[4, 7] Plaintiffs in error's fourth proposition is:

"The court erred in not submitting to the jury the issue of undue influence and requiring the jury to find generally."

were entitled to a trial by a jury as a mat- Į signed by, the clerk of said court; hence we ter of right, and consequently to judgment decline to consider this objection. on the findings and verdict of the jury. We think the authorities above cited settle plaintiffs in error's first proposition against them. It is further contended by plaintiffs in error that, the trial court having agreed to call and impanel a jury in the trial of The case being one in which the parties the case on the condition that plaintiffs were not entitled to a trial by jury as a would abandon their motion for rehearing matter of right, and the court not being of their application for a writ of prohibition bound by the findings of the jury, there was in the Supreme Court and deposit sufficient no error in failing to instruct upon the issue money to pay the expenses of the jury, the of undue influence or in failing to require court was bound to afford plaintiffs a trial the jury to find a general verdict; the by jury. It appears the court did all it court having refused to adopt the verdict agreed to do. It did call a jury and sub- which the jury did return. mitted to them the facts of the case. The court did not obligate itself to be bound by the action, of the jury, and, if it had so agreed, it would not thereby have estopped itself from exercising the right under the law to reject the verdict of the jury in so far as it did not comport with the court's conclusions after hearing all the evidence in

the case.

In the case of Oklahoma Trust Company v. Stein, 39 Okl. 756, 136 Pac. 746, it is held:

"In cases of equitable cognizance the judge may call in a jury or consent to one for the and he may adopt or reject their conclusions as purpose of advising him on questions of fact, he sees fit, inasmuch as the whole matter must be left to him to determine eventually, and it is not error for him to refuse to submit all the questions of fact to the jury, but he may submit such as are controverted or such as he may desire to be advised upon.'

To the same effect is the case of Galer v. Berrian et al., 43 Okl. 303, 140 Pac. 155. See, also, Kentucky Bank & Trust Co. v. Pritchett, 143 Pac. 338; Oklahoma Trust Co. v. Stein, 39 Okl. 756, 136 Pac. 746.

[8] Plaintiffs in error's fifth proposition is as follows:

"If the verdict of the jury was special, as contended in defendants in error's brief, a motion for judgment will not lie; and this because a motion for judgment applies only when the evidence is not disputed, and when judgment may be rendered on the pleadings notwithstanding the verdict, and never applies when a special verdict is relied upon."

[3, 5] Plaintiffs in error's second proposition involves the constitutionality of the superior court of Pottawatomie county. It is claimed that article 1, c. 20, § 1797, Rev. Laws 1910, under which the superior court of Pottawatomie county was organized, is unconstitutional. The section complained of is article 7, c. 14, Sess. Laws 1909, p. 181. The act referred to was construed, and the constitutionality thereof sustained, by this court in a well-considered opinion by Justice Hayes in the case of Burks v. Walker, 25 Okl. 353, 109 Pac. 544, and the conclusion therein reached has been since recognized as the settled law of the state, and in a late case of Hatfield v. Garnett, 146 Pac. 24, The court did not adopt the verdict, and, this court referred to Burks v. Walker with the findings of the jury being merely adapproval. The validity of the act and the visory, the question of whether it was spedecision of Burks v. Walker is again recog-cial or general was of no concern, and it nized by this court in the case of Leather- was immaterial upon what instructions it ock v. Lawter et al., decided in March, 1915, was reached, or whether it was upon conand found in 146 Pac. 324. No reason has troverted or uncontroverted evidence. The been shown why the conclusion reached in record shows the trial court based its judg Burks v. Walker, supra, should not be ad-ments upon its own conclusions of what the hered to. We think further consideration of facts were, as it had a right to do. this proposition at this time a consumption of time which the congested condition of find quoted with approval the following the docket of this court will not justify.

Plaintiffs in error's third proposition is as follows:

"If the court was a legally existing court, it had no jurisdiction to make findings and render judgment subsequent to the term the case was tried without the court having been adjourned to that time."

