Howard & Ames, for plaintiff in error. Shartel, Keaton & Wells, for defendants in

error.

PANCOAST, J. There is but one assignment of error in this case, that is, that there was no evidence to sustain the verdict returned. It is admitted that there was evidence to support a verdict for $1,269.57, but it is contended that there was no evidence to support a verdict for $500; in other words, the complaint is that the verdict is too small, and should have been for the entire amount, if for anything.

Of the several grounds which may be assigned in a motion for a new trial we may notice: "Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. Sixth. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law." The sixth ground was included in the plaintiff's motion for a new trial, and is the one contended for here. The fifth ground was not included either in the motion for a new trial, or in the petition in error. This court has repeatedly held that it will not attempt to review any alleged error of a trial court, unless the error complained of is in some manner assigned for review by the petition in error, as well as by the motion for a new trial. Menten v. Shuttee (Okl.) 67 Pac. 478. Errors in the assessment of the amount of recovery cannot be considered, unless such ground of error was alleged in the motion for a new trial. Beavers v. Railroad Co., 47 Neb. 761, 66 N. W. 821; Wachsmuth v. Insurance Co., 49 Neb. 590, 68 N. W. 935; Cook v. Clary, 48 Mo. App. 166; Hyatt v. Mattingly, 68 Ind. 271; Davis v. Montgomery, 123 Ind. 587, 24 N. E. 367; Reynolds v. Insurance Co., SO Iowa, 563, 46 N. W. 659.

If the evidence was sufficient to sustain a verdict for more than $500, then this court will not examine the record, to ascertain whether the amount found by the jury was the correct amount, where the only assignment of error is that the verdict is not sustained by the evidence. The assignment of error that the verdict is not sustained by the evidence will not cover the proposition that the verdict is too small. See cases cited, supra. If counsel had desired to raise that question, they should have first assigned the same in the motion for a new trial, and then in the petition in error. These matters could have been so taken care of at the trial by instructions that the theory of the plaintiff would have been known to the court and jury. It is very clear that there was evidence to support a verdict for $1,269.57, and counsel for plaintiff in error concede this. Can there be any prejudicial error where the verdict is for $500 only, conceding that the verdict is too small? If the jury erred in finding but $500, when they should have found $1,269.57, how is the plaintiff in error preju

diced? However, a careful examination of the record does not sustain the contention of the plaintiff in error that there was no evidence to sustain a verdict for $500. The claim of the plaintiff was based upon an open account, and consisted of a long list of items, among which was a charge of 3 per cent. per month on daily balances, as interest on the money furnished. The jury may have, and very properly, cut off all but the legal interest. Again, it was claimed that the sum of $5 per ton for cotton seed delivered was, under certain contingencies, to go to the plaintiff. By the testimony of Mr. Wooten, one of the defendant's witnesses, this amount was shown to be about $400, and by the testimony of Mr. Ames the amount was shown to be $634. The jury, therefore, had sufficient evidence upon which to base this particular verdict.

It is also contended that if there was any evidence to sustain a verdict against the plaintiff in error, that the same evidence would sustain a verdict against the defendant in error Richardson, for the reason that if one was liable the other was. This contention cannot be upheld, for the reason that it appears from an examination of Richardson's testimony that he claims that he was not liable, not being a party to this contract; that he was to receive $2.50 per ton for ginning the cotton seed. But, even if the jury was in error in rendering a verdict in favor of Richardson, how can that be material here? The plaintiff in error cannot complain of that. The Bank of Stroud might properly have done so, but it is of no moment to the plaintiff in error, as no cross-petition was filed, and no attempt has been made in any way by the plaintiff in error to hold Richardson.

A careful examination of the record not disclosing any error covered by the motion for a new trial or the petition in error, and believing the verdict to be just and equitable, we see no reason to disturb it. The judgment will therefore be affirmed. All the justices concurring, except BURFORD, C. J., who tried the case below, not sitting, and BEAUCHAMP, J., absent.

