43, 13 N. W. 13; Brown v. Williams, 34 Neb. 376-382, 51 N. W. 851; Gibbons v. Gibbons, 24 Neb. 394-406, 39 N. W. 450. As stated by the court in Bradford et al. v. Cline et al., supra, a party should not be allowed to encourage the court in receiving a report which he knows is out of time and allow the same to be filed, and then only object when the decision is against him. The motion to dismiss this appeal has been heretofore overruled by this court. Finding no error in the action of the court in overruling defendant's motion to set aside the judgment, the decision of the trial court is affirmed. All the Justices concur. ORCUTT v. ORCUTT. (Syllabus by the Court.) (25 Okl. 855) term of court between the order of reference such is the case, such filing is a mere irreguand the filing of the report, without any or- larity, and does not preclude a waiver, or der having been made at the intervening the court in passing on the report and renterm continuing the reference or extending | dering its decision on the questions involved. the time within which to file the report. Ex- Creeden v. Patrick, 3 Neb. (Unof.) 459, 91 ceptions were filed thereto, but overruled, N. W. 872, citing Deitrich v. Lincoln, 13 Neb. the report approved, and judgment rendered in favor of Pracht and against Sieker for the amount found due by the referee. A motion for new trial was filed and overruled, and the cause appealed. One of the assignments made in the brief was that the report was not filed. at the next term after the appointment of the referee. The court held that the objection came too late, and, in effect, that plaintiff in error had consented to an extension of the time taken by the referee, and for that reason had waived any error on that point. In passing the court said: "We think that the plaintiff in error is not in a position to now take advantage of the failure to report at the next succeeding term, even if it was essential that the referee should either report, or that the court should continue the reference by an extension of time within which a report was to be made. The facts (Supreme Court of Oklahoma. March 8, 1910.) were as well known then as now; and the plaintiff in error, without objection so far as we know, proceeded to contest the matter before the referee, and then, for the first time (induced, we have no doubt, by the adverse report), raised the objection now insisted upon. It is too late." And in the syllabus said: "After parties to an action have submitted their whole case to a referee without objection, it is then too late for the losing party to insist that a regular term of the court had intervened between the order of reference and the report, at which no order was made continuing the reference, or extending the time for a report, and that, for this reason, the referee had no jurisdiction." In Robinson's Will, 53 Misc. Rep. 171, 104 N. Y. Supp. 588, the third paragraph of the syllabus reads: "The provisions of Code Civ. Proc. § 1019, that a referee shall report within 60 days from the submission of the cause may be waived by the conduct of the parties." In this case the court said: "The time of the referee to report * * is deemed extended by such conduct of the parties as in fairness should estop the litigant from taking advantage of the strict letter of the law." See, also, Gill v. Clark, 31 Misc. Rep. 337, 65 N. Y. Supp. 406. DIVORCE ( 181*)-APPEAL-REQUISITES FOR Where, on appeal from a judgment granting a divorce, plaintiff in error has failed to judgment, written notice of his intention to file, within 10 days after the rendition of such appeal in the office of the clerk of the court in which the judgment was rendered, as prescribed by section 6180, Comp. Laws Okl, 1909, this court is without jurisdiction to hear and determine the appeal, and the same will be dismissed. [Ed. Note.-For other cases, see Divorce, Cent. Dig. § 567; Dec. Dig. § 181.*] Error from District Court, Wagoner County; John H. King, Judge. Action by Hattie Orcutt by F. H. Moore, her next friend, against Alvin H. Orcutt. Judgment for plaintiff and defendant brings error. Dismissed. R. C. Allen and J. C. Pinson, for plaintiff in error. B. J. Beavers, for defendant in error. DUNN, C. J. This is an action for divorce, brought in the district court of Wagoner county by the defendant in error, through her next friend, against plaintiff in error. From a decree of that court granting defendant in error a divorce, the plaintiff in error has attempted to appeal. In the instant case it affirmatively appears that the testimony was taken on August 1, 1906, which was within the time set by the court in the order of reference. It does not appear when the referee reached a determi-lahoma, 1909, provides: nation upon the question submitted to him, but presuming that he did his duty, and in favor of the judgment of the lower court, we presume such determination was also reached within that time, and that only the filing of the report therein was out of time. Where Section 6180 of the Compiled Laws of OkA party, desiring to appeal from a judgment granting a divorce, must within ten days after such judgment is rendered file a written notice in the office of the clerk of such court, duly enentitled in sach action, stating that it is the intention of such party to appeal from