. 584.
In an action by a grantor to set aside a deed against a person who had
acquired title immediately from the deceased grantee of such grantor, such
grantor could not testify in his own behalf to any transactions or commu-
nications with the decedent, whether such transactions or communications
were oral or in writing. Conklin v. Yates, 83 P. 910, 16 Okl. 266.
In a suit on a note by an administrator, where defendant pleaded usury,
and a statement partly in the handwriting of the decedent was offered in
evidence, testimony of defendant that the items shown on the statement rep-
resented the usurious transaction and that he paid a usurious rate of inter-
est related to a transaction with the deceased person and was inadmissible.
Wadleigh v. Parker, 124 P. 957, 34 Okl. 213.
A Creek freedman allottee is not competent to prove conversation with her
grantee, since deceased, to show that her deed was in ratification of former
void deeds given during minority. Bell v. Mills, 60 Okl. 72, 158 P. 1173.
Evidence as to the rendition of services for a decedent of such a character
as must have been rendered in the presence of decedent and with his knowl-
edge and consent, or at his request, is objectionable. Clifton v. Meuser, 100
P. 645, 79 Kan. 655. A claimant for services in nursing, caring for, and
boarding decedent is incompetent to prove the fact of their performance, if,
in describing what he did, he necessarily attributes to decedent some act or
attitude with respect thereto. Id.
Where, before trial of an action of ejectment by a landlord against a ten-
ant, who, during the tenancy, purchased an outstanding title, defendant died,
plaintiff could not testify as to the making of the lease. Cunningham v.
Phillips, 44 P. 221, 4 Okl. 169.
It is error to permit a witness' to testify as to a conversation with deceas-
73 Park v. Ensign, 63 P. 280, 10 Kan. App. 173.
C775)
§ 873 WITNESSES (Ch. 14
Advantage can only be taken by a specific objection at the proper
time,74 and the incompetency of a witness to testify in his own
ed, where witness acquired title or cause of action immediately from such
deceased. American Trust Co. v. Chitty, 129 P. 51, 36 Okl. 479.
A party to civil action against administrator is incompetent to testify, in
his own behalf, to facts which will raise implied contract between party and
decedent. Fuss v. Cocannouer (Okl.) 172 P. 1077; Wallace v. Wallace, 165
P. 838, 101 Kan. 32.
In an action by an alleged heir against his mother, claiming to be widow
of testator, and persons claiming under testator's will, to set aside the will,
and for partition, where the widow answered, asking the same relief de-
manded by plaintiff, and the validity of the marriage between testator and
the widow was in issue, and the latter was permitted to testify to facts re-
lied on in proof of the marriage, the widow did not, by disclaiming at the
close of the evidence all interest in the property in her own behalf, render
her testimony competent in behalf of plaintiff. Shorten v. Judd, 42 P. 337,
56 Kan. 43, 54 Am. St. Rep. 587.
Kansas cases. — The statute does not exclude testimony of a witness in
such cases whenever a decision for party calling him would inure to his ben-
efit. Collins v. Hayden, 104 Kan. 351, 179 P. 308.
In suit against the executors for services performed for decedent, plaintiff
cannot testify as to her services in nursing and caring for him ana other-
personal transactions with him. Heery v. Reed, 102 P. 846, 80 Kan. 380.
Where plaintiff in an action testifies in her own behalf to a certain fact
relevant to the issues pending, and on cross-examination admits that her only
means of knowledge are the statements of the deceased, whose estate was
being sued, such evidence is incompetent. Moyer v. Knapp, 59 p. 674, 9 Kan.
App. 226.
Where the original payee of a note brings an action thereon against the
administratrix of the maker, he is incompetent to testify that he saw the
maker sign it, when the execution of the same was a part of a trade between
the maker and himself; but when the execution of the note is established
fully by other and competent evidence, the error in permitting plaintiff to
testify is not reversible. Bryant v. Stainbrook, 19 P. 917, 40 Kan. 356.
A father gave each of two sons a tract of land, on one of ! which tracts was
a mortgage, and to equalize the gifts it was claimed it was agreed each son
should pay one-half the mortgage. Before the debt was paid, the son whose
land was free from the mortgage died, and the other son sued the decedent's
administrator to recover half the mortgage debt. Held, that the plaintiff
was incompetent to testify to an agreement made personally between himself
and his deceased brother and their father, by which the deceased brother
undertook to pay one-half of the mortgage debt on the land conveyed to the
plaintiff, and also as to transactions had personally with such deceased broth-
er. Miller v. McDowell, 64 P. 980, 63 Kan. 75:
In an action against an administrator on a note executed by his decedent,
?4 Where plaintiff took defendant's deposition and required him to testify
as to transactions with persons since deceased, he waived his right to object
at the subsequent trial that defendant was incompetent to testify as to such
transaction, though the deposition was never filed. Cox v. Gettys, 53 Okl.
58, 156 P. 892.
Art. 3) COMPETENCY AND PRIVILEGE § 873
behalf as to a transaction with a deceased person must be raised
by objection to the competency of the witness, and not merely by
objection to the competency of the evidence offered.75
plaintiff's testimony that, on his own knowledge, decedent had made pay-
ments preventing the bar of limitations, was ,not inadmissible, where it did
not appear affirmatively that the witness" knowledge had come to him
through any transaction or communication had by him personally with the
decedent. Crebbin v. Jarvis, 67 P. 531, 64 Kan. 885.
A widow's testimony that she signed a deed under threats of her husband,
and that from what had happened she feared there would be more trouble,
held not incompetent. Watts v. Myers, 145 P. 827, 93 Kan. 824.
In a suit by a husband to quiet title to property of his deceased wife
against her children, both parties claiming to inherit from her, he is prohibit-
ed from testifying to transactions and communications had personally with
her. Dennis v. Perkins, 129 P. 165, 88 Kan. 428, 43 L. R. A. (N. S.) 1219.
The surviving husband was incompetent to testify to a conversation with
his wife, since deceased, by which he claimed that the postnuptial contract
between them, that he should take nothing of her estate, had been abrogated.
Eberhart v. Rath, 131 P. 604, 89 Kan. 329, Ann. Gas. 1915A, 268.
The statute does not apply where the adverse party claims as beneficiary
of a mutual benefit certificate to such decedent, since the beneficiary in the
certificate is not the assignee of the member to whom it was issued, and the
fact that the beneficiary is in fact his heir or next of kin is not material
where his claim is not founded on that relationship. Savage v. Modern
Woodmen of America, 113 P. 802, 84 Kan. 63, 33 L. R. A. (N. S.) 773.
In an action by the assignee of an administrator to enforce a chattel mort-
gage against one who had the mortgaged property sold under execution and
had retained the proceeds, in which the mortgagors were made parties in or-
der to reform the mortgage, one of the mortgagors was not an incompetent
witness. John T. Stewart's Estate, Inc., v. Falkenberg, 109 P. 170, 82 Kan.
576.
Plaintiff's testimony that deceased had made payments to him on the note
in suit and that plaintiff had indorsed payments on the note held inadmissi-
ble. Broclf v. Corbin, 146 P. 1150, 94 Kan. 542.
Where defendant, in an action in ejectment, claims title through an exec-
utor's sale of a deceased's real estate, he is not the assignee of such decedent,
so that plaintiffs, though they claim title immediately from such decedent,
are not incompetent under such section to testify as to transactions with
decedent concerning matters in controversy. Powers v. Scharling, 81 P. 479,
71 Kan. 716.
When a receiver, in obedience to an order of court, turns over the residu-
es Williams v. Joins, 126 P. 1013, 34 Okl. 733.
The statute makes the witness incompetent, not the evidence; and hence
an objection that evidence is incompetent, within such statute, will not reach
the incompetency of the witness. Crebbin v. Jarvis, 67 P. 531, 64 Kan. 885.
Where plaintiffs were seeking to keep out incompetent testimony, and not
to use disqualified witnesses, rule that incompetency of witness is waived by
cross-examining him in respect to transactions with decedent as to new mat-
ter does not apply. Randall v. Randall, 101 Kan. 341, 166 P. 516.
(777)
§ 873 WITNESSES (Ch. 14
Testimony of a party in an action against an administrator or
executor where it contains no communication or transaction with
decedent is not incompetent.76
ary assets of the receivership to a trustee for the interested parties, such'
trustee does not become an assignee, within the meaning of Code Civ. Proc.
§ 333, so as to disqualify a witness from testifying in his own behalf, and
against the trustee, after the death of the receiver, to transactions had per-
sonally with him during his lifetime, concerning the transferred assets. Pul-
sifer v. Arbuthnot, 53 P. 70, 59 Kan. 380.
All the parties claiming title to certain real estate directly from an an-
cestor, as heirs, evidence of the defendants as to communications had per-
sonally with him was inadmissible. Renz v. Drury, 45 P. 71, 57 Kan. 84.
Plaintiff, seeking to redeem land from a tax deed, had received a deed for
the land when a child, and testified that his grantor, for him, accepted an of-
fer of a subsequent grantee in the tax deed to pay the taxes for the use of
the land. Defendant held by quitclaim from the grantee in the tax deed.
Held that, as neither party was executor, administrator, heir at law, or next
of kin of the deceased grantor, the evidence was competent. Kington v.
Ewart, 116 P. 495, 85 Kan. 292.