(12 Okl. 197)

BOARD OF COM'RS OF GREER COUNTY v. CLARKE & COURTS. (Supreme Court of Oklahoma. Sept. 2, 1902.) COUNTIES-INDEBTEDNESS-DE FACTO ORGANIZATION-SUCCESSIVE QUASI CORPORATIONS-EFFECT.

1. Greer county, Tex., from the date of its organization as a county government in 1886, until it was transferred to Greer county, Okl., by act of congress of May 4, 1896, was a de facto municipal corporation, and its officers were de facto officers, invested with full power to create an indebtedness for lawful, corporate purposes, and to levy and collect taxes for the payment thereof.

2. Where a municipal or quasi municipal corporation is dissolved, and a new corporation is created, embracing the same territory, and substantially the same people, and the same

taxable property, and organized for the same general purposes, and holding by transfer, without consideration, the taxable property of the former, it is the successor of the old corporation, and is liable for its valid debts, in the absence of an express provision for their payment otherwise.

3. Where the warrant is issued by the officers of a municipal or quasi municipal corporation, and the creditor accepts the same relying on the ordinary modes of taxation to pay said obligation, the municipality cannot be heard to say, in an action to enforce the payment thereof, that it is barred by the statute of limitations, without first pleading and proving that it has provided a fund for the payment of such indebtedness.

4. Hence a county cannot plead the statute of limitations to an action against it to enforce an obligation payable from a particular fund, without first showing that it has provided such fund.

(Syllabus by the Court.)

Error from district court, Oklahoma county; before Justice Benj. F. Burwell.

Action by Clarke & Courts, a corporation, against the board of commissioners of Greer county. Judgment for plaintiff, and defendant brings error. Affirmed.

For a number of years prior to 1896 there was a dispute between the state of Texas and the United States as to the boundary line between Texas and Oklahoma, each party claiming the territory now embraced in Greer county, Okl. In August, 1886, the inhabitants of said territory organized the same into a county under the laws of the state of Texas, and named it "Greer County, Texas," and thereafter said county was recognized by the state of Texas as a legally organized county of said state, and the state of Texas continued to exercise jurisdiction and sovereignty over said county until on or about the 16th day of March, 1896, when it was decided by the supreme court of the United States that the territory comprising said Greer county rightfully belonged to the United States, and not to the state of Texas. U. S. v. State of Texas, 162 U. S. 1, 16 Sup. Ct. 725, 40 L. Ed. 867. It appears from the record that from 1889 to 1892, inclusive, Greer county, Tex., became indebted to the defendant in error, Clarke & Courts, for stationery furnished to said county, and as an evidence thereof issued 12 warrants, payable out of what was known as the "third-class fund." On May 4, 1896, congress passed the following act in reference to Greer County:

"Be it enacted by the senate and the house of representatives of the United States of America in congress assembled, that the portion of the territory of Oklahoma bounded by the North Fork of the Red river and the state of Texas, heretofore known as Greer county, Texas, be, and the same is hereby established as Greer county, of Oklahoma, with Mangum as the county seat. The present county officers of said county shall be continued in office until the first Tuesday of No

4. See Counties, vol. 13, Cent. Dig. §§ 257, 297; Limitation of Actions, vol. 33, Cent. Dig. § 351.

vember, eighteen hundred and ninety six, or until their successors are elected and qualified, at an election to be held on the said first Tuesday of November, eighteen hundred and ninety six, as provided by the laws of the territory of Oklahoma. All provisions of law applicable to the organization and government of counties in Oklahoma shall forthwith be applied by the proper officers thereof to said Greer county, the intention being to provide without delay, the same organized government for said Greer county as for other counties of Oklahoma. All public buildings and property of every description heretofore belonging to Greer county, Texas, or used in the administration of public business thereof, is hereby declared to be the property of said Greer county, Oklahoma, and the officers thereof shall, as soon as appointed, take immediate charge and custody thereof; and all school property in said county shall become the property of the respective school districts in which the same are situated.

