ground of the decision was that the city had taken possession under circumstances that amounted to fraud, just as if its officers had slipped in and taken possession while the partners were gone to the post office, and that it could not retain possession thus fraudulently and surreptitiously obtained. See, also, Chisholm v. Weise, 5 Okl. 217, 47 Pac. 1086; Campbell v. Coonradt, 22 Kan. 704; Emsley v. Bennett, 37 Iowa, 15. In the present case it was the duty of the tenants to turn back the property to their landlord, the plaintiff in this action. The defendants, either by conniving with them or otherwise, prevented them from discharging this duty. They cannot retain a possession obtained in this manner. Such scrambles for the possession of real property are not to be encouraged by the law, as they tend to encourage breaches of the peace and cause people to resort to their own methods of obtaining their remedy instead of resorting to the law. recognition of the marriage relation by the par- Cent. Dig. 88 58-69, 79; Dec. Dig. § 40.*] Commissioners' Opinion, Division No. 1. Action by Bettie Segro against Eli Segro and others. From a judgment for plaintiff, certain defendants bring error. Affirmed. Charles Whitaker, of Eufaula, and W. C. Franklin and P. J. Carey, both of Muskogee, for plaintiffs in error. Charles A. Cook and Fred P. Branson, both of Muskogee, for de fendants in error. SHARP, C. On the 12th day of September, 1910, plaintiff brought suit against the abovenamed defendants to recover the possession of 360 acres of land in McIntosh county. It was alleged in plaintiff's petition that she was a duly enrolled full-blood member of the The judgment is reversed and here render-Creek Tribe of Indians, and that of the lands ed in favor of the plaintiff. PER CURIAM. Adopted in whole. (41 Okl. 318) FENDER et al. v. SEGRO et al. (Supreme Court of Oklahoma. Nov. 18, 1913.) (Syllabus by the Court.) 1. APPEAL AND ERROR (§ 231*)-OBJECTIONS BELOW-SUFFICIENCY-ADMISSION OF EVI DENCE. Simply objecting to the admissibility of evidence, without assigning the statutory grounds named in section 5070, Rev. Laws 1910, or any other ground of objection, is not such an objection as will cause this court to review the action of the trial court in overruling the purported objections. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. 231.*1 2. MARRIAGE (8 51*)-EXISTENCE QUESTION FOR JURY. The existence of facts essential to a valid marriage is to be determined by the jury trying the case. [Ed. Note. For other cases, see Marriage, Cent. Dig. 90; Dec. Dig. § 51.*] 3. MARRIAGE ( 51*)-EXISTENCE-QUESTION FOR JURY. It was within the province of the jury to say whether a marriage was to be inferred from cohabitation and reputation. [Ed. Note.-For other cases, see Marriage, Cent. Dig. § 90; Dec. Dig. § 51.*] 4. MARRIAGE ( 40*)- COHABITATION REPUTATION-INDIANS. AND Cohabitation and reputation do not constitute marriage but only evidence tending to raise a presumption of marriage from circumstances. In any case the cohabitation must not be meretricious but matrimonial to raise the presumption. [Ed. Note.-For other cases, see Marriage, Cent. Dig. §§ 58-69, 79; Dec. Dig. § 40.*] 5. MARRIAGE (§ 40*) - COHABITATION AND REPUTATION-PRESUMPTION-INDIANS. Such presumption of marriage does not arise where it is not shown that there was a in question 120 acres was allotted to her father, Tom Segro, 120 acres to her brother, Chepahnoche Segro, and 120 acres to her sister, Susan Segro; that each of said allottees were dead; and that plaintiff was the sole surviving heir at law of the said decedents, each of whom died intestate. On the part of the defendants, Eli and Willie Segro, of Tom Segro, and his sole surviving heirs it was contended that they were the children at law, as well as the sole surviving heirs at law of Chepahnoche Segro and Susan Segro, deceased. No objection is made to the court's instructions to the jury; the only errors assigned being the admission of evidence on the part of the plaintiff and the claim that the verdict of the jury is not supported by the evi dence. [1] While the witness Louisa Gray was on the stand, she was asked the following, among other, questions: "What relation did Tom Segro have to Sarah Segro?" "Did Tom and Sarah hold themselves out to the community as man and wife?" These questions were each objected to by counsel for defendants, but no grounds of objection were assigned. amination of witnesses provides that where Our statute controlling the exany party desires to object to any question put to a witness, either before a court or tribunal or upon the taking of depositions upon notice, the ordinary objections of incompetency, irrelevancy, or immateriality shall be deemed to cover all matters ordinarily embraced within such objections, and it shall not be necessary to specify further the grounds of such objections or to state the specific reasons whereby the question is so objectionable; but the court or opposing counsel may inquire of the objector wherein the question is so objectionable, and the objector shall thereupon state specifically his For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes reasons or grounds for such objection. Rev. Laws 1910, § 5070. This statute became effective