title and recover possession of a tract of land allotted to Crockett, a Chickasaw Indian, under whom both parties claim. In July, 1907, prior to the removal of restrictions against the alienation of this land, Crockett executed a deed to Bratton, the grantee of the defendant in error. In July, 1910, after the removal of restrictions against alienation, Crockett executed a second deed to Bratton, reciting a consideration of $1 and the consideration received under the former deed. The plain tiff contended the second deed from Crockett to Bratton, based on the consideration received under the former deed, was void, and claimed title from Crockett through a deed executed in July, 1908, but not placed on record until after the second deed to Bratton. Judgment below was for the defendant. Plaintiff appealed. An opinion was filed reversing the cause. The mandate issued and judgment was entered thereon in the lower court. An order was made withdrawing the mandate, and a petition for rehearing was filed by the defendant in error. | viously issued, ordering a new trial, and had set aside the judgment of the court below, need had theretofore entered judgment on the original not be dismissed, either because the trial court mandate, and had adjourned for the term without any application made to recall such judgment, or any writ of error to review such judgment sought. * * * 19 To the same effect is the case of Franklin N. E. 178, where a motion was made to vaBank Note Co. v. Mackey, 158 N. Y. 683, 51 the same has been filed and judgment entered cate an order recalling the mandate after thereon in the lower court. In that case the the filing of the remittitur in the court below, ** * [1] The plaintiff in error in opposing this In the case of St. Paul Fire & Marine Inpetition urges that this court lost jurisdic-surance Co. v. Peck, 40 Okl. 396, 139 Pac. 117, tion of the case when judgment was rendered this court, after quoting the rule announced in the lower court upon the mandate, and, in the case of Thomas v. Thomas, 27 Okl. a term of this court having expired, this 801, 109 Pac. 825, 113 Pac. 1058, 35 L. R. A. court was without authority to recall the (N. S.) 124, 133, Ann. Cas. 1912C, 713, said: mandate. exclusive original jurisdiction in all sums in excess of two hundred dollars and not exceeding five hundred dollars.'" "That is undoubtedly the correct rule. HowThe general rule is that appellate courts ever, in the case at bar the decision and judgwill not recall the mandate after it has regu- and comes within the exception, for by inadment of this court was a mistake or inadvertence larly issued and been transmitted to the low-vertence and mistake in the opinion the stater court, in the absence of fraud, accident, ute is quoted as reading: The county court shall have * * * or inadvertence. In some states the power tion in all sums in excess of two hundred dolexclusive original jurisdicor authority to do so is limited by statute lars, exclusive of interest,' when in fact the to the term at which the mandate issues. statute provides: "The county court shall have Our attention has not been called to any limitation in the Constitution or statutes of this state upon the power of this court to recall its mandate. The power of the trial courts to modify or set aside their judgments is limited by statute, but no reference is made to this court in such limitations. The rule is one of courts and not of law. The Supreme Court of Washington in the case of State v. County Commissioners, 61 Wash. 684, 112 Pac. 929, said: "Courts of original jurisdiction generally have the power, for some time after a judgment has been rendered, to set it aside or modify it as legal circumstances may require. The time within which this may be done depends either upon the statute or upon the common practice of the courts." In the case of Thomsen et al. v. Cayser et al., 243 U. S. 66, 37 Sup. Ct. 353, 61 L. Ed. 597, Ann. Cas. 1917D, 322, in an opinion filed March 6; 1917, the Supreme Court of the United States in overruling a motion to dismiss, based upon the action of the Circuit Court of Appeals in recalling its mandate after judgment had been entered in the lower court and the term had expired, said: "A writ of error from the federal Supreme Court to review a judgment of reversal with instructions to dismiss the complaint which a Circuit Court of Appeals had entered on rehearing after it had recalled its mandate, pre The practise of this court has been to recall its mandate where the facts justify it. Garland v. Union Trust Co., 154 Pac. 676. It appears that the case had not been finally disposed of in the lower court at the time the mandate was recalled. Judgment had been entered on the mandate granting a new trial, but the pleadings had been amended by leave of the court and the cause was pending on the amended pleadings. The relations and rights of the parties had not changed, and no rights of third persons had intervened. The judgment of this court, reversing the lower court, appears to have been based upon the construction of the terms of the act of Congress of April 26, 1906 (34 Stat. L. 137, c. 1876), inadvertently overlooking the act of Congress