"Sec. 2. That all proceedings and actions of every kind in or before the several courts and officers of Greer county, Texas, shall have the same force and effect as if the said courts and officers of Greer county, Texas, had been legally authorized courts and officers of the United States or of the territory of Oklahoma, and the courts of said territory having jurisdiction of similar matters shall make and issue all orders and writs necessary to enforce the orders, decrees, and final judgments of Isaid courts and officers of Texas.

"Sec. 3. That all suits which were pending in the several courts of said Greer county. Texas, on March sixteenth, eighteen hundred and ninety six, as shown by the dockets thereof, shall be entered upon the dockets of the courts of Oklahoma having jurisdiction of like cases, and the same shall proceed as if they had been brought in said courts of Oklahoma. Where an appeal or writ of error has been taken from a judgment in any civil or criminal case rendered by any of said courts of Greer county, Texas, to any other court of Texas, the judgment of such appellate court shall be binding upon all parties to such case, and upon the filing of a certified copy thereof, in the court of Oklahoma having jurisdiction of like cases, it shall be the duty of such court to enter the same upon its minutes and proceed in said action in all respects as though it had rendered the original judgment therein. All rights in the cases mentioned in this section shall be determined by the law of Texas applicable to the act or transaction involved, and the courts shall take judicial notice of such law for that purpose. When any judgment affirmed by any such appellate court provides for imprisonment, such imprisonment shall be in such place as the proper court of Oklahoma shall designate.

"Sec. 4. That all records, minutes and files of any of the courts and officers mentioned in section 2 of this act shall be preserved and kept by the proper courts and officers of Ok

And all

lahoma, and they, or certified copies thereof, shall be competent evidence. All written contracts, conveyances, mortgages, liens, or other instruments which have been heretofore filed or recorded in said Greer county in conformity with the laws of Texas, shall be held and considered to have been legally filed or recorded, and it shall not be necessary again to file or record them. interest, right, titles, and estates, conveyed, limited, encumbered, or in any wise affected by any contract, lien, conveyance, mortgage or other instrument, or by any judgment or decree of any court of Texas of competent jurisdiction, and all judgments of said courts, civil and criminal, prior in date to March sixteenth, eighteen hundred and ninety six, shall have the same force and effect, in all respects, as if said Greer county had legally formed a part of the territory of the state of Texas up to March sixteenth, eighteen hundred and ninety six, and had upon that date been lawfully ceded by Texas to the United States with a reservation and ratification of all existing rights and liabilities according to the laws of Texas.

"Approved May 4, 1896." 29 Stat. 113. This action was brought in the district court of Greer county, Okl., on the 4th day of September, 1889, by the defendant in error, Clarke & Courts, against the board of county commissioners of Greer county, Okl., to recover upon 12 warrants issued by Greer county, Tex., during the years 1889 and 1892, inclusive, for stationery and supplies furnished by the said Clarke & Courts to Greer county, Tex., and the venue changed by agreement to Oklahoma county. It is alleged in the plaintiff's petition, and is not disputed, that the warrants sued upon in this action immediately after their issuance were registered, and have never been paid in whole or in part, and that there were no funds at any time in the treasury of Greer county to pay said warrants, and that no provision was ever made by Greer county, Tex., by virtue of the taxing power or otherwise, to provide for a fund to pay said indebtedness, or any portion thereof. And it is further alleged and undisputed in the petition that said warrants were presented to the treasurer of Greer county, Okl., for payment on the 12th day of June, 1889, and payment by said treasurer refused; that Greer county, Okl., has also failed and refused to make any provision for the payment of said indebtedness, or any part thereof. To the amended petition of the plaintiff the defendant, the board of county commissioners of Greer county, Okl., interposed a general demurrer, on the ground that said petition failed to state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. The district court overruled the demurrer, and thereupon the cause was tried on the following agreed statement of facts:

