mitted and the trial resulted in a verdict To the same effect is the case of Richardand judgment for the administratrix, and son-Roberts-Bryne D. G. Co. v. Hockaday et appeal prosecuted to this court. One of the al., 12 Okl. 546, 73 Pac. 957, in which the grounds relied on for reversal was the sub-case of Barnes v. Lynch, supra, is quoted mission of the case to a jury. It was held with approval. that the submission of the case to a jury for a general verdict was erroneous. But it appearing that the court, having carefully reviewed the evidence, reached a conclusion independent of the jury, the case was not reversed on that ground, although the conclusion reached by the court was the same as found by the jury. In the case of Mosier and First National Bank of Walter v. Walter, 17 Okl. 305, 87 Pac. 877, the territorial court held as follows, quoting from paragraph 3 of the syllabus: "In an equitable proceeding for the cancellation of a deed, the jury sits merely in an advisory capacity to the court, and a party cannot complain of a refusal of.the court to submit special interrogatories, as their submission or rejection by a court of equity lies solely within its sound discretion, and it may adopt or reject such as it deems proper, and no error can be predicated thereon, unless such discretion has been abused." Section 4993, Rev. Laws 1910, reads as follows: "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 unless a jury trial is waived, or a reference be or personal property, shall be tried by a jury, ordered, as hereinafter provided." Our statute was taken bodily from the statutes of Kansas, viz., Gen. Stat. p. 680, § 266. In the case of H. H. McCardell et al. v. H. The case of Cartwright v. Holcomb, 21 Okl. 548, 97 Pac. 385, 17 Ann. Cas. 277, appears directly in point. The case was one involving the contest of a will the probate of which was resisted in the county court. The court sustained the validity of the will and admitted it to probate. Contestants appealed therefrom to the district court, where a demand for a trial by a jury was refused, and the case was tried by the court without a jury. Judgment was rendered admitting the will to probate. The contestants appealed from the judgment of the district court, and a reversal was sought on the ground plaintiff in error had been denied a trial by jury in the district court. The case involved a question of fact upon which issue had been joined by W. McNay, 17 Kan. 433, plaintiffs sought to the pleadings. This court, through the pres- set aside a deed to certain property and have ent Chief Justice, citing a number of authori- the same subjected to his judgment. In the ties supporting the opinion, held that in such trial of the case the defendant demanded a case a trial by jury as a matter of right did jury, which was refused, and on appeal the not exist at common law in the territory of Supreme Court of Kansas, passing upon the Oklahoma. right of the litigants to a trial by jury unSuch was the condition of the law in Ok-der the statute above referred to, sustained lahoma at the time of the erection of the state and the adoption of the Constitution. As said by Justice Kane in the Cartwright Case, supra, it was within the discretion of the trial court to order a jury to pass upon questions of fact arising in the case. It being discretionary with the court whether it would submit the issues of fact to the jury, we think it was likewise within its discretion whether it would accept and adopt the findings of the jury upon the issues submitted to them. In such cases it is held the findings of the jury are advisory only. The case of Barnes et al. v. Lynch et al., 9 Okl. 156, 59 Pac. 995, was a suit to set aside deeds to real estate and decree title therein to be in plaintiff and for an injunction restraining defendant from disposing of the land in controversy. The suit being one in which the parties were not entitled to a trial by jury as a matter of right, it was held, quoting from the syllabus: "In cases of equitable cognizance, while the judge may call in a jury or consent to one, for the purpose of advising him upon the questions of fact, he may adopt or reject their conclusions, as he sees fit, and the whole matter must eventually be left to him to determine, and instructions to the jury furnish no ground of error up on appeal. It was not only the right, but the duty, of the court to have determined all ques the action of the trial court in the following language: "The only question in the case in this court is: Did the court below err in refusing the defendants, plaintiffs here, a trial by jury? This question must be answered in the negative. This is not one of the actions in which a party is entitled to demand a jury as a matter of right. In civil actions a jury can be claimed as a matter of right only, for the trial of 'issues of fact arising in actions for the recovery of money, or of specific real or personal property.' Gen. Stat. 680, § 266. Now, this is not an action for the recovery of money. Neither is it an action for the recovery of real property. Nor is it an action for the recovery of personal property." In the case of Houston v. Commissioners of Cloud County, 19 Kan. 396, the action was by Houston against the commissioners and treasurer of Cloud