In such case the court should place the parties in statu quo, and it was error for the court to overrule the defendants' motion for a modification and correction of the judgment, asking such restoration.

-

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 419; Dec. Dig. § 199.*] 3. APPEAL AND ERROR (§ 984*) REVIEW MATTERS OF DISCRETION-AWARD OF COSTS. In an equitable proceedings for an injunction to enjoin defendants from interfering with plaintiff's possession of lands, section 6117, Comp. Laws 1909, confers discretionary power upon the court in the matter of taxing costs as it may think right and equitable; and the same will not be disturbed on appeal, unless it be clearly shown that there has been an abuse in the exercise of such power.

2. INJUNCTION (§ 199*)-TEMPORARY RESTRAIN- | March following the court overruled their ING ORDER IMPROVIDENT ISSUANCE - COR- motion to dissolve the temporary injunction, RECTION IN FINAL DECREE. but required plaintiff to give an additional bond, which was done. On October 19th defendants McKnight and Heskett filed their written application to be made parties defendant, claiming to be the owners of the land, and that the defendants J. F. Morris, Elbert Morris, and J. B. Morris at the time of the institution of the suit were in possession of the lands in controversy as their tenants. They also asked in their application that one John Vincent, then in the possession of said lands, be made a party defendant. The prayer of their petition was granted, and the said McKnight, Heskett, and Vincent made parties defendant. Thereafter the said McKnight and Heskett filed their answers, claiming to be the owners of the lands in question, and that at the time of the institution of the suit they were in the exclusive possession thereof, through their tenants, J. F. Mor ris, Elbert Morris, and J. B. Morris, and that they remained in the exclusive possession until February 13, 1909, when they were obliged and compelled to abandon their possession by reason of an order of injunction issued against their said tenants. They asked judgment against the plaintiff and the defendant John Vincent for the possession of the lands in question, for the value of the use and occupation thereof,

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3815, 3881-3888; Dec. Dig. § 984.*]

Commissioners' Opinion, Division No. 1. Error from District Court, Caddo County; Frank M. Bailey, Judge.

Suit by Mary B. Gray against J. F. Morris, Elbert Morris, and J. B. Morris, in which L. E. McKnight, F. H. Heskett, and John Vincent were made parties defendant by order of court. From a judgment dismissing plaintiff's petition at the cost of the defendants, and refusing to restore to defendants the possession of certain lands of which it was alleged they were wrongfully dispossessed by virtue of a temporary restraining order, defendants prosecute error. Reversed and remanded, with instructions.

A. J. Morris and McKnight & Heskett, all of Anadarko, for plaintiffs in error. A. T. Boys, of Oklahoma City, and C. H. Carswell, of Anadarko, for defendant in error.

and other affirmative relief not involved in
the issues here under consideration. Upon
the issues being joined, the case was tried
by the court on May 10, 1909. On May
27th following the court made an order re-
quiring plaintiff to give an additional bond
in favor of the defendants McKnight and
Heskett "to indemnify them against such
damages as they may sustain, if any, in this
action by reason of the plaintiff depriving
them of the possession of the land involved
in this action, to wit: Northwest quarter
(N. W. 4) of section twenty-five (25), town-
ship seven (7), north, range ten (10) west
of the Indian Meridian in Caddo county,
Oklahoma. * *
This bond was made,

SHARP, C. But two questions are properly presented for our consideration, namely, (1) that the court erred in not ordering a restoration of the premises upon the dismissal of plaintiff's bill; (2) that the court erred in taxing the costs to the defendants. The object of plaintiff's suit was to enjoin the defendants from in any manner interfering with plaintiff's possession of a and on the 28th day of September, 1910, quarter section of land in Caddo county. On the court rendered final judgment, dismissing the day that the petition was filed, and with- the plaintiff's petition at the cost. of deout notice to the defendants, a temporary fendants other than John Vincent. No speinjunction was granted, and served upon cial findings of fact were requested or subthe then defendants on the day following mitted. On the day following the rendition its issuance. On the second day thereafter of said judgment, the defendants, other than said defendants filed their motion to dis- John Vincent, filed their motion for a modsolve the injunction, one ground of which ification and correction of the judgment, inwas that at the time of, and prior to the cluding the following grounds: (1) That the institution of said action and the issuance court restore to said defendants the posof said order, the defendants were in pos- session of the lands in question; (2) that session of the lands therein described, and the court adjudge and decree that plaintiff should not be deprived of their possession pay all costs of the proceedings. This moby means of a temporary injunction, and tion was overruled and exceptions saved, without the right of a trial by jury. The and these questions are presented here for three original defendants filed their answer our consideration.

on March 4, 1909, and on the 12th day of [1] The journal entry does not disclose the

court's reason for dismissing plaintiff's bill, | 588, in an opinion by Scholfield, C. J., where but from its nature and purpose, and from it was said: "Appellant's hands were as to a careful reading of the evidence, to our her during all that time tied so that appelminds it could only have been upon the lant could by no possibility do any legal ground that the plaintiff had wholly failed act in assertion of its claim of ownership to make out a cause of action. The testi- or right of possession. The only function mony, in which there is little substantial of an injunction is to stay threatened acdispute, shows conclusively that at the time of the institution of plaintiff's suit the defendants, except Vincent, were in possession of the lands. The Morrises had moved some of their effects in the small house on the farm, and were there engaged in farm work when the plaintiff's representative went out to the place; and, when the suit was filed on the second day following, they had hauled lumber out to the place and were engaged in erecting a house thereon in which to live during the year 1909. In view of the court's judgment, it is not necessary to make any extended reference to all of the testimony that went to show the defendants' possession under color of title. The court rightfully concluded, as we think it fair to infer from the judgment, that plaintiff could not regain possession of these lands by injunction proceedings. Lacassagne v. Chapuis, 144 U. S. 119, 12. Sup. Ct. 659, 36 L. Ed. 368; Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801; Potts v. Hollen, 177 U. S. 365, 20 Sup. Ct. 654, 44 L. Ed. 808; Brown v. Donnelly, 19 Okl. 296, 91 Pac. 859; Munyos v. Filmore, 4 Ind. T. 619, 76 S. W. 257.

[2] With these necessary preliminary observations, did the court err in refusing to restore to defendants the possession of thelands of which they were improvidently dispossessed upon the dismissal of the plaintiff's bill? In Brown v. Donnelly, supra, it was said: "The order made by the trial court, dispossessing the defendant and enjoining her from interfering with the plaintiff in his occupancy of the land so taken away from her, was in excess of its authority (Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801), and it was just and equitable that the defendant be restored to the possession of the land which had been taken from and given to the plaintiff. It was the duty of the judge to give back to the defendant that which the court had erroneously taken away from her in this same action." Announcing the same rule are the following cases: Anderson v. Ferguson, 12 Okl. 3, 69 Pac. 1132; Mendenhall v. Cagle, 12 Okl. 4, 69 Pac. 1133; Endicott v. Ellis, 12 Okl. 6, 69 Pac. 1133; Best v. Frazier, 12 Okl. 8, 69 Pac. 1133; Texas Land & Irrigation Co. v. Sanders et al., 101 Tex. 616, 111 S. W. 648; Spring Valley Water Co. v. City and County of San Francisco et al. (C. C.) 165 Fed. 666.

The rule governing the restoration of lands, where the plaintiff retakes possession pending the injunction, is perhaps nowhere better expressed than in Lake Shore & M. S.

tion and suspend the conflicting claims of right of the restricted parties where they then are until they can be properly adjudicated (2 Daniell, Ch. Pr. [5th Ed.] 1664, and note), and so it must necessarily follow that to allow one party to obtain any advantage by acting when the hands of the adverse party are thus tied by the writ or the order for it is an abuse of legal process, which cannot be tolerated. It is immaterial here in whom is the legal title, or whether when appellant built its fence it was a trespasser ог lawfully in possession. Those questions cannot be determined here; it being sufficient for the present that appellee, after having tied the hands of appellant as to the assertion of its claim of right, and while they were so tied, has changed the status quo of the parties in this respect. She must restore things to the same plight and condition as nearly as possible in which they were when the judge made the order upon her bill that an injunetion issue. 1 Spence, Eq. Jur. 672, 673; Vanzandt v. Mining Co. [C. C.] 2 McCrary, 642 [48 Fed. 770]; Hawkes v. Champion, Cary, 51; Dowche v. Perrot, Id. 63; Hill v. Portman, Id. 140; and Wangelin v. Goe, supra [50 Ill. 459].

While the order made in the instant case differs from that in Brown v. Donnelly, supra, in that it did not order that defendants be dispossessed of the lands, yet from the record before us it sufficiently appears, in fact it is not seriously questioned, that as a result of the issuance and service of the restraining order the defendants were deprived of the possession of the lands. This, we have seen, from the authorities and upon principle, was unwarranted. The rights of the respective parties, such as were proper for the determination of the case, were fixed at the time of the institution of plaintiff's action. After a full hearing and mature consideration, the trial court concluded that plaintiff had failed to make out a cause of action, and dismissed her bill. The judgment should have gone further, and restored the parties to the status occupied by them at the time of the institution of plaintiff's suit, for to conclude otherwise would mean to give to an unsuccessful litigant an advantage to which he is not entitled, viz., by obtaining possession of the very lands occupied by his adversary, while the latter's hands were tied by an order of the court, which he could not violate, and which in this case he was unable to have vacated or rescinded until after more than a year and a half from the date that suit was filed.

v. Sinclair, 23 Okl. 54, 99 Pac. 653; Geter | false or fraudulent representations made by et al. v. Ulrich, 27 Okl. 725, 113 Pac. 713. her at the time with reference to her age, This rule is in harmony with the following this case does not come within the rule of the decisions: Marcy v. Howard, 91 Ala. 133, decision of the Supreme Court in the case 8 South. 566; Steed v. Knowles, 97 Ala. 573, of International Land Co. v. Marshall, as 12 South. 75; Coffman v. Williams, 4 Heisk. found in [22 Okl. 693] 98 Pac. at page 951 (Tenn.) 233; Youngstown Bridge Co. v. [19 L. R. A. (N. S.) 1056]." The facts found Barnes, 98 Tenn. 401, 39 S. W. 714; Davis by the court seem sufficient to distinguish v. Ransom et al., 26 Ill. 100; Belleville Nail the case at bar from the Marshall Case, suMill Co. v. Chiles, 78 Ill. 14; Chambers v. pra, and to place it squarely within the rule Ker et al., 6 Tex. Civ. App. 373, 24 S. W. laid down by this court in Beck et al. v. 1118; Western Union Telegraph Co. v. Strat- Jackson et al., 23 Okl. 812, 101 Pac. 1109, ton (Tex. Civ. App.) 28 S. W. 700. Blakemore v. Johnson, 24 Okl. 544, 103 Pac.

The judgment of the trial court should be 554, Bragdon v. McShea, 26 Okl. 35, 107 Pac. affirmed.

PER CURIAM. Adopted in whole.

(38 Okl. 374)

CAMPBELL et al. v. MOSELEY. (Supreme Court of Oklahoma. March 11, 1913. Rehearing Denied June 24, 1913.)

(Syllabus by the Court.) INDIANS (§ 15*)-ALIENATION OF ALLOTMENT -VALIDITY.

A deed made by a minor Cherokee freedman, purporting to convey her surplus allotment prior to the removal of restrictions therefrom, is absolutely void.

[Ed. Note.-For other cases, see Indians, Cent. Dig. 88 17, 29, 34, 37-44; Dec. Dig. § 15.*]

Error from District Court, Craig County; T. L. Brown, Judge.

Action by Josephine E. Moseley, née Ledman, against Lawrence E. Campbell and another. Judgment for plaintiff, and defendants bring error. Affirmed.

W. H. Kornegay, of Vinita, for plaintiffs in error. Anselan Buchanan and E. J. Hobdy, of Vinita, for defendant in error.

KANE, J. This was a suit commenced by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, for the purpose of canceling certain deeds purporting to convey to the defendants certain lands owned by the plaintiff. Upon trial to the court there was judgment for the plaintiff, to reverse which this proceeding in error was commenced.

It appears that the land sought to be conveyed was the surplus allotment of the plaintiff, Josephine E. Moseley, née Ledman, a Cherokee freedman. One of the deeds was executed June 15, 1904, and the other December 19, 1905, prior to the removal of restrictions from the lands of Indian minors. The court below found, and there was evidence tending to support its finding, that, "the plaintiff being a minor at the time of the making of both deeds complained of in this action, under the proof in this case, the plaintiff not having misled the defendants or their agents as to her age, and not having received the consideration for said property under any

916, Jefferson v. Winkler, 26 Okl. 653, 110 Pac. 755, Simmons et al. v. Whittington, 27 Okl. 356, 112 Pac. 1018, Stevens v. Elliott, 30 Okl. 41, 118 Pac. 470, Gill v. Haggery, 32 Okl. 407, 122 Pac. 641, and the Circuit Court of Appeals for the Eighth Circuit in Alfrey v. Colbert, 168 Fed. 231, 93 C. C. A. 517. The foregoing cases support the proposition that a deed made by a minor Cherokee freedman, purporting to convey her surplus allotment prior to the removal of restrictions therefrom, is absolutely void.

The judgment of the court below is affirmed. All the Justices concur, except WILLIAMS, J., absent.

(38 Okl. 358)

MUSKOGEE GAS & ELECTRIC CO. v.
HASKELL et al.

(Supreme Court of Oklahoma. June 10, 1913.)

(Syllabus by the Court.)

1. APPEAL AND ERROR (§ 781*)—AMICUS CTRIE (§ 1*)-DISMISSAL.

An appeal will be dismissed by this court the judgment appealed from is based upon a on motion of amici curiæ, where it appears that fictitious controversy, made in a suit between parties, brought for the purpose of obtaining a there being no real controversy between the decision of the court upon questions involved: parties.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3122; Dec. Dig. § 781:* Amicus Curiæ, Cent. Dig. § 1; Dec. Dig. § 1.*] 2. APPEAL AND Error (§ 19*)-REVIEW-FIC

TITIOUS ISSUES.

This court will not take cognizance of an appeal in an action, where it appears the action is based upon fictitious issues.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 63-80; Dec. Dig. § 19.*] 3. APPEAL AND ERROR (§ 799*)-MOTION TO

DISMISS-SUPPORTING AFFIDAVITS.

Affidavits of third parties will be heard in this court in support of a motion to dismiss appeal on the ground that the issues in the controversy existing between the parties to the are fictitious, and that there is no real suit.

case

ration, and others.

and the defendant named brings error. Dismissed.

Judgment for plaintiff, | more taxes on account of the expenditure of the city funds incident to. the holding of said election. He thereupon prays that the city and the defendant officers be enjoined from holding said election and from incurring or contracting any expense relative thereto, and from paying out any of the public funds of the city on account of any such expense.

Owen & Stone, George S. Ramsey, C. L. Thomas, and Paul Reiss, all of Muskogee, for plaintiff in error. W. F. Rampendahl, of Muskogee, for defendant in error Haskell. Alvin F. Molony, Benjamin B. Wheeler, Carroll S. Bucher, Preston C. West, Myron White, Franklin P. Schaffer, Charles B. Law, and J. F. Brett, all of Muskogee, amici curiæ.

Defendants, by their answer, admit all the allegations of the petition; but as to whether the legal conclusions drawn therefrom are correct they allege that they have HAYES, C. J. This action was brought in no knowledge, and pray the judgment of the the court below by defendant in error, Mur-court. Upon these pleadings the trial court ray G. Haskell, hereinafter sometimes referred to as plaintiff, against plaintiff in error and its codefendants, the city of Muskogee, W. P. Miller, and Charles Wheeler, as mayor and city clerk of said city, respectively, and who will hereafter be referred to sometimes as defendants.

rendered a judgment, awarding to plaintiff an injunction as prayed for, to reverse which this appeal is prosecuted alone by plaintiff in error, the grantee in the proposed franchise.

[1-3] There has been filed in this court a motion, signed by eight lawyers and taxThe city of Muskogee is a city of the first payers of the city, by which, as amici curiæ, class, organized and existing under a charter they ask that this proceeding be dismissed, duly adopted by said city under the provi- upon the ground that the case is wholly sions of the Constitution and statutes. | fictitious and originated in collusive acts of Plaintiff brings the action on his own behalf the parties, for the purpose of serving prias a taxpayer of the city, and on behalf of vate interests; that the charter of the city and for the benefit of other taxpayers sim- of Muskogee provides that no franchise shall ilarly situated. In addition to the foregoing ever be granted, extended, or renewed by the facts, he alleges in his petition that de- city, without the approval of a majority of fendant Muskogee Gas & Electric Company is the qualified electors residing within the a corporation, organized under the laws of corporate limits, who shall vote thereon at a the state of Oklahoma; that on the 8th day special or general election; and that the of October, 1912, was filed a petition, signed question of its being granted shall be subby a number of qualified electors of the city mitted to such voters only when there has equal to 25 per centum of the total number been deposited by the applicant for the franof votes cast at the next preceding general chise with the treasurer an amount sufficient election, demanding that a proposed fran- to pay the expenses of such submission. In chise, granting to the Muskogee Gas & Elec- support of their motion they attach the affitric Company the right to erect, maintain, davits of the present city clerk and city extend, and operate in the streets and alleys treasurer, in which affidavits they state that and other public places of the city a plant on a date prior to the issuance of the call for the purpose of generating and distribut- for the election by the mayor, and prior to ing electricity, be submitted to the vote of the institution of this suit, plaintiff in error, the people at an election. The proposed the grantee in the proposed franchise, defranchise was filed with the mayor of said posited with the city the sum of $2,000 with city on said last-mentioned date, and within which to defray the expenses and cost of 10 days thereafter, to wit, on the 18th day the proposed election, and that said sum of of October, 1912, in the manner and form money is now in the hands of the city treasprovided by law, the mayor called a special urer, and was determined by him to be suffielection at which to submit the question of cient to pay the expenses of the election. No whether or not the franchise should be answers to this motion to dismiss and to the adopted. The full text of the proposed fran- affidavits in support thereof have been made chise is set out in the petition. Plaintiff by the parties to the suit, except that in the then alleges that said franchise, if adopted, briefs of plaintiff in error the right to estabwill be void, because in conflict with certain lish that the suit is fictitious by affidavits provisions of the Constitution and of the filed in this court is challenged; but this statutes and of the charter of said city. He contention finds no support in the authorifurther alleges that the mayor has caused ties; for it seems to be a general rule that notice of said proposed election to be given, a suit may be shown to be fictitious by the and that he and the clerk are proceeding to record, or by evidence aliunde, or by both. prepare for said election, and are and will 2 Encyc. of Pl. & Pr. 344; Haley v. Eureka incur expenses necessary to hold said elec- County Bank, 21 Nev. 127, 26 Pac. 64, 12 tion and pay the expenses thereof out of the L. R. A. 815. And the evidence aliunde may public funds of the city, which funds must consist of affidavits of third persons. Ward be raised by taxation, and that taxes will v. Alsup, 100 Tenn. 619, 46 S. W. 573; Smith thereby be greatly increased, and the plain- v. Junction Ry. Co., 29 Ind. 546; Lord v.