"Suit Pending in the District Court of Greer

County, in the Territory of Oklahoma. Clarke and Courts vs. Board of County Commissioners of Greer County. No. 240. It is agreed by counsel for plaintiff and defendant in the above entitled and numbered cause as follows: (1) That defendant waives attaching and filing the warrants sued on with plaintiff's petition, or copy of one only, with recitation in petition as to character of the others, covering in general terms descriptions of the several warrants respectively. (2) That plaintiff is the owner and holder of the warrants sued upon. (3) That Greer county was created by the act of the legislature of the state of Texas, comprising the now territory of defendant county, and thereafter, to wit, on the 10th day of July, 1886, was duly organized as a Texas county, and maintained its organization as such until the Greer County Case was decided by the su preme court of the United States, March 16, 1896. (4) That during its existence as an organized county in Texas the warrants sued on were regularly and legally issued by order of the legally constituted authority of said county, acting under the laws of the state of Texas, and registered, and were val id legal obligations of said Greer county, Texas, at the date of their issuance, except that defendant does not agree that interest provided for is legal, and no provision was ever made by Greer county, Texas, for the payment of same by tax levy or otherwise, and payment of same was never refused, and no provision has been made by Greer county, Oklahoma, through its board of county commissioners or otherwise, for payment of same or any part thereof. (5) This agreement, except the first paragraph thereof, which relates to the matter of pleading, is not to be considered by the court in passing upon the demurrers interposed by the defendant, questions of law to be first disposed of. Browning and Madden, and Duncan G. Smith, Attorneys for Plaintiff. J. F. Matthews, County Attorney, and J. A. Powers, Attorneys for Defendant."

The following stipulation was also entered. into between the parties, and submitted to the court at the trial of said cause: "Territory of Oklahoma, County of Oklahoma-ss.: In the District Court of Oklahoma County. March 14th, 1901. Clarke and Courts, Plaintiff, vs. Greer County, Defendant. In this cause pleading the statutes of the state of Texas by both plaintiff and defendant or either of them is hereby expressly waived, and it is agreed that the court take judicial knowledge of the laws of the state of Texas in the trial and disposition of this cause upon demurrer and upon the merits. Duncan G. Smith, Attorney for Plaintiff. Chas. M. Thacker, Co. Atty., and J. A. Powers, Attorneys for Defendant."

It was also stipulated and agreed between the parties in open court that Greer county in the state of Texas was organized under the authority of said state on or about the

10th day of July, 1886, while the state of Texas was exercising sovereignty over that territory known as "Greer County," and continued an organized county under the sov ereignty of the state of Texas until the passage of the act of congress approved May 4, 1896, entitled "An act to establish and provide for the government of Greer county, Oklahoma, and for other purposes," since which time the territory embraced in said Greer county in the state of Texas has been embraced within Greer county in the territory of Oklahoma, which is and has been an organized county government under the authority of the laws of said territory since the said date. And the said cause was heard and determined upon the said agreement. The plaintiff thereupon introduced the warrants sued upon in this action. And the following are copies of two of said warrants, which show the form of the warrant in each case:

"No. 170. Clerk's Office, Greer County, Texas. To Treasurer of Greer County: Pay to Clarke and Courts, or bearer, the sum of one hundred one & .35 dollars, with 8% interest from date, out of the third-class fund, for stationery, as allowed by the county commissioners at the March 11th term, 1889. Henry Watkins, County Clerk, Greer County, Texas, by J. W. Logan, Deputy. Min. Book 1. Page 150. $101.35." Indorsed: "Clarke and Courts, per R. W. Shaw, Sec'y. No. 322. Third Class. Registered this 20 day of Mar., 1889. M. L. Vanleer, County Treasurer. [Seal.] Commissioners' Court, Greer County, Texas."