county to restrain the assignment and transfer of certain tax sale certificates, and to set aside the treasurer's sale for taxes upon which such certificates were based. At the trial the plaintiff, Houston, demanded a jury, which was refused, and upon appeal the action of the trial court was sustained. In this case the case of McCardell v. McNay, supra, was approved. We have cited the several authorities above referred to in view of the earnest contention of counsel for plaintiffs in error signed by the clerk of said court; hence we decline to consider this objection. [4, 7] Plaintiffs in error's fourth proposition is: "The court erred in not submitting to the jury the issue of undue influence and requiring the jury to find generally." were entitled to a trial by a jury as a matter of right, and consequently to judgment on the findings and verdict of the jury. We think the authorities above cited settle plaintiffs in error's first proposition against them. It is further contended by plaintiffs in error that, the trial court having agreed to call and impanel a jury in the trial of The case being one in which the parties the case on the condition that plaintiffs were not entitled to a trial by jury as a would abandon their motion for rehearing matter of right, and the court not being of their application for a writ of prohibition bound by the findings of the jury, there was in the Supreme Court and deposit sufficient no error in failing to instruct upon the issue money to pay the expenses of the jury, the of undue influence or in failing to require court was bound to afford plaintiffs a trial the jury to find a general verdict; the by jury. It appears the court did all it court having refused to adopt the verdict agreed to do. It did call a jury and sub- which the jury did return. mitted to them the facts of the case. The court did not obligate itself to be bound by the action of the jury, and, if it had so agreed, it would not thereby have estopped itself from exercising the right under the law to reject the verdict of the jury in so far as it did not comport with the court's conclusions after hearing all the evidence in the case. [3, 5] Plaintiffs in error's second proposition involves the constitutionality of the superior court of Pottawatomie county. It is claimed that article 1, c. 20, § 1797, Rev. Laws 1910, under which the superior court of Pottawatomie county was organized, is unconstitutional. The section complained of is article 7, c. 14, Sess. Laws 1909, p. 181. The act referred to was construed, and the constitutionality thereof sustained, by this court in a well-considered opinion by Justice Hayes in the case of Burks v. Walker, 25 Okl. 353, 109 Pac. 544, and the conclusion therein reached has been since recognized as the settled law of the state, and in a late case of Hatfield v. Garnett, 146 Pac. 24, this court referred to Burks v. Walker with approval. The validity of the act and the decision of Burks v. Walker is again recognized by this court in the case of Leatherock v. Lawter et al., decided in March, 1915, and found in 146 Pac. 324. No reason has been shown why the conclusion reached in Burks v. Walker, supra, should not be adhered to. We think further consideration of this proposition at this time a consumption of time which the congested condition of the docket of this court will not justify. Plaintiffs in error's third proposition is as follows: "If the court was a legally existing court, it had no jurisdiction to make findings and render judgment subsequent to the term the case was tried without the court having been adjourned to that time." [6] We have already disposed of the question of the legality of the court. And on examination of plaintiffs in error's assignments of error we fail to find any reference to the judgment of the court having been rendered at a term of court subsequent to the trial of the case, and the only evidence of such fact to which our attention is called is the statement in plaintiffs in error's brief, In the case of Oklahoma Trust Company v. Stein, 39 Okl. 756, 136 Pac. 746, it is held: "In cases of equitable cognizance the judge may call in a jury or consent to one for the and he may adopt or reject their conclusions as purpose of advising him on questions of fact, he sees fit, inasmuch as the whole matter must be left to him to determine eventually, and it is not error for him to refuse to submit all the questions of fact to the jury, but he may submit such as are controverted or such as he may desire to be advised upon." To the same effect is the case of Galer v. Berrian et al., 43 Okl. 303, 140 Pac. 155. See, also, Kentucky Bank & Trust Co. v. Pritchett, 143 Pac. 338; Oklahoma Trust Co. v. Stein, 39 Okl. 756, 136 Pac. 746. [8] Plaintiffs in error's fifth proposition is as follows: "If the verdict of the jury was special, as contended in defendants in error's brief, a motion for judgment will not lie; and this because evidence is not disputed, and when judgment a motion for judgment applies only when the may be rendered on the pleadings notwithstanding the verdict, and never applies when a special verdict is relied upon." The court did not adopt the verdict, and, the findings of the jury being merely advisory, the question of whether it was special or