Keaton & Cotteral, for appellant. H. R. Thurston, for appellee. PER CURIAM. This was a suit in equity by defendant in error to have a trust declared in certain lots in the city of Guthrie, and to require the plaintiff in error, who held the legal title, to convey to him. A demurrer was filed to the petition, objecting to the jurisdiction of the court, and for reason that the same does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and exceptions saved by the defendant. Issues were closed, a trial had, and finding and judgment for the plaintiff. The complaint and demurrer present the same question that was decided by this court in the case of Twine v. Carey, reported in 37 Pac. 1096, and on the authority of that case the demurrer should have been sustained to the petition. The judgment of the district court is reversed, and cause is remanded to said court, with instructions to sustain the demurrer to the petition and dismiss the suit. (3 Okl. 640) TWINE et al. v. KILGORE. (Supreme Court of Oklahoma. Feb. 16, 1895.) JUSTICES OF THE PEACE-PLEADING - REVIEW ON APPEAL-NEW TRIAL. 1. A bill of particulars in a justice's court for work and labor, which states the title of the court and the names of the parties, and alleges that the defendant is indebted to the plaintiff in a sum certain for work and labor performed at the instance and request of defendant, and that the amount is due and unpaid, states a good cause of action. The law does not require that strictness in pleading in justices' courts that prevails in the district courts. 2. It is not the province of an appellate court to take from the jury the right to weigh conflicting evidence and determine controverted questions of fact; and, when there is any evidence reasonably tending to support the verdict, it will be permitted to stand. 3. It is not error to overrule a motion for a new trial based upon the ground of newlydiscovered evidence, when such newly-discovered evidence is merely cumulative. 4. A motion for a new trial on the ground of newly-discovered evidence should show that the applicant used due diligence to procure and present the evidence on the trial, and the facts constituting the diligence must be shown, so that the court may determine whether the diligence used was sufficient. 5. While it is a loose method of pleading. and one not to be commended, to sue parties by the inititals of their Christian names only, yet, if no advantage is taken of it in the court below, the appellate court will not consider such objection on appeal. (Syllabus by the Court.) Appeal from district court, Logan county; before Justice Frank Dale. Action by Alice Kilgore against Twine, Saddler, and Sawner before a justice. Judgment for plaintiff. Defendants appeal to the district court, and from an order for plaintiff they again appeal. Affirmed. Keaton & Cotteral, for appellants. H. R. Thurston, for appellee. BURFORD, J. This action was originally instituted before a justice of the peace in Logan county by the appellee, Alice Kilgore, to recover of the appellants for work and labor performed as cook and servant in an hotel. Trial was had before the justice, and judgment rendered in favor of the plaintiff, Alice Kilgore. From this judgment the defendants appealed to the district court, where the cause was again tried by a jury, and a verdict rendered in favor of plaintiff in the sum of $45 and $10 additional for her attorney's fees. Motion for a new trial was filed and overruled, and judgment rendered on the verdict. From this judgment the appellants appeal to this court. There are five assignments of error, but all the questions raised are embraced in the second and fifth assignments. In the second assignment of error it is claimed that the court erred in overruling the appellants' demurrer to the appellee's complaint. As the action was originally instituted before a justice of the peace, the petition (or "bill of particulars," as it is designated in the act regulating the practice in justices' courts) is not required to be as certain, definite, and exact as pleadings in the district court. The complaint contains the title of the cause; states the court in which it was filed; and sets out in ordinarily plain language that the defendants are justly indebted to the plaintiff in a certain sum of money, for labor and work performed by her during a certain specified time, at the special instance and request of the defendants; that the amount is due, and that payment had been refused. This constitutes a good complaint in a justice's court, and there was no error in overruling the demurrer. It is argued by counsel for the appellants that the demurrer should have been sustained, for the reason that the defendants are described in the complaint by the initials of their Christian names only. There is nothing to show that this objection was made in the court below. The supreme court of the United States, in Cattle Co. v. Becker, 147 U. S. 47, 13 Sup. Ct. 217, in discussing this same question, said: "Initials are no legal part of a name, the authorities holding the full Christian name to be essential." After citing a number of authorities in support of this proposition, the court says: "This loose method of pleading is not one to be commended, but, as no advantage was taken of it in the court below, it will not be considered here." The fifth assignment of error is that the court erred in overruling appellants' motion for a new trial. The first cause assigned for motion for new trial is "that the verdict of the jury is not sustained by sufficient evidence." We have examined the evidence in the case, and, while it is contradictory, there is evidence sufficient to support the finding of the jury. It is not the province of an appellate