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EDITED AND PUBLISHED MONTHLY BY
D. H. FERNANDES, GUTHRIE, OKLAHOMA.
SYLLABI OF LATEST OPINIONS
OF THE SUPREME COURT.
JAMES DOUGHTY, Plaintiff in Error.
JACOB P. FUNK, Defendant in Error.
1. In an action on a promissory note by one as receiver of the endorsee thereof where nothing appears by way of endorsement or otherwise to indicate the ownership of plaintiff therein or that said note had passed under his receivership, but there is an allegation in the petition that "he is the owner and holder of said promissory note as receiver;" Held that such allegation may be put in issue by an answer not verified by affidavit.
2. In an action on a promissory note by one as re. ceiver of the endorsee thereof advantage cannot be taken of a failure to verify an answer putting in issue the ownership of plaintiff to the note sued on by objecting to the introduction of any evidences under it; an objection to said answer for that reason should be taken by motion to strike or the same will be considered waived.
3. An action on a promissory note by one as receiver of the endorsee thereof cannot be maintained unless the original be introduced in evidence where the same is in the custody or control of plaintiff. This rule of evidence is not dispensed with by Wilson's Rev. & Ann Stat. of
Oklahoma (1903) sec., 4312, which provides that "In all actions, allegations of the execution of written instruments and endorsements thereon, shall be taken as true unless the denial of the same be verified by the affidavit of the party." Said statute does not dispense with proof of the existence of the instrument or the right of the party to hold it by assignment. (Syllabus by the Court.)
PEOPLES NAT'L BANK, et al., Plaintiff in Error.
VS. THE BOARD OF COUNTY COMMISSIONERS OF KINGFISHER COUNTY, et al., Defendants in Error.
1. The title to corporate assets is in the corporation and not in the stockholders owning stock therein, and upon a transfer of stock the title to such assets remain unaffected.
2. A stockholder and director in a banking corporation organized and existing under the laws of the Territory of Oklahoma, having certain property consisting of lost warrants inadvertantly intermingled with the assets of said bank at the time of the sale of his stock therein is not, as against said bank suing thereon as owner, estopped to set up title thereto either before or after the completion of its conversion into a National Bank.
(Syllabus by the Court)
Opinion of the Court, by Turner, J.
W. T. HALES, Plaintiff in Error.
A. Zander, et al, Defendants in Error.
Under Wilsons Rev. & Ann Stat. of Oklahoma, sec., 3578, providing for the filing of mortgages in the county where the property "is at such time situated" a mortgage of mules which were taken by the mortgagor by consent of the mortgagee into Indian Territory is properly recordable in the county in which the mules were.
at the time the mortgage was executed and not in Indian Territory where they were subsequently taken and such mortgage not being there recorded is void as to subsequent attaching creditors of the mortgagor. (Syllabus by the Court.)
R. L. BOWLS, Plaintiff in Error.
THE CITY OF OKLAHOMA, et al., Defendant in Error.
A vendee of realty, in possession under an executory contract of sale at the date of the assessment, is the real owner for the purpose of taxation, and that too whether prior said sale the same was subject to taxation in the hands of his vendor or not.
(Syllabus by the Court)
ATCHISON TOPEKA & SANTA FE RY CO., Plaintiff in Error.
CLELL SCHULTZ, Defendant in Error.
1. An application to vacate a judgment under Wilsons Rev. & Ann. Stat of Okla. sections 4760 to 4763 inclusive is addressed to the sound legal discretion of the court and will not be disturded on appeal unless it clearly appears that the court has abused its discretion.
2. In an application to vacate a judgment under Wilsons Rev. & Ann. Stat of Okla. sections 4760 to 4763 inclusive, where the petition fails to set forth a defense to the action resulting in the judgment sought to be vacated, petitioner being defendant in said section, Held that the court did not err in refusing to vacate said judgment.
WILLIAM N. MABEN, Plaintiff.
No. 308. MALCOLN E. ROSSER, CHARLES WEST and FRED S. CALDWELL, Defendants.
1. Judges of the district courts are not subject to impeachment under section 1 of article 8 (section 199, Bunn,s Ed.) of the Constitution.
2. All state officers elected by the people or appointed by the Governor, whose removal has not otherwise been provided for by the Constitution, or exclusive provision been made therefor by statute enacted since the admission of the state, may be removed under the provisions of article 4, of Chapter 68 of Wilson's Revised and Annotated Statutes,
E. C. BALLEW, Plaintiff in Error.
P. K. YOUNG and FLORA YOUNG,
Defendants In Error. Error from the District Court of Custer County. James R. Tolbert, Trial Judge,
1. Where it is stated in an affidavit to obtain service by publication that a defendant is a non-resident of the State and service cannot be had upon him within the State and such affidavit is otherwise sufficient, it is not void or voidable because facts are not stated therein showing that plaintiff, by the use of due diligence, was unable to make service of summons upon the defendant.
2. Where the affidavit for publication does not state directly, inferentially, or in any other way, that the action brought is one of those mentioned in section 4276 of Wilson's Revised and Annotated Statutes providing in what cases service by publication may be had, the affidavit is fatally defective and service by publication cannot be obtained thereon.
3. In an action for attachment against a non-resident, defendant whose land has been levied upon, a publication notice which fails to describe the land attached and fails to state inferentially or in any other manner the nature of the judgment which will be taken, is fatally defective.
Any party who, under section 4244 of Wilson's Revised and Annotated Statutes, intervenes in an attachment proceeding and claims the property attached or levied upon, can make only such objections to the irregularity of the proceedings as he could make in attacking them in an independant collateral action.