[6] We have already disposed of the question of the legality of the court. And on examination of plaintiffs in error's assignments of error we fail to find any reference to the judgment of the court having been rendered at a term of court subsequent to the trial of the case, and the only evidence of such fact to which our attention is called is the statement in plaintiffs in error's brief,

In the case of Barnes v. Lynch, supra, we

cases:

Koons v. Blanton, 129 Ind. 383, 27 N. E. 334, from the Supreme Court of Indiana as follows:

"Since, in a suit in equity to reform a deed, the parties are not entitled to a jury, and since the court, when it calls a jury to its aid in such case, may disregard their findings, the parties cannot complain of the manner in which the questions are submitted, nor to the form of the interrogatories or instructions."

Also Missouri Valley Lumber Co. v. Reid, 4 Kan. App. 4, 45 Pac. 722, in a case of foreclosure, as follows:

merely advisory, and not binding upon the court. "The finding of the jury was in any event In the face of it, the court had a right to decide for itself all questions of fact as well as of

law in the case"-citing Franks v. Jones, 39, versations between them at that place. This Kan. 236, 17 Pac. 663; Moors v. Standford, 2 witness was also subjected to a rigid crossKan. App. 243, 41 Pac. 1064.

Plaintiffs in error's sixth proposition is: "The evidence of Hamilton and Spencer was incompetent, and motion to exclude the same should have been sustained."

examination by contestant's counsel, by which he was interrogated generally as to his relations with the deceased and his conversations with him. Some of his answers, like the witness Hamilton's, were inadmissible. But, if The witness Hamilton was named as exwe concede the testimony of the witnesses ecutor of the will, and, as such, applied for Hamilton and Spencer was erroneously adits probation, and was one of the proponents mitted and influenced the jury in their findin the case, insisting upon the validity of ings and verdict in the case, still we must not the will and its right to probate. Sherman overlook the fact that the court did not adopt Spencer was the legatee named in the will, the findings of the jury. There was other and was an adverse party. The contestants evidence sufficient to authorize and support were the next of kin and relatives whose the court's judgment, which it had the right rights to Bailey's property depended upon to enter notwithstanding the findings of the breaking the will. Hamilton and Spencer jury. The fact that incompetent evidence were called in behalf of proponents, and was admitted, will not justify a reversal of testified as witnesses in support of the will the judgment in the absence of a showing and its admission to probate. The statute plaintiffs in error were prejudiced thereby. which it is contended by plaintiffs in error What we have said with reference to the tesrendered the witnesses Hamilton and Spen-timony of the witnesses Hamilton and Spencer incompetent to testify is found in section cer, applies to the evidence of the witnesses 5841, Comp. Laws 1909, which, so far as ap- Northrupt, Frazier, Ong, Crump, and others, plicable, reads as follows: which plaintiffs in error clain was erroneously admitted before the jury.

"No party shall be allowed to testify in his own behalf, in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to the cause of action immediately from such * * * person."

It will be observed the statute quoted does not disqualify the administrator or the legatee in a will as a witness in any case. In this case the witnesses Hamilton and Spencer were competent witnesses to prove any material fact in the case of which they had knowledge, unless such fact was in respect to some transaction or communication had personally by such witnesses with the deceased. Dr. hamilton was introduced by proponent, and, without objection, testified at length as to the deceased's condition of mind and body up to the time of his death, and that he was de ceased's physician several years before his death. Some of the answers of the witness were inadmissible, and should have been excluded from the jury, but substantially the same statements which the witness Hamilton says were made by Bailey were also testified

to by the witnesses Frank Boggs and Mary Skillington, without objection or contradiction. A lengthy cross-examination by counsel for contestants of the witness Hamilton appears to have covered every matter about which this witness testified in chief, and much more. Hamilton was afterwards recalled by contestants and interrogated as to the property and estate in his hands. Much of what has been said relative to the testimony of the witness Hamilton can be said as to the testimony of the witness Sherman Spencer. He was interrogated and testified without objection as to the relations and feelings of the deceased to the witness and witness' mother, and as to a meeting by the witness and deceased in Shawnee, and friendly con