"No. 464. The State of Texas. The treasurer of Greer county will pay to Clarke and Courts, or bearer, the sum of one hundred and thirty-nine dollars out of the 3rd class fund, being the amount allowed by the county commissioners' court of said county at their April term, 1891, for stationery. Witness my hand and seal of said court at office this 30 day of April, 1891. J. W. Logan, Clerk.

"$139.00. This warrant bears 10% interest from date." Indorsed: "Clarke & Courts, per R. W. Shaw, Secy. No. 789. 3rd Class. Registered the 30 day of April, 1891. S. C. Vanleer, County Treasurer. [Seal.] Commissioners' Court, Greer County, Texas."

The court found the issues in favor of the plaintiff, and against the defendant, Greer county, Okl., and rendered judgment in the sum of $2,357.20, together with interest from the date of the rendition of the judgment until paid, and costs of the action. The defendant thereupon filed a motion for a new trial, alleging the following grounds: First, that the judgment is unwarranted, and is not sustained by the agreed statement of facts as filed in this case; and, second, that the judgment is contrary to law. Upon consideration by the court the motion for a new trial was overruled, to which ruling an exception was reserved by the defendant. 70 P.-14

From the refusal to grant a new trial and the judgment of the court the defendant in the court below, plaintiff in error, brings the cause here for review.

J. A. Powers, C. M. Thacker, John W. Shartel, Frank Wells, M. C. Spitler, and J. R. Keaton, for plaintiff in error. Duncan G. Smith, for defendant in error.

HAINER, J. (after stating the facts). Two questions are involved in the determination of this case, namely: (1) Is Greer county, Okl., liable for the valid obligations of Greer county, Tex.? And (2) are the warrants sued upon in this action barred by the statute of limitations? We are of the opinion that the first question must be answered in the affirmative, and the second in the negative. In Cullins v. Overton, 7 Okl. 470, 54 Pac. 702, this court held that Greer county, Tex., was a de facto municipal government. Mr. Chief Justice Burford, speaking for the court in this case, discussing the history of the organization of Greer county, Tex., and reviewing the authorities as to its legal status, said: "Upon the principles enunciated in the foregoing authorities, we have no hesitancy in holding that from the time Greer county was organized as a county by the state of Texas up to the 16th day of March, 1896, there was a de facto government in Greer county, and that the county court of Greer county was a de facto court, and that all its judgments and proceedings which were had and done according to the laws of the state of Texas are valid and binding, and should be recognized, and given full faith and credit. During that period the state of Texas, a de jure government, exercised undisturbed sovereignty and jurisdiction over said territory, and it is not shown or claimed that the inhabitants made any objection thereto. And while this power was exercised without right, it constituted a de facto government, executive, legislative, and judicial, and all the acts of its officers and courts not in contravention of any rights under the laws and constitution of the United States are valid and binding." In Cameron's Ex'rs v. State, 67 S. W. 348, the Texas court of civil appeals held that the act creating Greer county, Tex., was unconstitutional and void, and further held that it was not a de facto or de jure government, and that its officers, in presuming to act for said county, were not de facto officers. From this decision an appeal was taken to the supreme court of Texas, and since the filing of briefs by counsel for plaintiff in error the supreme court of Texas reversed the decision of the court of appeals, and held that Greer county, Tex., was a de facto municipal corporation, and its officers were de facto officers. Cameron's Ex'rs v. State, 68 S. W. 508. Congress, by the act of May 4, 1896, recognized Greer county, Tex., as a de facto government, and that its officers were de facto offi