A party to an action may testify in respect to transactions or communica-
tions had by him with a deceased person, where the adverse party is not the
executor, administrator, heir at law, next of kin, surviving partner, or as-
76 Harper v. Harper, 113 P. 300, 83 Kan. 761.
A daughter prosecuting a claim against the estate of a mother can testify
to conversations between her mother and a third person in the presence and
hearing of the witness. Griffith v. Robertson, 85 P. 748, 73 Kan. 666.
Admission of defendant's testimony in an action of conversion that she
had in her possession for a certain period of time the bank books of deceased,
held not violative of statute restricting the admissibility of evidence of trans-
actions with a person since deceased. Manning v. Maytubby, 141 P. 781, 42
Okl. 414.
Defendant's testimony as to a conversation between a deceased person and
a stranger, heard by defendant, but in which he did not participate, was ad-
missible, as it did not come within statutory prohibition of evidence as to
transactions with decedents. State Bank of Downs v. Abbott, 104 Kan. 344,
179 P. 326.
The fact that the declarations made by an engineer after his injury, as to
the cause of the accident resulting in his death, were made to the superin-
tendent of the defendant company, does not render him incompetent to prove
them in behalf of the company. Walker v. Brantner, 52 P. 80, 59 Kan. 117,
68 Am. St. Rep. 344.
A party to the record is not necessarily incompetent to testify to transac-
tions as between deceased and his co-defendant, where he took no part there-
in. Eddy v. O'Brien, 57 P. 244, 9 Kan. App. 882.
When it is alleged that a deed was procured by the undue influence of a
son upon his mother, since deceased, he may state whether at any time he
requested her to make such deed, where the manifest object of the question
is to show that he did not. Cobleutz v. Putifer, 125 P. 30, 87 Kan. 719, 42 L.
R. A. (N. S.) 298.
(778)
Art. 3) COMPETENCY AND PRIVILEGE § 873
A denial by a witness that he delivered to the deceased in her
lifetime a certain deed was not evidence of the transaction with
the decedent, but a mere denial that a transaction was had."
gtgnee of such deceased person, and where the title to tho cause of action
was not acquired immediately from him. Reville v. Dubach, 57 P. 522, 60
Kan. 572.
In action against heir for specific performance of deceased's oral contract
to devise property, plaintiff's testimony that she had had such an agreement
with deceased, and as to unpaid services rendered to deceased, was incompe-
tent. James v. Lane, 103 Kan. 540, 175 P. 387.
Where the party on one side of a controversy is the executor, administra-
tor, heir at law, or next of kin of the decedent, and has acquired title direct-
ly through said deceased person, the adverse party is incompetent to testify
to any transaction or communication with the decedent. Roach v. Roach, 77
P. 108, 69 Kan. 522.
Under Laws 1911, c. 229, in action by assignee and quitclaim grantee of
purchaser of real property against administratrix and heirs of vendor, orig-
inal purchaser is incompetent to testify as to any transaction or communica-
tion had personally with decedent. Gilmore v. Hoskinson, 157 P. 4*6, 98
Kan. 86.
That testimony inadmissible concerning communications with persons
since deceased was offered on the issue of decedent's mental capacity held
not to render it competent. Brown v. Brown, 152 P. 646, 96 Kan. 510. •
In an action upon contract to devise property, in which defendant testified
that he had never heard of such contract before the action, plaintiff in iv-
buttal might testify to conversations with defendant in which conversation
with deceased was detailed. Harris v. Morrison, 163 P. 1062, 100 Kan. 157.
A witness, incompetent may testify as to his conversation with another
witness who in behalf of personal representative of decedent has testified to
the conversation, although the incompetent witness therein detailed his per-
sonal transaction with decedent. Wallace v. Wallace, 165 P. 838, 101 Kan. 32.
*The words "adverse party" are not limited to the adverse positions of
plaintiff and defendant, but affect any party, whether plaintiff or defendant,
whose interests are actually adverse to those of another party to the action,
who appears in the capacity of executor, administrator, heir at law. next of
kin, surviving partner, or assignee, where the latter has acquired title to
the cause of action immediately from a deceased person. American Inv. Co.
v. Coulter, 61 P. 820, 8 Kan. App. 841.
Where Code Civ.;Proc. § 320, forbids parol evidence of transactions with
deceased persons, proof thereof need not fail, but may be established by cir-
cumstantial or other competent evidence. Davis v. Sim, 163 P. 622, 100
Kan. 66.
Testimony that a decedent approved of parol gift of land to defendants
held incompetent. Cook v. Cook, 161 P. 625, 99 Kan. 351.
In an action by heirs against the devisee and executrix to contest a will,
the heirs are not competent witnesses to testify in their own behalf concern-
ing communications had personally with the deceased testator. Wehe v.
Mood, 75 P. 476, 68 Kan. 373.
A person who is jointly liable upon the obligation sued on by an executor,
77 Fish v. Poorman, 116 P. 898, 85 Kan. 237.
(779)
g 873 WITNESSES (Ch. 14
In a will contest for alleged undue influence, it was proper for
those charged with having exercised such influence to testify that
they had no transactions with testatrix relating to the will.78
In an action by an administrator, defendants, if otherwise qual-
ified, may testify as to the mental capacity of the deceased at the
time the contract is claimed to have been made.79
In a suit attacking a will, testimony of a devisee that he had no
communication with testatrix is not rendered inadmissible by a
statute which forbids testimony by a devisee in his own behalf in
regard to a communication had with testatrix.80
The incompetency of a witness to testify as to transactions or
communications had with a decedent may be waived in certain cases
by the acts of the opposite party.81
The incompetency of a witness to testify to transactions with a
person since deceased is waived, where the objecting party shows
on cross-examination that the transaction occurred.82
Facts which constitute fraud on the part of a decedent neces-
sarily include personal transactions with such decedent.83
Witnesses who are not parties to the suit or controversy are com-
and has a separate suit pending to determine the extent thereof, cannot tes-
tify in relation to conversations had by him with the deceased in relation to
the matter in controversy. Park v. Ensign, 63 P. 280, 10 Kan. App. 173.
In action between children of decedent for partition depending on her de-
livery of certain deeds, testimony of defendant that decedent had given her
deed was properly stricken because of witness' incompetency to testify there-
to. Randall v. Randall, 101 "Kan. 341, 166 P. 516.
78 Kerr v. Kerr, 116 P. 880, 85 Kan. 460.
™ Grimshaw v. Kent, 73 P. 92, 67 Kan. 463.
so Gaston v. Gaston, 109 P. 777, 83 Kan. 215.
si The issue being whether a deed from a parent to a child was made as an
advancement, a statement by the grantee as a witness that no consideration
was paid for it is testimony as to the transaction between him and the gran-
tor, and, if brought out by questions of his opponent, qualifies him to relate
all the attendant circumstances, though he would otherwise be incompetent
to do so because the evidence related to personal transactions with a person
since deceased. Plowman v. Nicholson, 105 P. 692, 81 Kan. 210, judgment af-
firmed on rehearing Plowman v. Same, 106 P. 279, 81 Kan. 210.
82 poole v. Poole, 150 P. 592, 96 Kan. 84, Ann. Cas. 1918B, 929.
The incompetency of a witness to testify as to transactions or communica-
tions had with one since deceased is waived, where the objecting party on
cross-examination elicits testimony as to such transactions, or shows that
such transactions occurred. Conwill v. Eldridge (Okl.) 177 P. 79.
ss Conklin v. Yates, 83 P. 910, 16 Old. 266.
(780)
Art. 3) COMPETENCY AND PRIVILEGE § 873
petent to testify to conversations with a decedent ; and this is true,
though the witness be interested in the outcome.84
The statute does not prohibit a person from testifying in a case
between others as to transactions and communications with a dece-
s* In action to set aside will, lawyer who drew It may testify to conversa-
tion had with testator at the time. Durant v. Whitcher, 156 P. 739, 97 K:in.
603.
In action by one to whom decedent had contracted to leave his property
against executor and beneficiary under will, plaintiff's husband, not a party
to action, was a competent witness to prove the alleged contract, though hus-
band and wife occupied part of disputed land as homestead. Harris v. Mor-
rison, 163 P. 1062, 100 Kan. 157.
Rev. Laws 1910, § 5049, held not to render incompetent a conversation had
with a person since deceased by plaintiffs agent and manager, where such
agent was not a party to the action or interested in it. First Nat. Bank of
El Reno v. Davidson-Case Lumber Co., 52 Okl. 695, 153 P. 836.
In action by administrator, widow and stepdaughter of deceased, neither
being party to action, are competent to testify to transactions had personally
by defendant with deceased. Alexander v. Bobier (Okl.) 166 P. 716.
On a petition by administratrix of a partner for directions whether to treat
decedent's real estate as individual or partnership property, in which vari-
ous creditors were parties, and also decedent's brother, who was the sur-
viving partner, the brother was not incompetent to testify to transactions
with decedent, over objection of a creditor. Sarbach v. Sarbach, 122 P. 1052,
86 Kan. 894.
Plaintiff, suing to recover land claimed as being the wife of the dece-
dent, where defendants are the grandchildren and great-grandchildren of the
decedent who acquire their interest through the daughter of the decedent, is
not prohibited from testifying to transactions personally had with tbfe dece-
dent, as the parties adverse did not acquire their title immediately from the
decedent. Williams v. Campbell, 113 P. 800, 84 Kan. 46, judgment affirmed
on rehearing 118 P. 1074, 85 Kan. 631.