[9] In the case of Tobin v. O'Brieter, 16 Okl. 500, 85 Pac. 1121, it is held, quoting from paragraph 3 of the syllabus:

"In the trial of a case the question of admitting or rejecting testimony is one intrusted largely to the sound discretion of the trial court; and, where the matter submitted by the issues in the case is not one where the parties are entitled to a jury as a matter of right, and the ultimate decision of the case is with the court, in the exercise of discretion by the court in and not with the jury, great latitude is allowed admitting or rejecting testimony, and the case will not be reversed in this court for error in this particular, unless such an abuse of discretion is shown as deprives the objecting party of some substantial right."

In Ray v. Harrison, 32 Okl. 17, 121 Pac. 633, Ann. Cas. 1914A, 413, it is held, quoting from paragraph 3 of the syllabus:

"When the testimony upon a given point is all harmonious, a cause will not be reversed because some of the evidence thus offered may have been inadmissible."

In the case of Daniel v. John P. London

Co., 44 Okl. 297, 144 Pac. 596, it is held, quoting from paragraph 1 of the syllabus:

"The improper admission or exclusion of eviing, is not ground for reversal."

dence, if not prejudicial to the party complain

As said in Cartwright v. Holcomb, supra, record of anything to the contrary, that the the presumption is, in the absence from the court understood the weight to be given to the

evidence before it.

Plaintiffs in error's seventh proposition: "The court's view of the law as expressed in the opinion and by its instructions to the jury was erroneous.'

This proposition is answered in our consideration of propositions Nos. 4, 5, and 6. [10] Eighth proposition:

"The superior court has no jurisdiction of this case on the record."

Under this proposition it is contended by counsel for contestants this case was never

properly transferred from the district to the superior court. The record shows this case was transferred by the district court to the superior court on the motion of the plaintiffs in error, and that thereafter they requested a trial by jury therein, and, without objection, engaged in the trial in said court, and, if there were any irregularity in the transfer of the case, it has been waived by plaintiffs in

error.

In State ex rel. Strong v. Superior Court of Pottawatomie County, 38 Okl. at p. 368, 132 Pac. 1077, Hayes, C. J., speaking for the court in regard to the transfer of this identical case, says:

"Irregularities in the transfer may be waived by the parties, and, if waived by them, any judgment rendered by the superior court would be regular."

It is also contended by plaintiffs in error under this proposition that the superior court of Pottawatomie county had no jurisdiction to try questions in the contest or probate of a will. Both contentions of plaintiffs in error under this proposition were decided against them by this court in the case of State ex rel. Strong et al. v. Superior Court of Pottawatomie County, 38 Okl. 366, 132 Pac. 1077, which was a branch of this case, but, in view of plaintiffs in error's contention that the conclusion reached in that case was errone ous, we have carefully examined and believe the law as announced therein is correct.

[12] Plaintiffs in error contend that the trial court also committed error in excluding from the jury certain facts recited in the judgment from the Supreme Court of Wisconsin evidencing the conviction of the witness Sherman Spencer of the offense of wife abandonment. A recital of the facts of such judgment was offered by plaintiffs in error, as they claim to contradict the testimony of the witness Spencer upon the trial in the superior court. The superior court admitted evidence of the conviction of Spencer and the offense for which he was convicted, and directed the jury to consider the fact of his imprisonment only for the purpose of determining the credibility they would give to his testimony, and excluded certain facts which seem to have been recited in the judgment. We think this was correct.

[13] An examination of the voluminous record in this case satisfies us there was sufficient competent evidence before the trial court to support the judgment admitting the will of Samuel Bailey, and the judgment is therefore affirmed.