of May 27, 1908 (35 Stat. L. 312, c. 199), under the terms of which the deed from the allottee to Bratton in July, 1910, must be construed. The act of 1908 operated as a repeal of the act of April 26, 1906. This was held by this court in the cases of MaHarry v. Eatman, 29 Okl. 46, 116 Pac. 935; Lewis v. Allen, 42 Okl. 584, 142 Pac. 384; Henley v. Davis, 156 Pac. 337; McKeever v. Carter, 157 Pac. 56. This inadvertence brings this case within the exception, and upon the state of the record, the order recalling the mandate was proper. [2] In the former opinion (152 Pac. 594), it was held that the deed from the allottee to Bratton in July, 1910, was void under section 19 of the act of April 26, 1906, assuming the second deed was in confirmation of the first because the principal consideration was the consideration for the first deed. Upon reconsideration, we conclude that the provisions of the act of 1906 had no application, and that the deed of July, 1910, is not to be construed under the provisions of that act. This deed must be construed under the provisions of the act of May 27, 1908. Section 5 of this act makes all deeds entered into prior to the removal of restrictions void. But the act contains no provision making a deed executed after the removal of restrictions void. There is no merit in the contention that the deed of July, 1910, was void for the reason that it was supported principally by the consideration received under the deed of 1907. There is no allegation of fraud or want of consideration. The second deed stands as an independent transaction. The allottee being of less than one-half blood, all restrictions upon his powers of alienation of this land were removed by the act of May 27, 1908. When he saw fit to convey this land to Bratton in 1910 for $1, he was at liberty to do so, without regard to his void deed made prior to this act. The fact that the Indian appears to have been sufficiently honest to recognize and remember the consideration which he had received under the void deed did not impose any restrictions upon his power to alienate. McKeever v. Carter, supra; Casey v. Bingham, 37 Okl. 484, 132 Pac. 663; Goat v. United States, 224 U. S. 458, 32 Sup. Ct. 544, 56 L. Ed. 841; Bell v. Cook (C. C.) 192 Fed. 597. The order and opinion reversing this case will be set aside and the judgment of the lower court affirmed. BRETT, RAINEY, and THACKER, JJ., concur. TURNER, J., concurs in the conclusion. MILEY, J., dissents. KANE, J., absent. HARDY, J., trial judge below, did not participate. SHARP, C. J. (dissenting). I desire to record my dissent from the opinion of the court, on the ground that this court is now without authority of law to set aside its former opinion. Obviously, the cause is pending in the trial court, as the mandate from this court on the former opinion was issued, spread of record, and judgment entered thereon in said court. Not only this, but by leave of court the pleadings were amended and the case is now, presumably, awaiting trial in the district court. It is inconceivable to my mind that merits of an action, such action may, at one and the same time, be pending in both a trial court and an appellate court. The opinion of the court appears to recognize the rule that an appellate court will not recall a mandate after it has been regularly issued, but refuses, or at least neglects, to observe it, for the reason that through alleged inadvertence this court failed to give effect to the act of May 27, 1908 (35 Stat. at L. 312). This the court should have done, and would had it not erred. It now proposes, in effect at least, to escape the consequence of its error by affixing to its former decision the gracious and charitable mantle of inadvertence, and by such means restore itself to its former jurisdiction. This it cannot legally do. There is no sound reason why the general rule of law in such cases should be departed from in this case. If in adopting the opinion of the commission, error was committed, as it seems was done, such error may be corrected, either in the trial court where the action is now pending, or in this court on a second appeal. PERKINS v. SILVER et al. (No. 14333.) (Supreme Court of Washington. Jan. 9, 1918.) Department 1. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. Suit by John N. Perkins against Joseph Silver and others. Judgment for defendants dismissing the complaint, and plaintiff appeals. Affirmed. John C. Kleber, of Spokane, for appellant. S. H. Kelleran, of Seattle, for respondents. PARKER, J. The plaintiff, Perkins, seeks a judgment decreeing him to be the owner of a one-sixth interest in certain mining claims the legal title to which stands in the name Trial in the superior of the defendants. court upon the merits resulted in judgment dismissing the plaintiff's complaint and decreeing him to have no interest in the mining claims. From this disposition of the cause the plaintiff has appealed. A careful reading of the record convinces us that there is no question here presented worthy of serious consideration, other than a question of fact as to whether or not appellant has complied with the agreed conditions upon the performance of which he was