Testimony of a maker of a note, not made a party in a suit thereon, that
he was the principal and defendant a surety, and that the deceased payee
had, for a valuable consideration and without the knowledge of the surety,
extended the time of the payment thereof, is admissible. Roger v. Arm-
strong, 83 P. 1029, 72 Kan. 691.
The fact that a witness was a party to an action to which the representa-
tives of a decedent were parties did not preclude him from testifying as to
matters occurring in decedent's lifetime, where he had no interest in the sub-
ject-matter of the suit, and made a disclaimer. Murphy v. Colton, 44 P. 208,
4 Okl. 181.
A father gave each of two sons a tract of land, on oner of which tracts was
a mortgage, and in order to equalize the gifts it was claimed that it was
agreed each son should pay one-half of the mortgage. Before the debt was
paid, the son whose land was free from incumbrance died, and the other son
sued the decedent's administrator to recover half the mortgage debt. Held,
that the mother, who joined the father in the conveyance not being an as-
signor of the thing in action, was not precluded from testifying as to the
(781)
§ 873 WITNESSES (Ch. 14
dent from whom the parties claim title.85 It does not prohibit proof
of transactions and communications had personally between a party
to the suit and the deceased grantee of such person by disinterested
witnesses or other competent evidence, other than that of a party
to the suit.96
The word "party" within the Code provision prohibiting a party
from testifying concerning personal transactions and communica-
tions with a person since deceased, does not include one not tech-
nically a party to the action, however much he may be interested
in the result thereof.87
A party to an action may testify to conversations occurring in
his presence between deceased persons, where the opposite party
claims as heir of one of such deceased persons.88
The statutory provisions relating to testimony as to transactions
or communications with a decedent do not apply where the trans-
action or communication was not between the witness and the de-
ceased person, but was between the latter and a third party, and
agreement with reference to the mortgage debt. Miller v. McDowell, 64 P.
980, 63 Kan. 75.
Neither a sheriff levying an attachment on personalty nor the attachment
creditor is an "assignee" of the attachment debtor; and hence a vendee of
a deceased attachment debtor may, in an action by him against the sheriff
and the attaching creditor for conversion of the property, testify in his own
behalf to the transaction whereby he claims title from decedent. Burlington
Nat. Bank v. Beard, 42 P. 320, 55 Kan. 773.
An objection to the introduction of the stenographer's transcript of testi-
mony of a deceased grantor as incompetent was properly overruled. New v.
Smith, 145 P. 880, 94 Kan. 6, L. R. A. 1915F, 771, Ann. Gas. 1917B, 362.
ss Hess v. Hartwig, 132 P. 148, 89 Kan. 599.
ss Conklin v. Yates, 83 P. 910, 16 Okl. 266.
It does not apply to an agent of a party to the action, such agent not being
a party to the action, nor having any legal interest in the result of it. Car-
roll v. Chipman, 57 P. 979, 8 Kan. App. 820.
ST Hess v. Hartwig, 112 P. 99, 83 Kan. 592.
In suit on note and to foreclose mortgage, plaintiff's testimony, transac-
tions with a decedent, as to execution of note and mortgage, was admissible,
where he was neither executor, administrator, heir at law, next of kin, sur-
viving partner, nor assignee of deceased. Phinnie v. Atkinson (Okl.) 177 P.
111.
That witness might be interested in outcome of suit does not render her
incompetent. Alexander v. Bobier (Okl.) 166 P. 716.
Nor does it exclude the officers of a corporation which may be a party, or
other interested persons not parties to the action. Mendenhall v. School Dist.
No. 83, Jewell County, 90 P. 773, 76 Kan. 173.
ss Page v. Sawyer, 101 Kan. 612, 168 P. 878.
(782)
Art. 3) COMPETENCY AND PRIVILEGE § 874
was not taken part in by the witness.89 So, too, the letters of a
deceased do not come within the prohibitions of the Code.90
§ 874. Witness privileged from being sued
"A witness shall not be liable to be sued in a county in which he
does not reside, by being served with a summons in such county,
while going, returning or attending, in obedience to a subpoena." 91
89 Fry v. Fry, 43 P. 235, 56 Kan. 291.
»o Letters written by a person since deceased to his son, who is seeking to
recover property deeded by his father to another, -held admissible to show
mental capacity of deceased when they were written and the deed executed.
Munger v. Myers, 153 P. 497, 96 Kan. 743.
In action to enforce promise of decedent to devise property to plaintiffs,
testimony as to the receipt of letters, which in the opinion of the witness
were in the handwriting of decedent, held not objectionable as stating a per-
sonal transaction with decedent. Dillon v. Gray, 123 P. 878, 87 Kan. 129.
The statute has no application to the adinissibility in evidence, in an ac-
tion to establish a resulting trust, of a letter written by defendants' intestate
to plaintiff, wherein he stated that he held the real estate in question •as her
agent. Garten v. Trobridge, 104 P. 1067, 80 Kan. 720.
In an action by an administrator to recover money lent to defendant by
decedent, testimony by defendant that money for payment of the debt was
inclosed in an envelope, taken to the post office, and that certain steps were
there taken to have the postmaster register the letter and send it to decedent
In a distant state, and also that in due time defendant received a writing
acknowledging receipt of the money, which writing was identified and intro-
duced in evidence was not incompetent. Bryan v. Palmer, 111 P. 443, 83
Kan. 298, 21 Ann. Cas. 1214.
»i Rev. Laws 1910, § 5064.
Where one of the parties to an action is an heir of a deceased person, who
claims that the title to the land in controversy was transferred to his an-
cestor by the adverse party, such adverse party may testify that he had no
transaction personally with the deceased, and that no transfer of title was
ever made by him to the deceased. Murphy v. Hindman, 48 P. 850, 58 Kan.
184.
(783)
§ 875 WITNESSES (Ch. 14
<
ARTICLE IV
CREDIBILITY AND IMPEACHMENT
Sections
875. Credibility.
876. Corroboration.
877. Impeachment.
878. Impeaching own witness.
879. Character and conduct of witness.
880. Reputation — Place and time of acquiring.
881. Particular facts.
882. Conviction of crime.
883. Cross-examination to test reliability or to discredit.
884. Conduct in reference to the case.
885. Inconsistent statements.
886. Contradicting witness.
887. Prior corroborating statements.
888. Sustaining evidence-
§ 875. Credibility
A witness may be examined as to occupation, social connections,
and manner of living to affect his credibility.92
The jury are the exclusive judges of the credibility of witnesses
and the weight of the evidence, and the value to be given to their
testimony, and they may, if they think proper, reject the whole of
the testimony of such witness, who they may find has willfully tes-
tified falsely to a material fact, or may give it such weight where
it has been corroborated by credible evidence as they may deem it
entitled to have.93
92 Musgraves v. State, 106 P. 544, 3 Okl. Cr. 421.
»3 Henry v. State, 119 P. 278, 6 Okl. Cr. 430.
Jury is sole judge of credibility of witnesses, and whether witness has in-
terest in outcome of trial is proper to be elicited for jury's consideration.
Jones v. State, 15 Okl. Cr. 547, 179 P. 619.
An instruction that, if the jury believed that any witness has willfully
testified falsely in a material matter, they may disregard his entire testimony,
need not make an exception in favor of such portion thereof as is corrobo-
rated. Robert Burgess & Son v. Alcorn, 90 P. 239, 75 Kan. 735. .
An instruction that if the jury believe a witness has sworn falsely, they
may reject his testimony or any part of it, is erroneous; as, unless the tes-
timony was willfully false, it is no ground for disregarding the entire testi-
mony of the witness. Barney v. Dudley, 19 P. 550, 40 Kan. 247.
The fact that a person may voluntarily come from another state and with-
out process appear and testify in court does not impair his competency as a
witness, nor necessarily deprive his testimony of probative force. Tiinina v.
Timma, 82 P. 481, 72 Kan. 73.
(784)
Art. 4) CREDIBILITY AND IMPEACHMENT §§ 876~878
§ 876. Corroboration
Where no attack is made upon the credibility of a witness his
prior statements are inadmissible.94
On a trial to a jury, where the defendant testifies in his own be-
half and is not impeached, it is reversible error to permit him to
introduce evidence of his general reputation for truth and verac-
ity.95 .
§ 877. Impeachment
Where a person does not testify at the trial, his reputation for
truth cannot be made an issue of the cause.90
A notary public is a ministerial officer, and his evidence is com-
petent to impeach his certificate.97
§ 878. Impeaching own witness
The rule that a litigant cannot impeach his own witnesses usual-
ly forbids his attempt to impeach a witness whom he himself first
uses, though the witness is afterwards called to testify on behalf
of the adverse party.98
The court may, however, in its discretion, in the interest of truth
and justice, permit a party to impeach his own witness.99
94 Jones v. State, 9 Okl. Cr. 646, 133 P. 249, 48 L. R. A. (X. S.) 204.
95 First Nat. Bank v. Blakeman, 91 P. 868, 19 Okl. 106, 12 L. R. A. (X.
S.) 364.
as State v. Chenute, 70 P. 870, 65 Kan. 862.
97 Effenberger v. Durant, 57 Okl. 445, 156 P. 212.
98 Johnston v. Marriage, 86 P. 461, 74 Kan. 208, rehearing denied 87 P. 74,
74 Kan. 208 ; McCauley v. Custer, 143 P. 489, 93 Kan. 27.
A party introducing a witness in his behalf cannot impeach his character
for truth and veracity. National Surety Co. v. Oklahoma Nat. Life Ins. Co.
