1066

169 PACIFIC REPORTER

testator employed the plaintiff as a nurse led over the telephone almost every day inand to assist generally with the household quiring about her welfare. Other witnesses work of his family; she at that time being testified that the plaintiff in error cared for a single woman, and he being a widower the children of the testator and for the teswith a family consisting of several children tator when he was sick, and that the testaThe plaintiff con- tor cared for the plaintiff in error when she and his mother-in-law. Other witnesses testified that in tinued to reside in the home of the testator was sick. in the foregoing capacity from the time of the neighborhood where they lived it was her employment until the first part of July, "general neighborhood talk" that the testa1911, about which time she accompanied him tor and plaintiff in error were husband and Thereupon the defendant in error, Immediately after wife. to Hot Springs, Ark. reaching Hot Springs the testator wrote a without attempting to question the crediletter to the mother of the plaintiff in error, bility of the witnesses for the plaintiff in error, or the truthfulness of their testimony, in which he said: introduced the evidence complained of in the first assignment of error.

"Dear Mother Lizzie and I are Here at Hot Springs We got Married yesterday at Texarkana Lizzy is not well We expect to Stay Here about Aug 15th' then go to St Louis for awhile and will be in Okla after that come and see us for I think I Have the sweetest and best looking Indian In Okla."

One of the witnesses for the defendant in error, who accompanied the plaintiff in error and testator on this trip to Hot Springs, testified in effect that whilst on the way over the plaintiff and testator were affec tionate toward each other, but they "sat up straight and behaved themselves"; that on the way back they were more affectionate; that while at Hot Springs the testator roomed with the witness, but on the way back the testator and the plaintiff in error took a room together at a hotel, and in other ways

acted toward each other as husband and
wife. Several minor children of the testator,
who resided with him at Idabel, testified
that immediately upon his return to his
home he introduced the plaintiff to them as
their "new mother" and installed her in
their home as such, and that thereafter until
his death their demeanor toward each other
Other wit-
was that of husband and wife.
nesses

It is well settled that repeated acknowledgments by the man of his marriage with a certain woman, are direct evidence of marriage. Comly's Estate, 185 Pa. 208, 39 Atl. It is also well set890; 8 Enc. Ev. 475.

tled that, at common law, marriage being a civil contract founded on the consent of the parties, no legal forms or religious solemnities are required and no special mode of proof.

"Hence, at common law, and in the absence of civil requirements, a marriage might result without formalities, or at least other than those reto the marriage contract." 3 Modern American quired of the parties as evidence of their assent Law, 427; 6 Kent, Com. 86, 87.

In Fender v. Segro, 41 Okl. 318, 137 Pac. 103, it was said that:

"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 siderable length of time, holding each other out openly cohabited as husband and wife for a conand 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 Coachman v. may be no direct testimony to that effect."

To the same effect are: Sims et al., 36 Okl. 536, 129 Pac. 845; Crickett et al. v. Hardin, 159 Pac. 275; Carney v. Chapman, 158 Pac. 1125.

Under the rule laid down in the foregoing authorities, and many more which might be cited to the same effect, there is no room for doubt that the plaintiff in error adduced at the trial both direct and circumstantial evidence tending to establish her marriage with the testator.

on behalf of the plaintiff testified that they had known the testator for many years during his lifetime; that after the testator and plaintiff returned from Hot Springs to the residence of the former both stated that they had been married; that thereafter they appeared together in public places, picture shows, etc., the testator introducing the plaintiff to his friends as his wife; that many respectable persons including the adult married children of the testator and their spouses, visited the plaintiff in error and the testator at their home during the time they thus lived together, and that this [3, 4] To support the issues on their becondition continued to exist from the time of the visit to Hot Springs up to the time of half the defendants in error introduced no the death of the testator. Mrs. Fling, a pro- evidence for the purpose of discrediting any fessional nurse at Hugo, testified that during of the witnesses who testified on behalf of the latter part of 1911 the testator brought the plaintiff in error, relying wholly for sucthe plaintiff in error to Hugo for medical treatment; that he introduced the witness to her as his wife and placed her in the professional care of the witness for the period of two weeks; that during this time the testator wrote letters to the plaintiff in error

While cess upon evidence of the class complained of in the first assignment of error. there is considerable conflict of authority on the question of the admissibility of such testimony, it has been the settled law of this jurisdiction for many years that where a man and woman cohabit together, and the

es.

"The jurisdiction of the justices of the peace in all civil matters shall be coextensive with the county in which they are elected.