court to take from the jury the right to pass upon the questions of fact involved in the case, and, where there is any evidence tending to support the verdict of the jury, a cause will not be reversed for the reason that the evidence does not sustain the verdict. The second ground for new trial is "that the verdict of the jury is contrary to law," and the third cause, "that the verdict of the jury is contrary to the instructions of the court." The record discloses nothing in support of either of these contentions. The fourth cause is based upon the grounds of newly-discovered evidence, and is supported by the affidavits of several witnesses to the effect that they had heard the plaintiff, during the time she was in the employ of the defendants, make oral statements to the effect that she was working for her board and lodging. This was one of the questions in controversy in the trial of the cause, before the jury, and the facts stated in the affidavits are merely cumulative. New trials will not be granted to permit the introduction of merely cumulative evidence; and evidence of the same kind, addressed to the same point, is cumulative. Hines v. Driver, 100 Ind. 315; Lefever v. Johnson, 79 Ind. 554; Harper v. State, 101 Ind. 109; Pennsylvania Co. v. Nations, 111 Ind. 203, 12 N. E. 309. Where admissions of a party to the same point are given in evidence on the trial, other admissions of a similar character and to the same point are cumulative. Hines v. Driver, 100 Ind. 315. An application for a new trial on the ground of newly-discovered evidence must show that the applicant used diligence to procure and present the evidence upon the trial, and the facts showing due diligence must be shown, so that the court may determine whether the diligence used was sufficient. Allen v. Bond, 112 Ind. 523, 14 N. E. 492; Hamm v. Romine, 98 Ind. 77. There is no showing in the case at bar that the defendants used any diligence whatever to procure the testimony upon which their motion for a new trial is based, nor is there any allegation to the effect that they had no knowledge of such evidence prior to the trial of said cause. The motion for a new trial was properly overruled. We find no error in the record, and the judgment of the district court is affirmed. All justices concurring, except DALE, C. J., having presided below. (2 Okl. 108) TERRITORY ex rel. GALBRAITH, Attorney General, v. CHICAGO, R. I. & P. RY. CO. (Supreme Court of Oklahoma. June 29, 1894.) MANDAMUS-RIGHT TO JUKY TRIAL. 1. Where an issue of fact is joined in mandamus, the parties are entitled, as a matter of right, to a trial by jury. 2. Issues in mandamus being made upon which the parties have a right to a jury trial, and no means being provided by the legislature by which the supreme court can secure a jury, the cause must come to an end. Mandamus on the relation of C. A. Galbraith, attorney general, plaintiff, against the Chicago, Rock Island & Pacific Railway Company, defendant. Dismissed. Curran & Campfield, Caldwell & Whittinghill, and T. W. Wampler, for petitioner. M. A. Low, John I. Dille, and Harper S. Cunningham, for defendant. DALE, C. J. This case, being a proceed. ing for mandamus in this court, with the history of which we are all somewhat familiar, is now before this court upon the motion of the relator for a commissioner to take testimony, and upon the objection of the respondent to the appointment of such commissioner, and the application of the respondent for a trial by jury. If the question as to whether or not the parties are entitled to a jury is settled in the affirmative, it follows that this court has not the power to appoint a commissioner to take testimony, over the objection of the party demanding the right of trial by jury, and the decision upon the question of a right to a trial by jury will settle the other proposition involved. In mandamus proceedings it is found by an examination of the authorities, and it seems to be well settled, that such an action was a common-law action; and in some states of the Union, under Codes similar to ours, it is held that, where an issue of fact is raised on the pleadings, either party may have a trial by jury. The supreme court of Kansas, so fas as we have been able to determine by an examination of the authorities, has not passed upon this question directly. This writ anciently was a high prerogative writ, but in the states of this Union, and under the decision of the supreme court of the United States, this action has lost to a considerable extent its ancient characteristics. It is not now considered, in most of the states of the Union, as anything more than a civil action; and in the procedure governing the trial of causes such procedure is assimilated, as nearly as possible, to the Codes of the several states, and is treated as a civil provision-as an ordinary civil action-in most of the states. The only features now possessed by this proceeding in common with those originally possessed are the features which grant to the court the discretionary power of issuing the alternative or peremptory writ of mandamus and bringing the parties into court. In the case under consideration, an issue of fact has been squarely joined by the return to the alternative writ. As we view the authorities, such issue of fact can be tried by a jury, and, under most of the Codes, the states which have passed upon this question-in fact, I recall but one now-hold that a trial by jury is a matter of right, rather than discretionary upon the part of the court. But this court, in passing upon the question presented to it on yesterday, as to whether or not the court would consider this a case which should be governed by the rules of pleading as laid down by the Code, held to the view that this is such an action as that where issues were joined in accordance with the provisions of the Code relating to the trial of civil actions in the district court; and in that decision this court practically held that, in mandamus proceedings, as well as in any other proceeding of a civil nature, the rules of practice, as laid down for the trial of causes in the district court, should govern in this court in such cases. Therefore we are of the opinion that a trial by jury may be had in this cause; that the parties are entitled, as a matter of right, to a trial by jury in mandamus proceedings, where an issue of fact is joined. This leads to the next proposition, as to whether or not a trial by jury can be had in the supreme court of this territory. Upon that question the court has concluded that, inasmuch as no machinery has been provided for the calling of a jury in the supreme court, it would be the exercise of doubtful power for this court to prescribe rules and regulations and a line of procedure for the calling of a jury in the supreme court and the trial of causes in such court by a jury, and we have agreed that no juries will be called for the trial of causes in the supreme court. In considering this question, we have come to that conclusion in this case, for the reason that a denial of a trial by jury will not prejudice either party; that a trial can be had by jury in the district court at an early day; and we have an enormous amount of work now pending in this court, which will require all of the time and attention of this court that it can devote to it. We make that suggestion at this time to the relator, holding that while the parties may have a trial by jury in this character of a case in this court, no machinery has been provided for a trial by jury in the supreme court; and we leave this matter with the relator, with this suggestion, for such further action in the premises as may be deemed proper, in order to protect whatever rights the relator may have. It is suggested by Justice SCOTT that a motion to dismiss would be entertained by the court; that, inasmuch as the trial cannot be proceeded with in this court, this decision settles the further proceedings in this court in this case. BIERER, J. I desire to say in this matter that I came to the conclusion which is adopted by the court with a great deal of reluctance. It seems to me a rather harsh rule to say that a party may come to this forum with his grievance, in order to have it adjusted and judicially determined by the court, and at the same time say that when the other party has filed an answer which puts in issue certain facts, which may be true or not true, and upon that demands a jury, by reason of the fact of such answer and such issue and such demand for a jury the plaintiff must go out of court, and not have the matter determined. However, the organic act gives to this court original jurisdiction in mandamus proceedings in such cases as are provided by law, and, if the law makes no provision by which the action of mandamus may be determined in the usual method provided for such cases,-a case of this character,— then there is no jurisdiction of mandamus in such cases provided by law, because the law has not provided a means by which that action can be determined. The defendant has a right, as we have all determined, to make such a response such return-as that which is made; he has a right to make an issue of fact as in all other civil actions. The action being one at law, and being one that under our Code is termed a "civil action," the same as all other civil actions, and the right of trial by jury being given in such actions, the defendant also has an absolute right of trial by jury, which we cannot deny. We come, then, to one of two propositions, as to the seemingly harsh method of depriving the plaintiff of his right in the case of proceeding further, or of denying to the defendant the right which he absolutely has of a trial by jury, because there are no means provided by law whereby a jury can be provided in this court. The legislature has been at fault in that particular, and it is not for the courts to remedy the defect by judicial legislation. That we could not do. Now, the plaintiff, in that state of the legislation, when he comes into the court, takes the chances of such issues being made as will, under the law, deprive him of his right to finally proceed with the case, and have it determined there. We therefore come to this conclusion: That the cause cannot further proceed in this court, because such issues are made as upon which the parties have a right to a jury trial, and, no means being provided by the legislature by which this court can secure a jury, the cause must come to an end. BURFORD, J. I would like to say, in addition to what the Chief Justice has said, that, in reference to the trial of jury cases in this court, I have no question but what, when congress gave to the supreme court of this territory the power, or, rather, the jurisdiction, to try and determine mandamus proceedings, that carried with it whatever powers-whatever authority-belonged to that character of a case. If at common law there was a jury case, which the court has held, and on which I think there is no question, then this court would have the right to try by jury; but we are left largely, in the conduct of our business in this court, to the acts of the legislature of the territory. The organic act has given this court no executive officers, no sheriff, or no marshal, as in most of the states some officer is possessed with power to serve the process of this court. The court has, no doubt, the inherent power to appoint a person or to designate some other officer for that purpose. The chief difficulty, it seems to me, lies in the fact that this court has no funds at its command and none from which it can draw. The law of this territory provides that the jury shall be drawn from the county in which the court is held, and that the jurors shall be paid out of the public treasury of the county in which the court is held. There certainly is no power in this court, under our statutory power, at least, as prescribed by the territorial legislature, to draw upon the funds of Logan county to pay a jury in a case of this character. This court sits for the territory at large; it does not sit for Logan county; and it would be very harsh upon the county where the capitol might be, or where the supreme court might have its sitting, to hold that such county would have to bear the expense of all the juries had in the supreme court. There being no funds at our hand with which we can pay supreme court jurors, the difficulty confronts us that while we may have the power to try by jury, as suggested by the Chief Justice, we are left without machinery for securing a jury. We have no authority for drawing a jury, unless we resort back to the common law, and secure a jury by open venire, and then we have no officer to execute our process, and a number of difficulties present themselves. The power to draw a jury seems to be left in the authority or jurisdiction to try these causes, yet we have not been supplied by any provision- or authority by the legislature by which we can secure a jury or pay one. Another difficulty might arise in securing the attendance of witnesses, in issuing and serving process. These matters can all be remedied by the legislature. It is the purpose of the legislature that this court shall be a jury court, which would be, as well suggested, a detriment to public business, this being an appellate court; yet if this power is given us we are willing to exercise it, if we are given the process by which we can carry it into proper effect. (2 Okl. 617) NATIONAL BANK OF GUTHRIE v. (Supreme Court of Oklahoma. Feb. 16, 1895.) 1. When evidence has been introduced below upon all points included in the findings of fact made by the trial court, if such evidence reasonably tends to support the findings, such findings of fact will not be disturbed in this court; and the rule upon this subject is the same when a case is submitted to the court below, without a jury, as when a jury is impaneled to try the cause. 2. Under the fourth subdivision of section 5136 of the Revised Statutes of the United States, which provides that such national banking associations shall have power "to sue and be sued, complain and defend in any court of law or equity, as fully as natural persons," such national banking associations have full power to employ attorneys to complain or to defend such suits in any court of law or equity; and such employment, including the agreement for compensation, may be made by the president of such bank. Such employment by the president is a sufficient authorization and employment, and the bank will be bound thereby. The power to complain and defend is not limited to suits in which the bank may be successful; nor is the right of the attorney to recover limited by the character of the questions which may arise in the case. (Syllabus by the Court.) Error from district court, Logan county; before Justice Frank Dale. Action by W. E. Earl against the National Bank of Guthrie. Judgment for plaintiff, Affirmed. and defendant brings error. Harper S. Cunningham and E. B. Green, for plaintiff in error. Asp, Shartel & Cottingham, for defendant in error. MCATEE, J. This is an action for attorney's fees, brought by the defendant in error, plaintiff below, against the plaintiff in error, as compensation for legal services claimed to have been rendered by the defendant in error to plaintiff in error in an action of replevin for a stock of clothing included in a mortgage to the National Bank of Guthrie from Melone Bros. The suit involved the right of E. T. Patton & Co. to recover the stock of clothing as against the attaching creditors of Melone Bros. The stock of goods had been sold to E. T. Patton & Co. for the sum of $5,300 by Louis De Steiguer, who was president of the National Bank of Guthrie. It was claimed by the plaintiff below that the sale was made to E. T. Patton & Co. by Louis De Steiguer in behalf of the bank, and that the bank had warranted the title of the property to E. T. Patton & Co.; that shortly after the delivery of the property to E. T. Patton & Co. the other creditors of the firm of Melone Bros. had sued out writs of attachment, and caused the same to be levied on the goods so sold by the bank to Patton & Co.; and that the employment of the defendant in error in the replevin suits against the said creditors had been authorized by the bank, through the said Louis De Steiguer, and that Patton & Co. had employed the defendant in error, pursuant to such authority, to defend the title to such stock of goods, at and for the agreed fee of $100; and that the bank was advised of the contract, and assented to its terms. The plaintiff below, defendant in error here, brought suit against the defendant, plaintiff in error here. Upon this contention the defendant filed a general denial, and contends that the employment, if any, of the defendant in error, was in be half of Louis De Steiguer himself. A jury was waived at the trial, and the cause submitted to the court. The court found the issues for the plaintiff below, and also made and found the following special findings of fact and conclusion of law: "(1) That the mortgage given by Melone Brothers was giv en to the National Bank of Guthrie, to secure whatever sum of money may have been advanced by the National Bank to Melone Brothers. (2) That the National Bank of Guthrie foreclosed the mortgage and thereby acquired possession of the goods. (3) That the president, Louis De Steiguer, in the sale of said stock of goods, acted for the National Bank of Guthrie. (4) That E. T. Patton & Co. purchased said stock of goods from the National Bank of Guthrie, and paid the National Bank of Guthrie the consideration of $5,300 for said stock of goods; that the contract for legal services was made by J. M. Brooks, for E. T. Patton & Co., with Louis De Steiguer, president of the National Bank of Guthrie; that the plaintiff in this case acted under the agreement with the president of the National Bank of Guthrie for the payment of one hundred dollars as attorney, in defending the title to said stock of goods on behalf of the National Bank of Guthrie." The court thereupon made the conclusion of law that "plaintiff is entitled to recover the sum sued for from the defendant." The plaintiff in error filed its motion in writing for a new trial, which was overruled by the court, and judgment rendered in favor of the plaintiff below and against the defendant below for the sum of $100, and costs of suit; to the overruling of which motion, and to the rendering of such judgment, the defendant below at the time excepted, and brings the record into this court upon various assignments of error, which are argued under the sixth assignment, to wit, "that the court erred in overruling the motion for a new trial." This assignment of error is argued upon two propositions, namely: First, that the court erred in the finding of fact that E. T. Patton & Co. purchased the stock of goods from the National Bank of Guthrie, and paid to it therefor the consideration of $5,300, but that, on the contrary, the transaction was the individual transaction of L. De Steiguer, and was not the corporate act of the banks, and that the bank, by the transaction, assumed no liability to E. T. Patton & Co.; and, second, that the transaction was one in which the bank could not engage under the law of its creation; that the transaction, if made with the bank, was, therefore, ultra vires, and, if made with the bank as a corporation, was void in law. Upon the first proposition, evidence was produced in the case to the effect that the bank had a chattel mortgage on the stock of clothing belonging to Melone Bros. for something over $9,000; that it foreclosed its mortgage, and sold the goods to E. T. Patton & Co.; that the firm of E. T. Patton & Co. settled therefor with the National Bank of Guthrie by giving its firm check for the purchase price, payable to the order of the bank; that by the giving of this check the account of the firm of E. T. Patton & Co. with the National Bank of Guthrie was overdrawn, and that the firm gave a note to the bank to cover this overdraft of its account; and that this note was made payable to the National Bank of Guthrie, the plaintiff in error. It is distinctly stated by Mr. Brooks that the amount was charged up to the firm of E. T. Patton & Co. upon the books of the bank as stated to him by De Steiguer when the note of the firm was given to the bank for the balance. Mr. Brooks appears to have testified in the replevin suit that he made the purchase of the stock of goods from De Steiguer, and repeatedly in that testimony referred to the purchase as having been made from De Steiguer. His attention having been called to this fact, he testified in the case as follows: "I may have stated that I bought them of De Steiguer, and I may have so stated in this evidence [in the replevin case]. If I made the statement that I bought them of De Steiguer, as an explanation of that I will say that if I wanted to buy a stock of goods of the Guthrie National Bank (as mortgagee) it would be very probable, if I bought the stock, I would say I bought it of McNeal. He is representing the bank; he is president. I did not know anybody but De Steiguer in this bank, or in the business transaction. He done its business, and I done business with him." Mr. Brooks testified that De Steiguer instructed him to employ the defendant in error in this case in behalf of the National Bank of Guthrie. It is testified to by W. E. Earl, defendant in error, that De Steiguer always told him that the bank took the stock of goods in liquidation of its debt. Mr. Brooks testified that before the trade was completed, or the check and note given, having heard suits threatened by the creditors of Melone Bros., he went to De Steiguer, and was assured by him that the bank would stand behind him, and pay all expenses. F. W. Thwing, who was employed in the bank at the time, testified to this conversation between Mr. Brooks and L. De Steiguer, which was had in the bank; and that Mr. Brooks was assured by De Steiguer that the bank would stand behind E. T. Patton & Co. It was testified also by the defendant in error that De Steiguer told him that the stock of goods was sold by the bank to E. T. Patton & Co. It is provided by the Code of Civil Procedure that trials by jury may be waived, and that the provisions respecting trials by jury, so far as they are applicable, shall apply to trials by the court. Section 318, Code Civ. Proc. (St. Okl. 1893). One of the grounds of a new trial provided for by the Code of Civil Procedure (section 318) is "that the verdict is not sustained by sufficient evidence." This provision of the Code has been adopted from the state of Kansas. In that state the supreme court has thereupon declared in Hardin v. Joice, 21 Kan. 322, "that it is error not to grant a new trial if there is not sufficient evidence to sustam the verdict of the jury." While evidence was adduced to contradict this testimony, yet it cannot be |