March 16, 1905. Sess. Laws 1905, p. 327. Prior to its adoption, it had been held that this court would not as a general rule consider objections to the introduction of evidence, unless such objections were made to the trial court at the time the testimony was offered, and that the objections made must be sufficiently certain and definite to advise the court of the specific grounds of objection. In Long Bell Lumber Co. v. Martin, 11 Okl. 192, 66 Pac. 328, the objection made to the introduction of a deed was upon the grounds of incompetency, irrelevancy, and immateriality, and it was held that the objection thus made in general terms was not sufficient to call the attention of the trial court to the objection urged on appeal, that it did not appear that the grantor had authority to execute the deed as an attorney in fact. In Enid & Anadarko Ry. Co. v. Wiley et al., 14 Okl. 310, 78 Pac. 96, it was said that an objection that the evidence was "incompetent," without specifically stating the grounds upon which the objection was based, was too indefinite to present any question to the trial court. In Conklin v. Yates et al., 16 Okl. 266, 83 Pac. 910, it was held that an objection to the introduction of testimony should state the precise grounds of objection. Such was the law at the time of the enactment of the foregoing statute. It would be doing violence to the language of the act and would be a grave injustice to trial courts and opposing counsel to permit an attorney to simply object and afterwards on appeal elaborate upon the grounds of his objection. If there be reason for an objection, it should be stated at the time the objection is made; at least the very liberal requirement of the statute must be observed, before error in the admission of testimony can be urged on appeal. The exact question does not appear to have been before this court under the present statute, though attention was called to the statute in Midland Valley Ry. Co. v. Ezell, 129 Pac. 734, but was before the Criminal Court of Appeals in Price v. State, 1 Okl. Cr. 358, 98 Pac. 447, where it was said by Justice Furman, in a case where a like objection was made: "Whatever this court may think upon this subject, we are bound by the statute above quoted. It will be seen that the counsel for defendant simply said, 'Objected to.' This does not comply with the statute, and therefore does not amount to any objection. The better and the safer practice is to point out the specific objection relied upon. But the objection must at least go as far as the statute provides; otherwise it cannot be considered by this court. We are not willing to relax the rules relating to objections to evidence any further than the statutes require us to do. So we will not consider this matter, holding that no legal ob The rule is one of general application and is announced in 38 Cyc. 1378, as follows: "The general rule is that an objection to evidence must state the specific grounds on which it is based; that. an objection which states no grounds therefor will not suffice. This rule is so well settled, and has been applied with such frequency, that the citation of authorities is almost useless. Its operation is the same whether the evidence is oral or documentary, or whether the objection is to the form or substance of a hypothetical question asked an expert." While the rule is there stated perhaps somewhat broader than authorized by our statute, in the present case, where no objection whatever was given, it announces a rule in full harmony with our view of the law. er. [2, 3] We think there was sufficient evidence to warrant the verdict returned by the jury. The witness Louisa Gray, on behalf of the plaintiff, testified that Tom Segro had four children by his first wife, Anna; that of his marriage to Sarah one child, Bettie, was born; that these were the only children that Tom had at the time of his death; and that she had known him for a long time, ever since he was a boy, during the greater part of which time they lived near each othThe testimony of Vicey Sevier, though a half-sister of Eli and Willie, was of little, if any, value as an aid to the jury in determining the character of the relationship that existed between Tom Segro and Julia Beavers. Kate Vann, being asked whether Tom and Julia lived together as husband and wife, stated that she did not know they were ever married, and being further asked, "Q. Did they ever live together as husband and wife?" answered, "A. I suppose so; that's what they claim." She testified further that Tom would go to Julia's house and sleep there and get wood for her pretty near every night, and that this was about two or three years before Eli, the oldest child, was born; that she (the witness) raised Eli, and that Tom Segro was his father and treated him as his child; that Tom and Julia lived together. On cross-examination she testified that, at the time Tom chopped wood for Julia, he had a home across Gray's creek, but that he would go there and sleep with Julia and chop wood for her, and then go back; that Tom kept this up until he died. She testified further that Julia Beavers was a Creek freed woman. Vicey McNac, an enrolled freed woman, and half-sister of Eli and Willie, testified that she was a daughter of Julia