(Okl.) 165 P. 161.
A party offering a witness should not be permitted to discredit his testi-
mony, but, when the testimony is in the nature of conclusions, it is the duty
of the court to say what facts are established thereby. Wass v. Tennent-
Stribbling Shoe Co., 41 P. 339, 3 Okl. 152. A party cannot impeach his own
witness by showing his general bad character for truthfulness. Sturgis v.
State, 102 P. 57, 2 Okl. Cr. 362. Nor can a party placing a witness on the
stand, with notice that he will testify adversely, claim surprise and be per-
mitted to impeach him. Id.
In a criminal case the state cannot impeach the general character for
truth and veracity of one of its own witnesses. State v. Keefe, 38 P. 302,
54 Kan. 197.
99 Nuzum v. Springer, 156 P. 704, 97 Kan. 744.
The question as to whether a party may impeach his own witness is large-
ly within the sound judicial discretion of the trial court ; and a slight error
HON.PL.& PRAC.— 50 (785)
§§ 878-879 WITNESSES (Ch. 14
Where a witness has been called by all the parties to the action,
cross-examination which tends to impeach him is within trial
court's sound judicial discretion.1
Where witnesses give testimony contrary to former testimony
and inconsistent with previous statements, the party calling them
may cross-examine and call attention to former evidence and state-
ments and offer testimony impeaching the present testimony.2
Where a judgment pleaded and offered in evidence as res ju-
dicata, on its face shows the items on which it was rendered, the
party who Telies on it cannot contradict it, and show that it was
rendered on items different from those set out.3
§ 879. Character and conduct of witness
The truthfulness of a witness cannot be impeached by proof of
general bad character for morality ; 4 or by proof of specific acts
showing want of morality ; 5 or by testimony as to general reputa-
tion for virtue and chastity.6 A party is not entitled to show that
a witness entertains a disbelief of the existence of God for the pur-
pose of discrediting his testimony.7
Where plaintiff testified in his own behalf, proof of base, dishon-
orable, or criminal conduct on his part is admissible to discredit
him as a witness and to throw suspicion upon his cause of action.8
Testimony as to the general character of a witness offered to im-
peach him must be as to his reputation for truth, and testimony
as to his reputation for being a bootlegger is incompetent.9
in such a matter, where the testimony of the witness is of small importance,
is not ground for reversal. St. Louis & S. F. Ry. Co. v. Weaver, 11 P. 408,
35 Kan. 412, 57 Am. Rep. 176.
It was discretionary with the court to permit the state to prove that a
witness for the state was drunk at a certain time about which he testified
both on direct and on cross examination. State v. Alexander, 131 P. 139, 89
Kan. 422. -
1 A very v. Howell, 171 P. 628. 102 Kan. 527.
2 State v. Terry, 161 P. 905, 98 Kan. 796.
s Guttermann v. Schroeder, 20 P. 230. 40 Kan. 507.
4 Litchfield v. State, 126 P. 707, 8 Okl. Cr. 164, 45 L. R. A. (N. S.) 153.
s Litchfield v. State, 126 P. 707, 8 Okl. Cr. 164, 45 L. R. A. (N. S.) 153.
e Kennedy v. Pawnee Trust Co., 126 P. 548, 34 Okl. 140.
7 Dickinson v. Beal, 62 P. 724. 10 Kan. App. 233.
s St. Louis & S. F. R. Co. v. Walker. 122 P. 492, 31 Okl. 494.
s Upton v. State, 12 Okl. Cr. 593, 160 P. 1134,
(786)
- 4) CREDIBILITY AND IMPEACHMENT § 880
§ 880. Reputation — Place and time of acquiring
Where the purpose of testimony is to impeach a witness for
truth and veracity, the inquiry must be as to his general character
or reputation for truth and veracity in the community in which he
resides.10
10 Richards v. State, 12 Okl. Cr. 224, 154 P. 72.
That witnesses have a reputation in the vicinity of their residence for
untruthfulness may be shown for purposes of Impeachment. Stevens v.
Blake, 48 P. 888, 5 Kan. App. 124.
Under the common law, made applicable by the statute, testimony to im-
peach a witness for want of veracity must be confined to his general char-
acter or reputation therefor where he resides. Kirk v. State, 11 Okl. Cr. 203,
145 P. 307 ; Rev. Laws 1910, § 5543.
A witness, who had lived for many years in another state, had removed
to his place of residence at the time of the trial only a few months previous
thereto. Held, that evidence as to his reputation for truth and veracity in
the place of his former residence was competent to impeach him. Coates v.
Sulau, 26 P. 720, 46 Kan. 341.
Where the prosecutrix has recently lived in the neighborhood of the wit-
ness, which is about five miles from her own home, and is generally acquaint-
ed in that neighborhood, and such witness knows the general reputation of
the prosecutrix for chastity in s'uch neighborhood, but does not know her
general reputation for chastity in the particular neighborhood in which she
resides at the time of the trial, such witness may be permitted to give evi-
dence of her general reputation for chastity in his neighborhood. The means
and extent of the witness' knowledge under the circumstances are matters
which affect the credibility, but not necessarily the competency, of the wit-
ness. State v. Bryan, 8 P. 260, 34 Kan. 63.
A person who states that he is not much acquainted with the general rep-
utation for veracity of a witness in the community where he lived, and that
he cannot say exactly what his reputation is, is not competent to testify as
to his reputation. Redden v. Tefft, 29 P. 157, 48 Kan. 302.
Where a defendant, on trial for larceny, introduced evidence to establish
his good character for honesty, it was error to permit witnesses on behalf of
the state to testify in rebuttal that the accused, together with three other
persons not on trial, sustained bad reputations in that respect, since the rep-
utation of such other persons was not in issue, and the testimony imported a
collateral issue into the case. State v. Beaty, 62 P. 658. 62 Kan. 266.
In a prosecution for larceny, it was not error to exclude questions asked
witnesses tending to show that certain relatives of the prosecuting witness
had been convicted of crime and sentenced to the penitentiary. State v. Taw-
ney, 112 P. 161, 83 Kan. 603.
A witness, who stated that he knew, relative to the character of the prose-
cutrix, only what he had heard from several families with whom she bad
lived, and that he had no knowledge of her general reputation, held incom-
petent to testify as to her general reputation for truthfulness. State v.
Evans, 136 P. 270, 90 Kan. 795, judgment anirmed on rehearing 140 P. 892,
92 Kan. 468.
A person who had known a witness 20 years and lived near her a large
(787)
WITNESSES (Ch. 14
It is competent to ask an impeaching witness, who has testified
that the general reputation of another witness for truth and verac-
ity in the vicinity in which he lives is bad, whether he would give
him full credit upon his oath.11
§ 881. Particular facts
The previous occupation, companions, and associates of a wit-
ness are proper subjects of inquiry for the purpose of affecting his
credibility.12 He may be cross-examined as to specific facts tend-
ing to disgrace or degrade him, although collateral to the main is-
sue, and touching on matters of record.13
Proof of disreputable conduct of a witness should be allowed
only in the exercise of a sound judicial discretion.14
The state may show on cross-examination the relations between
a witness and accused, so far as such relation would tend to show
bias affecting his credibility, though prejudice to defendant might
result therefrom.10
An examination for the purpose of impeachment must not ques-
tion accused's violation of any specific law.16
A man and his wife, prosecuting witnesses, cannot be compelled
portion of the time, though living ten miles distant at the time of the trial,
is competent to testify to her reputation for truth. State v. Ball, 144 P.
1012, 93 Kan. 606.
11 State v. Johnson, 19 P. 749, 40 Kan. 266.
12 Terry v. State, 122 P. 559, 7 Old. Or. 430.
While it is improper to impeach a witness by showing that he has been in-
dicted, arrested, or imprisoned for crime before conviction, yet his occupation
and companions may be shown, when they indicate a want of moral charac-
ter. Crawford v. Ferguson, 115 P. 278, 5 Okl. Cr. 377, 45 L. R. A. (N. S.) 519.
On cross-examination of a witness to affect his credibility, questions as to
his social connections and manner of living, or which tend to explain, con-
tradict, or discredit his testimony in chief, to show his conviction of crime,
are admissible. Murphy v. State, 15 Okl. Cr. 312, 176 P. 417.
is State v. Greenburg, 53 P. 61, 59 Kan. 404.
For the purpose of impairing his credibility, a witness who gives material
evidence may be cross-examined as to his past conduct and character, and
as to specific acts tending to discredit him. State v. Abbott, 69 P. 160, 65
Kan. 139.
i* Castleberry v. State, 139 P. 132, 10 Okl. Cr. 504.
Evidence as to arrest of, a witness for immoral acts with a woman in a
rooming house cannot be properly put in evidence to discredit such witness.
National Surety Co. v. Oklahoma Nat. Life Ins. Co. (Okl.) 165 P. 161.
is Daggs v. State, 12 Okl. Cr. 289, 155 P. 489.
ic Sims v. State, 11 Okl. Cr. 382, 14G P. 914.
(788)
Art. 4) CREDIBILITY AND IMPEACHMENT
on cross-examination to answer questions as to their marriage,
to affect their credibility.17
§ 882. Conviction of crime
To test the credibility of a witness he may <be asked on cross-ex-
amination as to his having been convicted of any crime;18 but it
is improper to ask a witness, to affect his credibility, whether he
has ever been indicted or arrested or imprisoned for crime.1*
Where a witness has been cross-examined as to a conviction
of a felony, the court may require him to state of what felony he
has been convicted.20
IT Flohr v. Territory, 78 P. 565, 14 Okl. 477.
