The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1908-04-14

the bank and after suit had been in
stituted thereon. as to how the bank
held the note, are not admissible as
part Of the res jestae when it Is not
shown that the cashier acted for the
bank In the transaction by which the
note was assigned to it. and when
there was no transaction pending al
the time of the conversations.
] 3. When, I'm an action upon a Joint
and several promissory note against
the makers thereof. IL is developed by
the evidence, during the trial, that
one of the defendants has died since
the action was filed and service had.
the action abatcs only as to the de-
ceased defendant and upon verdict re-
turned against all the defendants, the
court may render Judgment against
the surviving defendants.
Appeal is Dismissed.
In an opinion rendered by Chief
Justice Williams. the case OF the
Muskogee Land Co. VS.. Priscilla
Blackburn. ct al an appeal from the
federal court fthe Western district
OF Indian Territory was dismissed
In March. 1906, the plaintiff made a
motion ordering the mandate of the
United States court of appeals be
spread. A few days later the plain
tin moved that judgment be given for
amount of the original judgment
The jury In the lower court render
ed Judgment in favor OF the plaintiff
alleging that he had been kept out of
the rental value Of his lands for two
years by the case being appealed.
Later the court sustained the defen-
dant's motion for new trial and set
aside the verdict of the court The
supreme court holds that Il Is with
ont jurisdiction to assess the dam
ages because the defendants have
not had their day in court by the ex-
parte proceedings. but hat the set
tlng aside of the verdict OF the Jury
IN assessing the damages incurred by
the plaintiff by the appeal should not
effect the Judgment rendered in pur-
suance to the court Of appeals of the
original Judgment. The syllabus of
the opinion follows:
A writ of error would not lie to the
United States court OF appeals in the
indian Territory to revise and cor
rect an order of the district court
setting aside a Judgment of said court
and granting a new trial. although
the cour Incorporated therein as rea-
son therefor that Il considered it to
be without jurisdiction to assess dam
ages in said mater, the sureties not
having their day in court in such ex
parte proceedings, and that the plain
tiff, further, had its remedy by suit on
the bond
Reversed on Writ Of Error.
The case of 0. M. Clevenger vs..
Warren II. Lewis was reversed on a
writ OF error, in an opinion by Chief
Justice Williams Lewis, who was
plaintiff in the cause below, brought /
an action in the probate court against |
o. H. Cleyenger on a promissory note, /
which was made payable to c. w. |
Lewis and was afterwards transfer |
red TO W. II. Lewis The court holds /
that the lower court erred in not sus-
tanning the motion to render judg- |
ment on pleadings.
In the lower court Judgment was
rendered in favor of the defendant |
which was reversed
The syllabus of the opinion follows: I
!. sale OF personally in the ven
ders possession implies a warranty |
as to the entire title. protecting
against partial defects, liens charges,
and encumbrances 5y which the title
is rendered anything less
than full, perfect aud unencumbered.
2 When there is an outstanding
and the mortgagor obtains
possession of the property by writ of
replevin the vendee is not required to
await the final adjudication OF the
claim. before beginning
action upon the implied warranty:
but In such event the burden would |
be upon the vendee to prove a valid
pre- existing mortgage in such mort.
sagor before he ould recover ON such
Sustained.
The case OF Robinson & Company, a
vs.. c. F. Roberts, from
he district court Of Garfield county /,
Is affirmed In an opinion by Justice
Turner The case involves a replevin
action for property traded in on the /
purchase price Of a threshing machine
The syllabus of the opinion follows:
l. In an action of replevin for
property traded in on the purchase
price OF threshing outfit consoB-
lated and tried with a suit for the
balance due upon notes given for the
'emainder OF said purchase price
which had been foreclosed leaving
'aid balance due plaintiff; where the
evidence showed a verbal agreement
plaintiffs agent and defend
int that the notes and mortgage so
given by him In p payment therefor
we're 20 be held by tho agent and not
urned ia TO plaintiff until defendant
'ould take the outfit and try II for
he first ten days of the threshing
season, and II Il did not suit him could
'eturn II and get back his notes and
mortgage so given, and in order to n
induce defendant to sign a contract
therefor, said agent represented to A
lim that the contract contained said
verbal agreement and so read the
same 70 defendant who could not read
.he same because he did not have his
ipectacles and who relied upon the !,
statement Of the agent that said or
Ter did contain said verbal agreement
when In fact Il did not. but the same
was a contract for an absolute sale OF
Hll .rstsA