general was of no concern, and it was immaterial upon what instructions it was reached, or whether it was upon controverted or uncontroverted evidence. The record shows the trial court based its judg ments upon its own conclusions of what the facts were, as it had a right to do. In the case of Barnes v. Lynch, supra, we find quoted with approval the following cases: Koons v. Blanton, 129 Ind. 383, 27 N. E. 334, from the Supreme Court of Indiana as follows: "Since, in a suit in equity to reform a deed, the parties are not entitled to a jury, and since the court, when it calls a jury to its aid in such case, may disregard their findings, the parties cannot complain of the manner in which the questions are submitted, nor to the form of the interrogatories or instructions." Also Missouri Valley Lumber Co. v. Reid, 4 Kan. App. 4, 45 Pac. 722, in a case of foreclosure, as follows: merely advisory, and not binding upon the court. "The finding of the jury was in any event In the face of it, the court had a right to decide for itself all questions of fact as well as of law in the case"-citing Franks v. Jones, 39, versations between them at that place. This Kan. 236, 17 Pac. 663; Moors v. Standford, 2 witness was also subjected to a rigid crossKan. App. 243, 41 Pac. 1064. Plaintiffs in error's sixth proposition is: "The evidence of Hamilton and Spencer was incompetent, and motion to exclude the same should have been sustained." examination by contestant's counsel, by which he was interrogated generally as to his relations with the deceased and his conversations with him. Some of his answers, like the witness Hamilton's, were inadmissible. But, if The witness Hamilton was named as exwe concede the testimony of the witnesses ecutor of the will, and, as such, applied for Hamilton and Spencer was erroneously adits probation, and was one of the proponents mitted and influenced the jury in their findin the case, insisting upon the validity of ings and verdict in the case, still we must not the will and its right to probate. Sherman overlook the fact that the court did not adopt Spencer was the legatee named in the will, the findings of the jury. There was other and was an adverse party. The contestants evidence sufficient to authorize and support were the next of kin and relatives whose the court's judgment, which it had the right rights to Bailey's property depended upon to enter notwithstanding the findings of the breaking the will. Hamilton and Spencer jury. The fact that incompetent evidence were called in behalf of proponents, and was admitted, will not justify a reversal of testified as witnesses in support of the will the judgment in the absence of a showing and its admission to probate. The statute plaintiffs in error were prejudiced thereby. which it is contended by plaintiffs in error What we have said with reference to the tesrendered the witnesses Hamilton and Spen-timony of the witnesses Hamilton and Spencer incompetent to testify is found in section 5841, Comp. Laws 1909, which, so far as applicable, reads as follows: "No party shall be allowed to testify in his own behalf, in respect to any transaction or communication had personally 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 they have acquired title to the cause of action immediately from such person." It will be observed the statute quoted does not disqualify the administrator or the legatee in a will as a witness in any case. In this case the witnesses Hamilton and Spencer were competent witnesses to prove any material fact in the case of which they had knowledge, unless such fact was in respect to some transaction or communication had personally by such witnesses with the deceased. Dr. hamilton was introduced by proponent, and, without objection, testified at length as to the deceased's condition of mind and body up to the time of his death, and that he was deceased's physician several years before his death. Some of the answers of the witness were inadmissible, and should have been excluded from the jury, but substantially the same statements which the witness Hamilton says were made by Bailey were also testified to by the witnesses Frank Boggs and Mary Skillington, without objection or contradiction. A lengthy cross-examination by counsel for contestants of the witness Hamilton appears to have covered every matter about which this witness testified in chief, and much more. Hamilton was afterwards recalled by contestants and interrogated as to the property and estate in his hands. Much of what has been said relative to the testimony of the witness Hamilton can be said as to the testimony of the witness Sherman Spencer. He was interrogated and testified without objection as to the relations and feelings of the deceased to the witness and witness' mother, and as to a meeting by the witness cer, applies to the evidence of the witnesses Northrupt, Frazier, Ong, Crump, and others, which plaintiffs in error clain was erroneously admitted before the jury. [9] In the case of Tobin v. O'Brieter, 16 Okl. 500, 85 Pac. 1121, it is held, quoting from paragraph 3 of the syllabus: "In the trial of a case the question of admitting or rejecting testimony is one intrusted largely to the sound discretion of the trial court; and, where the matter submitted by the