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erty of another, for full value, and without UNION COAL CO. et al. v. WOOLEY. fraud, the property will pass to the purchas(No. 4122.)

ing corporation free from the claims of creditors

of the selling corporation. (Supreme Court of Oklahoma. Nov. 30, 1915.

[Ed. Note. For other cases, see Corporations, Rehearing Denied Jan. 11, 1916.) Cent. Dig. 88 2354, 2361-2367; Dec. Dig. Om

590.] (Syllabus by the Court.)

8. CORPORATIONS Omw 545, 590—SALE OF PROP1. PLEADING 367–MOTION TO MAKE DEFI ERTY-TRUST FUND-RIGHTS OF CREDITORS NITE AND CERTAIN-REQUISITES.

-DUTY OF PURCHASING CORPORATION. A motion to make a pleading more definite In such case the money paid for the prop and certain must point out wherein the pleading erty of the selling corporation passes to its di. is indefinite and uncertain, and, if it fails to do rectors, and they hold it as a trust fund for so, it is not error to overrule it.

the payment of creditors, and the residue, if [Ed. Note. For other cases, see Pleading, any, for the stockholders, and the purchasing Cent. Dig. 88 64, 1173–1193; Dec. Dig. Om corporation is not bound to see to the proper ap367.]

plication of the purchase money by the direc2. APPEAL AND ERROR 960 — DISCRETION

tors of the selling corporation. ARY RULING-PLEADING-MOTION TO MAKE

| [Ed. Note.-For other cases, see Corporations, CERTAIN.

Cent. Dig. 88 2170_2175, 2354, 2361-2367; Dec. A motion of this kind is addressed largely

kind is addressed largely | Dig. Om545, 590.] to the discretion of the trial court, and a ruling 9. CORPORATIONS 590_SALE OF PROPERTY thereon will not be reversed except for an abuse -NOTICE OF INSOLVENCY-EFFECT. of such discretion.

Notice to the purchasing corporation in [Ed. Note. For other cases, see Appeal and such case that the selling corporation is insolError, Cent. Dig. 88 3825, 3832-3834; Dec. Dig. vent is not notice that the directors intend to ww960.)

| misapply the purchase money. 3. CORPORATIONS 545 -- INSOLVENCY - DI [Ed. Note. For other cases, see Corporations, RECTORS-RIGHT TO PREFER CREDITOR. Cent. Dig. 88 2354, 2361–2367; Dec. Dig. Om

A director of an insolvent corporation is a 590.) trustee for the creditors of such corporation,

Commissioners' Opinion, Division No. 2. and will not be allowed to prefer an antecedent unsecured debt of other creditors of such corpo

Error to District Court, Pittsburg County; ration who would lose the entire amount due Preslie B. Cole, Judge. them, if such preference is allowed to stand. Action by Tom Wooley against the Union

[Ed. Note.-For other cases, see Corporations, Coal Company, a corporation, and others. Cent. Dig. 88 2170–2175; Dec. Dig. Om 545.]

Judgment for plaintiff, and defendants bring 4. CORPORATIONS O 547-INSOLVENCY-PREF

error. Affirmed in part and reversed in part. ERENCE OF DEBTS OF DIRECTORS JURISDIOTION IN EQUITY.

This was an action by the defendant in Where the directors of an insolvent corpo- I error, plaintiff below, against the plaintiffs ration, upon the sale of its entire property, re

| in error, defendants below, to hold the deceived a large sum of money, some of which they used to pay debts of the corporation, but paid fendants liable to the payment of a judgment themselves about $8,000 for sums they claimed for $5,697.12 recovered by him against the to be due them from the corporation, but paid

Adamson Coal & Mining Company. The findnothing to the plaintiff, a court of equity has jurisdiction of an action to charge such direc

ings of fact by the trial court clearly state tors as trustees, and this remedy is not abolished the questions raised, and are as follows: by the statute defining the obligations and liabil "That on May 7, 1909, plaintiff filed suit in ities of directors.