18 Davis v. State, 15 Okl. Cr. 386, 177 P. 621; Murphy v. State, 15 Okl. f'r.
312, 176 P. 417.
Under Rev. Laws 1910, § 5046, a witness upon cross-examination may be
asked whether he has ever been convicted of felony or a crime involving
moral turpitude in order to affect his credibility. Chase v. Cable Co. (Okl.)
170 P. 1172.
In ejectment, held not error to permit a witness to be asked whether he
had ever been convicted of a crime in the tribal courts of the Semiuole Na-
tion. Perkins v. Baker, 137 P. 661, 41 Okl. 288.
It is competent to ask a witness if he has been convicted of violating the-
prohibition laws. Missouri, K. & T. Ry. Co. v. Johnson, 126 P. 567, 34 Okl,
582.
In a prosecution for perjury alleged to have been committed in a criminal
case, it was not error for the state to ask a witness for accused if he too
was not under indictment for perjury committed on the same trial. Cray v.
State, 111 P. 825, 4 Okl. Cr. 292, 32 L. R. A. (N. S.) 142.
That a witness has been convicted of bootlegging may be shown to impeach
his credibility. Fowler v. State, 126 P. 831, 8 Okl. Cr. 130; Crawford v.
Ferguson, 115 P. 278, 5 Okl. Cr. 377, 45 L. R. A. (N. S.) 519.
i» Musgraves v. State, 106 P. 544, 3 Okl. Or. 421.
It is improper to ask a witness on cross-examination "if he has not been
arrested and confined in jail for a crime." Files v. State, 16 Okl. Cr. 363,
182 P. 911.
It is improper to ask a witness if he has ever been indicted Or imprisoned
before conviction for any offense whatever. Porter v. State, 126 P. 699, 8
Okl. Cr. 64.
For the purpose of impeaching the credibility of a witness, he may be ask-
ed on cross-examination if he has been convicted of a felony or any criiiu-
involving a want of moral character, but it is improper to ask him if he has
been indicted, arrested, or imprisoned before the conviction of said witness
for any offense whatever. Price v. United States, 97 P. 1056, 1 Okl. Cr. i".U :
Slater v. United States, 98 P. 110, 1 Okl. Cr. 275 ; White v. State, 111 P. 1010.
4 Okl. Cr. 143 ; Hendrix v. State, 113 P. 244, 4 Okl. Cr. 611 ; Nelson v. State,
106 P. 647/3 Okl. Cr. 468; Caples v. State, 104 P. 493, 3 Okl. Cr. 72. 2«> L.
R. A. (N. S.) 1033 ; Keys v. United States, 103 P. 874, 2 Okl. Cr. 647.
20 McDaniel v. State, 127 P. 358, 8 Okl. Cr. 209.
(789)
§§ 882-883 WITNESSES (Ch. 14
Where evidence of a witness' conviction in a foreign state has
been admitted, it is not error to exclude facts relating- to the con-
viction, but offered to contradict the witness' testimony as to the
facts on which the conviction was had.21
Where a defendant is witness for himself, he may be asked
whether he has been convicted of a felony or offense showing want
of moral character to affect his credibility as a witness, though an
appeal is pending from the conviction in question.22
Proof of defendant's prior conviction to affect his credibility may
be made either by record, or by his cross-examination, as to other
separate offenses limited to proof of the offense charged and to
matters pertinent to the issue.23
§ 883. Cross-examination to test reliability of to discredit
The scope of cross-examination as to the past conduct of a wit-
ness, to discredit him, is largely discretionary.24
On cross-examination a witness may be asked any question
21 Parker v. Hamilton, 49 Okl. 693. 154 P. 65.
22 Manning v. State, 123 P. 1029, 7 Okl. Cr. 367.
Under Rev. Laws 1910, § 5046, providing that a witness may be discredited
by showing his conviction of a criminal offense, an accused who testifies in
his own behalf may be asked on cross-examination whether he has been con-
victed of a particular crime. Key v. State, 10 Okl. Cr. 206, 135 P. 950.
A defendant in a criminal prosecution who voluntarily becomes a witness
in his own behalf is subject to the same rule as any other witness, and may
be asked by the state, on cross-examination, if he had not been convicted of
larceny at the previous term of the same court in which he was being tried.
State v. Probasco, 26 P. 749, 46 Kan. 310, following Same v. Pfefferle, 12 P. 406,
36 Kan. 90.
23 Smith v. State, 14 Okl. Cr. 348, 171 P. 341.
To affect the credibility of a witness for plaintiffs, defendants may introduce
an authenticated record showing a conviction for felony of a person of the
same name as the witness without other proof of identity. Bayha v. Muniford.
49 P. 601, 58 Kan. 445.
-* State v. Moberly, 136 P. 324, 90 Kan. 837; Cockrill v. Missouri, K. & T.
Ry. Co., 136 P. 322, 90 Kan. 650.
Refusing to permit a witness who had turned "state's evidence," being charg-
ed with the same crime as defendant, to be cross-examined as to whether the
case against her had been set down for hearing, and refusing to permit another
witness, who had expressed an opinion that the former should not be prose-
cuted, to be cross-examined as to his reasons therefor, all for the purpose of
further showing that an agreement had been made not to prosecute the first-
named witness, is not an abuse of the discretion vested in the trial court as
to the limit of cross-examination to discredit a witness. State v. Nelson, 5-
P. 868, 59 Kan. 776.
Defendant in an action on a note held entitled to cross-examine plaintiff to
(790)
Art. 4) CREDIBILITY AND IMPEACHMENT § 883
the answer to which would tend to test his means of knowledge,
his intelligence, or the reliability of his memory.25
Where the general reputation of any person is established by
the opinions of witnesses as to the general estimate of his char-
acter, it is permissible on cross-examination of such witnesses to
show the sources of their information, and to call particular facts
to their attention, and to ask if they ever heard of them, not to
establish the truth of such facts, but to test the credibility of the
witnesses, and to ascertain what weight or value is to be given to
their testimony.26
A witness may be asked, on cross-examination, to test his memo-
ry, if he was not drunk at the time referred to.27 He may be asked
to whom, if any one, he told the -facts to which he testifies.28
It is permissible to inquire into the antecedents of a witness, by
showing his vocation, manner of life, etc., when the facts so'ught
to be elicited are pertinent to the issue.29
It is improper to ask a witness for the sole purpose of impeach-
ment, if he 'had married a woman with whom he had committed
adultery.30 He may be required to answer as to his past conduct
and character and certain specific acts.31 He may be asked any
determine the accuracy of his general statement in the nature of a conclusion.
Leavens v. Hoover, 145 P. 877, 93 Kan. 661.
?* Henry v. State, 119 P. 278, 6 Okl. Cr. 430.
Cross-examination of a defendant on trial for murder which tends to dis
credit his statement on direct is proper. Harding v. State, 16 Okl. Cr. 47.
180 P. 391.
26 Stouse v. State, 119 P. 271, 6 Okl. Cr. 415.
A witness to good character may be cross-examined as to whether he haa
heard rumors of specific charges of commission of acts inconsistent with such
good character, in order to test his credibility and the weight of his evidence,
though such rumors are inadmissible unless confined to time previous to crime
charged. Pope v. State, 15 Okl. Cr. 162, 175 P. 727.
27 State v. Jennings, 121 P. 1131, 86 Kan. 785.
On cross-examination, it is proper to inquire whether the witness was
drinking intoxicating liquors at the time or shortly before the occurrence as
to which he testifies. Rogers v. State. 127 P. 365, 8 Okl. Cr. 226.
28 State v. McKinney, 3 P. 356, 31 Kan. 570.
29 Sights v. State, 13 Okl. Cr. 627, 166 P. 458.
80 Caples v. State, 104 P. 493, 3 Okl. Cr. 72, 26 L. R. A. (N. S.) 1033; Price
v. State, 98 P. 447, 1 Okl. Cr. 358.
31 Garvin v. Garvin, 123 P. 717, 87 Kau. 97.
A witness may be cross-examined as to his manner of living and his com-
panions, as affecting his credibility. Fowler v. State, 126 P. 831, 8 Ok). Cv
(791)
§ 883 WITNESSES (Ch. 14
question tending to impeach his accuracy, memory, veracity, or
character, though the matters involved in the question go beyond
the scope of the examination in chief.32
On cross-examination, it is competent to prove any facts showing
bias, friendship, or relationship.33
130. A witness may be cross-examined as to his occupation, for the purpose of
affecting his credibility. Id.
A witness on cross-examination may be interrogated to impair his credibility
concerning his past conduct and character and as to specific acts tending TO
discredit him, tnough irrelevant and collateral to the principal controversy.
State v. Pugh, 90 P. 242, 75 Kan. 792.
A witness may be cross-examined as to specific acts tending to discredit her,
where relevant to the issue. Cannon v. Territory, 99 P. 622, 1 Okl. Cr. 600.
32 Hopkins v. State, 9 Okl. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736.
33 Gilbert v. State, 129 P. 671, 8 Okl. Cr. 543, denying rehearing 128. P. 1100,
8 Okl. Cr. 543.
On cross-examination a witness may be asked any question the answer to
which would tend to test his bias, prejudice, or interest in the case. Henry
v. State, 119 P. 278, 6 Okl. Cr. 430.
