MEMORANDUM DECISIONS

NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. COLORADO & S. RY. CO. (Supreme Court of Colorado. June 2, 1913.) Appeal from District Court, Gunnison County; Theron Stevens, Judge. Action by the National Fire Insurance Company of Hartford, Conn., against the Colorado & Southern Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded. Bicksler, Bennett & Nye and G. D. Blount, all of Denver, for appellant. E. E. Whitted, of Denver, for appellee.

GARRIGUES, J. This case presents the identical question presented in No. 5,857, British America Co. v. Colorado & Southern Railway Co., 52 Colo. 589, 125 Pac. 508, 125 Pac. 1135, 41 L. R. A. (N. S.) 1202. For the reasons stated in that opinion, the judgment is reversed, and the case remanded. Reversed.

MUSSER, C. J., and SCOTT, J., concur.

MASTERS v. CASSELL. (Court of Appeals of Colorado. May 12, 1913.) Error to District Court, Denver County; Harry C. Riddle, Judge. Action by R. T. Cassell against I. A. Masters. From a judgment for plaintiff, defendant brings error.. Reversed and remanded, with directions to dismiss petition. George Allan Smith, of Denver, for plaintiff in error: Henry Howard, Jr., of Denver, for defendant in error.

CUNNINGHAM, P. J. This case has been before the court on a motion to dismiss the writ of error, at which time briefs were filed by both parties. Briefs on the merits have been also filed, and the case has been argued orally. The rules of law applicable to the facts in this case are too familiar to justify the preparation and filing of an opinion, and there are practically no disputed facts. The trial court clearly committed reversible error, and the judgment will be reversed, with instructions to the trial court to dismiss the petition of the defendant in error, Cassell. Reversed and remanded, with di

rections.

dence, or both. At the opening of the trial, with much reluctance, the trial judge overruled defendant's demurrer to the complaint. Whether the complaint states a cause of action or not is, in our judgment, a close question; but a careful reading of the testimony convinces us that it is insufficient to support a judgment in favor of plaintiff. We think no good purpose can be served by our analyzing and pointing out the deficiencies in the evidence. No question of great public interest is involved, and, as we view it, the record presents no nice questions of law calling for a written opinion in this case. We think it is sufficient for all purposes to say that in the main we agree with the position taken by counsel for defendant in error in their brief on file in this case. Judgment affirmed.

BELL, J., not participating.

MCALESTER-EDWARDS COAL CO. et al. Court of Oklahoma. May 13, 1913.) Appeal v. TRAPP, State Auditor, et al. (Supreme from Superior Court, Pittsburg County. Action by M. E. Trapp, State Auditor, and others against the McAlester-Edwards Coal Company

and others.

fendants appeal, and plaintiffs move to require
From an adverse judgment, de-
them to execute a supersedeas bond and to
advance the case. Motion to advance sustained;
otherwise, motion denied. Chas. West, Atty.
Gen., for the motion.

behalf of the defendant in error, has filed a mo-
PER CURIAM. The Attorney General, on
tion wherein he states that the injunction
"herein was granted without requiring a bond
to be made by the complainant coal companies
the law is held constitutional, that the consti-
to cover the taxes that would be due in case
tutionality of the law was sustained by the
lower court, and therefore the coal companies
should be required to give bond to the state
sufficient to cover the amount of the mining
production tax that will be due from each of
them at the time of the probable decision of
this case. And further complainants say that
this case involves substantially a large portion
of the coal mining properties in the McAlester
district, and therein involves a
very large
amount of taxes for such purpose due the state
of Oklahoma; that defendants are not able to
state exactly how much is involved, for the
reason that the coal companies have not made
the report required by law upon which said
amount may be estimated, but it is the belief
and understanding of the defendants that at
least the sum of fifty thousand ($50,000.00) dol-
lars is herein involved, and because of the mul-

SCHILDT v. CIMARRON & UNCOMPAHGRE VALLEY CANAL & RESERVOIR CO. (Court of Appeals of Colorado. June 10, 1913.) Error to District Court, Montrose County; Sprigg Shackleford, Judge. Action by Stillman Schildt against the Cimarron & Uncompahgre Valley Canal & Reservoir Company. Judgment for defendant, and plaintiff brings error. Affirmed. Hugo Selig, of Montrose, for plaintiff in error. Bell, Catlin & Blake, of Montrose, and Philip W. Mothersill, of Denver, for de-tiplicity of suits provided for by this case, and fendant in error.

PER CURIAM. Plaintiff in error brought his action in the district court to recover for damages alleged to have been occasioned to his land by water escaping through breaks in the ditch or canal of the defendant corporation. At the conclusion of his evidence, counsel for the ditch company moved the court for a directed verdict, on the grounds: (a) That the complaint did not state facts sufficient to constitute a cause of action; (b) the insufficiency of the evidence to sustain a verdict for plaintiff. The motion was granted, and a verdict returned, under the direction of the court, in favor of defendant. The abstract does not disclose clearly whether the trial judge acted on

because of the large amount of money involved, that the case ought to be advanced for hearing and set down at the next term of this court, for which the appellees will ever pray." As to the question of requiring the plaintiffs in error to give bond, this is a proceeding in error to review the action of the lower court in refusing to enjoin the collection of the taxes. No provision of the law is cited by the Attorney General wherein this court would be authorized to require such bond to be given. On the contrary, as no supersedeas has been sought on the part of the plaintiffs in error, there appears to be nothing to prevent the proper officials on the part of the state from proceeding to collect these taxes pending the determination of this

to advance is sustained; but otherwise the mo- | Action by P. L. Wilkes and another against W. tion is denied.

H. Payne. Judgment for plaintiffs, and defendant brings error. Affirmed. E. E. Gore, of Altus, for defendant in error.

MICKLESON v. LAYTON. (Supreme Court HARRISON, C. At the January term this of Oklahoma. June 10, 1913.) Appeal from cause was dismissed for failure to file briefs. the County Court, Pawnee County; Fred S. 129 Pac. 705. During the term motion was filLiscum, Judge. Action between D. D. Mickle-ed by defendant in error to set aside the order son and D. B. Layton. From the judgment, of dismissal and affirm the judgment of the Mickleson brings error. Dismissed. Goodwin lower court. Upon the authority of Merchants' & Hayes, of Cleveland, for plaintiff in error. & Planters' Ins. Co. v. Crane et al., 31 Okl. Wm. Blake, of Tulsa, and A. C. Hazlett, of 713, 123 Pac. 1127, and McKain v. J. I. Case Oklahoma City, for defendant in error. Mach. Co., 128 Pac. 895, the original opinion is withdrawn, the order of dismissal is set aside, and this opinion affirming the judgment of the lower court is filed in its stead. The judgment is affirmed.

KANE, J. This cause comes on to be heard upon motion to dismiss upon the following grounds: (1) Said purported case-made shows that neither the defendant in error nor his attorneys were ever served with a notice of the time and place of signing and settling said case-made, nor given an opportunity to suggest amendments thereto, nor ever waived the suggestion of amendments to such purported casemade, nor ever waived notice of the signing and settling of said purported case-made. (2) Said purported case-made does not show that it was ever settled and signed by the trial judge, as required by law. (3) Said purported case-made does not show that the clerk of the trial court ever attested the signature of the trial judge, or attached the seal of said court to any order of the trial judge settling said purported casemade. (4) Said purported case-made does not show that the same, or the original thereof, was ever filed in said cause in the trial court. (5) The motion for a new trial in this case was overruled on December 26, 1911. The petition in error was filed in this court on June 26, 1912. Since the motion for new trial was overruled more than 16 months have elapsed, during which time the defendant in error has made no appearance in this court, the issuance of summons in error has not been waived, no præcipe for summons in error has been filed in the office of the clerk of this court, no summons in error has even been issued or served in this cause, and no attempt has been made to bring this defendant in error into this court. There is ample authority sustaining a dismissal upon each of the foregoing grounds. The motion to dismiss must be sustained. All the Justices

concur.

MILLER et al. v. WILLIAMS et al. (Supreme Court of Oklahoma. June 20, 1913.) Commissioners' Opinion, Division No. 1. Error from District Court, McClain County; R. McMillan, Judge. Action by Wilson Miller and others against Jennie L. Williams and others. Judgment for defendants, and plaintiffs bring error. Dismissed. Wadlington & Wadlington, of Purcell, for plaintiffs in error. Rennie, Hocker & Moore, of Purcell, for defendants in error.

