affidavit for service by publication, and hav- | motion, presenting the identical questions ing obtained an order for such service, and presented by the first motion herein, was consuch service having been made by due and sidered by this court, and after citing a numproper publication, proof of which having ber of cases from the Supreme Court of been properly made, the court had jurisdic- Kansas, and from other jurisdictions wheretion in the premises. in the same question had been decided, held Section 5587, Comp. Laws 1909, reads as that the movants, although they had called follows: "In addition to the other counties their appearance a special appearance, yet in which an action may be brought against by invoking the judgment of the court to a nonresident of this state, or a foreign cor- pass upon the sufficiency of the petition they poration, such action may be brought in any had made a general appearance, and were county in which there may be property of, or bound by the judgment. Among the numerdebts owing to such defendant, or where such ous authorities cited in the opinion in Ziska defendant may be found; if such defendant v. Avey, supra, the court quotes from Kaw be a foreign insurance company the action Valley Life Association v. Lemke, 40 Kan. may be brought in any county where such 142, 19 Pac. 337, as follows: "But as the cause of action, or any part thereof, arose, question of service is not an important one or where the plaintiff resides or where such as we view it, we will not decide this quescompany has an agent." L. 1907--8, p. 592. tion; for, whatever the service was, it was Section 5612, Comp. Laws 1909, provides: cured by the appearance of the defendants "Service may be made by publication in after the judgment was rendered in the either of the following cases: In cause. By their motion to set aside the judgment, said motion being upon jurisdictional as well as nonjurisdictional grounds, they waived the question of jurisdiction, and made the defendants parties to the action; and this waiver binds them to that judgment as though they had originally appeared at the trial." There the motion to vacate and set aside the judgment was predicated upon three grounds: First, that defendant had not been served with a summons as provided by law; second, that the plaintiffs' pe

actions brought against a nonresident of the state, or a foreign corporation, having in this state property or debts owing them, sought to be taken by any of the provisional remedies, or by appropriation in any way. "" S. 1893, 3950.

Thus it clearly appears from the foregoing statutes that the court had jurisdiction, and that the action was one in which service by publication could be properly made. We have examined the affidavit for service by publication, the notice, and proof of pub-tition did not state facts sufficient to constilication, and find that they were in substantial compliance with sections 5613, 5614, and 5615, Comp. Laws 1909. We have also examined the plaintiffs' petition in this action, and find that it states a cause of action. At least the allegations therein are sufficient to render the petition good against a general demurrer. Hence there was no error in overruling the first motion to vacate and set aside the judgment.

[3,4] The second and third propositions will be considered together. Plaintiffs in error have cited a number of authorities in support of the contention that, service having been made by publication, and the motion having been filed within the statutory period, the judgment should have been reopened and the plaintiffs let in to defend. But in none of the authorities cited had there been any previous motion made which amounted to a general appearance. The statute itself would constitute sufficient authority to support their contention but for the fact that plaintiffs in error had previously made a general appearance by their first motion, and by such appearance had bound themselves by the judgment. This question was decided in the case of Ziską. v. Avey, 122 Pac. 722, wherein a

tute a cause of action against defendants; and, third, that the judgment was rendered against them not as sureties but as principals. In passing upon the sufficiency of the petition the court held it to be good, and said: "This we think was a good petition, even if it had been challenged by demurrer, and it will not now be scrutinized with the same care that it would have been had it been attacked before judgment."

In the former motion plaintiffs in error raised the question of the sufficiency of the petition, thereby invoking the jurisdiction of the court on the merits. This was a general appearance, and bound them to the judgment. The doctrine that an appearance upon jurisdictional as well as nonjurisdictional grounds constitutes a general appearance, and binds the party to the judgment, is well settled in this state, and in the state of Kansas, from which we take our Code of Civil Procedure. See Ziska v. Avey, supra, and authorities therein cited. Hence there was no error in overruling the second motion to reopen the judgment.

The judgment of the trial court is affirmed.

PER CURIAM. Adopted in whole.