the district court in and for Pittsburg county, at [Ed. Note. For other cases, see Corporations, McAlester, for the sum of $20,000, against the Cent. Dig. $8 2178-2181; Dec. Dig. 547.] Adamson Coal & Mining Company; thereafter 5. CORPORATIONS Ow547-INSOLVENOY-PREF

on or about the 14th day of April, 1910, said ERENCE OF DEBT DUE DIRECTORS-PERSONAL plain

ECTORS-PERSONAL I plaintiff recovered judgment in said court

against the Adamson Coal & Mining Company JUDGMENT. Where in such case the directors receive

in the sum of $5,687.12, and that on or about the purchase price of the property of the insol

the 4th day of August, 1909, the Adamson Coal vent corporation in cash, and mingle it with

& Mining Company sold all its property and

Tassets to the Union Coal Company, and that said their own funds, it is not error to render a personal judgment against them in favor of a credi.

Adamson Coal & Mining Company ceased to do tor of the corporation who has received nothing

| business, having disposed of all its property,

"That the consideration paid by the Union on his debt. [Ed. Note.--For other cases, see Corporations,

Coal Company for the property of the Adamson

S, Coal & Mining Company was $28,900. Out of Cent. Dig. $8 2178–2181; Dec. Dig. Ow547.)

this sum the Union Coal Company retained 6. CORPORATIONS O547-ACTION FOR TORT $12,783.04, and paid the same to various credi"CREDITOR."

tors of the Adamson Coal & Mining Company, Where a party has an action for a tort and said Union Coal Company turned over and pending against a corporation, which is after- paid to the Adamson Coal & Mining Company wards reduced to judgment, he is a creditor of the sum of $16,116.96. Out of this sum the such corporation before the actual rendition of stockholders of said Adamson Coal & Mining the judgment. Rev. Laws 1910, § 2893.

Company, Peter Adamson, Jr., Maudie AdamEd. Note. For other cases, see Corporations, son, and A. Z. Rudd appropriated to their own Cent. Dig. 88 2178 2181; Dec. Dig. 547. use and benefit about $8,000 of said sum. For other definitions, see Words and Phrases,

"The court further finds that at the time said First and Second Series, Creditor.]

sale was made by the Adamson Coal & Mining

Company of its assets and property to the Union 7. CORPORATIONS 590—SALE OF PROPERTY | Coal Company, and for about three years prior -RIGHT OF CREDITORS.

thereto, said Adamson Coal & Mining Company Where there is neither a consolidation nor a was insolvent and in a failing condition, and the merger, and one corporation buys all the prop-I same was known to the Union Coal Company at

TO

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the time it bought the assets and property of the chasers, leaving corporate debts unpaid, such Adamson Coal & Mining Company

persons take the property charged with a "The court further finds that the Union Coal Company knew of the claim of plaintiff against

trust in favor of creditors, which a court of the Adamson Coal & Mining Company at the equity will enforce. time it, bought the property of said Adamson In Drury v. Cross, 7 Wall. 299, 19 L. Ed. Coal & Mining Company, and that it knew said 40, it appeared that a corporation had con. suit was pending and knew of the claims and demands of the plaintiff against the Adamson Coal

veyed its property so as to protect its di& Mining Company."

rectors against liability as indorsers for it, There was judgment for the plaintiff below and in condemning the transaction the court against both defendants, and from this judg- says: ment the defendants below bring the case to

"The transaction which this case discloses can

cannot be sustained by a court of equity. The conthis court by petition in error and case-made.

duct of the directors of this railroad corporaHurley, Mason & Senior, Fred A. Fulghum, tion was very discreditable and without authori. W. J. Gregg, and Carl C. Magee, all of Tulsa,

ty of law. It was their duty to administer the

important matters committed to their charge, for plaintiffs in error Adamson and Rudd.

for the mutual benefit of all parties interested, Wright & Boyd, of McAlester, for plaintiff in and in securing an advantage to themselves, not error Union Coal Co. Geo. W. Sutton, of common to the other creditors, they were guilMuskogee, and W. N. Redwine, of McAlester. I ty of a plain breach of trust." for defendant in error.

| In Sutton Mfg. Co. v. Hutchinson, 63 Fed.