(12 Okl. Cr. 224)

This renders further consideration of this RICHARDS et al. v. STATE. (No. A-2434.) proposition unnecessary.

[11] One assignment of error is:

"That the court erred in sustaining motion for judgment."

(Criminal Court of Appeals of Oklahoma. Jan.

15, 1916.)

(Syllabus by the Court.)

1. WITNESSES 337
OF ACCUSED.

CROSS-EXAMINATION

After the case had been submitted to the jury, and after they had returned into court their findings of fact therein, the contestants A defendant, by availing himself of the statfiled motion for judgment in accordance with utory privilege of becoming a witness in his own the findings of the jury, while the defendants behalf, has voluntarily changed his status from filed a motion for judgment in their favor in-defendant to witness, and consequently may be cross-examined within the usual boundaries, and dependent of the findings of the jury, and thus be discredited and impeached. thereafter the trial judge proceeded to state his conclusions of fact and of law upon the entire case, independent of the findings of the jury, except such findings that the will was executed in all respects as required by law,

which was adopted, and the further findings of the jury were ignored by the court, and it was found that Bailey, at the time of making the will, was of sound and disposing mind, and was not influenced by any insane delusion, and that the will should be admitted to probate, and it was so ordered. As we have heretofore held, the court had the right to adopt or reject the findings of the jury and render such judgment as, in his opinion, should be rendered on the whole case; and the fact that he did so after the filing of a motion so requesting is wholly immaterial.

It is also contended by plaintiffs in error that, the defendants below having filed a motion for a new trial, after filing their motion for judgment independent of the verdict of

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 1113, 1129-1132, 1140–1142, 11461148; Dec. Dig. 337.]

2. WITNESSES 337, 342-IMPEACHMENT OF

ACCUSED-REPUTATION.

peach a witness for want of truth and veracity, Where the purpose of testimony is to imthe inquiry and the answer must be as to his general character or reputation for truth and veracity in the community in which he resides, and testimony as to the general reputation of a defendant for being a bootlegger is incompetent to impeach the credibility of a defendant as a witness in his own behalf, or for any other purpose.

[Ed. Note.-For other cases, see Witnesses, 1142, 1146-1148; Dec. Dig. 337, 342.] Cent. Dig. §§ 1113, 1123, 1129-1132, 1140

Appeal from County Court, Harper County; A. H. Walker, Judge.

Clare Richards and another were convicted of having possession of intoxicating liquors with unlawful intent to sell same, and appeal. Reversed and remanded.

E. J. Dick and Malcolm W. McKenzie, both | not deprive plaintiff of his right to enjoin deof Buffalo, for plaintiffs in error. R. McMil- fendant from flowing such water upon his lands. lan, Asst. Atty. Gen., for the State. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 8 142; Dec. Dig. 124.]

PER CURIAM. The plaintiffs in error, Clare Richards and Joe Knoble, were convicted in the county court of Harper county on an information which charged that they did have possession of intoxicating liquors, amount unknown, with the unlawful intent to sell the same. On the 8th day of February, 1915, judgment was rendered in accordance with the verdict of the jury. To reverse the judgment an appeal was perfected by filing in this court on April 5, 1915, a petition in error, with case-made.

Appeal from District Court, Washoe County; John S. Orr, Judge.

On rehearing. Former decision adhered to.
For former opinion, see 149 Pac. 71.

Harwood & Springmeyer and Cole L. Harwood, all of Reno, for appellant. Summerfield & Richards, of Reno, for respondent.