An attorney testifying as a witness for his client may be asked on cross-
examination if he has an interest in the judgment to be recovered as part of
his fees to show bias and to affect his credibility. Wallace v. Kopenbrink, 31
Okl. 26, 119 P. 579.
Where a witness though on cross-examination gives testimony adverse to
the party cross-examining, showing his interest or bias in the case, or lack of
it, such party is not bound to accept the statements of such witness as con-
clusive, but may offer proof contradictory thereof and tending to establish
the existence of facts to the contrary. Gibbons j. Territory, 115 P. 129, 5 Okl.
Cr. 212.
In a prosecution for statutory rape, the state, on cross-examination, may
show the relations existing between the witness and defendant so far as they
might create a bias affecting the witness' credibility, though such evidence
would probably prejudice the defendant. Castleberry v. State, 139 P. 132, 10
Okl. Cr. 504.
It is not error on cross-examination to ask a witness for defendant any ques-
tion reasonably calculated to disclose his interest in the trial, and, where a
witness has signed an affidavit for change of venue, the prosecution may ask
him in relation thereto. Miller v. Territory, 85 P. 239, 15 Okl. 422, judgment
reversed Same v. Territory of Oklahoma, 149 F. 330, 79 C. C. A. 268, 9 Ann.
Cas. 38)).
It is a general rule that any question may be put to a witness on cross-
examination, the answer to which may have a tendency to show bias or
prejudice on the part of the witness. State v. Krum, 4 P. 621, 32 Kan. 372.
On cross-examination, an adverse witness may be questioned as to his inti-
macy with a person wnom the party he is testifying against caused to be
arrested, if followed by evidence tending to show a conspiracy between wit-
ness and such person to furnish evidence. Id.
A witness who admits ill will or prejudice against one of the parties to an
(792)
Art. 4) CREDIBILITY AND IMPEACHMENT §§ 88'J
It is proper to allow a searching cross-examination of detectives
to show their interest and thereby affect their credibility.34
§ 884. Conduct in reference to the case
For impeachment purposes, and thereby to throw suspicion on
the cause of action, defendant may prove that a witness for plain-
tiff, in furtherance of the identical cause, has been guilty of base
or criminal conduct.35
§ 885. Inconsistent statements
Where the proper predicate is laid, for purpose of impeachment,
it may be shown that the witness has made statements out of court,
contrary to what he has testified at the trial.36
action may nevertheless be cross-examined as to the extent and character of
that prejudice. State v. Collins, 5 P. 368, 33 Kan. 77.
Accused may bring out on cross-examination of a witness against him,
facts showing that the witness' testimony may have been influenced or colored
by intimidation or some selfish or personal motive.- State v. Tawney, 105 P.
218, 81 Kan. 162, 135 Am. St. Rep. 355.
A witness for defendant, admitting on cross-examination that he had had
trouble with plaintiff, growing out of a lawsuit, cannot be asked what judg-
ment plaintiff procured against him, as the inquiry would be of no service in
determining hostile feeling. Boldon v. Thompson, 50 I'. 131. 00 Kan. 856.
On prosecution for murder, it is competent for accused to show, on CTOBfr
examination of witness for the state, that the latter, with others, formed a
mob for the purpose of hanging defendant. State v. Hamilton, 69 P. 10L'. <',:>
Kan. 183.
Where a witness testified that he was not defendant's agent, but acted in-
dependently for himself in purchasing the goods sold by plaintiff, a letter
addressed to plaintiff by the witness, containing statements at variance with
his testimony, was properly admitted to contradict him. Gregg v. Berkshire.
62 P. 5oO, 10 Kan. App. 57t).
34 De Graff v. State, 103 P. 538, 2 Okl. Cr. 519.
In a prosecution for a second violation of the prohibitory liquor laws, th--
refusal to permit defendant, on cross-examination of prosecuting witness tn
ask if he was not paid to secure evidence in the case, intended to show wit-
nesses' interest, was error. Files v. State, 16 Okl. Cr. 303, 182 P. 911.
Where the testimony for the state was entirely that of two paid detectives.
it was error to sustain an objection by the state to a question asked one of
the detectives, on cross-examination, concerning the amount paid him by the
county attorney for his services. State v. Shew, 57 P. 137, 8 Kan. App. 679.
35 Taylor v. J. H. Wade & Co., 44 Okl. 294, 144 P. r.59.
36Kuykendall v. Lambert (Okl.) 173 P. 657; Smith v. State, 108 P. 418, 3
Okl. Cr. 6z9 ; State v. Hoerr, 129 P. 153, 88 Kan. 573 ; State v. King, 102 Kan.
155, 169 P. 557.
On a murder trial, where defendant elects to testify in his own behalf, he
may be cross-examined as to admissions voluntarily made that he committed
(793)
§ 885 WITNESSES (Ch. 14
The exclusion of impeaching testimony as to statements of a
witness is proper, where no foundation was laid therefor by asking
the witness as to the statements.37
the homicide, and, on a denial by him, impeaching testimony may be intro-
duced. Btrck v. State, 16 Okl. Or. 356, 182 P. 913.
Where a witness has stated his opinion as to the value of the services of
attorneys, it is error to refuse to permit him to be cross-examined as to any
prior statement or conduct inconsistent with or disprobative of such opinion.
Colley v. Sapp, 44 Okl. 16, 142 P. 989, judgment affirmed on rehearing 44 Okl.
16, 142 P. 1193.
Where the matter inquired about is relevant to the issue and a witness de-
nies having made a statement material thereto, such statement, if contradic-
tory to his testimony on the trial, may be shown to impeach him. Hartwell v.
State, 15 Okl. Or. 416, 177 P. 383.
In action for wrongful death of an employe", contradictory statements to
impeach defendant's foreman and assistant foreman held admissible. Griffith
v. Midland vaney R. Co., 100 Kan. 300, 166 P. 467.
Where a witness testifies to the time and circumstances of defendant's ap-
pearance at a certain place to show that he was not present when the al-
leged offense was committed, evidence that the witness had previously stated
that he was asleep at the time referred to is admissible, after his attention has
been directed to the statement on cross-examination. State v. Swartz, 126 P.
1091, 87 Kan. 852. <
At the trial of a criminal action wherein the defendant was charged with
having committed rape five times upon the witness between the 1st day of
April, 1888, and the 1st day of August, of the same year, and her testimony
tended to show that the offenses were committed in the months of February,
March, and April, 1887, it was proper to ask on cross-examination if she did
not swear before the grand jury that the special offense about which she was
" Robinson v. State, 130 P. 121, 8 Okl. Cr. 667.
An expert who testified as to the cause of a boiler explosion cannot be
impeached by proof that he signed a verdict at the inquest, stating the cause
to be unknown, where his attention had not been called thereto. Denver v.
Atchison, T. & S. F. R. Co., 150 P. 562, 96 Kan. 154, Ann. Cas. 1917A, 1007.
Before a witness can be impeached by proof of contradictory statements
made in his evidence on a former trial, such contradictions must be called to
his attention, and it is error to introduce them without having laid any foun-
dation. State v. Cleary, 19 P. 776, 40 Kan. 287.
Before a witness can be impeached by proof of contradictory statements
out of court, his attention must be called to the time, place, and person in
such a manner that there is a reasonable certainty that his attention will be
directed to the alleged conversation. Kuhn v. Poole, 112 P. 962, 27 Okl. 534.
Where, with a view of impeaching a witness, he is asked if he did not make a
certain statement on a previous examination, and he replies that "it amounts
to about the same thing," he thereby practically admits the making of the
statement, and his answer is insufficient as a foundation for impeachment.
State v. Baluwin, 12 P. 318, 5o Kan. 1.
(794)
Art. 4) CREDIBILITY AND IMPEACHMENT § 885
A witness cannot be impeached by contradiction upon a collateral
matter brought out on cross-examination.3*
Previous contradictory statements must be confined to a con-
tradiction of the testimony of the wjtness which is injurious to the
impeaching party.39
To impeach a witness by evidence of a former statement, the
statement must be material to the issues being tried.40
Where it is sought to impeach a witness in a criminal case by
showing contradictory statements out of court, statements made by
then testifying was perpetrated on the 13th day of April, 1888. State v. Spidle,
22 P. 620, 42 Kan. 441.
Where, in an action by a head brakeraan against a railway company for in-
juries occasioned by a switch stand and the target thereof being too close
to the railroad track plaintiff testifies that he had no actual knowledge how
close the switch target was to the track prior to his injuries, the exclusion of a
question, upon cross-examination, whether after the injury he did not state
that he had "repeatedly called the attention of parties to that target," is er-
ror. Southern Kansas Ry. Co. v. Michaels, 30 P. 408, 49 Kan. 388.
A witness could be asked on cross-examination whether he had not made
statements conflicting witu his testimony. State v. Zimmerman, 42 P. s;-_'s. ;;
Kan. App. 172. Defendant was prosecuted for assault on the ground that his
sons committed the offense in his presence, with his consent. Held, that a
witness for the defense, who testified solely as to the details of a trip taken
by himself and defendant on the day of the assault to another town, could not,
on cross-examination, be asked whether he had not told a certain party that
his brother had told witness that he, the speaker, and defendant, witnessed
the assault. Id.
That a witness testified he had no recollection of a conversation with plain-
tiff" as to statements of defendant, but, if he had such conversation, what he
said was true, held not to render competent plaintiff's testimony as to what the
forgotten statement was. Mallinger v. Sarbach, 146 P. 1148, 94 Kan. 504.