496, 11 C. C. A. 320, in which the decision DEVEREUX, O. (after stating the facts as

forts as was rendered by Circuit Justice Harlan, it is above). Separate petitions in error and as

held that, when a private corporation is dissignments of error are filed on behalf of the

solved or becomes insolvent, and determines Adamsons and Rudd and the Union Coal to

nion coal to discontinue the prosecution of its busiCompany, and, as they present different ques.

ness, its property is thereafter affected by tions, we will first consider those filed on be

an equitable lien or trust for the benefit of half of the Adamsons and Rudd.

creditors, and that the duty in such case of [1, 2] Their first assignment of error is that preserving it for creditor's rests upon the the court erred in overruling a motion to

directors or officers to whom has been commake the petition more definite and certain.

mitted the authority to control or manage its This motion is as follows:

affairs, who, if not technically trustees, hold "To require the plaintiff to make his allega

the corporate assets in a fiduciary relation tions of fact which constitute his cause of ac- to creditors. tion against these defendants more definite and In 10 Cyc. 803, it is said : certain."

"The assets of an insolvent corporation being It was not error to overrule this motion, be- a trust fund for creditors, which necessarily caus

it did not point out wherein the Deti means for all creditors, the directors in charge tion was indefinite and uncertain (Grimes v.

of such assets stand in the position of trustees

for the creditors, and cannot so deal with them Cullison, 3 Okl. 268, 41 Pac. 355, Cockrell v. as to prefer themselves as creditors, for any Schmitt, 20 Okl. 207, 94 Pac. 521, 129 Am. St. past indebtedness of the corporation in favor of Rep. 737, and Kuchler v. Weaver, 23 Okl. such directors, unless at the time when such past 420, 100 Pac. 915, 18 Ann. Cas. 462), and also

indebtedness was created it was agreed that they

should be so preferred." a motion of this character is largely addressed to the discretion of the court, and a ruling

On page 805 it is said: thereon will not be reversed, except for an

"In two or three American jurisdictions the

contrary and regrettable doctrine obtains that abuse of such discretion (Ft. Smith & West- the directors may use the knowledge which they ern R. Co. v. Ketis, 26 Okl. 696, 110 Pac. 661). possess of its impending insolvency, so as to pre(3-5] These plaintiffs in error. also filed a

fer or secure themselves as its creditors, to the demurrer on the grounds: (1) That the petition

disadvantage and postponement of its general

creditors." does not state facts sufficient to constitute a cause of action; (2) that the joinder of par

In Olney v. Conanicut Land Co., 16 R. Í. ties defendant is defective; and (3) because

597, 18 Atl. 181, 5 L. R. A. 361, 27 Am. St. several causes of action are improperly join

Rep. 767, it is held that the directors of an ined. The questions raised by the demurrer

solvent corporation are by virtue of their are disposed of in our decision on the main

position debarred from preferring debts of question presented, which is whether a di

the corporation due to themselves, and in the rector of an insolvent corporation can prefer

opinion it is said: his debts to the prejudice of other creditors,

“Indeed, no cases that we know of deny a fiduand this depends on whether a director is a

ciary relation of directors to stockholders, how

ever they may differ in the use of terms to detrustee for creditors. This question has nev scribe it. This relation has led logically to the er been expressly decided in this state, and, conclusion that, in case of insolvency, the assets looking to other jurisdictions, the authorities

of the corporation being no longer held for the

benefit of stockholders, but for the benefit of credare hopelessly in conflict.

Litors. the directors owe to the creditors the duty In Curran y. Arkansas, 15 How. 304, 14 L. of a trustee. This duty is clearly stated by ClifEd. 705, it is held that the assets of an in-ford, J., in Bradley v. Converse, 4 Cliff. 375 : solvent corporation are a fund for the pay,

'Assets of an incorporated company are regarded

X in equity as held in trust for the payment of the ment of its debts, and, if they have gone in- debts of the corporation, and courts of equity of the creditors even when the matter in contro- , and for which in equity they should account. versy may not be cognizable in a court of law. C., R. I. & P. R. Co. y. Howard, 7 Wall. 392, Such assets are usually controlled and managed by directors or trustees; but courts of equity

at 416, 19 L. Ed. 117, cited with approval will not permit such managers, in dealing with by this court in Collins v. Kaw City Mill & the trust estate, in the exercise of the powers of Elev, Co., 26 Okl. 641, 110 Pac. 734, where their trust, to obtain any undue advantage for

it is said: themselves, to the injury or prejudice of those for whom they are acting in a fiduciary rela