to acquire his claimed interest in the mining claims. We think it would serve no useful purpose to discuss the facts in detail. The trial court's conclusion rests upon conflicting oral evidence. We deem it sufficient to say that we cannot see our way clear to disturb the judgment. It is therefore affirmed. ELLIS, C. J., and FULLERTON, MAIN, MORSE v. RINDERLE et al. (No. 8729.) (Supreme Court of Colorado. Dec. 3, 1917.) En Banc. Error to Court of Appeals. Suit by E. P. Morse against Charles Rinderle and wife. A decree for plaintiff was reversed by the Court of Appeals (27 Colo. App. 457, 150 Pac. 245), and plaintiff brings error. Judgment of the Court of Appeals affirmed, and cause remanded. L. W. Burgess and Bullock & Walker, all of Grand Junction, for plaintiff in error. N. C. Miller and Henry Tupper, both of Grand Junction (Sam B. Berry, of Grand Junction, of counsel), for defendants in error. GARRIGUES, J. We have examined the record, briefs, and opinion of the Court of Appeals in Rinderle v. Morse, 27 Colo. App. 457, 150 Pac. 245, and are of the opinion the conclusion reached 'therein, that the lower court was governed by the legal obligation rather than by equitable principles in the determination of the case, is correct. The judgment of the Court of Appeals in this regard is therefore affirmed, and the cause remanded to the district court for further proceedings. Judgment affirmed. MORGAN v. THUR. (No. 8304.) (Supreme Court of Oklahoma. Jan. 8, 1918.) Commissioners' Opinion, Division No. 2. Error from District Court, Greer County; W. A. Edwards, Judge. Action of forcible entry and detainer by Wm. Thur against Elisha Morgan. Judgment for plaintiff in justice's court, and from a judgment of the district court, dismissing an appeal, defendant brings error. Reversed, and judgment directed upon stipulation. B. F. Van Dyke, of Granite, for plaintiff in error. A. M. Stewart, of Oklahoma City, for defendant in error. GALBRAITH, C. This is an appeal upon petition in error and transcript from the judgment of the district court, dismissing an appeal from a judgment rendered by a justice of the peace in an action of forcible entry and detainer, awarding the possession of the southwest quarter of section 33, township 6 north, range 21 west, to the defendant in error, Wm. Thur. The appeal was dismissed by the district court on account of irregularities in the appeal bond, and an appeal is prosecuted by the plaintiff in error from that order. asking that the cause be reversed, and that judgment be entered awarding the possession of the premises above described to him, and that he be taxed with the costs on appeal, and that the costs of the lower court be taxed against the defendant in error. To this motion is attached a stipulation, signed by the defendant in error and sworn to by him before a notary public, agreeing that such a judgment shall be entered. While this stipulation is of an unusual character, it bears the earmarks of originality and genuineness, and is accepted as presented. It therefore appears that the appeal should be sustained, and the cause remanded to the district court of Greer county, with directions to vacate the order dismissing the appeal and to enter judgment in said cause awarding the possession of the land above described to the plaintiff in error, and taxing the costs of the lower court against the defendant in error, Wm. Thur, and those of the appellate court against the plaintiff in error, per the motion and stipulation of the parties filed herein. PER CURIAM. Adopted in whole. HOLLAND v. STATE. (No. A-2547.) (Criminal Court of Appeals of Oklahoma. Jan. 5, 1918.) Appeal from County Court, Nowata County; F. A. Calvert, Judge. Buster Holland was convicted of violating the prohibitory law, and he appeals. Affirmed. Tillotson & Elliott, of Nowata, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State. PER CURIAM. Buster Holland was convicted at the January, 1915, term of the county court of Nowata county, on a charge of unlawfully selling intoxicating liquor, and his punishment fixed at a fine of $250 and imprisonment in the county jail of Nowata county for 3 months. A careful examination of the record discloses no error sufficiently prejudicial to warrant a reversal of the judgment of the trial court. It is therefore affirmed. COOK v. STATE. (No. A-2836.) (Criminal Court of Appeals of Oklahoma. Jan. 21, 1918.) Appeal from County Court, Okmulgee County; Mark L. Bozarth, Judge. Jim Cook was convicted of violating the prohibitory law, and he appeals. Affirmed. E. W. Smith, of Okmulgee, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for The record was filed in this court May 13, 1916, and the cause was regularly submitted on the 8th day of October, 1917. On the 21st day of August, 1917, the plaintiff in error filed in the cause a motion for judgment, the State. WEBBER et al. v. PEOPLE. (No. 9331.) PER CURIAM. The plaintiff in error, Jia Cook, was convicted in the county court of Okmulgee county upon an information charg-(Supreme Court of Colorado. Feb. 4, 1918.) ing that he did have possession of certain intoxicating liquors, to wit, 55 gallons of Choctaw beer, the same being a preparation