38 State v. Alexander, 131 P. 139, 89 Kan. 422.
A witness may not be impeached on any matter collateral to the matter in is-
sue with a view of eliciting an admission at variance between his former
statements, and those testified to on the trial. Hartwell v. State, 15 Okl. Cr.
416, 177 P. 383.
It is not error to refuse to permit the cross-examination of a witness on
collateral matters, or to refuse to permit other witnesses to testify to state-
ments made by such witness concerning a collateral matter for purposes of
impeachment. State v. Sweeney, 88 P. 1078, 75 Kan. 265.
A foundation for impeachment cannot be laid by questions on cross-examina-
tion which involve collateral issues. State v. Sexton, 136 P. 901, 91 Kan. 171.
3» Sturgis v. State, 102 P. 57, 2 Okl. Cr. 362.
40 Bilby v. Brockman, 55 Okl. 714, 155 P. 257.
To impeach a witness by showing that he has made contradictory statements,
the statements must be material to the issue. State v. Ray, 37 P. 996, 54 Kan.
160.
(795)
§ 885 WITNESSES (Ch. 14
other parties in the presence of the witness are not competent, un-
less shown to have been authorized by the witness.41
The test of admissibility of a contradictory statement -of wit-
ness for impeachment is whether such statement could be intro-
duced independent of contradiction, and if not, it is on a collateral is-
sue and inadmissible for impeachment.42
Prior contradictory statement of a witness is not substantive tes-
timony of proof of the facts then stated, but may be shown only
to affect his credibility.43
Where a party places a witness on the stand, and he testifies
unfavorably and differently to prior information given the party,
he may be impeached by proof of inconsistent statements.44
41 Tucker v. Territory, 87 P. 30,7, 17 Okl. 56.
The credit of a witness may be impeached by showing that the statements
made in his presence by another, and which were assented to and adopted by
him as his own, are contrary to what he has testified at the trial. State v.
McGaffin, 13 P. 560, 36 Kan. 315. On a prosecution for murder, the exclusion
of testimony showing that statements made in the presence of a witness, which
were assented to and adopted by him as his own, are contrary to what he has
testified at tne trial, where the conviction rests largely upon the evidence giv-
en oy the witness sought to be impeached, is material error, for which the
judgment should be reversed. Id.
42 Harriss-Irby Cotton Co. v. Duncan, 57 Okl. 761, 157 P. 746.
43 Culpepper v. State, 111 P. 679, 4 Okl. Cr. 103, 31 L. R. A. (N. S.) 1166, 140
Am. St. Rep. 668.
44 Bucher v. Showalter, 44 Okl. 690, 145 P. 1143.
Where a party had been deceived or entrapped into placing a witness on the
stand, having reasonable ground to believe and believing that the witness
would testify to facts favorable to such party, and the witness testifies to facts
injurious to him and conflicting with his previous statements, such party may
show the previous statements. Sturgis v. State, 102 P. 57, 2 Okl. Cr. 362. A
party cannot impeach his own witness by introducing conflicting statements:
made by him, unless he shall testify injuriously to such party ; and the mere
fact that a witness does not testify as the party expected is not sufficient. Id.
One is not conclusively bound by the statements which his own witness may
make ; and, if he has been deceived by an artful or hostile witness, he may
examine such witness as to whether he had not previously made contrary
statements, and may, in the discretion of the court, be permitted to show what
such contrary statements were. State v. Sorter, 34 P. 1036, 52 Kan. 531.
Where a party has been entrapped by an artful or hostile witness, he may
examine the witness as to contrary declarations, and may, in the discretion
of the court, be allowed to show what such contrary declarations were ; and
this rule applies to the cross-examination by the state of its own witnesses.
State v. Moon, 80 P. 597, 71 Kan. 349.
Where a prosecuting attorney is surprised by unfavorable testimony of his
witness, he may read from an affidavit made by the witness, relating to the
(790)
Art. 4) CREDIBILITY AND IMPEACHMENT § 885
^
A party cannot impeach his own witness by proof of prior con-
tradictory statement, where he has not been misled by the witness,
who has only failed to testify to matters beneficial to him.45
The fact that a party to an action in which the bona fides of a
transaction is in question uses his adversary as a witness does not
preclude him from showing that the adversary had made statements
contradictry of his testimony as original evidence of his admis-
sions.40
A witness may be impeached by showing that he has testified in
another proceeding involving the same subject-matter in a manner
inconsistent with his testimony, sought to be impeached.47
Where the witness admitted on cross-examination that she gave
testimony in another proceeding in conflict with testimony at the
trial, it is not error to reject evidence of such former testimony.48
A witness may explain contradictory testimony.49 Where a wit-
same subject-matter, and inquire if he made such statements. State v.
Hughes, 56 P. 142, o Kan. App. 631.
45 Culpepper v. State, 111 P. 679, 4 Okl. Cr. 103. 31 L. R. A. (N. S.) 1166,
140 Am. St. Rep. 668.
A party cannot impeach his own witness by proof of prior contradictory
statements, where the party has not been misled by the witness, and where
the witness has not testified to facts injurious to him. Paris v. United States
115 P. 373, 5 Okl. Cr. 6ul. Where a party has been deceived or entrapped to
place a witness on the stand, believing that he will testify to facts favorable
10 sucn party, and the witness testifies to injurious facts conflicting with pre-
vious statements, the party can introduce in evidence statements of such wit-
ness conflicting with the testimony so given, on the ground of surprise, under
Ind. T. Ann. St. 1899, § 2016. Id.
46 Gritfis v. Whitson, 43 P. 813, 3 Kan. App. 437.
47 Harmon v. Territory, 79 P. 765, 15 Okl. 147.
A question on cross-examination as to whether witness had not given a
different account of the affair on a former trial may well be ruled out as im-
material, since that evidence couid be introduced to impeach him, without
first calling his attention to it. Hughes v. Ward, 16 P. 810, 38 Kan. 452.
When, on an application for a continuance to procure the testimony of an
aosent witness, the facts set up in the affidavit in support of the application
are, by consent, read in evidence, in behalf of the party making the applica-
tion, as the deposition of the absent witness, it is error for the court to permit
alleged statements of the witness, made out of court, to be introduced to im-
peach his evidence in the deposition, his attention at no time having liven
called thereto, and he having had no opportunity to explain them. State v.
Bartley, 29 P. 701, 48 Kan. 421.
48 Burckhalter v. Vaun. *59 Okl. 114, 157 P. 1148.
49 Testimony of prosecutrix that her mother told her that defendant threat-
ened to kill them uoth if they appeared against him held competent to ex-
(797)
§ 885 WITNESSES (Ch. 14
ness gave Material evidence for plaintiff, and defendant offered
testimony that witness had previously made contradictory state-
ments, plaintiff cannot show, to corroborate the witness, that a
few days after the occurrence about which the witness testified he
had made statements in harmony with her testimony on the trial.50
Pleadings filed in another action by one of the parties to the action
being tried are admissible when offered for the purpose of impeach-
ment.51
Where contradictory statements to impeach a witness consist of
writings, they are the best evidence; and, in the absence of a
showing that they are lost or destroyed or that they cannot be
produced, parol evidence is inadmissible.52
plain her testimony at a preliminary hearing, when she testified to defend-
ant's innocence, htate v. Marsee, 14-± P. 833, 93 Kan. 600.
50 Stirn v. Nelson, 70 P. 355, 65 Kan. 419.
Where, for the purpose of impeaching a witness for the state, the defendant
introduces witnesses who testify that at the preliminary examination they
heard the former witness, and that he did not then mention the facts testified
to by him on the trial, the state may in rebuttal, call other witnesses, also
present at such examination, to testify that they heard the witness, and that
he did then mention these facts. State v. McKinney, 3 P. 356, 31 Kan. 570.
Where it was sought to impeach a witness for plaintiff, in an action for
damages lor wrongful death, by showing that he made statements before the
coroner's jury contradicting his testimony at the trial, plaintiff could show in
rebuttal that, before the accident causing decedent's death, witness had made
statements in harmony with those at trial. Board of Com'rs of Cloud County
v. Vickers, 61 P. 391, 62 Kan. 25.
si Funnell v. Conrad (Okl.) 176 P. 904.
Where plaintiff filed his bill of particulars on April 16th, alleging that de-
fendant was indebted to him in the sum of $75, and on May 19th he amended
it and asked $200, and defendant offered the original bill of particulars as
evidence, an instruction that the pleadings in the case form no part of the
evidence was error, since defendant was entitled to have the jury consider the
original bill of particulars as affecting the credibility of plaintiff as a witness
unless the discrepancy in the pleadings was explained to the satisfaction of
the jury. Leavitt v. Deichmann, 30 Okl. 423, 120 P. 983.
" Kuhn v. Poole, 112 P. 962, 27 Okl. 534.
A written statement by plaintiff soon after the injury held admissible, where
it was inconsistent with material parts of her testimony at the trial. Chicago,
R. I. & P. Ry. Co. v. Points, 46 Okl. 234, 148 P. 720.
A letter which tended to contradict the testimony of the writer and throw
some light upon such testimony held properly admitted. Rice v. Woolery, 38
Okl. 199, 132 P. 817.