"Equity regards the property of a corporation tion.'"

as held in trust for the payment of the debts of

the corporation, and recognizes the right of credThe same rule that directors of an insol-itors to pursue it into whosesoever possession it vent corporation are held) as trustees for may be transferred, unless it has passed into the creditors is announced in Jones on Insolvent

hands of a bona fide purchaser; and the rule is

well settled that the stockholders are not entitled and Failing Corporations, 8 55.

to any share of the capital stock nor to any divIn Lyons-Thomas Hardware Co. v. Perry idend of the profits until all the debts of the Stove Co., 86 Tex. 143, 24 S. W. 16, 22 L. R. corporation are paid. Assets derived from the A. S02, the question under consideration is

sale of the capital stock of the corporation, or

of its property, become, as respects creditors, discussed in an elaborate note, in which it

the substitutes for the things sold, and, as such, is said:

they are subject to the same liabilities and re"The most serious conflict between the courts

strictions as the things sold were before the on the question of preferences by insolvent cor

sale, and while they remained in the possession porations is in reference to the preference of | of the corporation." . debts of directors. In a few states the doctrine The case of Topeka Paper Co. v. Oklahoma that corporations may prefer creditors is follow- Pub. Co., 7 Okl. 220. 54 Pac. 455, is cited by ed to its full extent, and preferences to the directors themselves, although obtained by virtue |

plaintiff in error to sustain their contention, of their superior knowledge of the condition of but the facts in that case were that two corthe corporation, are upheld."

porations consolidated, and it was attempted And in the note it is said:

to hold the directors liable for the debts of “But the great weight of authority denies the one of the corporations, and the court held right of directors of a corporation to take ad- that they were not liable, on the ground that vantage of their position to obtain preferences it was not shown that the value of the prop for themselves or unsecured debts"--citing many cases.

erty of the corporation was by the act of the In Wait on Insolvent Corporations, $ 1621,

stockholders destroyed, impaired, or lessened it is said in part, in speaking on the question

in value. of the general right of a corporation to pre

This case, therefore, is no authority for fer its creditors:

one like the present, where the directors sell "The practical working of the rule sustaining

every particle of property the corporation corporate preferences is monstrous. The unpre-owned, go out of business, and use the monferred creditors have only a myth or a shadow ey to pay debts due themselves. left to which resort can be had for payment of 171 Complaint is also made that the court their claims; a soulless, fictitious, unsubstantial entity that can be neither seen nór found. The erred in rendering a personal judgment capital and assets of the corporation, the credi- against these plaintiffs in error, but, under tors' trust fund, may under this rule of law be the evidence in this case, if a personal judgcarved out and apportioned among a chosen im

ment cannot be rendered, the defendant in few, usually the family connections or immediate friends of the officers making the preferences."

error would be without any remedy, for the This language is very applicable to cases

plaintiffs in error received the payment in where the directors preferred themselves.

money, not in specific property of the corSee Jones on Insolvent and Failing Corpora

poration. If the contention of the plaintiffs tions, $ 132.

in error is sound, a trustee can always esThe plaintiff in error relies upon the cases

cape liability by squandering or concealing holding that directors are not trustees, and

the trust fund. That a court of equity can

render a personal judgment when otherwise especially on Corey v. Wadsworth, 118 Ala.

the plaintiff would be without remedy is set488, 25 South. 503, 44 L, R. A. 766, in which the doctrine that a director of an insolvent

tled. Murray V. Speed, 153 Pac. 181, No. corporation is not a trustee for creditors,

5442, decided November 16, 1915, and not

yet officially reported. and consequently that he can pay his own

[6] That the defendant in error was a credclaim in preference to other creditors, as upheld in the opinion, but this is opposed to

itor before his demand was reduced to judgthe great weight of authority, and, as we

ment is settled by the provisions of Rev. think, of reason, and the true rule is that

Laws 1910, $ 2893, which provides: the director of an insolvent corporation is a +