such *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes judgment and unless such notice be filed no appeal shall be made or taken in such cause. The notice thus provided for is jurisdictional, and this court in the case of La Due v. La Due, 100 Pac. 513, said: "Where, on appeal from a judgment granting a divorce, plaintiff in error has failed to file, within 10 days after the rendition of such judgment, written notice of his intention to appeal, in the office of the clerk of the court in which the judgment was rendered, as prescribed by section 4840, Wilson's Rev. & Ann. St. Okl. 1903 (section 6180, Comp. Laws Okl. 1909), this court is without jurisdiction to hear and determine the appeal, and the same will be dismissed." While we are without jurisdiction to entertain this cause by reason of the lack of the notice above mentioned, we will say that we have carefully read the briefs of the parties, along with the entire record, and to our minds the situation presented would not justify a reversal of the judgment of the lower court. The cause is dismissed. from trespassing upon said land, and particularly that part thereof described as 33 feet on each side of said section line. On October 16, 1908, pursuant to notice that they would introduce oral testimony on the hearing in support thereof, defendants moved in open court to vacate said injunction, on the ground that the petition failed to state facts sufficient to sustain the order, and because the allegations therein made were not true. When the motion came on for hearing, after argument, the sufficiency of the petition was taken under advisement. Defendants then offered oral testimony in support thereof, to which plaintiff objected, on the ground that the same could only be heard on affidavits. The objection being overruled, plaintiff excepted, and declined to take part in the examination of the witnesses. At the close of the testimony the court dissolved the injunetion, and plaintiff brings the case here, as signing as error that the court erred in permitting said testimony to be introduced in support of said motion. In support of his centention he relies on Wilson's Rev. & Ann. St. Okl. 1903, § 4437, which reads: "If the inand junction be granted without notice, the defendant, at any time before the trial, may apply, upon notice, to the court in which the action is brought, or any judge thereof, to vacate or modify the same. The application may be made upon the petition and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined, with or without answer." And on section 4438, which reads: "If application be made upon affidavits, on the part of the defendant, but not otherwise, the plaintiff may oppose the same, by affidavits or other evidence, in addition to that on which the injunction was granted." FISHER v. HUSSEY et al. (Supreme Court of Oklahoma. March 8, 1910.) (Syllabus by the Court.) INJUNCTION (§ 174*)-MOTION TO DISSOLVE EVIDENCE. On the hearing to dissolve a temporary injunction on motion, pursuant to Wilson's Rev. & Ann. St. Oklahoma, §§ 4437, 4438, which recites that oral testimony would be offered in support thereof, the admission of such testimony, over objection, was not error. [Ed. Note. For other cases, see Injunction, Dec. Dig. 174.*] Error from District Court, McClain Coun- tiff's own showing-that is, "the petition and ty; R. McMillan, Judge. affidavits upon which the injunction is grantAction by J. B. Fisher against S. M. Hus-ed, or (may be made) upon affidavits on the sey and others. Judgment for defendants, part of the party enjoined, with or without and plaintiff brings error. Affirmed. Rennie, Hocker & Moore, for plaintiff in error. Ben Franklin and J. F. Sharp, for defendants in error. answer"; which means that, where the application to dissolve is made by the defendant, it "may" be made on affidavit, not that it must be made on affidavit. The language is permissive, and does not mean that the showing must be on affidavit only. These TURNER, J. On October 8, 1908, Hon. R. sections of the statute are identical with secMcMillan, judge of the district court of Mc- tions 4697 and 4698 of the General Statutes Clain county, on petition of J. B. Fisher, of Kansas (1901), but the question seems nevplaintiff in error, plaintiff below, issued at er to have been squarely passed on in that chambers a temporary injunction against S. state. The question was attempted to be M. Hussey, J. D. Lynch, and B. A. Smith, raised in Olsson et al. v. City of Topeka et al., defendants in error, defendants below, re- 42 Kan. 709, 21 Pac. 219, where the court in straining them from tearing down, opening, the syllabus say: “On the hearing to dissolve destroying, or otherwise removing any fences a temporary injunction on motion, which in and along the section line between sec- was silent concerning the nature of the evitions 26 and 27 and sections 27 and 34, in-dence to be offered at the hearing, the admistersecting the land of plaintiff in error, and sion of oral evidence was not error, after both parties had announced themselves ready | evidence. A purpose to deny a resort to the for trial." most satisfactory mode should not be imputed to the General Assembly in the absence of provisions indicating it with reasonable clearness. Certainly the natural meaning of words should not