Section 5356 provides:

*

"Justices shall have jurisdiction in actions for trespass on real estate, where damages dehundred dollars." manded for such trespass shall not exceed two

upon his premises in Cimmaron township; ing animals and causing such animals to be that he notified the plaintiff of the distrain- sold to satisfy such damages is judicial in ing of said horses within the statutory time; its nature, but it does not necessarily follow and that plaintiff and defendant were un- that a justice of the peace is without jurisdicable to agree upon the amount of the dam- tion to proceed under the provisions of the ages to the defendant inflicted by said hors- herd law when the damages complained of Thereupon the defendant filed a written are upon premises within his county, but outnotice with W. R. Mayfield, a justice of the side of his township or district. Section peace of House Creek township, Pawnee 5351, R. L. 1910, provides: county, in accordance with the provisions of the statute, requiring said justice of the peace to view and assess the damages sustained by the defendant. The justice of the peace notified the plaintiff of the time when he would visit the premises of defendant to view and assess the damages. The justice of the peace, the plaintiff, and the defendant and another met upon the premises of the defendant at the time fixed by the justice of the peace. The justice of the peace viewed the premises, and, it seems from the evidence, announced that he would fix the dam-stock has been distrained, Sunday not being inages sustained by the defendant at the sum of $50. Thereupon the plaintiff not having satisfied said award, he directed the defendant to hold the horses pending the posting of the notices of sale required by the statute. The justice of the peace then returned to his office within his township, entered upon his docket the proceedings and his assessment of the damages and the costs of keeping said horses during the pendency of the proceedings, amounting to a total of $75.25, and filed a written copy of the assessment made by him with the county clerk as required by law.

The plaintiff then instituted this action to recover the possession of said horses, contending that the justice of the peace was without jurisdiction, for the reason that the premises upon which the damage was done were without the township or district of the justice of the peace, and therefore he was without jurisdiction to view and assess the damages, and that the proceedings under which defendant claimed to be entitled to retain possession of the horses were wholly void. Plaintiff relies upon the case of Leiber, Justice of the Peace, v. Argaubright, 25 Okl. 177, 105 Pac. 341. In that case it is held that a justice of the peace is a township officer and is required to reside and hold his office within the township where elected, and is without jurisdiction to sit, hear, and determine an action out of the township or district where he is elected. Plaintiff further contends that proceedings under the herd law by a justice of the peace, are judicial, and that therefore the justice of the peace was wholly without jurisdiction to proceed under the herd law act (Laws 1903, c. 1), where the damages occurred within his county, but outside of the township or district for which he was elected.

[1] We think it may be conceded that the act of a justice of the peace in viewing and

The provisions of the herd law necessary to be considered in the determination of this case are contained in sections 153 and 154, R. L. 1910, which are as follows:

"Sec. 153. Within forty-eight hours after cluded, the party distraining, or his agent, shall notify the owner of said stock, when known, or, if unknown, the party having them in charge; and if said owner shall fail to satisfy the person whose lands are trespassed upon, the party injured shall, within twenty-four hours thereafter, notify, in writing, some disinterested justice of the peace to come upon the premises to view and assess the damages. The owner of the stock or the person entitled to the possession thereof, when known, shall be notified in writing of the time and place when the justice will proceed to assess said damages. The justice shall within forty-eight hours after receiving such notice, Sundays and holidays excepted, proceed to view and assess the damages. and a reasonable amount to be paid for seizing and keeping said stock, and if the person owning such distrained stock, fail to pay such damages as assessed, the justice shall post in three conspicuous places in the township where such damages were done, notices that said stock, or so much thereof as are necessary to pay such damages, with cost of sale, will be sold to the highest bidder. Said sale shall take place at the enclosure where said stock were distrained, between the hours of one and three p. m. on the tenth day after the posting of such notices. Sunday excepted. Any money or stock left after satisfying such claims shall be returned to the owner of the stock sold.

"Sec. 154. The justice shall make his assessment in writing and file the same with the county clerk, to be kept in his office. Any person aggrieved by the action of the justice nder this article, may appeal therefrom, as from the judgment of a justice of the peace. The person appealing shall file with the justice of of the property distrained, or, if the value of the peace a bond, in a penalty double the value the property exceed the amount of damages claimed, then in double the amount of damages, with good and sufficient sureties, to be approved by the justice of the peace, and from and after the filing of the appeal bond the same shall operate as a supersedeas. In case the owner of such stock be the appellant the same shall shall, after the appeal is taken, certify all the be delivered to him. The justice of the peace original papers in the case to the court to which the appeal is taken, in the same manner and within the same time as in an appeal from a judgment of a justice of the peace.'