ROBERTSON, C. This appeal was filed in this court June 8, 1911. Neither party has filed a brief, nor is there any excuse offered for their failure to do so. It is evident that the proceedings have been abandoned. The appeal should therefore be dismissed for want of prosecution under rule 7 of this court (20 Okl. viii, 95 Pac. vi). Streeter v. McCoy, 34 Okl. 490, 126 Pac. 216; Streeter v. Huene, 34 Okl. 491, 126 Pac. 216; Thompson v. Murray, 34 Okl. 521, 125 Pac. 1133; Reliable Ins. Co. v. Newcomber, 34 Okl. 759, 127 Pac. 759; M. O. & G. Ry. Co. v. Johnson, 34 Okl. 816, 127 Pac. 386; First Nat. Bank v. Baldwin, 34 Okl. 825, 127 Pac. 260; Snow v. Frye, 34 Okl. 826, 127 Pac. 422. PER CURIAM. Adopted in whole.

PAYNE v. WILKES et al. (Supreme Court of Oklahoma. May 26, 1913.) Commissioners' Opinion, Division No. 2. Error from District

PER CURIAM. In the trial court plaintiff sued defendants as maker and indorser, in separate actions, on two promissory notes maturing at different times, indorsed to him by the payee for value before maturity. His judgment, recovered in one action, was paid, and then pleaded in bar of a recovery in the second action. From the action of the court in overruling their plea defendants bring the case here. For the reason that they have failed to observe rule xxv of this court (95 Pac. viii), and have not filed a specification of errors, separately set forth and numbered, the cause is dismissed.

ADAY v. STATE. (Criminal Court of Appeals of Oklahoma. May 17, 1913.) Appeal from County Court, Cotton County; Austin Akins, Judge. Slim Aday was convicted of violating the prohibitory law, and appeals. Dismissed. Anderson & Norman, of Walter, for plaintiff in error.

PER CURIAM. The plaintiff in error, Slim Aday, was convicted at the March, 1913, term of the county court of Cotton county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days. The appeal was filed in this court on the 5th day of May, 1913. On the 12th day of said month counsel for the plaintiff in error filed a motion asking that the appeal be dismissed. The motion is sustained, and the appeal dismissed.

ASHLEY v. STATE. (Criminal Court of Appeals of Oklahoma. June 28, 1913.) Appeal from County Court, Woods County; W. M. Bickel, Judge. William Ashley was convicted of illegal sale of liquor, and appeals. Affirmed. C. H. Mauntel, of Alva, for plaintiff in error.

PER CURIAM. William Ashley, plaintiff in error, was convicted of unlawfully selling one pint of whisky to G. W. Davis on or about December 2, 1911. On January 20, 1912, he was sentenced to be confined in the county jail for a period of 6 months and to pay a fine of $50. An appeal was perfected by filing in this court March 16, 1912, a petition in error with case-made. No brief has been filed. No testimony was offered in behalf of the defendant as against the proof on the part of the

have examined the record, and find no error | examination of the record it clearly appears which will warrant a reversal of the judgment. It is therefore affirmed. Mandate forthwith.

AUSTIN v. STATE. (Criminal Court of Appeals of Oklahoma. June 30, 1913.) Appeal from County Court, Ottawa County; W. Y. Quigley, Judge. Everett Austin was convicted of violating the prohibition law, and appeals. Affirmed. Thompson & Mason, of Miami, for plaintiff in error. Chas. West, Atty. Gen., and C. J. Davenport, of Oklahoma City, for the State.

that petitioner was put upon trial before a court of competent jurisdiction under an information sufficient in form and substance to sustain a conviction for the crime therein charged. It is our opinion that the application of the petitioner is without merit. Hence the writ of habeas corpus is denied.

In re BIFFLE. (Criminal Court of Appeals of Oklahoma. Jan. 25, 1913.) Application by E. Biffle for writ of habeas corpus. Denied. PER CURIAM. beas corpus denied orally. Application for writ of ha

BILLINGSLEY v. STATE. (Criminal Court of Appeals of Oklahoma. June 17, 1913.) Appeal from County Court, Oklahoma County; John W. Hayson, Judge. Logan Billingsley was convicted of violating the gambling law, and appeals. Dismissed. Giddings & Giddings, of Oklahoma City, for plaintiff in error. Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, Sp. Asst. Atty. Gen., for the State.