Beavers and lived with her aunt, and that, before moving, her mother and Tom Segro lived together as husband and wife; that of nights Tom would stay with her mother, and had been doing so for a long time, beginning before Eli and Willie were born. This witness was an enrolled freedwoman and did not know her own age. She testified that Eli and Willie were enrolled as under the name of Julia Beavers; that the farm where Tom Segro lived was about two miles from where her mother lived; that, during the time Tom was visiting her mother, the latter had a child by one Thomas Adkins; that she did not know whether her mother had a child named Smith. that no rights to the property in controversy could be acquired by their progeny. The position of counsel that the jury capriciously disregarded the evidence is therefore, we think, not well taken. It is difficult to establish a rule which will regulate and limit the discretion of a court or jury, in the degree of credit to be given to the testimony of witnesses. Much must depend on the particular circumstances of each case. While juries may not arbitrarily disregard the uncontradicted testimony of disinterested witnesses of fair fame, where it con The Creek law of marriage and divorce was neither pleaded nor proved; nor was there testimony offered as to any tribal customs, pertaining to marriage or divorce among the Creeks, save that Willie McComb, a former member of the Supreme Court of the Creek Nation, testified that, according to the Creek | tains no inherent improbability, yet where it customs, the wife at marriage did not change her former name, and the children were given but one name. is incumbent upon a litigant to affirmatively prove a given state of facts, and the evidence introduced for that purpose is lacking in probative value and of the character we have seen, it is within the province of the jury to consider it as insufficient and to find against the one asserting the claim. Marriage, it is true, may be proved by circumstantial evidence; and, since the presumption is in favor of marriage and against concubinage, the fact that a man and woman have openly cohabited as husband and wife for a considerable length of time, holding each other out and recognizing and treating each other as such by declarations, admissions, or conduct, and are accordingly generally reputed to be such among their relatives and acquaintances and those who come in contact with them, may give rise to a presumption that they have previously entered into an actual marriage, although there may be no direct testimony to that effect. The existence in fact of a marriage, and the existence of facts essential to a valid marriage, are questions for the jury, and it is within the province of the jury to say whether a marriage is to be inferred from cohabitation and reputation. Doe v. Roe et al., 2 Houst. (Del.) 49; Mickle v. State (Ala.) 21 South. 66; Apong v. Marks et al., 1 Hawaii, 83; Jackson et al. v. Jackson, 80 Md. 176, 30 Atl. 752; Turner v. Williams, 202 Mass. 500, 89 N. E. 110, 24 L. R. A. (N. S.) 1199, 132 Am. St. Rep. 511; Lorimer v. Lorimer, 124 Mich. 631, 83 N. W. 609; Adair v. Mette, 156 Mo. 496, 57 S. W. 551; Richard v. Brehm, 73 Pa. (22 B. F. Smith) 140, 13 Am. Rep. 733; 26 Cyc. 898. [4, 5] The jury's verdict could only have been reached through a belief that Julia Beavers and Tom Segro were not shown to have been married under either the Creek laws or customs at the time controlling and in force in the Creek Nation. The mere fact that Tom, who at or about the time had a living wife, was maintaining relations with Julia Beavers was far from conclusive evidence of the fact that he and Julia were ever married; and the testimony offered to prove marriage to Julia is not of that character that is calculated to satisfy either court or jury. An irregular, limited, or partial cohabitation is not sufficient to create a presumption in favor of marriage. It must be continuing and complete and such as is usual between persons lawfully married. There are a number of circumstances, shown by the testimony of these witnesses, that cast a serious doubt upon the all-important facts of a marriage between the putative father and Julia. Tom Segro was a full-blooded Creek Indian; Julia Beavers was a Creek freedwoman, and Eli and Willie enrolled Creek freedmen. The evidence mainly tends to show that Tom would go to Julia's house at night and sleep with her, although there is evidence that he made some provision for her and her children, Eli and Willie. At the same time, Julia had another child by one Thomas Adkins, who took his father's name. In one place Vicey McNac testified that the Adkins child was older than Eli and Willie, and in another she states that he was younger. The nature of the relationship existing between Tom and Julia was a question | affirmed. of fact for the jury. If that relationship was meretricious, and if under the tribal laws Julia and Tom were not husband and wife, plaintiff's right to recover must stand, for there can be no reasonable question, from the testimony, but that Tom Segro and Sarah were husband and wife, and that the plain- (Supreme tiff Bettie was the legitimate offspring of their union. The issue whether Tom and Julia were ever married was submitted to the jury, and the effect of its verdict was to find that the relationship that existed between Tom and Julia was adulterous, and The judgment of the trial court should be PER CURIAM. Adopted in whole. (40 Okl. 188) Ex parte WAUGH. (Syllabus by the Court.) witness by a court or officer must specify parEvery order of commitment to prison of a ticularly the cause of arrest or commitment, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes and, when the commitment is for the refusal said contempt as in the manner herein imto answer a question, such question must be posed." stated in the order. (a) When such mandatory provision under the statute is not complied with, the prisoner will be discharged. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 24; Dec. Dig. § 29.*] Original action in habeas corpus by Leroy E. Waugh. Petitioner discharged. Joseph Wisby and C. G. Horner, both of Guthrie, for petitioner. Dale & Bierer and Devereux & Hildreth, all of Guthrie, for respondent. WILLIAMS, J. The petitioner as plaintiff brought an action for damages against the Guthrie Gas, Light, Fuel & Improvement Company for injuries alleged to have been received on account of an explosion, which occurred during the year 1907. The action for damages was commenced 3 years and 3 months after the injury. The defendant served the usual notice on plaintiff to take depositions of witnesses before the county judge of Logan county, and thereafter subpœnaed plaintiff, and the plaintiff, refusing to testify, was adjudged guilty of contempt, and committed to the county jail until he purged himself of contempt. The petitioner seeks to be enlarged from said imprisonment. The commitment under which the petitioner was imprisoned is as follows: "Now, on this 13th day of October, 1913, comes on for consideration the judgment of the judge of the county court of Logan county, state of Oklahoma, in the matter of the contempt proceedings against Leroy E. Waugh, and thereupon the court adjudged said defendant guilty of contempt in refusing to answer proper questions submitted to said Leroy E. Waugh while a witness before said judge in the taking of deposition in the case of Leroy E. Waugh v. Guthrie Gas, Light, Fuel & Improvement Company pending in the district court of Logan county, Oklahoma, and, the said Leroy E. Waugh refusing and failing to answer questions propounded to him as a witness as aforesaid, it is by the court adjudged that the said Leroy E. Waugh is in contempt of said court, and that the said Leroy E. Waugh pay a fine in the sum of twenty ($25.00) dollars, and stand committed to the county jail of Logan county, Oklahoma, until such time as he shall show to the judge of the county court of Logan county, Oklahoma, that he will answer all questions propounded to him in said matter which the court shall direct him to answer, and the sheriff of said Logan county, Oklahoma, is hereby directed to take charge of the said Leroy E. Waugh and place him in the county jail of Logan county, there to remain until the fine of twenty-five ($25.00) dollars herein imposed be paid, and the said Leroy E. Waugh purges himself of Section 5061, Revised Laws of Oklahoma 1910, provides: "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 seal, and must specify, particularly, the cause of arrest or commitment; and if the commitment be for refusing to answer a question, such question must be stated in the order. Such order of commitment 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." This language is mandatory in its terms. Section 5256, vol. 2, 6th Ed. Bates Annotated Ohio Statutes, is identical with said section 5061. In re Turner, 8 Nisi Prius & Gen. T. Rep. 241, 11 Ohio S. & C. P. Dec. 251, the court inclined to the view that it should consider alone the order of commitment in determining whether the petitioner should be discharged when the commitment did not comply with said section. unless In Ex parte Woodworth, 6 Ohio S. & C. P. Dec. 19, it is said: "The order of commitment sets out the question which the petitioner refused to answer. But in the order there is nothing showing whether or not the questions were competent-were, in other words, such questions as the petitioner might lawfully be ordered to answer. Section 5256 requires that the order of commitment must specify particularly the cause of commitment, and, if the commitment is for a refusal to answer a question, such question must be stated in the order. The order in this case sets out the questions; but does it 'specify particularly the cause of the commitment? When a witness refuses to answer, the cause of the commitment is a refusal to answer when lawfully ordered. He cannot be lawfully ordered the question put to him is pertinent and relevant to the issue in the case. To specify particularly the cause of the commitment in such case, the order must show that the witness refused to answer a pertinent and relevant question, and to do that it should set out facts enough to make it appear on the face of the order that the question asked was pertinent and relevant. In [Ex parte Zeehandelaar] 71 Cal. 238 [12 Pac. 259], it was held that a commitment for contempt in refusing to answer a question must state facts sufficient to show the pertinency and relevancy of the