"A creditor, within the meaning of this chap

a ter, is one in whose favor an obligation exists, trustee of the corporate assets for creditors, by reason of which he is, or may become, entiand that he cannot prefer a prior unsecured tled to the payment of money." debt of his own to the injury of other cred- And see Shelby v. Ziegler, 22 Okl. 799, 98 itors. But the plaintiff in error contends Pac. 989. that their liability is fixed by the provisions The judgment, therefore, against Peter of Rev. Laws 1910, & 1254. But this action Adamson, Jr., Maudie Adamson, and A. Z. is not brought under this section, but in Rudd should be affirmed. equity to reach the trust fund that has come [8] Coming to the matters presented by the

self.

presented. There is no evidence that it did , remanded, with instructions to affirm the not pay the full value of the property pur- judgment against Peter Adamson, Jr., Mauchased from the Adamson Coal Company, or die Adamson, and A. Z. Rudd, and to rethat they had any fraudulent intent in mak- verse and set aside the judgment against the ing the purchase, or that they had any rea- Union Coal Company, and to dismiss the acson to suspect that the directors of the tion as to it, and, as this judgment is affirmAdamson Coal Company did not intend to ed in part and reversed in part, that the pay the just debts of that corporation, and costs of this court be equally divided between the payment was made in cash. The fact the parties. Rev. Laws 1910, § 5261. that the Union Coal Company knew that the Adamson Company was in a failing condition

PER CURIAM. Adopted in whole. and insolvent does not render the purchase by the Union Coal Company fraudulent; for to so hold would render any sale of property

PARKER et al. v. HAMILTON. by an insolvent fraudulent, even where he

(No. 6275.) got full value for the property sold. [9] The fact that the Union Coal Company

(Supreme Court of Oklahoma. July 13, 1915. knew that the Adamson Company was insol

Rehearing Denied Jan. 11, 1916.) rent does not carry with it notice that the

(Syllabus by the Court.) directors of that company would misapply the 1. IM

pply the | 1. JURY 10—RIGHT TO JURY TRIAL-Expurchase money; for no.one is bound to as-1 TENT. sume that the party with whom he deals is The trial by jury secured to the people of a wrongdoer, or that he intends to commit a

the state by section 19, art. 2, of the Constifraud United States v. Detroit, etc., Co.,

tution is a trial according to the common law

as it existed and was in use when the Constitu200 U. S. 321, 332, 26 Sup. Ct. 282, 50 L. Ed. tion was adopted, except as specifically modi499. That the vendee must participate in the fied by the provisions of the Constitution itfraudulent intent was decided by this court in Oklahoma Nat. Bank v. Cobb (No. 5781)

(Ed. Note. For other cases, see Jury, Cent.

| Dig. 88 15, 16, 2732; Dec. Dig. Om 10.1' 153 Pac. 134, decided November 16, 1915, not

2. JURY 19-RIGHT TO JURY TRIAL-WILL yet officially reported.

CONTEST. In Vicksburg City Telegraph Co. v. Citi A proceeding contesting the probate of a zens' Telegraph Co., 79 Miss. 341, 30 South. will is not a suit wherein the parties are enti725, 89 Am. St. Rep. 656, it was held that,

tled to a trial by jury as a matter of right

| under section 19, art. 2, of the Constitution. where there has been neither a consolidation

[Ed. Note.-For other cases, see Jury, Cent. nor a merger, but a sale by one corporation Dig. 88 104-133: Dec. Dig. 19.] of its property to another, if made for a

3. COURTS 200_JURISDICTION - SUPERIOR valuable consideration and in good faith, the

COURT-PROBATE PROCEEDINGS. property will pass to the purchasing corpora By reason of section 1966 and section 1974, tion, free from the claims of creditors, and

Comp. Laws 1909 (Rev. Laws 1910, 88 1798,

1806), the superior court has jurisdiction of the same rule prevails as between individu

matters of probate in a cause appealed from als; and see Hawkins v. Central R. R. Co., the county court to the district court and trans119 Ga. 159, 46 S. E. 82. And in 1 Thomp ferred upon motion of plaintiffs to the superior son on Corporations, $ 377, it is said:

court. "The foregoing does not, it is assumed, ap

[Ed. Note. For other cases, see Courts, Cent. ply to a bona fide sale, for a good consideration,