PER CURIAM. The plaintiff in error, Everett Austin, was convicted under an information which charged the unlawful sale of a half pint of alcohol. It was the judgment and sentence of the court that he be confined in the county jail for 90 days and pay a fine of $300. The judgment and sentence was entered April 9, 1912. To reverse the judgment this appeal is prosecuted. From an examination of the record it appears that the complaining witness was the only witness who testified in the case. His testimony that he purchased one-half pint of alcohol from the plaintiff in error on the street, in Miami, Ottawa county, is uncontradicted. Upon a careful examination of the record our conclusion is that this appeal is without merit. It appears that the plaintiff in error had a fair trial. The judgment of the county court of Ottawa county is affirmed. Man-onment in the county jail for a period of 60 date forthwith.

BALLARD v. STATE. (Criminal Court of Appeals of Oklahoma. June 27, 1913.) Appeal from County Court, Cherokee County; S. F. Parks, Judge. Henry Ballard was convicted of violating the prohibition law, and appeals. Reversed. J. I. Coursey of Tahlequah, for plaintiff in error. Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, of Oklahoma City, for the State. PER CURIAM. This appeal is prosecuted from a conviction had in the county court of Cherokee county, on an information which charged that "Henry Ballard on the day and date aforesaid at in and about his place of residence in the city of Tahlequah, in the county and state aforesaid, did then and there unlawfully have in his possession and keeping more than one gallon of spirituous liquors.' Upon arraignment the defendant interposed a general demurrer to the information, which was overruled by the court. This is a prosecution based upon section 4, c. 70, Laws 1910-11. The Attorney General has filed a confession of error upon the authority of Ex parte Wilson, 6 Okl. Cr. 451, 119 Pac. 596. The confession of error is sustained, and the judgment is reversed, and the cause remanded, with direction to dismiss.

Ex parte BARBEE. (Criminal Court of Appeals of Oklahoma. May 24, 1913.) Application by Gus Barbee for writ of habeas corpus. Application denied. Baldwin & Carlton, of Tecumseh, for petitioner. C. J. Davenport, Asst. Atty. Gen., for respondent.

PER CURIAM. This is a petition for writ of habeas corpus, wherein Gus Barbee alleges that he is unlawfully restrained and imprisoned in the common jail of Pottawatomie county, by Jeff. McColgan, sheriff of said county. Petitioner alleges that said restraint and imprisonment is illegal and unauthorized, because the information upon which he was tried and convicted for the alleged offense of conducting games of poker and craps, fails to state a public offense, and by reason of such fact the county court of Pottawatomie county had no jurisdiction to try petitioner, and no jurisdiction to

PER CURIAM. Plaintiff in error, Logan Billingsley, was convicted at the January, 1912, term of the county of Oklahoma county, on a charge of conducting a roulette game, and his punishment fixed at a fine of $500 and impris

days. The Attorney General has filed a motion to dismiss the appeal on the ground that the plaintiff in error is a fugitive from justice and cannot be made to respond to the judgment of the court in this case. It has been repeatedly held that when a person appeals to this court from a conviction had in a trial court, and subsequent to the appeal and prior to the determination of such appeal, such person becomes a fugitive from justice, the appeal will be dismissed. When a person expects this court to review errors complained of in a trial court, he must stay within the jurisdiction of the court, and where he can be made to respond to any judgment rendered on appeal. The appeal in this case is dismissed, with direction to the clerk to issue the mandate forthwith, so that, should the plaintiff in error be apprehended, the county court of Oklahoma county can enforce the judgment by it heretofore rendered.

BILLINGSLEY v. STATE. (Criminal Court of Appeals of Oklahoma. June 20, 1913.) Appeal from County Court, Oklahoma County; John W. Hayson, Judge. Logan Billingsley was convicted of violating the prohibitory law, and he appeals. Dismissed. Vaught & Ready, of Oklahoma City, for plaintiff in error.

PER CURIAM. Upon showing made by the Attorney General in this case that the plaintiff in error has become a fugitive from justice, this appeal is dismissed.

CHISM v. STATE. (Criminal Court of Appeals of Oklahoma. June 3, 1913.) Appeal from County Court, Tulsa County; N. J. Gubser, Judge. Sam Chism was convicted of violating the prohibitory liquor law, and he appeals. Affirmed. Davidson & Williams, of Tulsa, for appellant. Smith C. Matson, Asst. Atty. Gen. (J. S. Estes, of Oklahoma City, of counsel), for the State.

PER CURIAM. Appellant was convicted in the county court of Tulsa county, charged with having violated the prohibitory liquor law, and his punishment was assessed at a fine of $50 and 30 days' confinement in the county jail. We find no prejudicial error in the record which authorizes a reversal of the judgment.