question. In [In re Sims] 4 Ohio Dec. 473, it was held that, to commit a witness for contempt in refusing to bring books and papers under a subpoena duces tecum, it should appear from the mittimus that the book or paper contains evidence pertinent to the issue." The petitioner in that case was discharged on account of the defects in | of the trial court is affirmed. the order of commitment. Counsel for respondent insist that the petitioner should be remanded in order that a commitment containing the questions propounded might be issued. If this were a case where the petitioner stood convicted by a verdict of a jury, and the court had made a sentence that was voidable, this might be the proper practice. In cases of contempt where a mandatory statute requires the question propounded to be set out in the order of commitment, and such is not done, the commitment being void, the prisoner must be discharged. All the Justices concur. (40 Okl. 137) MULLIN v. BROWN et al. All the Jus tices concur, except WILLIAMS, J., absent and not participating. (39 Okl. 789) CITY OF SHAWNEE v. SEARS. (Supreme Court of Oklahoma. Nov. 25, 1913.) (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS ($ 789*) STREETS-DEFECTIVE ELECTRIC WIRING-LIABILITY FOR PERSONAL INJURIES. injury caused by a dangerous obstruction in the A municipal corporation is liable for an street which results from a disarranged or defective system of electrical wiring, maintained lawfully in the streets by others than the municipal corporation itself, only where it had, or by the exercise of reasonable care would have obtained, notice of the particular defective and dangerous condition which produced the injury, (Supreme Court of Oklahoma. Nov. 18, 1913.) with reasonable opportunity to remedy the dan (Syllabus by the Court.) APPEAL AND ERROR (§ 1010*)-JUDGMENT— Where the evidence reasonably tends to support the findings of the trial court, the judgment will not be disturbed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. 1010.*] gerous condition before the injury occurred. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1644; Dec. Dig. § 789.*1 2. MUNICIPAL CORPORATIONS (§§ 762, 763*)— A municipal corporation is not required to inspect the wiring, insulation, apparatus, and appliances of an electric light plant, operating Error from District Court, Stephens Coun- in the city under a franchise, to discover dety; Frank M. Bailey, Judge. Action by J. S. Mullin against Eli Brown and others. Judgment for defendants and plaintiff brings error. Affirmed. H. A. Ledbetter, of Ardmore, for plaintiff in error. J. B. Wilkinson and C. Riley, both of Duncan, for defendants in error. fects therein. If, however, a municipality permits a third party to maintain in the streets a system of electrical wiring, a portion of which extends into a sidewalk, constituting an obstruction thereof, and which creates a condition so inherently dangerous as to amount to a nuisance-one that constitutes a peril and menknowledge of such condition, and of the danace to persons using the streets-and it has ger, or the circumstances are such that knowledge will be implied, then it may be liable to a TURNER, J. On August 12, 1910, plain-person injured because of such dangerous ob tiff in error, J. S. Mullin, sued defendant in error Eli Brown in the district court of Stephens county in ejectment for the S. W. 4 of N. E. 4 and N. 1⁄2 of S. 1⁄2 of N. W. and N. 1⁄2 of N. W. 4 of section 34, township 1 S., range 7 W., and for $90 damages for its unlawful detainer. After issue joined there was trial to the court and judgment for defendant, and plaintiff brings the case here. The court held that plaintiff was not entitled to recover on the strength of his own title. The court was right. Both plaintiff and defendant claimed the right to possession of the land under leases from the same lessor, both executed and delivered by him on September 25, 1909; the lease of defendant being prior in point of time to that of plaintiff. Both were filed for record at 2:30 p. m. on September 27, 1909. Plaintiff conceded that his right to recover turned upon the question of whether defendant was in possession of the demised premises at the time the lease under which plaintiff claims was executed and delivered to him. struction. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1605-1611, 16121615; Dec. Dig. §§ 762, 763.*] (Additional Syllabus by Editorial Staff.) 3. WORDS AND PHRASES "DEAD WIRE." a As applied to electricity or the construction of electrical conducting apparatus, "dead" wire is one which never carries "electricity." Commissioners' Opinion, Division No. 2. Action by May Sears against the City of ror. Affirmed. P. O. Cassidy and W. M. Engart, both of Shawnee, for plaintiff in error. Stanard, Wahl & Ennis and J. H. Woods, all of Shawnee, for defendant in error. BREWER, C. May Sears, about 6 a. m. May 1, 1904, who was at the time about 12 years of age, slipped and fell against a guy On this issue the court found for defend- rod erected and maintained by the Shawnee ant, and, there being evidence reasonably Light & Power Company, a corporation, and tending to support the finding, the judgment was severely burned by reason of the rod For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |