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(40 Okl. 181)

(40 Okl. 301)

SCOTT et al. v. BROWN et al. (Supreme Court of Oklahoma. Dec. 9, 1913.)

(Syllabus by the Court.)

GILES et al. v. LATIMER et al. (Supreme Court of Oklahoma. Nov. 18, 1913.) (Syllabus by the Court.)

INFANTS (115*)—APPEAL-SUMMONS IN EB- 1. EVIDENCE (§ 56*) — LEASE - PRESUMPTION
BOR-MINORS.
AGAINST INFANCY.

Where summons in error is issued and served upon their guardian and not upon the minors, who by their guardian were plaintiffs in the court below, or their attorneys, held, that such service fails to comply with sections 5238 and 4721, Rev. Laws (1910); that the same is insufficient to give the court jurisdiction over the minors, and that the motion to dismiss the proceeding in error be sustained for want of necessary parties.

[Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 305, 326-332; Dec. Dig. § 115.*]'

Error from County Court, Johnston County; Nick Wolfe, Judge.

Where nothing appears to the contrary, a lessor is presumed to be an adult at the time he makes the lease, and one who relies upon his infancy to defeat his act has the burden of proof.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 76; Dec. Dig. § 56.*] 2. REFORMATION OF INSTRUMENTS (8 46*)— PROCEDURE-SUBMISSION TO JURY.

Where such issue arises in a suit in equity to reform a lease, the court may submit the issue to a jury, pursuant to Comp. Laws 1909, § 5785.

[Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. § 194; Dec. Dig. § 46.*]

Action by Mildred Brown and others against W. M. Scott and others. Judgment for plain-3. tiffs, and defendants bring error. Dismissed.

Harry K. Allen, of Kansas City, Mo., for plaintiffs in error. Sigler & Howard, of Ardmore, for defendants in error.

TURNER, J. On February 20, 1911, judgment was rendered and entered herein in the county court. After motion for a new trial was filed and overruled, plaintiffs in error, defendants below, commenced proceedings in error, and caused summons in error to be issued and served on A. P. Brown, guardian of Mildred Brown, Alice Brown, Wm. G. Brown, and Martin Brown, minors, who, by their said guardian, were plaintiffs below. Come the minors and move the court to dismiss the proceeding, "because no summons in error was ever served upon the defendants in error or their attorneys." Section 5238, Rev. Laws (1910), provides that after the petition in error has been filed in this court "a

summons shall issue and be served, or publication made, as in the commencement of an action. A service on the attorney of record in the original case shall be sufficient." Section 4721, Rev. Laws (1910), provides, if the defendant is a minor and under the age of 14 years, that the summons in the commencement of an action shall be served on the minor and his guardian, and if over 14 years, then on the minor. In either case it is necessary to serve the minor. This statute must be strictly followed.

The court having acquired no jurisdiction of the minors by proper service, the motion to dismiss is sustained. Bolling et al. v. Campbell, 36 Okl. 671, 128 Pac. 1091; Fanning v. Foley, 99 Cal. 336, 33 Pac. 1098; Keys v. McDonald et al., 1 Handy (Ohio) 287; Helms v. Chadbourne, 45 Wis. 60; Ingersoll v. Ingersoll, 42 Miss. 155; Melcher v. Schluter, 5 Neb. (Unof.) 445, 98 N. W. 1083; Campbell v. Laclede Gas Co., 84 Mo. 352; Jones v. Mathews (Miss.) 4 South. 547. All the Justices concur.

APPEAL AND ERROR (§ 260*)-EXCEPTIONNECESSITY.

Whether the court erred in the admission of testimony over objection will not be considered, where no exception is saved to the ruling

of the court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1503-1515; Dec. Dig. § 260.*]

4. APPEAL AND ERROR (§ 263*)-EXCEPTIONNECESSITY.

Where no exception was saved to that part of the charge which told the jury to "take this case, the pleadings, the blank verdicts, and this charge, and, after consideration of your verdict, return with same into open court," and nothing appears in the record to disclose that the jury did so over defendant's objection and exception, this court will not consider whether there was error in permitting the jury to do so.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525–1532; Dec. Dig. § 263.*]

Error from District Court, McClain County; R. McMillan, Judge.

Action by A. D. Latimer and another against G. W. Giles and others. Judgment for plaintiffs, and certain defendants bring error. Affirmed.

Rennie, Hocker & Moore, of Purcell, for plaintiffs in error. J. F. Sharp, of Oklahoma City, and J. B. Dudley, of Norman, for defendants in error.

TURNER, J. This is an action to reform a lease brought by Latimer, the lessee, one of the defendants in error. The petition substantially states that on February 2, 1907, one of the defendants, Foster, who was conceded to be a citizen of the Choctaw Nation of less than one-half blood, leased his allotment of 160 acres for a term of five years from that day, in consideration of $300, which was paid; that by mutual mistake of the parties 80 acres thereof was not included in the lease; that the lessee had entered into possession of the land intended to be conveyed by the lease, and had been in possession thereof ever since, and had erected thereon valuable improvements; that later the

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 137 P.-8

4, 1885. After that Latimer was permitted to testify, over objection, that Foster told the witness that he was of age at the time of the execution of the lease, and that Foster's mother, at the same time and in his presence, said he was of age, and that witness believed it, and, relying thereupon, parted with the consideration expressed in the lease. Whether the court erred in so doing we will not say, for the reason that no exception was saved to the ruling of the court in admitting the evidence. Dunham v. Holloway, 3 Okl. 244, 41 Pac. 140; Capital Fire Ins. Co. v. Carroll, 26 Okl. 286, 109 Pac. 535, and cases cited.

essor leased the 80 acres intended to be in- [ 4, 1906, and by the family Bible, introduced cluded in the lease to the defendant L. C. in evidence, proved that he was born June Giles, and had later conveyed the same to defendant G. W. Giles, who thereafter conveyed some interest therein to defendant W. D. Lamar. "Plaintiff further states that defendants G. W. Giles, L. C. Giles, and W. D. Lamar all well knew, long prior to the time that either of said defendants may have acquired any right in and to any portion of the lands described in plaintiff's original lease, February 2, 1907, that said plaintiff was holding the said lands, including the N. 2 of the S. W. 4 of said section 15 (being the 80 acres above referred to), and that said defendants, and each of them, knew that this plaintiff was in the actual and notorious possession of said lands, including said 80-acre tract, and had been since the date of the execution of the lease, as aforesaid." The prayer is that the lease be reformed so as to include the land intended to be conveyed, which was the whole of the lessor's allotment, and that, pending this suit, defendant G. W. Giles be restrained from prosecuting his action in ejectment, already commenced against plaintiff, to remitting the jury so to do. cover the 80 acres omitted from the lease. After demurrer thereto filed and overruled, defendants answered, admitting the allegations of the petition, and interposing the sole defense that at the time of the execution of

the lease Foster was a minor, and for that reason the lease was void. After issue join

ed by reply, in effect of a general denial,

there was trial to a jury, and verdict and judgment for the plaintiff. All the defendants save Foster, who is made a defendant in error, bring the case here.

[1, 2] There is no merit in the contention, as the petition fails to state that Foster was an adult at the time he executed the lease, that the demurrer thereto should have been sustained.

2 Cyc. p. 690, says: 64 #

*

Where nothing appears to the contrary, persons entering into an agreement are presumed to be adults, and competent to contract, and hence one who relies upon his infancy to defeat his act, contract, etc., has the burden of proving such infancy." While it is conceded that Foster had a right to make this lease if an adult, it is contended that such he was not at the time, but a minor, and that by reason of his minority the lease was void under the statute. As the

issue of minority was one of fact arising in this, a suit of equity, the court did not err in submitting the issue to the jury. Comp. Laws 1909, § 5785; Catron v. Deep Fork, etc., 35 Okl. 450, 130 Pac. 263; McCoy v. McCoy, 30 Okl. 393, 121 Pac. 176, Ann. Cas. 1913C, 146.

[3] To maintain the issue on his part Latimer introduced as a witness the brother of Foster, whose uncontroverted evidence was that Foster was 21 years old on June

[4] As there is no exception to that part of the charge which tells the jury to "take this case, the pleadings, the blank verdicts, this charge, and after the consideration of your verdict return with the same into open court," and nothing appears in the record to disclose that the jury did so over defendants' objection and exception, we will not consider whether there was error in per

There is no merit in the remaining assignments.

Affirmed. All the Justices concur.

(45 Okl. 284)

DAVIS et al. v. BOARD OF COM'RS OF

LINCOLN COUNTY et al.

(Supreme Court of Oklahoma. March 11, 1913.

On Rehearing, Dec. 9, 1913.)

(Syllabus by the Court.) 1. DRAINS (§ 91*)-ASSESSMENT INJUNCTION -ADEQUATE REMEDY BY APPEAL.

Where the commissioners of a drainage district have, by pursuing the provisions of the Drainage Act (chapter 32, §§ 3043-3077, Comp. Laws 1909), acquired jurisdiction to make assessments against property in the district for benefits, and the property owners have been given notice of a hearing on said assessments, as provided by statute, and have had an opportunity to be heard upon their objections thereto, such property owners cannot be heard to say in a proceeding for injunction that the assessments levied by the commissioners are greater than the benefits received, or are not in proportion to those levied upon other property receiving corresponding benefits, because such property owners have, by reason of section 3050, Comp. Laws 1909, an adequate remedy by appeal.

[Ed. Note. For other cases, see Drains, Cent.

Dig. §§ 53, 82, 102, 103; Dec. Dig. § 91.*1
2. DRAINS (8 76*)-REPORT OF VIEWERS-No-

TICE OF HEARING-NECESSITY.

The provision of section 3052, Comp. Laws 1909, which requires that the county clerk shall, upon the filing of the report of the viewed by name to the property owners of the disers of a drainage district, issue a notice directtrict, informing them of the date of the hearing on the repcrt of the viewers as to assessments of benefits and damages, and that the same shall be published for four weeks in some newspaper printed and of general circulation in the county, is mandatory; and, where such

notice is not given as provided by said statute, the assessment of benefits and damages is void as to all property owners who do not appear at said hearing, or otherwise waive the issuance and publication of such notice.

ers, the lands of plaintiffs. Plaintiffs charge that the assessment levied upon their lands is much in excess of any benefits which can possibly accrue thereto by the digging of the

[Ed. Note.-For other cases, see Drains, Cent. ditch; and that the amounts charged -as Dig. § 76-81; Dec. Dig. § 76.*]

3. DRAINS (8 76*)-Oath oF VIEWERS-NECES

SITY.

The provisions of section 3047, Comp. Laws 1909, require that the viewers of any drainage district shall, before entering upon the discharge of their duties, take and subscribe to an oath to faithfully and impartially discharge their duties as such viewers, and to fairly and correctly make and return the report required by statute, is mandatory to the extent at least that, where the property owners for whose benefit the requirement of the statute is primarily made do nothing to waive such irregularity, failure of the viewers to take the oath renders their proceedings void.

[Ed. Note. For other cases, see Drains, Cent. Dig. § 76-81; Dec. Dig. § 76.*]

4. DRAINS (8 91*)-CONTRACTS INJUNCTION. Although the assessments for an improvement in a drainage district have been made and a cloud thereby created upon the title to the lands against which such assessments are made, the owners of such lands may maintain an action to enjoin the commissioners of the district from issuing bonds and contracting for the improvement and paying therefor, where the assessments made are void, and said further acts of the commissioners will further complicate the cloud upon the title to plaintiffs' property and result in the unlawful expenditure of public funds.