be changed to create the circuit court erred in reversing the judgment of the court of common pleas." (25 Okl. 871) STATE ex rel. HOGAN et al. v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. et al. (Supreme Court of Oklahoma. March 8, 1910.) (Syllabus by the Court.) APPEAL AND ERROR (8 460*)-STAY OF PRO CEEDINGS. The institution of a proceeding in error in the Supreme Court to reverse an order granting a new trial does not of itself, without a supersedeas bond or order of the Supreme Court staying procedure, operate to suspend further proceedings in the case in the court below, nor does it entitle the plaintiff in error, as a matter of right, to continuance in the court below, until said proceeding in error is disposed of." [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2217; Dec. Dig. § 460.*] Sections 4437 and 4697, supra, are also the same in substance as Bates' Ann. Ohio St. (4th Ed.) § 5584, and sections 4438 and 4699, supra, are identical with section 5585 of said Ohio Statutes. In the State of Ohio v. Budd, | opportunity for such an inference. We think 65 Ohio St. 1, 60 N. E. 988, this question was squarely passed on in the construction of sections 5584 and 5585 of the Ohio Statutes, su- Being of opinion that the complaint states pra. That was a prosecution for perjury. facts sufficient to constitute a cause of acThe indictment charged that defendant will- tion, that the court did not err in admitting fully and corruptly swore falsely upon a ma-oral testimony in support of the motion to terial matter in the giving of oral testimony | dissolve, and in no wise abused its discretion before a judge of the common pleas court, in sustaining said motion in the light of the sitting at chambers, upon the hearing of a testimony, the judgment of the lower court is motion to dissolve an injunction. He was affirmed. All the Justices concur. convicted in that court, but, on petition in error, the circuit court of Adams county sustained a demurrer to the indictment on the ground that it failed to state any offense under the law. In the Supreme Court, it was urged that said judgment was right because oral testimony was incompetent upon such hearing. That court, however, held the evidence competent, and reversed the holding. In construing said sections the court, in passing, said: "When the parties appear before the court or judge, whether upon an application to grant or to vacate an injunction, to contest the allegations of fact involved, they may, under favor of these provisions, present their evidence by affidavits; but the natural meaning of the language by which the use of affidavits is authorized is permissive only. These provisions of the statute regulate the presentation of evidence upon controverted questions of fact. The Legislature had the common knowledge that the general and most satisfactory mode of presenting evidence, not documentary, is by the testimony of witnesses who appear in court, so that an opportunity is afforded for cross-examination, and some helpful inferences may be drawn from the appearance and manner of the witness; that a less satisfactory mode of HAYES, J. This is an original proceeding presenting the testimony of witnesses is by in this court, on the relation of Daniel W. deposition, where there is opportunity for Hogan and others for a writ of prohibition, cross-examination, although the witnesses do prohibiting and restraining the district court not appear in court, and that the least sat- of the Thirteenth judicial district and George isfactory mode of presenting such testimony W. Clark, judge thereof, from proceeding to is by affidavit, where there is neither the try a certain cause in that court. On the appearance of the witness nor an opportu- 30th day of September, 1907, Thomas J. nity for cross-examination. These less satis- Bailey filed in the district court of Oklahofactory methods of presenting evidence are ma county his action against relators to canspecially provided for to meet considerations cel and set aside a certain trust deed. A of convenience or necessity. While the Leg- trial in that cause resulted in a judgment for islature may have required affidavits as the relators, but upon motion of plaintiff therein predicate of actions to present evidence a new trial was granted. From the order which shall enter upon the record, and may granting a new trial, relators appealed to have permitted their use upon hearings of this court, where said appeal is now pending. this character in view of exigencies which No supersedeas bond has been filed in that may require immediate judicial action, it is proceeding, and no order obtained from this not to be presumed that there was an inten-court staying the proceedings therein. The tion to compel a resort to the least satisfac- cause has been set down for trial in the lowtory and reliable of all modes of presenting er court, and respondent, as judge of that For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Application by the State, on the relation of Daniel W. Hogan and others, for writ of prohibition to the District Court of the ThirWrit teenth Judicial District and others. denied. Fred S. Cladwell, for petitioners. Thorp & Thorp, for respondents. court, is about to proceed to try the same in vier's Institutes, 545; Powell on Appellate compliance with the order of that court Procedure, 275. In most of the states this granting a new trial. The sole question of rule has been changed by statutory enactlaw presented by this proceeding is whether ments, and these statutes determine the efunder the statutes of this state a proceeding fect of an appeal or proceeding in error. In in error from an order granting a new trial some states it is provided that the giving without a supersedeas bond, and without of an undertaking will operate to stay the any order of the Supreme Court staying pro- judgment and suspend all proceedings in the ceedings in the cause, operates to stay all court below. The statute in this state does proceedings in the case in the court below, not go to that extent." After stating the suband to entitle, as a matter of right, those ap- stance of the statute, the court then said: pealing from such an order to a continuance "In none of the provisions of the Code, howuntil their proceeding in error is disposed of. ever, is the undertaking made to stay any Section 6078, Comp. Laws Okl. 1909, pro- of the proceedings beyond the issuance of an vides that no proceeding to reverse, vacate, execution to enforce the judgment or final or modify any judgment or final order ren- order of the court below. And section 1, c. dered in the county court or district court, 21, Gen. St., by implication at least, denies except in two certain named classes of cases, the proposition that the institution of a proshall operate to stay executions, unless the ceeding in error in this court will operate clerk of the court in which the record of such to stay all proceedings in the district court.” judgment or final order shall be, shall take We understand the effect of this decision to a written undertaking, to be executed on the be that a proceeding in error by reason of part of the plaintiff in error to the adverse the foregoing provisions of the statute, does party, with one or more sufficient sureties, not operate to stay all further proceedings conditioned as by said section provided. Sec- in the trial court, unless there be executed tion 6084 reads: "Execution of the judgment or final order of any judicial tribunal, other than those enumerated in this article, may be stayed on such terms as may be prescribed by the court or judge thereof, in which the proceedings in error are pending." These sections of the statute were adopted by the Territorial Legislature from the state of Kansas, where they had received construction by the highest appellate court of that state before their adoption. by plaintiff in error a supersedeas bond, as provided by the statute, or unless some order be made by the appellate court staying proceedings in the lower court, until the determination of the appeal. Such has been held to be the effect of such decision in City of Topeka v. Smelser, 5 Kan. App. 95, 48 Pac. 874, wherein the exact question now before us was involved. The decision of the Supreme Court of Kansas made before the adoption of the statute is controlling upon us. Counsel for relators in an exhaustive brief has cited cases holding to the contrary under similar statutes, and we cannot say that we are not more impressed with the cogency and soundness of the reason of some of the cases cited by him than by that of the courts in the foregoing cases. But, for the reason already stated, the construction given by the Kansas court must control. This rule does not, however, necessarily work any hardship upon relators as contended by their counsel. They have their right of appeal, and may stay proceedings in the lower court pending such appeal by obtaining from this court an order to that effect upon such terms as may be just, if upon application therefor they can make it appear that the merits of their appeal and the conditions surrounding the case are such as ought to require the court to exercise its discretion in their behalf. In Central Branch Union Pacific Ry. Company v. Andrews et al., 34 Kan. 563, 9 Pac. 213, while an appeal was pending in the Supreme Court taken from a judgment against the railway company, plaintiff died, and defendants in error were appointed administrators of his estate. Thereafter they prosecuted the suit to a judgment in their favor. On the last appeal the railway company questioned the jurisdiction of the trial court to make the order appointing defendants in error administrators during the pendency of the preceding appeal. The court said: "Does the institution of a proceeding in error to reverse a judgment or final order necessarily operate to suspend the judgment and to stay all proceedings in the court below? We think not. At common law the party against whom a judgment was rendered in a civil case was entitled to a writ of error as a matter of right, which, when issued, operated to stay execution, and no bail or security for the prosecution of the writ, or for the payment of the debt and costs, in case the judgment should be affirmed, was required or necessary to stay the execution. Bou- and TURNER, JJ., concur. It follows from the foregoing conclusions that the court below is acting within its jurisdiction, and the writ is therefore denied. DUNN, C. J., and KANE, WILLIAMS, (25 Old. 782) FT. SMITH & W. R. CO. v. McCORMICK. RAILROADS (§ 440*) - INJURY TO STOCK - In an action for damages for the negligent killing of live stock by a railroad company, on a dark night, where one of the averments of negligence was to the effect that the locomotive that ran into the stock was equipped with a dim headlight, not sufficient to see stock any distance from said train, it was not error to allow plaintiff to introduce evidence tending to prove that said locomotive was equipped with a dim oil headlight. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1570-1574; Dec. Dig. § 440.*] Error from District Court, Okfuskee County; John Caruthers, Judge. Action by L. C. McCormick against the Ft. Smith & Western Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed. Chas. E. Warner and Harry P. Warner, for plaintiff in error. C. T. Huddleston, for defendant in error. KANE, J. This action was prosecuted by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover damages for the alleged negligent killing of one gray mare and two colts. The petition contains averments of negligence in the operation of the defendant's train, and that the engine was equipped with an oil headlight only. The answer denied all the allegations of the petition, putting in issue all the averments thereof. There was a verdict for plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced. "It was very dark and misty, and we were coming around a curve to the left, and I was sitting with my hand on brake valve. Had already whistled for town, and was leaning on outside of window, and discovered some animals on the track ahead, about 75 feet, and as quick as I saw them I applied brakes and emergency, knowing that there was bridge just ahead of me, and reached then for whistle and blew it two or three times and kept watching stock to see if they were going onto the bridge. I got down between engine and tank, in case engine went to turn over, so I could get off. Ran into stock, and I went out and saw one lying under the pilot. Backed engine, and when we went to back out saw suckling colt lying to the left of bridge with legs broken, and on right of bridge noticed a gray animal standing on all four feet. Animals came on tracks about 75 feet from engine when first seen. They ran something like 50 feet until they ran into After animals came on the track, used every bridge. Had oil headlight on engine at time. effort in my power to stop the train. I was sitting ready to make station stop. Had my hand on brake, and as quick as I saw them I put the brake valve into emergency. already shut off steam." Had There are two assignments of error signed by counsel for plaintiff in error in their brief: (1) Error in denying defendant's request to direct verdict for defendant; and (2) error in admission of testimony as to headlight of engine. We do not believe either ground is well taken. There is a line of stock-killing cases coming up from the Indian Territory, commencing with Gulf, C. & S. F. Ry. Co. v. Washington, 49 Fed. 347, 1 C. C. A. 286, and Gulf, G. & S. F. Ry. Co. v. Ellis, 54 Fed. 481, 4 C. C. A. 454, that have been followed by this court in M., K. & T. Ry. Co. v. Shepherd, 20 Okl. 626, 95 Pac. 243, M., K. & T. Ry. Co. v. Ford, 103 Pac. 602, and Harris et al. v. M., K. & T. Ry. Co., 103 Pac. 758, that seem to cover the first point made by counsel so fully that a further discussion would seem superfluous. In all of these cases the facts were similar to the facts in the case at bar, and in all of them it was held that it was proper to submit them to the jury. There is no room to distinguish the case at bar from them. The evidence of plaintiff was to the effect that the horses were run down and killed at a point about 250 yards west of the station of Boley, by an east-bound passenger train of the defendant; that the track for a quarter of a mile west of where the stock was struck was straight; that the engineer could have seen objects upon the tracks for that distance; that it had been raining, and from hoof tracks on the roadbed it appeared that the stock had run down the track 200 yards or better ahead of the train, until they reached a trestle, upon which they had stopped, where they were struck; that at the speed the It was not error to admit evidence that train was running it could have been stopped the locomotive headlight to the train was within 150 feet. The stock was struck about equipped with an oil headlight only, and that 9:25 o'clock on a very dark and misty night. it was a dim light as well. "The general rule The engineer gave the station signal, but is that if the employer uses ordinary care sounded no other whistle. This was substan- to provide, and to keep in reasonably safe tially the evidence on the part of the plain- condition, appliances of the kind that are in tiff; no one testifying in his behalf having common use, he is not guilty of negligence." been an eyewitness of the accident. The Elliott on Railroads (2d Ed.) § 1274. It is a evidence on the part of the defendant was to matter of common knowledge that electric the effect that the train was coming into Bo-headlights have been in general use by railley about 9:25 p. m. He (the engineer) had roads for many years, and that such lights shut off the steam and was rolling into town. have many advantages over the old oil lights For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |