other bars, and that it and three or four other such bars were subsequently taken out on account of their being too low. Orr, the pit boss, likewise testified, giving his opinion of the height of the bar above the track underneath. So it appears that the exact question tendered by the amendment was fully gone into in the examination of the defendant's own witnesses. The amendment was made to conform to the proof, as stated by counsel at the time. There was no substantial change in the petition, and the change in fact made in no wise prejudicially affected the defendant. Chandler v. Parker, 70 Pac. 3681; Ellen v. Lewinson, 88 Cal. 253, 26 Pac. 109; Omaha v. Crane, 15 Neb. 657, 20 N. W. 101. [2] Defendant's requested instruction No. 4 was properly refused. To have so instructed the jury would have been the equivalent of directing a verdict for the defendant as to the issue of negligence in either the construction or maintenance of the bar. The charge of negligence in this particular was sufficiently shown by the evidence. Likewise requested instruction No. 5 was properly refused. It is fundamental that, where the testimony is conflicting upon a material issue of fact, the question presented is for the jury. [3] Assignments of error Nos. 6, 7, 8, 9, 10, may properly be considered together. All deal with the refusal to instruct the jury as requested by the defendant. It is a very general rule that it is not error for the trial court to refuse to give a requested instruction upon a proposition, when the same question is submitted to the jury by the court in its charge, and when the instructions given, taken as a whole, fairly submit all the law applicable to the case. Atchison, T. & S. F. Ry. Co. v. Marks, 11 Okl. 82, 65 Pac. 996; Citizens' Bank v. Garnett, 21 Okl. 200, 95 Pac. 775; Coalgate Co. v. Hurst, 25 Okl. 588, 107 Pac. 658; Finch v. Brown, 27 Okl. 217, 111 Pac. 391. We think the court's charge sufficiently submitted to the jury for its consideration the law of the case. The charge given is not objected to, except in one particular, and that is not urged or insisted upon in this court. [4] Finally, it is urged that the court erred in refusing to give the following instruction: "The court instructs the jury that in this case the plaintiff has not introduced the doctor that he claimed was called to examine and treat him after the injury, and has not introduced any physician as to the extent of the injuries, and you may consider this fact, in connection with the other evidence, in determining what injuries, if any, the plaintiff sustained; and in this connection the court charges you that if the plaintiff has failed to introduce witnesses who, if present, would testify to material 1 Reported in full in the Pacific Reporter: re facts, and has failed to account for his failure to introduce such witnesses, then you have the right, if you so decide, to consider that, if said witnesses were present, their evidence would be unfavorable to the plaintiff." On its face the instruction is objectionable. But one physician, Dr. Logan, had ever attended the plaintiff in connection with his injury; while the instruction directs the jury's attention to the fact that if the plaintiff has not introduced or explained his failure to introduce, not alone the doctor that was called to see him, but any physician, to testify as to the extent of the injuries sustained, the jury would have the right to draw unfavorable inferences therefrom. Obviously this is not the law. Courts are not required to give instructions which necessitate qualification or modification. If not good as requested, it is not error to refuse them. Freidman v. Weisz, 8 Okl. 392, 58 Pac. 613; Sanders v. Klein, 22 Okl. 154, 101 Pac. 267; 11 Enc. Pl. & Pr. 234. [5] Independent, however, of the foregoing objection, the court properly refused to so instruct the jury. It does not appear that Dr. Logan was subpoenaed as a witness. He resided at Lehigh, in Coal county, a distance of but four miles from the place of trial. It appears from the plaintiff's testimony that Dr. Logan was called to see him immediately after the accident, but on account of plaintiff's suffering no examination was at the time made, or until some six weeks afterwards. Other witnesses, Hewie Hampton, John Moore, Mrs. Garrison, and Leonard Garrison, testified concerning plaintiff's injuries. Hampton and Moore boarded with Mrs. Garrison, where plaintiff boarded and roomed, and where they had full opportunity to become informed of his physical condition. There is a rule of evidence that when a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible, and withholds it, the fair presumption is that the testimony is withheld from some sinister motive, and that its production would thwart his evil or fraudulent purpose. A further rule requires that where a party has the means of producing a witness who possesses peculiar or higher knowledge of the transaction, and fails to produce him, this affords ground for the suspicion that the testimony of such better informed witness would be unfavorable to his claim. But these rules do not require the production of the great est amount of evidence, which it is in the power of the party to produce, as to any given fact. All the law requires is sufficient proof, and a litigant is not bound to produce and examine all the witnesses who know anything of the transaction, or, failing to do so, to have the presumption indulged against him that such witness, if produced, would not support his right. Central of Ga. ported as a memorandum decision without opinion Ry. Co. v. Bernstein, 113 Ga. 175, 38 S. E. in 65 Kan. 860. Commissioners' Opinion, Division No. 1. Error from District Court, Coal County; A. T. West, Judge. ror. 394; Bleeker v. Johnston, 69 N. Y. 310; Pollak v. Davidson, 87 Ala. 551, 6 South. 312; Pollak v. Harmon, 94 Ala. 420, 10 South. 156; Haynes et al. v. McRae, 101 Action by A. J. Bristow against J. W. CarAla. 318, 13 South. 270. From the character rigar and another. Judgment for defendof Dr. Logan's examination of plaintiff, ac- ants, and plaintiff brings error. Affirmed. cording to the evidence, if indeed it can A. J. Bristow, of Stuart (J. H. Stolper, of properly be called an examination, it cannot Muskogee, of counsel), for plaintiff in error. be said that the plaintiff had more satisfac- J. G. Ralls, of Atoka, for defendants in ertory or better or clearer evidence as to the nature and extent of his injuries, which he failed to produce. The evidence, if given, would have been cumulative merely. Lawson on Presumptive Evidence, pp. 152, 168. The rule of presumptive evidence in this respect should be indulged with great caution, and only where it is manifest that the evidence is within the power, or under the control, of the one party, and is not accessible to his adversary; for it cannot be said that the omission of a litigant to call a witness who might equally have been called by his adversary is ground for a presumption that the evidence of the witness, if produced, would have been unfavorable to him. Bates v. Morris, 101 Ala. 282, 13 South. 138; Nelms et al. v. Steiner, 113 Ala. 562, 22 South. 435; Brock v. State, 123 Ala. 24, 26 South. 329; Scovill v. Baldwin, 27 Conn. 316; Kerstner v. Vorweg, 130 Mo. 196, 32 S. W. 298; Erie R. Co. v. Kane, 118 Fed. 223, 55 C. C. A. 129. [6] Defendant was informed on the first day of trial that Dr. Logan had been called in attendance upon the plaintiff. Presumably his attendance, if procurable by plaintiff, could likewise have been obtained by defendant, if desired. The doctor's testimony was no longer privileged, under section 5842, Comp. Laws 1909. The plaintiff having of fered himself as a witness and testified specifically in regard to his injuries, the doctor's testimony would have been competent either for or against him. Roeser v. Pease, 131 Pac. 534. ROBERTSON, C. The only question presented by this appeal that requires consideration at our hands is whether or not the trial court erred in entering a certain nunc pro tunc order on September 21, 1910, over the objections of plaintiff in error. To properly answer this question a brief review of the case becomes necessary. On August 6, 1904, plaintiff in error, A. J. Bristow, secured a lease for certain agricultural lands in the Choctaw Nation from the allottee, N. T. Tiner. This lease was recorded August 10, 1904. Prior to the execution of this lease, and on February 11, 1904, the allottee had leased the same land to defendants in error J. W. and James Carrigar for a term of three years, which lease was recorded on July 2, 1904, more than five months after the date of its execution. On December 28, 1904, plaintiff in error notified the Carrigars to vacate the land and to deliver possession thereof to him. Possession was denied, and on April 6, 1905, plaintiff in error commenced ejectment proceedings to recover the possession of the same; said suit being filed in the Atoka division of the United States Court for the Central District of the Indian Territory. While this suit was pending, the landlord, Tiner, brought suit against the Carrigars in the Intruder's court at Muskogee; whereupon plaintiff in error voluntarily abandoned his suit and joined forces with Tiner in his suit in the Intrud The remaining assignments of error, noter's court against the Carrigars. On Septemhaving been argued, are deemed to have been abandoned. The judgment of the trial court should be affirmed. PER CURIAM. Adopted in whole. (37 Okl. 730) BRISTOW v. CARRIGAR et al. (Supreme Court of Oklahoma. May 6, 1913. Rehearing Denied June 20, 1913.) (Syllabus by the Court.) JUDGMENT ($ 326*)-CORRECTION OF JOURNAL ENTRY-ORDER NUNC PRO TUNC. History of the case reviewed, and the entering of an order nunc pro tunc, correcting a judgment, held to be within the power of the court and not an abuse of its discretion. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 628; Dec. Dig. § 326.*] ber 13, 1905, Tiner secured a judgment in the Intruder's court, ousting the Carrigars from, and placing himself in, possession of said land. As soon as Tiner was placed in possession of the premises, he attempted to place Bristow, the plaintiff in error, in possession. On September 18, 1905, while the Carrigars were removing their crop from said premises under, as they contend, a verbal agreement made with Tiner, the owner, Bristow, the plaintiff in error, commenced an injunction proceeding in the United States Court at Atoka, and secured a temporary restraining order on October 6, 1905, preventing the Carrigars from entering upon the premises or removing any part of the crop therefrom. The defendants in error demurred to the petition in injunction, which was overruled on October 18, 1905; whereupon they answered, setting up their lease with Plaintiff in error demurred to the Tiner. your honor issue a temporary restraining order against the respondents herein, and that upon giving of a satisfactory bond that they be summoned to appear and answer herein, and upon final trial that he have judgment perpetuating said order of injunction, and for costs, and for such other further relief, both general and special, as your honor may see fit to grant." While the prayer ordinarily forms no part of a petition, yet in this case the prayer is consistent with the allegations of the petition and shows the real purpose and object of the suit. answer. While the pleadings were in this is as follows: "Wherefore, relator prays that condition, the court appointed Mr. Winfield S. Farmer, Esq., as special master, to hear the case, and who, in due time, made his report, in which, among other things, he found that at the time the order of ouster from the Intruder's court was being served a parol agreement was made and entered into by and between Tiner, the owner of the land, and the Carrigars, whereby all rights to the growing crops were reserved to the Carrigars. He also found, as a matter of law, that the lease from Tiner, the allottee, to the Carrigars was void as between them on account of it not having been filed for record After demurrer to the petition had been within three months, as required by law, overruled, the defendants, on October 18, but that it was good as a rental contract for 1905, filed their joint answer, to which plainthe year 1904, and especially so where the tiff filed his demurrer. While the pleadings consideration had been paid, as it had in were in this condition, the parties began takthis case. He also found that the Carrigarsing depositions; all the evidence in the case were not trespassers on the land, but had a right to enter thereon for the purpose of taking care of their crops, and that injunction was not the proper remedy, for that plaintiff had a plain, speedy, and adequate remedy at law by way of ejectment or forcible detainer. In the meantime statehood intervened, and the cause was, by operation of law, transferred to the district court of Coal county, where, on April 8, 1908, the matter coming on for hearing, the demurrer to the answer was overruled, as were also the objections and exceptions to the report of the special master, and the court thereupon rendered judgment sustaining the recommendations of the special master and adopted his report as the judgment of the court. The cause was thereupon appealed to this court, where, on June 14, 1909, the judgment of the district court was affirmed. See Bris tow v. Carriger et al., 24 Okl. 324, 103 Pac. 596, 25 L. R. A. (N. S.) 451. In the meantime, and before the mandate of the Supreme Court had been spread of record in the district court of Coal county, the defend being thus taken and presented. The judgment entered on April 18, 1908, by the district court was informal, concluding as follows: "Whereupon the court and the said judge thereof renders his decision herein in favor of defendants and against plaintiff, to which this plaintiff then and there duly excepted. And as his written opinion and decision herein the court and the said judge thereof adopted and rendered the report of the special master." That part of the report of the special master necessary to show what the judgment really was is as follows: tion of the lease made with the defendants; In this case the master holds that the lease contract made by the defendants with the citizen Tiner is void as between them, but that it was good as a rental contract for the year 1904, and especially so where a valuable consideration had been paid, as in this case; that such a lease is not absolutely void, but merely voidable; that the act of the citizen in releasing the same premises to the plaintiff was an act of revocathat after the plaintiff had taken his lease ants in error had commenced suit against plaintiff in error on the injunction bond. To the defendants became his tenants for the this petition plaintiff in error demurred, on balance of the year 1904; that if the defendthe ground, first, that no cause of action ants unlawfully held over the plaintiff had had yet accrued in favor of defendants in er- two complete remedies at law, to wit, unror; and, second, for the further reason that lawful detainer and ejectment, and having the judgment of the district court as enter- these remedies he should have followed one ed in April, 1908, and as affirmed by the Su- of them, and not resorted to the extraorpreme Court, affected only the temporary dinary writ of injunction. There is some tesrestraining order, and therefore the original timony tending to show a want of considerasuit was yet pending and undisposed of. Totion paid for the plaintiff's lease; but assumthese contentions defendants in error sug-ing that it is a good and valid lease he is engested to the judge of the district court that, titled to nothing more than the rent for the in case the judgment as entered in April, year 1905, and courts of equity will not in1908, was insufficient to completely dispose voke the extraordinary writ of injunction to of the entire case, a nunc pro tunc order enforce the payment of rents, when there is should be entered correcting the April, 1908, a complete remedy at law. The rights of the judgment, so that it should be made to speak parties to this suit should not be adjudicated the truth. This was done, and of this ac- by invoking the writ of injunction, and I tion of the court in entering the nunc pro therefore recommend that the prayer of the tunc order, as aforesaid, the plaintiff in er- plaintiff for a perpetual injunction be denied, ror complains. and that a temporary restraining order be PER CURIAM. Adopted in whole. (37 Okl. 736) BRISTOW et al. v. CARRIGAR et al. (Supreme Court of Oklahoma. May 6, 1913. Rehearing Denied June 20, 1913.) (Syllabus by the Court.) 1. PLEADING (§ 189*)—PURPOSE. From the foregoing it is seen that the orig- it was proper, when this oversight was called inal judgment of the district court not only to the court's attention, that the same be cordissolved the temporary injunction, but also | rected by nunc pro tune order. No one has in specific terms denied and refused a per- been deceived by this act of the court. No petual or permanent injunction. Plaintiff in rights have been taken from or denied any error now contends that the only question one, and the position taken by plaintiff in adjudicated in the former appeal related to error is not warranted by the record, and is the temporary restraining order; but in this wholly untenable. That a court has power to he is evidently mistaken, for an examination correct such errors in its judgments by nunc of the petition in error in that case shows pro tunc order is so well settled that citation that all these questions were properly saved of case or text authority is unnecessary. in the former trial and raised by proper as- The judgment should be affirmed. signment of error in the petition in error, as shown by the record in case No. 195, entitled A. J. Bristow v. Carriger, reported in 24 Okl. 324, 103 Pac. 596, 25 L. R. A. (N. S.) 451. Thus the twenty-fifth assignment of error in that case reads as follows: "That the said court committed error by adopting the report of the special master as the opinion of the said court and of the judge thereof, after the request of your plaintiff in error that the decision of the said court and the judge thereof upon the said exceptions to said report be rendered in writing." And the twenty-ninth: "That the said court erred in refusing to render judgment for your plaintiff in error in refusing to make permanent the order of injunction in the said action." While the prayer of said petition in error reads as follows: "Wherefore, the said A. J. Bristow, your plaintiff in error, as aforesaid, prays that the said judgment and order of the said district court in and for Coal county, judicial district No. 7, of the state of Oklahoma, discharging and vacating the said temporary order of injunction and restraining order, and refusing to make the same permanent, be reversed, set aside, and held for naught; and, further, your said plaintiff in error prays that the said order of injunction be made permanent in his favor against the said defendants in error and each of them, and that he be granted by this honorable court whatever other relief as to this honorable court shall seem just." The office of a demurrer is primarily to raise an issue of law on facts raised in the pleading or evidence attacked. Cent. Dig. § 400; Dec. Dig. § 189.*] MENT. History of case reviewed, and held that the entering of a nunc pro tunc order to correct and its exercise was not an abuse of discrea judgment was within the power of the court, tion. 3. TRIAL (§ 70*)-REOPENING CASE-Discre TION. timony, after the jury had been instructed, held to be within the discretion of the trial court and not error, under the facts of this case. The opening of the case for additional tes [Ed. Note. For other cases, see Trial, Cent. Dig. § 166; Dec. Dig. § 70.*] Commissioners' Opinion, Division No. 1. Error from District Court, Coal County; A, T. West, Judge. Action by J. W. Carrigar and another against A. J. Bristow and others to recover on an injunction bond. Judgment for plaintiffs, and defendants bring error. Affirmed. A. J. Bristow (J. H. Stolper, of Oklahoma City, of counsel), for plaintiffs in error. J. G. Ralls, of Atoka, for defendants in error. It is therefore plainly evident that in the former appeal plaintiff in error knew that the whole cause had been disposed of, else why were all these questions raised in his petition in error and elaborately discussed in ROBERTSON, C. This is an appeal by his brief? The temporary injunction was in A. J. Bristow, George E. Jahn, and Paul fact the only issue in the case, and that be- Meyer from the district court of Coal county, ing disposed of it was not necessary to con- where J. W. Carrigar and James Carrigar sider the other questions raised in the peti- obtained judgment against plaintiffs in error tion in error. The judgment of the court as on an injunction bond in the sum of $800 for entered in April, 1908, whereby he adopted damages done them by reason of the wrongthe report of the special master as and for ful issuance of a temporary restraining order the judgment of the court, was a judgment in a case pending in the United States Disin writing, as demanded by plaintiff in error. trict Court for the Central District of the In that judgment the temporary injunction Indian Territory, and after statehood transwas dissolved and the permanent injunction ferred to the district court of Coal county, denied. These questions are therefore res Okl. adjudicata. By inadvertence the order of The petition was filed on the 4th day of dismissal was omitted from the formal jour- March, 1910. After a demurrer thereto had nal entry, when rendered in April, 1905, and been overruled, the defendants, on the 5th day of April, 1910, filed their motion to dismiss the cause, for the reason that the action had been prematurely instituted. This motion was also overruled. On the 18th day of April, 1910, defendants filed their answer, and on the 28th day of April, 1910, plaintiffs in error filed their reply. On the 21st day of September, 1910, attorneys for plaintiffs below filed a motion requesting the court to enter a judgment nunc pro tunc in the original case of Bristow v. Carrigar et al., which motion was by the court sustained, over the objections of the defendants. Thereafter the cause was tried to the jury, and a verdict in the sum of $800 was rendered in favor of the plaintiffs and against the defendants in error, upon which judgment was entered, and to reverse which this appeal is prosecuted. lateral issues wholly unnecessary. In other words, the dissolution of the temporary restraining order ended the injunction suit. This is the effect of the judgment of the district court, and this is the only import to be drawn from the language used, and aside from this the court specifically refused to make the injunction perpetual, and dismissed the cause. Counsel for plaintiff in that case raised every conceivable question by proper objection at the hearing before the special master, and by numerous exceptions to the special master's report, all of which were duly considered by the trial court, overruled and denied, and exceptions again duly saved and embodied in the petition in error in the Supreme Court in Bristow v. Carriger et al., supra, 24 Okl. 234, 103 Pac. 596, 25 L. R. A. (N. S.) 451, and discussed at length in the [1] The plaintiffs in error rely upon sever- brief and again urged in the petition for al assignments of error, which we will con rehearing. Surely counsel cannot now say sider in their order: First. That the court that the whole case was not disposed of by below erred in overruling the demurrer of the original judgment and they will not now the defendants in error to the plaintiffs' be heard to say that such was their idea of petition. Plaintiffs in error first contend, the matter, when the record from the first under this assignment of error, that inas- is filled with their objections and exceptions much as the mandate from the Supreme to the ruling of the trial and Supreme Court Court in the case of Bristow v. Carriger on the questions which, as they now contend, et al., 24 Okl. 324, 103 Pac. 596, 25 L. R. A. were not raised, considered or disposed of (N. S.) 451, had not been spread of record in by those courts in due and regular course. the district court of Coal county, that the The authorities cited in the brief are on the action was therefore prematurely brought. theory that no final judgment was ever enterDemurrer was not the proper method of ed in the original action. This theory not testing this contention. This fact should being supported by the facts it necessarily have been brought to the attention of the follows that the authorities cited are not in court by motion. The facts necessary to point, and therefore are inapplicable. determine this question did not appear in the petition. The office of a demurrer is, primarily, to raise an issue of law on facts raised in the pleadings attacked. The petition in this case was good as against the demurrer, and the court committed no error in overruling the same. The next point urged under this assignment is that no decision had ever been rendered by the district court of Coal county, nor by the special master, upon the material issues raised in the pleadings of the plaintiffs, and denied by the defendants in the original case, and refers especially to the so-called issues of "equitable ownership and legal possession" which they claim were raised and properly presented to the court, but which for some reason were not passed on by either the trial or the Supreme Court. Counsel make the same mistake in this case, as they do in case No. 2,728, 132 Pac. 1106, decided this term, not yet officially reported, wherein they insist that the only question disposed of by the court in the original case of Bristow v. Carrigar et al., supra, was that affecting the temporary restraining order. As was stated in that case, this is true in a measure, because, as may be seen by reference to the pleadings and the findings of the special master, the dissolution of the temporary restraining order rendered [2] The next point urged is that the court erred in entering the nunc pro tunc order correcting its former judgment. This point was fully covered and decided adversely to plaintiffs in error in Bristow v. Carrigar et al., No. 2,728, 132 Pac. 1106, supra, and therefore no further consideration will be given the same here. There is no merit in the fifth assignment of error. Even though it were admitted that Carrigar would have answered the question propounded in the affirmative, the result would not have been different; for the result of the case inquired about would not have been an adjudication of the issues herein. [3] It is lastly contended that the court erred in opening the case after the jury had been instructed in order to prove what the judgment of the Supreme Court was in the original case. The record discloses that counsel for plaintiffs in error, in his opening statement to the jury (C. M. 29), said "that the injunction suit brought by him against plaintiffs in this action had been dissolved by the lower court and appealed to the Supreme Court, and that the judgment had been firmed." On account of this statement of counsel the plaintiffs failed to offer proof in support of that issue. When the case was *. af |