benefits against their lands by defendants is much more than the value of their lands at the present time, and more than the value of their lands will be when said ditch is completed and in operation. By reason of these facts, it is charged that their lands are about to be confiscated and taken from them, without due process of law and in contravention of the fourteenth amendment to the federal Constitution. They further allege that in the drainage district are located certain school lands belonging to the state, against which defendants have made assessments for benefits; but that defendants, knowing that there is no provision of law by which such assessments could be collected, have assessed against the lands of plaintiffs and others in like condition increased charges sufficient to cover the amount of benefits charged against the school lands, which cannot be collected. They also allege that a large number of Indian allotments are situated in said district; and that defendants are without power or authority to levy any assessments against any of these Indian allotments or to collect anything from them for the benefits such lands will receive by the construction of the ditch; and that defendants have raised the amounts assessed against the lands of plaintiffs to cover the deficiency that will be caused because of their inability to collect from said Indian lands any charges for benefits. By reason of these facts, they allege that their lands are charged with more than their proportionate share of the benefits that will be received from a construction of the ditch, all in violation of the fourteenth amendment to the federal Constitution. Defendants are now undertaking to issue bonds and let a contract for the construction of Error from District Court, Lincoln County; the ditch, which plaintiffs allege will create Chas. B. Wilson, Jr., Judge.

[Ed. Note.-For other cases, see Drains, Cent. Dig. 88 53, 82, 102, 103; Dec. Dig. § 91.*]

(Additional Syllabus by Editorial Staff.) On Rehearing.

5. DRAINS (§ 76*)-REPORT OF VIEWERS-NoTICE OF HEARING-SUFFICIENCY.

The notice of a hearing on the report of viewers in drainage district assessment proceedings was void, where it did not contain in appropriate columns a tabulated description of every lot or parcel of land to be affected by the proposed improvement, as required by Comp. Laws 1909, § 3052.

[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 76-81; Dec. Dig. § 76.*]

Action by George Davis and others against the Board of County Commissioners of Lincoln county and others. Judgment for defendants, and plaintiffs bring error. versed and remanded.

Re

a lien upon their property and create a cloud on the title to their lands; and that the acts of the defendants are not only void, because of the foregoing facts, but also because defendants have proceeded to act without notice to the plaintiffs of their intention to conPlaintiffs in error were plaintiffs in the struct the ditch having been issued as recourt below, and defendants in error, defend- quired by law, and because no notice has ants. Plaintiffs allege in their petition that ever been served upon the plaintiffs; and each of them is the owner of land in Deep that the notice issued did not contain matFork drainage district No. 1, in Lincoln ters required by the statute to be contained county; and that the land of each of them therein, and has not been published for four has been assessed to pay for the construction weeks as required by law-by reason of and maintenance of a drainage ditch in which fact, they contend the burden of the Deep Fork Valley; that defendants, as com- benefits has been assessed against their lands missioners of said district, have caused a without notice and opportunity to be heard survey to be made for the purpose of digging on objections thereto. They also allege that said ditch, and for the purpose of paying the viewers appointed to assess said benefits therefor have levied assessments upon the proceeded to do so without taking and sublands in said district, including, among oth-scribing to the oath required by law of them For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

before entering upon the discharge of their | ed by or for the improvements, and to make duties. Other irregularities in the procedure a schedule of damages or benefits to each taken by the defendants are alleged, but a tract of 40 acres or less, and to make sepaconsideration of those already mentioned will rate estimates of the cost of location and conbe sufficient to dispose of the others. struction, and to apportion same to each tract and to apportion the benefits or damages that may result to each.

This appeal is prosecuted from an order of the court sustaining a demurrer to plaintiffs' petition, and the sole questions presented for our consideration arise on the petition of plaintiffs and the demurrer of defendants. Devereux & Hildreth, of Guthrie, for plaintiffs in error. Grant Stanley, of Oklahoma

City, for defendants in error.

When this report is filed in the office of the county clerk, it is the duty of the county clerk immediately to set a hearing of same for some day during the next regular meeting of the board of county commissioners, and thereupon. to issue in the name of the state a notice directed by name to every person returned by the viewers as the owner of any lot or parcel of land affected by the improvements or of any interest therein, and also by name to all others who in any manner may be ascertained to own such land or any part thereof; and also, generally, to all other persons without mentioning their names who may be interested therein, notifying them of the petition and report and of the date on which the petition and report will be heard, and requiring all such persons noti

HAYES, C. J. (after stating the facts as above). The statutes controlling the questions this proceeding presents are to be found in chapter 32, Comp. Laws 1909. The board of county commissioners are invested with power at any regular meeting, when the same shall be conducive to public health, or where it will be a public utility or benefit to agricultural interests or to the soil of the lands affected, to cause to be constructed, straightened, or widened any underground or tile ditch or drain, or natural stream of wa-fied to appear on that date to show cause, if ter within the county. Said commissioners are invested with exclusive jurisdiction to hear and determine all contests and objections to the creation of such district. Before any district shall be established, however, there must be filed with the clerk of the county a petition signed either by 15 per centum of the owners or by the resident owners of 15 per centum of the aggregate acres of land to be benefited or affected by the improvement and to be assessed for the construction thereof. Upon the filing of such a petition, the county commissioners are re quired to appoint three resident freeholders of the county, possessing certain qualifications named in the statute, who, assisted by the surveyor, shall proceed at once, under the direction and order of the commissioners, to view the line of the proposed drain or improvement and to report whether the proposed improvement is practical and necessary, and whether it is a private or public utility and benefit. After the report of the viewers is filed, the county clerk is required to fix by order of record the time for hearing the petition and report of the viewers, and cause notice to be given by publication for two weeks in some newspaper printed and of general circulation in the county of the pendency of the petition and of the date fixed for the hearing thereon. If upon its hearing the commissioners shall find that the proposed improvement is necessary or will be a public utility, they shall cause to be entered upon the record a finding to that effect, together with an order directing the viewers previous ly appointed to go upon the line described in the order, and to establish the precise loca- [1] As to those alleged irregularities which tion of the improvement, and to make a sched- resulted in assessing the property of plainule of all lots and parcels of land, together tiffs a greater amount than the property will with the names and residences of the owners be benefited, or more than the proportionate

any they have, why the report shall not be confirmed as made or as the same may be amended by the commissioners, and the assessments therein described or reported shall not be made as reported or as amended. If the commissioners find that due notice has been given, they shall examine the report of the viewers and surveyor, and if they find that the assessments of the cost of location and construction and of damages and benefits to each tract are correct, and that the apportionment of cost is in proportion to the benefits, and that the assessed damages of each tract are fair and just, they shall approve and confirm the report. But if they find it is unjust or erroneous, they may amend the report upon evidence so as to make the apportionment fair and just in proportion to the benefits or damages. All lands benefited by the drain or improvement are required to be assessed in proportion to the benefits for the construction thereof. From the order of the commissioners approving the schedule of the assessments, an appeal may be prosecuted to the district court by any person aggrieved; and upon such appeal there may be determined either or any of the following questions: First, whether just compensation has been allowed for property appropriated. Second, whether proper damages have been allowed for property prejudicially affected by the improvement. Third, whether the property for which an appeal is prayed has been assessed more than it will be benefited, or more than its proportionate share of the cost of the improvements.

owners due process of law, if some other form of notice is provided and given which fairly and reasonably apprises the property owners of the proceeding to assess their property and gives them an opportunity to be heard upon the merits of their objections to the assessment. Where the statute provides for notice by publication, that accomplishes the purpose, and it is not void as being in violation of the constitutional provision which prohibits the taking of property with

British Columbia Ry. Co. v. New Whatcom, 172 U. S. 314, 19 Sup. Ct. 205, 43 L. Ed. 460; Wight v. Davidson, 181 U. S. 371, 21 Sup. Ct. 616, 45 L. Ed. 900; Ballard v. Hunter, 204 U. S. 241, 27 Sup. Ct. 261, 51 L. Ed. 461; Ritter v. Drainage Dist. No. 1, 78 Ark. 580, 94 S. W. 711; section 121, Page & Jones on Taxation by Assessment.

should be assessed against the properties of for personal notice in the statute and the the respective plaintiffs, an adequate remedy failure to give personal notice does not renby appeal is afforded by the statute to plain-der the statute invalid and does not result tiffs, if the commissioners acquired jurisdic- in the proceeding denying to the property tion to make the order confirming the report of the viewers. Where a commission or the public officials, authorized by law to levy assessments against property for special benefits resulting from local improvements, obtain jurisdiction to levy the assessment, and an opportunity is given by appeal to the property owner to protect him against any irregularities in the proceedings, the rule which seems to us to be supported by the sounder reason, and which, in so far as we have been able to investigate the authorities, is sup-out due process of law. Bellingham Bay & ported by the weight of authority, is that, whether the property owner has taken advantage of the appeal or not, the opportunity of a remedy by appeal will prevent him from obtaining an injunction as to any defect which might have been remedied by appeal. Gardiner et al. v. City of Blufton, 173 Ind. 454, 89 N. E. 853, 90 N. E. 898, 22 Ann. Cas. 713; Cauldwell et al. v. Curry et al., 93 Ind. 363; Caskey v. City of Greensburgh, 78 Ind. 233; Jones v. Gable, 150 Mich. 30, 113 N. W. 577; Minn. & St. L. Ry. Co. v. Linquist, 119 Iowa, 144, 93 N. W. 103; Lyman v. City of Chicago, 211 Ill. 209, 71 N. E. 832; President & Fellows of Yale College v. City of New Haven, 57 Conn. 1, 17 Atl. 139. If the commissioners in the instant case acquired jurisdiction to make the assessments against the property of plaintiffs, and plaintiff's had an opportunity to be heard upon the objections thereto, they cannot now be heard to say in this proceeding that the assessments levied are greater than the benefits received, or are not in proportion to those levied upon other property receiving corresponding benefits. On the other hand, if the commissioners did not acquire jurisdiction to which question we shall next advert the assessment is void, and further consideration of these alleged irregularities

need not be made.

[2] Where local or special assessments are made against property to pay for local improvements and the cost of the improvements is by such assessments apportioned to the property owners in proportion to the benefits received, it is clear, by the great weight of authority, that at some stage in the proceedings some form of notice of the assessments to the property owners and an opportunity to be heard upon exceptions or objec-| tions to the assessments must be given; and statutes that fail to provide or to authorize such notice are declared void, because in violation of the federal constitutional provision which forbids the taking of property without due process of law. The statute in the case at bar provides for service of notice by publication, but does not provide for personal service of such notice; and it is alleged in the petition that no personal notice was served. But the absence of provision

This statute prescribes that notice shall be given by publication for four weeks in some newspaper printed and of general circulation in the county, the last insertion to be before the day set for the hearing on the report of the assessment of benefits and damages by the viewers; but the publication of this notice was not made. There is no alle

gation in the petition whether the notice of the hearing on the petition and upon the report of the viewers as to whether the proposed improvement is practicable and necessary, or will be of benefit, or of public utility, was given. Since the presumption in this proceeding is that the officers discharged their duty and that the proceedings are regular, except as they are shown to be otherwise, the question might be suggested, although it has not been by counsel, whether plaintiffs, having received notice and had an opportunity to be heard at the hearing on the petition for the formation of the district and construction of the ditch and upon the report of the viewers as to its practicability and necessity, will not be held bound to take notice of subsequent proceedings; and failure to publish the notice of the hearing upon the assessment, although an irregularity,

does not render the assessments void for want of jurisdiction of the commissioners.

In People ex rel. Barber v. Chapman, 127 Ill. 387, 19 N. E. 872, the court considered a statute that provided that after the commissioners shall classify the lands within the drainage district, and that when they have established or properly tabulated, or shown by a map such classification, the same shall be filed in the office of the town clerk for inspection and shall remain as a basis for levy of such taxes as may be needed for the purpose of the drainage district. The statute also provided that notice should be personally served upon all persons owning lands

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