Dig. 88 441, 442, 454, 469-471; Dec. Dig. Om

200.] by one company of all of its properties to another. In such case the consideration of the sale 4. JURY 11-WILLS 318--RIGHT TO JUwould pass to the directors of the selling com- RY TRIAL-DISCRETION-ADVISORY VERDICT pany, and they would hold it as a trust fund for --PROBATE PROCEEDINGS. their creditors first, and their shareholders next. On an appeal to the district court from a It would be a mere substitution of trust funds, I judgment of the county court admitting a will and the purchasing company would not on well-to probate, where the cause is transferred by settled principles, be bound to see to its proper the district court to the superior court, the application by the directors of the selling com- latter court may, in its discretion, make an pany."

order for a trial by jury of any or all the mate

rial questions of fact arising upon the issues The question of the power of the Adamson

between the parties. But in such case the verCoal Company to sell its entire assets and l dict of the jury will be merely advisory to the property was not raised in the trial court, court, and he may adopt or reject their conclunor has it been presented to us, and it is

sions, as he sees fit; for the whole matter must

eventually be left to him to determine. therefore not considered; but see Anderson

[Ed. Note.-For other cases, see Jury, Cent. v. Shawnee Compress Co., 17 Okl. 231, 87

Dig. 88 19-24; Dec. Dig. Om 11; Wills, Cent. Pac. 315, 15 L. R. A. (N. S.) 846.

Dig. $8 751–754; Dec. Dig. 318.) The only question decided on this part of

5. COURTS C42-ESTABLISHMENT OF SUPERIthe case is that, where one corporation pur LOR COURT-VALIDITY OF STATUTE. chases all the property of another, and pays

Article 7, c. 14, p. 181, Sess. Laws 1909, its full value in cash, there being no fraudu

under which the superior court of Pottawatomie

| county was organized, is constitutional, and lent intent, it is not liable to creditors of the said court is legal. selling corporation.

(Ed. Note.-For other cases, see Courts, Cent. We therefore recommend that the case be Dig. 88 163-170, 181-183; Dec. Dig. 42.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

66

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6. APPEAL AND ERROR Ow714MATTER Not | is not error to exclude the facts relating to such OF RECORD-BRIEF.

judgment, but offered to contradict the testimony This court will not consider a question of such witness as to the facts upon which said raised for the first time in plaintiffs in error's conviction was had. brief, and evidence of which is the clerk's signa-(Ed. Note.-For other cases. see Witnesses, ture to a statement thereof in plaintiffs in er- | Cent. Dig. $$ 1161, 1162: Dec. Dig. 359.) ror's brief. [Ed. Note. For other cases, see Appeal and

13. APPEAL AND ERROR Cw1014JUDGMENT Error, Cent. Dig. 88 2958-2963; Dec. Dig. Om

CONTRARY TO ADVISORY VERDICT – Evi714.)

DENCE.

Where the evidence reasonably tends to 7. TRIAL 370 — SUBMISSION OF ISSUES — support the judgment rendered by the court, igADVISORY VERDICT.

noring the findings of the jury, in a case where In cases where the parties are not enti- the parties are not entitled to a trial by jury tled to a jury trial as a matter of right, and as a matter of right, such judgment will be afthe finding of the jury being advisory only, it firmed by this court. is not error for the court to refuse to submit all | the questions of fact to the jury, but he may Error, Cent. Dig. § 399542; Dec. Dig.

[Ed. Note.-For other cases, see Appeal and submit such as are controverted or such as he

1014.) may desire to be advised upon Oklahoma Trust Co. v. Stein, 39 Okl. 756, 136 Pac. 746.

Error from Superior Court, Pottawatomie [Ed. Note. For other cases, see Trial, Cent. Coun Dig. 88 881, 885; Dec. Dig.

County; George C, Abernathy, Judge.