issues in the case is not one where the parties are entitled to a jury as a matter of right, and the ultimate decision of the case is with the court, and not with the jury, great latitude is allowed in the exercise of discretion by the court in admitting or rejecting testimony, and the case will not be reversed in this court for error in this particular, unless such an abuse of discretion is shown as deprives the objecting party of some substantial right." In Ray v. Harrison, 32 Okl. 17, 121 Pac. 633, Ann. Cas. 1914A, 413, it is held, quoting from paragraph 3 of the syllabus: "When the testimony upon a given point is all harmonious, a cause will not be reversed because some of the evidence thus offered may have been inadmissible.” In the case of Daniel v. John P. London Co., 44 Okl. 297, 144 Pac. 596, it is held, quoting from paragraph 1 of the syllabus: "The improper admission or exclusion of evidence, if not prejudicial to the party complaining, is not ground for reversal." As said in Cartwright v. Holcomb, supra, the presumption is, in the absence from the record of anything to the contrary, that the court understood the weight to be given to the 154 PACIFIC REPORTER properly transferred from the district to the error. In State ex rel. Strong v. Superior Court of Pottawatomie County, 38 Okl. at p. 368, 132 Pac. 1077, Hayes, C. J., speaking for the court in regard to the transfer of this identical case, says: "Irregularities in the transfer may be waived by the parties, and, if waived by them, any judgment rendered by the superior court would be regular." It is also contended by plaintiffs in error under this proposition that the superior court of Pottawatomie county had no jurisdiction to try questions in the contest or probate of a will. Both contentions of plaintiffs in error under this proposition were decided against them by this court in the case of State ex rel. Strong et al. v. Superior Court of Pottawatomie County, 38 Okl. 366, 132 Pac. 1077, which was a branch of this case, but, in view of plaintiffs in error's contention that the conclusion reached in that case was errone ous, we have carefully examined and believe the law as announced therein is correct. This renders further consideration of this proposition unnecessary. [11] One assignment of error is: "That the court erred in sustaining motion for judgment.' After the case had been submitted to the jury, and after they had returned into court their findings of fact therein, the contestants filed motion for judgment in accordance with the findings of the jury, while the defendants filed a motion for judgment in their favor independent of the findings of the jury, and thereafter the trial judge proceeded to state his conclusions of fact and of law upon the entire case, independent of the findings of the jury, except such findings that the will was executed in all respects as required by law, which was adopted, and the further findings of the jury were ignored by the court, and it was found that Bailey, at the time of making the will, was of sound and disposing mind, and was not influenced by any insane delusion, and that the will should be admitted to probate, and it was so ordered. As we have heretofore held, the court had the right to adopt or reject the findings of the jury and render such judgment as, in his opinion, should be rendered on the whole case; and the fact that he did so after the filing of a motion so requesting is wholly immaterial. It is also contended by plaintiffs in error that, the defendants below having filed a motion for a new trial, after filing their motion for judgment independent of the verdict of (Okl. the jury, it was error for the court to proceed to render judgment without passing on such motion for a new trial; both of said motions being then pending before the court. We think this contention is without merit. trial court also committed error in excluding [12] Plaintiffs in error contend that the from the jury certain facts recited in the judgment from the Supreme Court of WisconSherman Spencer of the offense of wife sin evidencing the conviction of the witness abandonment. A recital of the facts of such judgment was offered by plaintiffs in error, as they claim to contradict the testimony of superior court. The superior court admitted the witness Spencer upon the trial in the evidence of the conviction of Spencer and the offense for which he was convicted, and diimprisonment only for the purpose of deterrected the jury to consider the fact of his mining the credibility they would give to his testimony, and excluded certain facts which seem to have been recited in the judgment. We think this was correct. record in this case satisfies us there was suf[13] An examination of the voluminous ficient competent evidence before the trial court to support the judgment admitting the will of Samuel Bailey, and the judgment is therefore affirmed. RICHARDS et al. v. STATE. (No. A-2434.) (Criminal Court of Appeals of Oklahoma. Jan. 15, 1916.) (Syllabus by the Court.) 