NORCROSS, C. J. This case was heretofore determined on the appeal from the judgment. 149 Pac. 71. A rehearing was granted

[1, 2] The Attorney General has filed a because the court inadvertently overlooked confession of error as follows:

"In this case, having read through the record with care, and also having read the elaborate brief of the plaintiffs in error, through their attorneys, we are forced under the recent decisions of this court, to confess error. There was but one witness that testified as to the main facts on the part of the state, and he admitted that he was angry and more than that, offered to leave the jurisdiction of the court and not testify for the sum of $15. However, the jury found the defendants guilty under this testimony, and there is nothing showing that they were biased or prejudiced, further than they might have been influenced by the evidence. But the error is that the defendants having taken the stand and testified in their own behalf, neither was asked anything about being a bootlegger. But other witnesses were brought in by the state, and two of them were asked if they knew defendants' character on the subject of bootlegging, and answered 'No.' Two others were brought in and to this question they answered Yes, and that their character was bad. Upon the decisions of this court, this is reversible erKirk v. State, 11 Okl. Cr. 203, 145 Pac. Sims v. State, 11 Okl. Cr. 382, 146 Pac.

ror.

914."

307
Upon a careful examination of the record,
it is our opinion that the confession of error
is well taken.

the fact that counsel had stipulated for diminution of the record so as to enable the court to pass on questions raised upon the appeal from the order denying defendant's motion for a new trial. No attack is made upon the correctness of the views expressed in the former opinion.

[1] It is contended by counsel for the appellant that the decree granting an injunction against the appellant "from causing, permitting, and suffering the waste water from said section 15 and the S. 21⁄2 of section 10, township 18 N., range 20 E., to flow over, into and upon the plaintiff's land situate in section 3, township 18 N., range 20 E.," should be set aside. It is urged that this portion of the decree should be vacated for the reason that the court found that other persons who were not made parties to the action contributed to the damage done to plaintiff's lands in section 3 by permitting

waste water to flow thereon, and that these other persons were necessary parties to the suit. The court found that the lands of plaintiff in section 3 were damaged by waste

The judgment herein is therefore reversed, water from the lands of defendant situate

and the cause remanded.

(38 Nev. 552)

in section 15 and the S. 1⁄2 of section 10, but refused to award any judgment for damages against defendant for the reason that it was impossible to determine what portion of RAMELLI v. SORGI. (No. 2056.) the damage was occasioned by waste water (Supreme Court of Nevada. Dec. 31, 1915.) from defendant's lands. We are of the opinion that the decree granting the injunction 1. WATERS AND WATER COURSES 179 FLOWAGE-ACTIONS-NECESSARY PARTIES. against defendant permitting waste water to That persons not parties to the action flow from his lands above mentioned upon contributed to the damage done to plaintiff's the lands of plaintiff is not invalid for land by permitting waste water to flow thereon, did not render erroneous for want of necessary parties a decree enjoining defendant from suffering waste water to flow from his lands upon plaintiff's land, where it did not appear that defendant and the other alleged necessary parties were acting jointly in causing the damage. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 244-250, 256-259, 263, 264; Dec. Dig. 179.]

2. WATERS AND WATER COURSES 124 WASTE WATER OVERFLOWING OF LANDS -INJUNCTION.

That waste water from defendant's land flowed without interruption across the land of a third person to reach plaintiff's land, did

want of other necessary parties. It is not contended that the defendant and the other alleged necessary parties were acting jointly in occasioning 'the damages in question. Where several parties, acting independently, contribute to an injury, the party injured may proceed against the parties contributing to the injury severally.

[2] It is further contended that the decree should be set aside because it appears from the evidence that one George W. Mapes is the owner of the N. 1⁄2 of section 10, and that in order for waste water to reach the lands of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

plaintiff it must first pass over the lands of the said Mapes. It is not contended that the evidence discloses that Mapes in any way made use of the waste water from section 15 and the S. 1⁄2 of section 10 upon the N. 1⁄2 of said section 10 before it passed upon the lands of plaintiff in the S. 1⁄2 of section 3. The fact that waste water from defendant's lands flowed without interruption across the lands of a third party would not, we think, affect the right of plaintiff to enjoin defendant from flowing such waste water upon his lands. If it were a fact that the owner of the N. 2 of section 10 appropriated the waste water of defendant to his own use and applied the same in the irrigation of land in the N. 1⁄2 of section 10, defendant would not be liable for damages, and the injunction could not be enforced against him for the reason that an intervening party had appropriated such waste water to his own use, and such intervening party alone would be liable in damages to the plaintiff or subject to injunction for such flow.

The judgment heretofore pronounced in the former opinion and decision of this court will stand without modification.

permitted except to correct a palpable error and grievous wrong.

Counsel for appellant urges that in view of the fact that its first petition for rehearing was granted and that an opinion was written and filed by this court on that petition for rehearing, that therefore it should be permitted to file a second petition for rehearing based on the opinion of this court. In the case of Brandon v. West, 29 Nev. 141, 85 Pac. 449, 88 Pac. 140, this court forcibly asserted the rule that a second application for the rehearing of a cause by the same party, after his petition for rehearing has been denied, will not be entertained. If there is reason for this rule where a petition has been denied, and, in our judgment, the reason is abundant, then, as we view it, there is equal if not more reason for the rule applying where a first petition for rehearing has been granted and all the matters therein set up have been considered by the court.

As asserted by this court in the case of Brandon v. West, supra, the court undoubtedly has the right to correct clerical mistakes or some error apparent on the record, such as might occur by inadvertence, oversight, or mistake; but such is not the case here, nor

MCCARRAN and COLEMAN, JJ., concur. is it within the 'contention of appellant. The

(39 Nev. 80)

WARD v. PITTSBURG SILVER PEAK
GOLD MINING CO. (No. 2120.)
(Supreme Court of Nevada. Dec. 31, 1915.)
APPEAL AND Error -832-SECOND REHEAR-

ING.

Where an application for rehearing was granted, and all the matters set up were considered, a second application by the same party for rehearing will not be entertained, except for correction of clerical mistakes or errors apparent on the record.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3228; Dec. Dig. 832.]

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

On application to file petition for second rehearing. Denied.

For former opinions, see 148 Pac. 345; 153

Pac. 434.

Samuel Platt, of Carson City, and Geo. H. Martinson, of San Francisco, Cal., for appellant. Dixon & Miller, of Reno, for respondent.

MCCARRAN, J. Since the rendition and filing of the opinion of this court on rehearing in the above-entitled case, an application has been made by appellant to be permitted to file a petition for second rehearing; and we are confronted with the question as to whether appellant is entitled to file such petition as a matter of right. In the case of Trench v. Strong, 4 Nev. 87, this court held that it would be a mischievous practice to sanction the filing of a second petition for rehearing, and that the same should not be

fied.

granting of a petition for a second rehearing not based upon clerical mistake or apparent, palpable, injurious error is so liable to open the door to interminable proceedings that the rule asserted by this court in Brandon v. West, supra, should not be relaxed or modiSupporting the rule asserted by this court in the case of Brandon v. West, supra, are the more recent cases cited in 1913 Annotations of Cyc. page 294, to wit, Leathe v. Thomas, 233 Ill. 430, 84 N. E. 481; Levert v. Berthelot, 127 La. 1004, 54 South. 329; Nelson v. Hunter, 145 N. C. 334, 59 S. E. 116. In the case of Marion Light & Heating Co. v. Vermillion, 51 Ind. App. 677, 99 N. E. 55, 100

N. E. 100, the Appellate Court of Indiana, in a matter quite analogous to that presented

here, held that where there was no statute or

rule of practice or rule of court authorizing the same party in the same case to file more than one petition for rehearing, the overruling of the first petition for a rehearing exhausted the appellant's remedy in that court.

We are referred to the case of Roth et al. v. Murray, 105 Tex. 6, 141 S. W. 515. This case, however, cannot, as we view it, be considered as supporting the contention of appellant herein. The second motion for rehearing in that case was based upon errors in matters decided in the second opinion which were different from those decided in the first opinion. The reason, as well as the matter presented there, was such as differentiate that case from the matter at bar. The petition will not be entertained.

NORCROSS, C. J., and COLEMAN, J.,

concur.