containing more than one-half of 1 per cent. of alcohol, measured by volume, and capable of being used as a beverage, with the intention of selling the same. The jury failed to fix the punishment, and he was sentenced by the court to be imprisoned in the county jail for 60 days and to pay a fine of $100 and costs. From the judgment he appealed. Error to District Court, City and County of Denver; Julian H. Moore, Judge. Delos Webber and another were convicted of larceny, and they bring error. Supersedeas denied, and judgment affirmed. George J. Humbert, of Denver (H. H. Whittier, of Denver, of counsel), for plaintiffs in error. Leslie E. Hubbard, Atty. Gen., and Bertram B. Beshoar, Asst. Atty. Gen., for the People. No brief has been filed, and when the case HILL, C. J. The plaintiffs in error were was called for final submission no appear-convicted of the crime of larceny as bailees. ance was made on behalf of plaintiff in er- The only error urged is that the evidence is ror, whereupon the case was submitted on insufficient to sustain the verdict. The testhe merits. After a careful examination of timony was conflicting. An examination of the record, our conclusion is that the appeal it discloses testimony sufficient to justify the is destitute of merit. It appears that he had verdict. The application for supersedeas will a fair and impartial trial and that no ma- be denied, and the judgment affirmed. terial error was committed. It follows that the judgment should be and the same is hereby affirmed. Mandate forthwith. Supersedeas denied; judgment affirmed. CANON CRYSTAL ICE, STORAGE, FUEL (Supreme Court of Colorado. Jan. 7, 1918.) Action by A. Towler against the Canon Crystal Ice, Storage, Fuel & Mercantile Company. Judgment for plaintiff, and defendant brings error. Affirmed. Martin M. Burns, of Colorado Springs, for plaintiff in error. I. W. Ibbotson, of Canon City, for defendant in error. Charter of Eugene (Sp. Laws 1905, p. 254) § 48, subd. 36, provides for the vacation of any street or alley upon the petition or with the consent of not less than three-fourths of the owners of property adjoining or abutting thereon, and the passage of an ordinance providing for improvement of a 90-foot street as a 70-foot street, without such petition or consent, could not have the effect of vacating any portion of 2. DEDICATION 63(2)-ABANDONMENT OF the street. PART OF STREET-RIGHT TO OPEN. CITY LIMITS-PUBLIC SURVEY. Where a street was dedicated 90 feet wide, and the city used but 70 feet of the width although it improved the street by grade and macadam, and it was desired that the street be narrowed to 70 feet, which had not been done, as the property owners knew, or by reasonable WHITE, C. J. Towler, plaintiff below, re- diligence could have known, they took chances covered a small judgment against the de- in improving their lots, and the city is not esfendant, plaintiff in error here. The cause topped to claim the full width of the street. of action was upon a note dated January 9, 3. EVIDENCE 25(2) — JUDICIAL NOTICE 1915, payable to the order of Towler, 60 days In a proceeding under L. O. L. §§ 3276 and after its date, and signed, "The Canon Crys-3284, to vacate streets and alleys, where the tal Ice Company, by E. M. Collins, Mgr." petition does not state that the addition is without the boundaries of the city, the court, There was an allegation in the complaint to where the limits of the city are fixed by legisthe effect that the Canon Crystal Ice Com-lative charter, may take judicial notice thereof, pany was another name which the defend- and likewise of the public survey of a donation ant corporation used in the transaction of land claim named upon a plat and mentioned in the petition. its business. It was conceded that E. M. Collins was its manager, and the principal question was whether he had authority to execute the note. The cause was tried to the court and no declarations of law were made or requested. Therefore the only question for consideration here is: Did the evidence warrant the finding of the court in favor of the plaintiff? We have examined the record and approve the finding of the court. The judgment is therefore affirmed. Judgment affirmed. 4. MUNICIPAL CORPORATIONS 657(3) ABANDONMENT OF STREET-ACTS OF PUBLIC OFFICERS. Where the board of regents of the University relied upon a decree quieting title and registering land which they purchased for the state, and upon an agreement they had with the city by which the latter secured the use of suffiland, the city could not go beyond such agreecient area to make a 70-foot street along certain ment and appropriate land belonging to the state. Department 1. Appeal from Circuit Court, Lane County; F. M. Calkins, Judge. Suit by the City of Eugene against Thomas H. Garrett and others. From a decree for plaintiff, defendants appeal. Modified and affirmed. Rehearing denied 170 Pac. 731. This is a suit to establish the right of the city of Eugene to a street known as Agate avenue. Wooden sidewalks were constructed along the improvement was declared to be 10 feet east of the claim line above referred to. The street was then improved by grading 40 feet in width with a high