1. WITNESSES 337 utory privilege of becoming a witness in his own Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146- 2. WITNESSES 337, 342-IMPEACHMENT OF ACCUSED-REPUTATION peach a witness for want of truth and veracity, 1142, 1146-1148; Dec. Dig. 337, 342.] Appeal from County Court, Harper Coun- of having possession of intoxicating liquors For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes E. J. Dick and Malcolm W. McKenzie, both | not deprive plaintiff of his right to enjoin deof Buffalo, for plaintiffs in error. R. McMil- fendant from flowing such water upon his lands. lan, Asst. Atty. Gen., for the State. [Ed. Note.-For other cases, see Waters and Water Courses. Cent. Dig. § 142; Dec. Dig. 124.] PER CURIAM. The plaintiffs in error, Clare Richards and Joe Knoble, were convicted in the county court of Harper county on an information which charged that they did have possession of intoxicating liquors, amount unknown, with the unlawful intent to sell the same. On the 8th day of February, 1915, judgment was rendered in accordance with the verdict of the jury. To reverse the judgment an appeal was perfected by filing in this court on April 5, 1915, a petition in error, with case-made. NORCROSS, C. J. This case was heretofore determined on the appeal from the judgment. 149 Pac. 71. A rehearing was granted [1, 2] The Attorney General has filed a because the court inadvertently overlooked confession of error as follows: "In this case, having read through the record with care, and also having read the elaborate brief of the plaintiffs in error, through their attorneys, we are forced under the recent decisions of this court, to confess error. There was but one witness that testified as to the main facts on the part of the state, and he admitted that he was angry and more than that, offered to leave the jurisdiction of the court and not testify for the sum of $15. However, the jury found the defendants guilty under this testimony, and there is nothing showing that they were biased or prejudiced, further than they might have been influenced by the evidence. But the error is that the defendants having taken the stand and testified in their own behalf, neither was asked anything about being a bootlegger. But other witnesses were brought in by the state, and two of them were asked if they knew defendants' character on the subject of bootlegging, and answered 'No.' Two others were brought in and to this question they answered 'Yes,' and that their character was bad. Upon the decisions of this court, this is reversible error. Kirk v. State, 11 Okl. Cr. 203, 145 Pac. 307: Sims v. State, 11 Okl. Cr. 382, 146 Pac. 914." Upon a careful examination of the record, it is our opinion that the confession of error is well taken. the fact that counsel had stipulated for diminution of the record so as to enable the court to pass on questions raised upon the appeal from the order denying defendant's motion for a new trial. No attack is made upon the correctness of the views expressed in the former opinion. [1] It is contended by counsel for the appellant that the decree granting an injunction against the appellant "from causing, permitting, and suffering the waste water from said section 15 and the S. 1⁄2 of section 10, township 18 N., range 20 E., to flow over, into and upon the plaintiff's land situate in section 3, township 18 N., range 20 E.," should be set aside. It is urged that this portion of the decree should be vacated for the reason that the court found that other persons who were not made parties to the action contributed to the damage done to plaintiff's lands in section 3 by permitting waste water to flow thereon, and that these other persons were necessary parties to the suit. The court found that the lands of plaintiff in section 3 were damaged by waste water from the lands of defendant situate. in section 15 and the S. 1⁄2 of section 10, but refused to award any judgment for damages against defendant for the reason that it was impossible to determine what portion of RAMELLI v. SORGI. (No. 2056.) the damage was occasioned by waste water (Supreme Court of Nevada. Dec. 31, 1915.) from defendant's lands. We are of the opinion that the decree granting the injunction 1. WATERS AND WATER COURSES 179 FLOWAGE-ACTIONS-NECESSARY PARTIES. against defendant permitting waste water to That persons not parties to the action flow from his lands above mentioned upon contributed to the damage done to plaintiff's the lands of plaintiff is not invalid for land by permitting waste water to flow thereon, did not render erroneous for want of necessary parties a decree enjoining defendant from suffering waste water to flow from his lands upon plaintiff's land, where it did not appear that defendant and the other alleged necessary parties were acting jointly in causing the damage. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 244-250, 256-259, 263, 264; Dec. Dig. 179.] The judgment herein is therefore reversed, and the cause remanded. want of other necessary parties. It is not contended that the defendant and the other alleged necessary parties were acting jointly in occasioning the damages in question. Where several parties, acting independently, contribute to an injury, the party injured may proceed against the parties contributing to the injury severally. [2] It is further contended that the decree should be set aside because it appears from the evidence that one George W. Mapes is the owner of the N. 1⁄2 of section 10, and that in order for waste water to reach the lands of |