It is well established in this jurisdiction that the preceding sections of the statutes

methods of procedure to recover damages in- | It seems that in that case the trial court flicted by trespassing animals. In Ellis, Sheriff, v. Smith, 25 Okl. 234, 105 Pac. 653, Chief Justice Kane, who delivered the opinion of the court, in passing upon section 11, art. 1, c. 1, p. 43, Laws 1903, which is practically identical with section 149, R. L. 1910,

says:

"Where a party elects to recover damages alleged to have been incurred by the violation of the foregoing provision, by action at law, he waives any lien that might have attached to the stock doing the injury, if he had proceeded to distrain the trespassing animals, so far as a prior incumbrancer by a chattel mortgage was concerned."

sustained the objection to the introduction in evidence of the assessment of damages made by a justice of the peace, among other reasons, because such justice of the peace was without jurisdiction, because he was not a justice of the peace of the township in which the damage was occasioned. The territorial Supreme Court, without expressing an opinion, doubted the sufficiency of that objection. This, as we have said, is the only light that we have been able to find upon the subject in the adjudicated cases. Considering, however, the language of our statutes and the purpose to furnish speedy and adequate relief to a In Low v. Barnes, 30 Okl. 15, 118 Pac. 389, landowner injured by trespassing animals, Commissioner Sharp, who wrote the opinion we feel convinced that the position of the of the court, in construing these sections of plaintiff is not well taken. It does not appear our statute says: from the record in the instant case whether Section 17 expressly provides that or not there was a qualified and acting justhe owners of stock, prohibited from running attice of the peace of Cimmaron township; but large, shall be liable for all damages done by such animals upon the land of another, and provides two methods of procedure by which the damages may be recovered."

The defendant in the instant case might have returned the horses to the plaintiff, and, if the plaintiff were a resident of the county, have maintained an action against the plaintiff for the amount of damages claimed in the instant case before any justice of the peace of the county. By so proceeding the defendant would have been entitled to a judgment for the damages sustained by him, but he would have lost his lien upon the horses for the satisfaction of such damages. Having elected, however, to proceed to recover his damages by distress, and having submitted his claim for damages to a justice of the peace of a neighboring township, did he thereby forfeit the lien given him by statute?

So far as we have been able to investigate this question has never been determined by the courts. In the case of Gilbert v. Stephens, 6 Okl. 673, 55 Pac. 1070, the question is suggested, but is not determined. It being there said by Justice Keaton, who delivered the opinion of the court:

"Immediately after which, as shown by the record, the following proceedings were had: 'Defendant now offers to show, by the files of the county clerk's office, and introduced in evidence the written assessment made by the justice of the peace and filed there as required by law, to which counsel for plaintiff objects as incompetent, irrelevant, and immaterial, for the reason that the justice had no jurisdiction to act in this case on account of it being outside of his township. Second, for the reason he did not have any jurisdiction for the reason that notices were not served within the proper time. Third, for the reason that the pretended report of the assessment is not in proper form to sustain it, which objection is sustained, to which ruling of the court the defendant objects and excepts. Objection as to form withdrawn.'

**The reasons for the trial court's ruling in excluding the assessment made by the justice, are not discussed in the briefs and are not clearly perceptible to us; however, as defendant has assigned no cross-errors, this rul

it is a matter of common knowledge that in many townships or justice of the peace districts there is no justice of the peace qualified and acting. In such case, if plaintiff be right, a landowner would be without remedy under the provisions of the herd law, would lose his lien and be left to the doubtful remedy of action, personal judgment, and exe

cution.

[2] It remains only to be considered whether the case of Leiber v. Argaubright, supra, is applicable to the facts in the instant case. If a justice of the peace, by going to the premises where the damages were done and viewing the extent thereof, was holding court outside of his township er district, then he was within the rule laid down in that case, and without jurisdiction. We incline, however, to the view that this provision being, as we have seen, one method of recovering damages for trespass upon realty which was in the jurisdiction of a justice of the peace, the proceedings were instituted within House Creek township by the filing by the defendant of the notice to the justice of the peace required by law, and consummated by the assessment of the damages entered upon his docket by the justice of the peace and written out and filed with the county clerk as 1equired by law, all of which was done within the township of the justice of the peace. The going to the premises of the defendant in Cimmaron township, and viewing the extent of the damages, was a mere incident to the final assessment thereof. It will be noted that it is provided in section 154, R. L. 1910. supra, that the justice shall make his assessment in writing. The assessment, therefore, while the amount thereof might have been orally announced while the justice of the peace was viewing the premises in Cimmaron township, was not, in contemplation of the law, really made until the justice of the peace returned to his office and entered the same upon his docket in writing as required

1070

169 PACIFIC REPORTER

It appears that the motion for new trial was overruled and final judgment rendered in the district court on the 31st day of March, 1917, and the petition in error, with case-made attached, was filed in this court on October 6, 1917. Under the provisions of chapter 18, S. L. 1910-11, this court is without jurisdiction to review the judgment of the district court, the case-made not having been filed within six months after the rendition of the judgment appealed from.