grade of macadam 16 feet wide in the center of a 70-foot street. the west side of the 70-foot line for a portion In 1890 "Fairmount," Lane county, Or., of the distance north of Fifteenth street, and was platted into lots and blocks with streets some shade trees were planted which are and alleys. It was located some distance now about twelve feet high. Gutters and drains were arranged to conform to this probeyond the limits of the city of Eugene as the same then existed. The addition was em-posed line, and the plumbing of the property braced within the limits of the donation land claim of William Smith and wife, with the west line of the claim as the west line of Fairmount. The street on the west side was designated as Agate avenue, and extended from the O. & C. R. R. right of way on the north to the south side of the platted portion of the claim. This street was platted and dedicated to the width of 53 feet to 60 feet; the variation being due to the fact that the west line of the claim did not coincide with the line of the street. In 1891 University addition to Eugene was platted with the east line the same as the west line of Fairmount, and the plat shows the street 90 feet wide from the east line of Agate avenue. This would take 53 to 60 feet east of the claim line and 30 to 37 feet on the west of the claim line to make the width dedicated. In 1892 the owners of Fairmount addition filed an amended plat subdividing some of the lots. This plat shows the west line of the lots facing on Agate avenue 11 feet fur ther west than the first in order to correct an error in the first plat and to conform to the stakes set in the ground marking that line of the lots. owners was connected with the sewers. By an agreement with the board of regents of the University the use of a sufficient area to make a 70-foot street along the 34-acre tract was obtained, and the fence on the east side of the tract was adjusted to this line agreed upon. In 1914 the property owners along Agate avenue petitioned the city council to take of the street. An ordinance was passed by formal action to definitely determine the lines the council declaring the street to be 70 feet in width and vacating the remaining portion. This ordinance, however, was vetoed by the mayor, and never became effective. Therefore it cannot be further considered in connection with this case. This suit was in stituted by the direction of the city officials to quiet title to the street to the width of 90 feet, as formerly dedicated. The circuit court passed a decree establishing the line of the street as prayed for in the complaint, and the answering defendants appeal. The board of regents of the University made no appearance. S. P. Ness, of Eugene (Hewitt & Dillard, of Eugene, on the brief), for appellants. O. H. Foster, City Atty., and John M. Williams, both of Eugene (Williams & Bean, of Eugene, on the brief), for respondent. BEAN, J. (after stating the facts as above). The appealing defendants pleaded, and claim that the city is estopped from asserting a right to more of the street than it improved after establishing the lines in making the improvement; that to change the street at this time would destroy public and private property, that is, the improvement of the street and the sidewalk and the parkings along the street; that the city could not acquire a right of way across the University grounds without the consent of the state authorities. In 1885 all that part of University addition south of Fifteenth street was ordered vacated by the county court of Lane county. Thereafter the owners of University addition instituted a suit in the circuit court to quiet title to this tract of 34 acres, and to register the same under the Torrens Registration Act. Laws 1901, p. 438. After due service and publication of notice a decree was rendered in effect quieting the title and ordering the same registered. After this the title to the tract was acquired by the board of regents of the University of Oregon. This tract embraced all the land which was formerly a part of University addition, from the south line of Fifteenth street to Eighteenth street. Both of the additions mentioned were outside [1, 2] We will first consider that part of of the limits of the city of Eugene, and were Agate avenue not adjacent to the University not within the boundaries of any municipality tract. The request to establish a 70-foot until the limits of the city of Eugene were street and vacate the remainder thereof extended by an act of the Legislature in 1903, came principally from the property owners after which a portion of what was formerly on the west side of the street and north of University addition, south of Eighteenth the University tract. Prior to 1909 this street was platted as Gross addition, and the street had been used but little. It was then plat was accepted by the city and duly record-graded to the width of 40 feet with macadam ed. In 1909 the city council of Eugene pass- in the center of the grade 16 feet in width. ed an ordinance providing for the improve- Sidewalks were constructed for a portion of ment of Agate avenue. The center line of the distance on the west side, and some five |