(c) If the time fixed has expired, within which a casemade may be prepared and served, no judge has power to extend such time.

(d) If it appears in the record that a judge pro tempore has fixed the time within which a case-made may be prepared and served, and that subsequently, the judge pro tempore granted a further extention of time, nothing contained in the case-made, filed after the expiration of the time first fixed, will be considered on appeal. (e) Our statute provides two methods of prosecuting an appeal: upon transcript of the record accompanied by a case-made, or upon transcript of the record alone; if the first method is pursued and for any reason the case-made is fatally defective the appeal will not be dismissed, but will be considered upon the transcript of the record alone. Second. (a) Every felonious act is necessarily a wrongful act. Therefore in an information or indictment for robbery, when it is alleged that the act was feloniously done, this in substance and effect charges that it was wrongfully done, and it is not necessary to go further and allege that such act was wrongful.

(b) It is not necessary to allege in an information or indictment conclusions of law or any fact, the existence of which the courts take judicial notice.

(c) In an indictment for robbery, when it is alleged that the property was taken from the person robbed, it is not necessary to allege that such property was in the possession of such person.

(d) Repetitions of substantially the same allegation in an indictment or information is bad practice and is condemned by our statute, but it does not necessarily follow that such repetition will constitute reversible error.

(e) For an indictment for conjoint robbery, which is held to be sufficient, see opinion.

Third. It is not necessary for a verdict of guilty of conjoint robbery to state the degree of which the defendant is convicted, for there are no degrees in this offense; and but one punishment is prescribed therefore by the statute. Fourth. If an instruction given is inaccurate and the evidence in the case is not before the court, such inaccuracy in the instruction unless fundamental will not constitute reversible error, if from any testimony which could have been introduced such error could not deprive the defendant of some substantial right.

Opinion by Furman, Presiding Judge.

CURRENT DECISIONS OF THE SUPREME

COURT OF THE STATE OF OKLAHOMA.

E. C. BALLEW, Plaintiff in Error.

vs.

No. 159.

Defendants In Error.

P. K. YOUNG and FLORA YOUNG,

Error from the District Court of Custer County. James R. Tolbert, Trial Judge.

Affirmed.

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.

4 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 independent collateral action.

5. A judgment rendered in an attachment proceeding wherein the service was by publication which was so defective as to be not merely voidable but void is void upon collateral attack, and one who intervenes in an attachment proceeding and claims the real estate attached may attack such service before the rendition of judgment, by motion to vacate and set aside such judgment or such service.

6. In an action against a non-resident in which an order of attachment was issued at the time of the filing of the petition and on the same date an affidavit for service by publication was filed and the first publication was made within sixty days from the date of the filing of the petition, but the affidavit for service by publication and the publication notice were so defective as to be absolutely void, HELD; That a motion to dissolve and discharge the attachment and dismiss the action made more than eight months after the filing of the petition, levy and return of the ord of attachment was properly sustained for the reason that the action has not been commenced. (Syllabus by the Court)

M. L. HOLCOMBE, Attorney for Plaintiff in Error. GEO. T. WEBSTER, Attorney for Defendant in Error.

This is an action commenced in the district court of Custer county, Oklahoma Territory, on June 27th, 1907, by E. C. Ballew, plaintiff in error against P. K. Young and Flora Young, defendants in error, for the recovery of the sum of $200.00 alleged to be due him from the defendants as a real estate commission for the sale of certain real estate. On the same day plaintiff filed his petition, he filed an affidavit for attachment, alleging that defendants were non-residents of the Territory of Oklahoma and that they were disposing of their property with the intent to defraud their creditors. An order of attachment was issued by the clerk, which was placed in the hands of the sheriff on the 28th day of June, 1907, and by the sheriff levied on lots numbered 20, 21, 22, 23 and 24 in block 66 in the town of Clinton, and due re

turn made thereof on the date it was received. At the time the petition was filed, a summons was issued directed to the sheriff of the county, who made due return thereon on June 28th, showing that the defendants could not be found in the county. At the time of filing his petition, plaintiff also filed an affidavit to obtain service by publication, and on that date an order of pub lication was issued by the clerk which was published in the Custer County News. Defendants failed to appear and answer or otherwise plead within the time required by law, but wholly made default. After the institution of the suit, defendant in error, W. I. Brannon, hereafter referred to as intervenor, having been granted leave by the court to interplead, filed his plea of intervention, alleging that he was the owner of the real estate levied upon under the order of attachment, and that he claimed same under a deed executed by defendants to him on June 20th, 1907, and recorded by him in the office of the Register of Deeds of Custer County on July 3d, 1907, which was five days after the issuance of the attachment writ. He further alleges that plaintiff had notice of his deed and claim to the property at the time the order of attachment was sued out. To this interplea plaintiff filed his verified answer, in which he denies that intervenor has any interest or claim in the property levied upon or any valid deed thereto; and pleading in the alternative, says, that if he has any interest or claim in the property levied upon or any valid deed thereto; and pleading in the alternative, says, that if he has any claim, or interest, he acquired such with full knowledge and notice of plaintiff's right and claim in the property under the attachment with the purpose and object to defeat the rights of plaintiff. Intervenor thereupon filed a motion to dissolve the attachment for irregularites in the attachment proceedings. Upon hearing this motion the court sustained same and dismissed plaintiff's action From the judgment of the court vacating the attachment and dismissing the action this proceeding in error is brought.

Opinion of the Court by

HAYES, J.: No trial was had upon the issues of fact made by intervenor's interplea and plaintiff's answer thereto. The judgment of the court vacating the attach ment and dismissing the action was upon intervenor motion to dissolve and set aside the attachment. The grounds of this motion are stated in general and somewhat indefinate terms. The motion in substance is that, intervenor moves the court to dismiss and vacate the attachment for the reason that the court was without jurisdiction of either the person or property attached. The motion further recites that it is based upon the pleadings, records and files in the cause. The alleged Irregularities complained of, and upon which the judgment of the trial court was based, appear from the record to have occured in the affidavit filed by plaintiff for publication of notice and in the publication notice Plaintiff's original affidavit to obtain service by publication, filed on the day of the filing of his petition, states the names of the parties to the action, and that plaintiff has filed his petition in the district court of Custer county against the defendants for the recovery of the sum of $200.00 due him from the defendants as a commission for the sale of real estate described in his petition; that defendants and each of them are not residents of the Territory of Oklahoma and service cannot be had upon them or either of them within the Territory, although due diligence has been made, and that plaintiff desired to obtain service on the defendants by publication. Plaintiff, with the consent of the intervenor, after wards filed an amended affidavit to obtain service by publication, in which, in addition to the facts stated in the original affidavit, defendants were the owners of the lots attached, and describes them; that an attachment order had been issued in the action by the clerk of the court, which had been levied upon said real estate according to law on June 28th, 1907: that defendants were, at the times of the filing of the original affidavit and the amended affidavit, non-residents of Oklahoma, residing in the state of Nebraska; that he knew such