The appeal is therefore dismissed. All the Justices concur.

We think there is much force in the con- [after the rendition of the judgment sought to tention of counsel for defendant that the pro- be reviewed on this appeal. cedure of the justice in going to the premises and viewing the damage was analogous to the view by a jury provided for by section 5004, R. L. 1910. In the instant case, while the justice of the peace acted as both judge and jury, we see no reason to distinguish between a view taken by a justice of the peace, and a similar view taken by a jury impaneled in an action to assess the amount of defendIn the absence of statute ant's damages. it has been frequently held that, in a case where a view by a jury is proper, the trial judge should accompany the jury upon such view. People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 42 L. R. A. 368, note page 381. We do not think it can be successfully contended that in an action at law brought before a justice of the peace in House Creek township to recover damages demanded by defendant the justice of the peace could not have directed the jury to proceed to Cimmaron township and view the premises, nor would such a view constitute a holding of court in Cimmaron township. In the instant case the procedure was in effect the same as a view by a jury. We therefore conclude that the case of Leiber v Argaubright is not applicable to the facts in the instant case, and that the proceedings taken by the justice of the peace were not void for want of jurisdiction. The judgment of the trial court should therefore be affirmed.

(No. 9496.) NEWBY V. WALTERS. (Supreme Court of Oklahoma. Jan. 8, 1918.)

(Syllabus by the Court.)

APPEAL AND ERROR 356 TIME OF TAKING

APPEAL-STATUTE-JURISDICTION.

Where plaintiff in error fails to file his appeal in this court within six months from the date of the rendition of the judgment or order appealed from, as required by chapter 18, Sess. Laws 1910-11, this court is without jurisdiction to review the judgment.

Error from District Court, Pawnee County; Conn Linn, Judge.

Action between T. R. Newby,

administra

tor of the estate of A. J. Vaughan, deceased, and Lillie May Vaughan Walters. Judgment for the latter, and the former brings error. Dismissed.

Edwin R. McNeill, of Pawnee, for plaintiff in error. Claude C. McCollum, of Pawnee, and R. S. Cole, of Oklahoma City, for defendant in error.

OWEN, J. Defendant in error moves to dismiss the appeal in this case for the reason that the case-made and petition in error was not filed in this court within six months

GRAY.

CONTINENTAL BENEFICIAL ASS'N v.
(No. 8309.)
(Supreme Court of Oklahoma. Jan. 8, 1918.)
(Syllabus by the Court.)

ING APPEAL-DISMISSAL.
APPEAL AND ERROR 356-TIME FOR TAK-

Where plaintiff in error fails to file his ap-
peal in this court within six months from the
date of the rendition of the judgment or order
appealed from, as required by chapter 18, Sess.
want of jurisdiction.
Laws 1910-11, the same will be dismissed for

Error from District Court, Oklahoma County; George W. Clark, Judge.

Action by Fannie E. Gray against the ConJudgment tinental Beneficial Association. for plaintiff, and defendant brings error. Dismissed.

Hainer, Burns & Toney, of Oklahoma City, for plaintiff in error. T. J. McComb and Stephen C. Treadwell, both of Oklahoma City, for defendant in error.

SHARP, C. J. This cause is before us on motion of defendant in error to dismiss the appeal, on the ground that the case-made and petition in error were not filed in this court within six months from the day on which the motion for new trial was overruled. It appears from an examination of the record that final judgment was entered and motion for new trial overruled November 13, 1915. The petition in error, with copy of case-made attached, was filed in this court on May 15, 1916.

On the part of plaintiff in error, it is claimed that the appeal was filed in time, because, it says, May 14, 1916, fell on Sunday, and hence, according to sections 2932 and 2937, Rev. Laws 1910, the petition in Neierror might properly be filed on the Monday immediately following, or May 15th. ther of the statutes is applicable, nor is section 5341, Rev. Laws 1910, which provides that the time within which an act is to be done shall be computed by excluding the first day and including the last, and that, if the last day be Sunday, it shall be excluded, for the reason that the last day, or May 13,