370.) 8. JUDGMENT 199—MOTION FOR JUDGMENT

Application by B. F. Hamilton to probate - ADVISORY VERDICT - CONFLICTING EVI

the will of Samuel Bailey, deceased, and for DENCE.

letters testamentary. Probate of the will was In a case, where the findings of the jury are opposed by Aramelia Parker and others. advisory only, and the same were not adopted by the court, it is immaterial whether such

From a judgment admitting the will to proverdict is general or special, or upon what in

bate and granting letters testamentary to structions it was reached, or whether on contro- proponent, the contestants appealed to the verted or uncontroverted evidence.

district court, from which court the case was [Ed. Note. For other cases, see Judgment,

transferred to the superior court, where judgCent. Dig. 88 367–375; Dec. Dig. Om 199.]

ment was rendered for proponent, and con9. APPEAL AND ERROR 1047—RULINGS ON

testants bring error. Affirmed. EVIDENCE.

In the trial of a case the question of admit- H. H. Smith, of Shawnee, C. W. Crim, of ting or rejecting testimony is one intrusted | Estherville. Iowa. J. T. Suggs, of Denison, largely to the sound discretion of the trial court; and, where the matter submitted by the issues

Tex., B. L. Jones, of Sherman, Tex., and J. D. in the case is not one where the parties are en- Lydick, of Shawnee (H. H. Smith, of Shawtitled to a jury as a matter of right, the ulti- nee, on the brief), for plaintiffs in error. mate decision of the case is with court, not Samuel w Haves of Oklahoma City. with the jury, great latitude is allowed in the exercise of discretion by the court in admittingW. S. Pendleton and F. H. Reily, both 01 or rejecting testimony, and the case will not be Shawnee, for defendants in error. reversed in this court for error in this particular, unless such an abuse of discretion is shown as to deprive the objecting party of some sub

BROWN, J. Samuel Bailey died Septemstantial right. Tobin v. O'Brieter, 16 Okl. 500, ber 26, 1912, in Pottawatomie county, Okl., 85 Pac. 1121.

leaving a will in which he devised to his [Ed. Note.-For other cases, see Appeal and nephew, Sherman Spencer, his entire estate, Error, Cent. Dig. $$ 4132, 4133, 4146-4152;

consisting of several thousand dollars. The Dec. Dig. m1047.)

will named Dr. B. F. Hamilton as sole ex10. COURTS 488 - TRANSFER OF CASE WAIVER OF IRREGULARITIES.

ecutor without bond. September 27, 1912, B. Irregularities in the transfer of a case F. Hamilton, filed with the clerk of the counfrom the district to the superior court may be ty court his application and petition to prowaived by the parties, and, when waived by bate the will and for letters testamentary. them, any judgment rendered by the superior court will be regular.

October 21, 1912, Mrs. May Spencer filed her Ed. Note. For other cases. see Courts. Cent. application in the county for probation of the Dig. 88 1316–1323; Dec. Dig. Om488.)

will and to be appointed administratrix with 11. JUDGMENT Cm 211–RENDITION_VALIDITY

the will annexed, alleging that Sherman --ADVISOBY VERDICT.

Spencer, the legatee named in said will, died In cases where the court may ignore the September 29, 1912, and that she was his surfindings of the jury and render such judgment

viving wife and heir, and, as such, entitled as he considers authorized and proper under the evidence in the case, it will be immaterial wheth- to the estate of Samuel Bailey, deceased, and er or not it renders judgment in response to a that B. F. Hamilton was not a proper person motion therefor by one of the parties, and such to act as executor of Bailey's will. October judgment will not be void because rendered sub

i 21, 1912, an answer was filed in the county sequent to the filing of a motion for a new trial by the party in whose favor the judgment is court by B. F. Hamilton and Sherman Spenrendered and before passing on such motion. cer, denying generally the allegations con

[Ed. Note.-For other cases, see Judgment, tained in May Spencer's application, and esCent. Dig. § 386; Dec. Dig. Om 211.]

pecially denying that Sherman Spencer was 12. WITNESSES 359—IMPEACHMENT-CON- I dead and the incompetency of B. F. Hamilton VICTION OF WITNESS. Where the trial court admits in evidence

to act as executor of Bailey's will, and denythe judgment of a foreign state convicting a wit- ing that May Spencer had any right to be ness who testified upon the trial of a felony, it I appointed administratrix of the will.

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