Plaintiff sued for the purchase price of a lot in a new town, conveyed by
him to one of defendants. The defense was that it was conveyed in considera-
tion of improvements made thereon. Defendants produced as a witness the
(798)
Art. 4) CREDIBILITY AND IMPEACHMENT § 885
Where the 'defendant, for the purpose of impeaching a witness
by showing contradictory testimony given by the witness upon a
former trial of the case, offers in evidence extracts from the witness'
former testimony, reading the same from the official transcript, the
prosecution may read from the transcript all the testimony of said
witness in relation to the facts involved in the alleged contradiction,
for the purpose of rebutting such attempted impeachment.58
In a criminal trial, the transcript of testimony given at the pre-
liminary examination by a witness who testified at the trial should
usually be admitted in evidence to discredit his testimony.54
An official stenographer, who has correctly reported the testi-
mony of a witness at a former trial, may read his notes of such testi-
mony to impeach the witness at a subsequent trial without making
a transcript of the notes.55
It is competent to contradict a witness by reading a statement
from his deposition previously taken after properly calling his at-
tention thereto.58
agent of plaintiff in the disposal of the lots, who testified that he had had
correspondence with plaintiff concerning this matter ; and that he first heard
that the lot was sold for a money consideration in 1885, though he knew it
was conveyed in 1882. Two letters, with memoranda attached, dated in 1882,
were identified by witness, in cross-examination, as his handwriting, directed
to plaintiff, in which was a list of lots sold, to whom, and for what price,
which contained this lot, and showed that it was sold to one of defendants
for $75, and not paid for. Held, that they were competent to impeach witness.
Anthony v. Jones, 18 P. 519, 39 Kan. 529.
53 Huntley v. Territory, 54 P. 314, 7 Okl. 60.
54 State v. Berger, 124 P. 400, 87 Kan. 479, judgment affirmed on rehearing
128 P. 208, 88 Kan. 406.
Defendant, desiring to attack credibility of a witness examined and cross-
examined by him at preliminary examination, and at a subsequent mistrial,
but who was absent at final trial, because of a material variance between his
evidence at preliminary examination and at mistrial, may introduce such parts
of evidence given at mistrial as show a variance. Davis v. State, 15 Okl. Cr.
427, 177 P. 625.
55 Johnson v. Moore, 52 Okl. 274, 15^ P. 1073.
Where a witness, when asked if he had not testified differently at a previous
trial, replied that he did not remember, evidence of the stenographer's notes
taken at such former trial is admissible in impeachment ; the material ques-
tion being, not what the witness remembers, but what he testified. Johnson v.
Moore, 52 Okl. 274, 152 P. 1073.
5 6 State v. Hoerr, 129 P. 153, 88 Kan. 573.
Complete parts of the depositions of a person examined as a witness on the
(799)
§ 886 WITNESSES (Ch. 14
§ 886. Contradicting witness
A witness' answer on cross-examination as to a collateral matter
is conclusive and cannot be subsequently contradicted by way of
impeachment by the party putting the question.57
Though a party cannot impeach the credibility of his own witness
by evidence of his general reputation, he may show the truth of a
particular fact, in contradiction to what such witness may have tes-
tified as to it.58
trial, and not mere detached answers, should be read to show contradictory
statements. Terry v. Kansas Gravel Co., 143 P. 485, 93 Kan. 125.
Where plaintiff in an action for personal injuries makes statements on the
witness stand, substantially different from those contained in a deposition
whicn he admits having signed, but denies the entire correctness of, refusing
to permit defendant to read in evidence those parts of the deposition tending
to contradict his testimony is error, whether such deposition is admissible in
evidence or not. Southern Kansas Ry. Co. v. Painter, 36 P. 731, 53 Kan. 414.
57 Payne v. State, 136 P. 201, 10 Okl. Cr. 314; Willis v. State, 13 Okl. Cr.
700, 167 P. 333.
If a witness be cross-examined upon a collateral matter, evidence will not
be admitted to disprove that matter, in order to discredit the witness. Atchl-
son, T. & S. F. R. Co. v. Townsend, 17 P. 804, 39 Kan. 115 ; State v. Ray, 37
P. 906, 54 Kan. 160; Same v. Zimmerman, 42 P. 828, 3 Kan. App. 172; Butler
v. Cooper, 42 P. 839, 3 Kan. App. 145 ; State v. Blakesley, 23 P. 570, 43 Kan.
250.
Evidence should not be admitted to contradict a statement of a witness
elicited on cross-examination on an immaterial collateral matter. State v.
McLemore, 164 P. 161, 99 Kan. 777, judgment reversed on rehearing 166 P.
497. 101 Kan. 259.
Where defendant offered evidence as to his reputation as- a peaceful, law-
abiding citizen his denial on cross-examination that he had stated that he was
the father of an unborn child, bound the state on the collateral issue, and it
was error to admit rebutting testimony. State v. Smith, 103 Kan. 148, 174
P. 551.
In a bastardy proceeding, defendant's denial of improper conduct with a
young girl, not the relatrix, after offense charged was purely collateral and
binding upon the state, so that it was error to permit it to contradict the
denial by evidence of another distinct offense. State v. Stout, 101 Kan. 600,
168 P. 853.
58 William Deering & Co. v. Cunningham, 65 P. 263, 63 Kan. 174, 54 L. R.
A. 410.
Where the answer and the evidence of defendant tended to show that the
price at which a stallion nad been stood was one of the material warranties
or representations in the contract for his sale, and that such warranty or
representation was false, and the seller, while a witness for the plaintiff to
maintain other issues on his part, denied making the warranty as to the price
at which the stallion had previously been stood, it was error to exclude evi-
dence contradicting his statement as bearing upon the weight to be given his
testimony. National Bank of Anadarko v. Oldharn, 109 P. 75, 26 Okl. 139.
(800)
Art. 4) CREDIBILITY AND IMPEACHMENT §§ 886~888
Where an impeaching question is not on any material issue, and
it does not tend to contradict any prior statement made by the wit-
ness, an objection thereto should be sustained."
§ 887. Prior corroborating statements
Where it is charged that the evidence of a witness is a recent
fabrication and is the result of some relation to the parties or cause,
or of some personal interest, his evidence may be supported by
showing that he has made a similar statement Before that relation
or motive existed.60
§ 888. Sustaining evidence
Where the veracity of a witness is called in question, it may be
sustained by proof of his general reputation for truthfulness.81
Such evidence is admissible, where there has been a direct attack
on his character by evidence that his reputation for truth and verac-
ity is bad, or where the witness has been impeached by evidence
69 Buckhalter v. Nuzum, 61 P. 310, 9 Kan. App. 885.
80 Driggers v. United States, 95 P. 612, 21 Okl. 60, 129 Am. St. Rep. 823, 17
Ann. Gas. 66, reversing judgment 7 Ind. T. 752, 104 S. W. 1166.
Statements of a witness made out of court cannot ordinarily be shown by
another witness to support his testimony. Chapman v. Blakeman, 3 P. 277, 31
Kan. 684.
Evidence of statements before trial by witness consistent with his testimony
is not admissible in support thereof. Jackson v. State, 12 Okl. Cr. 40<>. in?
P. 945.
The testimony of a witness wjiose credibility is attacked may be supported
by evidence that he made similar statements about the time of the occurrence
testified to. Jones v. State, 9 Okl. Cr. 646, 133 P. 249, 48 L. R. A. (N. S. ) 204.
After introduction against plaintiff in an action of impeaching evidence
tending to show that he had been silent concerning his claims when he would
most likely have asserted them had grounds existed, he may be corroborated
by proof of previous consistent claims and statements made and consistent
conduct exhibited at a time when their ultimate effect could not in tde
nature of things have been foreseen. National Cereal Co. v. Alexander, 89
P. 923, 75 jvan. 537.
61 Gilbert v. State, 127 P. 889, 8 Okl. Cr. 329.
Where a material conflict arises in the testimony of two or more witnesses,
either side may sustain its witness by proof of general character for veracity.
Gilbert v. State, 127 P. 889, 8 Okl. Cr. 329.
Where testimony of a witness is contradicted, it is competent to support his
testimony by evidence as to his general reputation for truth and veracity.
Friel v. State, 119 P. 1124, 6 Okl. Cr. 532.
In action for assault, where defendant's testimony contradicted plaintiff's
statements on cross-examination as to her reputation for truthfulness, court,
in its discretion, might permit her in rebuttal to prove her good reputation for
truthfulness. Colvin v. Wilson, 164 P. 284, 100 Kan. 247, 6 A. L. R. 859.
HON.PL.& PBAC.— 51 (801)
§ 888 WITNESSES (Ch. 14
of particular acts of misconduct, either on cross-examination or by a
record of conviction, or where he has been impeached by evidence of
corruption on his part in connection with the case at issue, or by
contradictory statements admitted on cross-examination or shown
by the testimony of other witnesses.62
Where the state attacked the reputation of defendant, who was
a witness, for truth and veracity, and defendant offered to prove
that his "character" for truth and veracity was good, an objection
on the ground that his "reputation," and not his "character," was
involved, was improperly sustained, as the terms are frequently
used without discrimination.63
«2 First Nat. Bank v. Blakeman, 91 P. 868, 19 Okl. 106, 12 L. R. A. (N. S.)
364.
But where testimony of prosecuting witnesses had been thoroughly im-
•peached, the state not attempting to show that their reputation for truth and
veracity was good, the admission of evidence to bolster the testimony of one
of the prosecuting witnesses was prejudicial to defendant. Newton v. State,
14 Okl. Or. 569, 174 P. 289.
63 State v. Tawney, 99 P. 268, 78 Kan. 855.
(802)
[END OP VOLUME 1]
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