cers; and it expressly provided in said act that all public buildings and property of every description heretofore belonging to Greer county, Tex., or used in the administration of public business, were declared to be the property of Greer county, Okl., and that all county officers shall be continued in office until the first Tuesday in November, 1896, or until their successors are elected and qualified at an election to be held on the first Tuesday in November, 1896, as provided by the laws of the territory of Oklahoma; and that all provisions of law applicable to the organization and government of counties in Oklahoma shall forthwith be applied by the proper officers thereof to said Greer county, the intention being to provide without delay the same organized government for said Greer county as for other counties of Oklahoma. Said act further provided that all written contracts, conveyances, mortgages, liens, or other instruments which have been heretofore filed or recorded in said Greer county in conformity with the laws of the state of Texas shall be held and considered to have been legally filed or recorded, and it shall not be necessary again to file or record them. And said act further provided that all interest, right, titles, and estates conveyed, limited, incumbered, or in any wise affected by any contract, lien, conveyance, mortgage, or other instrument, or by any judgment or decree of any court of Texas of competent jurisdiction, and all judgments of said courts, civil and criminal, prior in date to March 16, 1896, shall have the same force and effect in all respects as if said Greer county had legally formed a part of the territory of the state of Texas up to March 16, 1896, and had upon that date been lawfully ceded by Texas to the United States, with a reservation and ratification of all existing rights and liabilities according to the laws of Texas. It will thus be seen that said act transfers the entire government of Greer county, Tex., executive, legislative, and judicial, from the state of Texas to Greer county, Okl.; and it expressly provides that all existing rights and liabilities shall be transmitted to Greer county, Okl., and remain in full force and effect.

In Comanche Co. v. Lewis, 133 U. S. 198, 10 Sup. Ct. 286, 33 L. Ed. 604, the supreme court of the United States has held that when a legislature has full power to create corporations, its act recognizing as valid a de facto corporation, whether private or municipal, operates to cure all defects in steps leading up to the organization, and making a de jure out of what before was only a de facto corporation. It follows, therefore, that Greer county, Tex., at the time the obligations sued on in this action were issued, was a de facto municipal corporation, and that its officers were de facto officers, invested with full power and authority to create said indebtedness. Being a de facto municipal corporation, its officers had the power to create indebtedness

for lawful corporate purposes, and it had the power and authority to levy and collect taxes to pay such indebtedness. The power to levy and collect taxes to pay such indebtedness is not a grant of power to the municipality as a corporate body, but it is a necessary and indispensable power that is vested in the inhabitants of the incorporated territory. Hence the valid obligations created by the municipality must survive the dissolution of the corporation, and must pass, with whatever public property it may possess, to the inhabitants who continue to reside under the new corporation within the boundaries of the municipal area, and in behalf of the inhabitants of which the debt was originally created. The decisions of the supreme court of the United States sustain this general doctrine. In Broughton v. City of Pensacola, 93 U. S. 266, 23 L. Ed. 896, it was held that a change in the charter of a municipal corporation, in whole or part, by an amendment of its provisions, or the substitution of a new charter in place of the old one, embracing substantially the same corporators and the same territory, will not be deemed, in the absence of express legislative declaration otherwise, to affect the identity of the corporation, or to relieve it from its previous liabilities, although different powers are possessed under the amended or new charter, and different officers administer its affairs. The opinion of the supreme court of the United States in this case was delivered by Mr. Justice Field, who, in the course of the opinion, said: "The ancient doctrine that upon the repeal of a private corporation its debts were extinguished, and its real property reverted to its grantors, and its personal property vested in the state, has been so far modified by modern adjudications that a court of equity will now lay hold of the property of a dissolved corporation, and administer it for the benefit of its creditors and stockholders. The obligation of contracts made whilst the corporation was in existence survives its dissolution, and the contracts may be enforced by a court of equity, so far as to subject, for their satisfaction, any property possessed by the corporation at the time. In the view of equity its property constitutes a trust fund, pledged to the payment of debts of creditors and stockholders; and if a municipal corporation, upon the surrender or extinction in other ways, of its charter, is possessed of any property, a court of equity will equally take possession of it for the benefit of the creditors of the corporation." And in conclusion the learned justice said: "When, therefore, a new form is given to an old municipal corporation, or such a corporation is reorganized under a new charter, taking in its new organization the place of the old one, embracing substantially the same corporators and the same territory, it will be presumed that the legislature intended a continued existence of the same corporation, although different powers are possessed under the new charter, and different officers admin