(Supreme Court of Oklahoma. Sept. 2, 1913.) ther; that their services would be worth

Under sections 5625 and 5626, Comp: Laws 1909, the only pleadings allowed are: The plaintiff's petition, the defendant's answer or demurrer thereto, plaintiff's reply or demurrer to the answer, and defendant's demurrer to plaintiff's reply; and, where a defendant atacks the plaintiff's petition by a pleading in-nated a plea in the nature of a plea in abatedorsed, "Defendant's plea in the nature of a ment, alleging that plaintiff was without leplea in abatement," such pleading, if sustained at all, must be treated either as a demurrer or as an answer.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 219-227; Dec. Dig. § 106.*] 2. PLEADING (§ 193*)-DEMurrer-ProprIE

treat it as a demurrer to the petition or as | pay for their services; and that payment of an answer. Our statutes authorize no such same had been refused. pleading as the common-law plea in abate- Section 4899, Comp. Laws 1909, provides: ment. "The father of a legitimate unmarried minor Section 5625, Comp. Laws 1909. provides: child is entitled to its custody, services and "The rules of pleading heretofore existing | earnings. in civil actions are abolished; and hereafter, the forms of pleadings in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this Code."

This being true, he was a proper party with capacity to sue, and having stated a cause of action, his petition was not subject to demurrer. Therefore, if the defendant's plea was treated as a demurrer, and being so

Section 5626 provides: "The only plead-treated was sustained, the court erred. ings allowed are: First, the petition by the plaintiff. Second, the answer or demurrer by the defendant. Third, the demurrer or reply by the plaintiff. Fourth, the demurrer by the defendant to the reply of the plaintiff."

The former section plainly and specifically provides that the forms of pleading and the rules by which their sufficiency may be determined are those prescribed by this Code. The latter section plainly provides that the only pleadings allowed are those mentioned. The problem, therefore, is whether defendant's plea should be treated as a demurrer or as an answer. The plea seems to partake partly of the nature of a demurrer and partly of the nature of an answer, but not sufficiently of the nature of either to be classed either as a demurrer or answer.

[2] Section 5629, Comp. Laws 1909, reads: "The defendant may demur to the petition only when it appears on its face, either: 1st. That the court has no jurisdiction of the person of the defendant, or the subject of the action. 2nd. That the plaintiff has no legal capacity to sue. 3rd. That there is another action pending between the same parties for the same cause. 4th. That there is a defect of parties, plaintiff or defendant. 5th. That several causes of action are improperly joined. 6th. That the petition does not state facts sufficient to constitute a cause of action."

On the other hand, if such plea was treated as an answer, it was error to render judgment on the pleadings in favor of defendants unless such answer constituted a complete defense to plaintiff's cause of action. And the plea does not constitute a complete defense to plaintiff's petition. It does show that one M. M. Watson had been appointed guardian of the persons and estates of said minors, and the record also shows that the plaintiff replied to defendant's plea, denying the validity of the guardianship proceedings, and alleging that the whole proceedings were void for failure to give notice as required by law, and for want of jurisdiction over the subject-matter. But it is immaterial, so far as plaintiff's right of recovery is concerned, whether the guardianship proceedings were valid or void, or whether they could be attacked in this manner or not. The plaintiff did not in his petition seek to interfere with the minors, nor with their estate. merely for their earnings, which he had previously demanded and to which he had a right under the plain provisions of the statutes, section 4899, supra, written notice of which demand had been served on defendants some time before the guardianship proceedings were started. These earnings belonged to the father; they constituted no part of the children's estate, nor were the minors entitled to such earnings unless same had been relinquished to them by their father.

He sued

Section 4911 reads: "The parent, whether solvent or insolvent, may relinquish to the child the right of controlling him and receiving his earnings.

* *

Section 4912 reads: "The wages of a minor employed in service may be paid to him or her until the parent or guardian entitled thereto gives the employer notice that he claims such wages."

[3, 4] Now, the defendant's plea partakes of the nature of a demurrer, in that it questions plaintiff's legal capacity to sue, and raises the question of defect of parties plaintiff. But if it was treated as a demurrer by the trial court, then the court erred in sustaining it, for the reason that the questions sought to be raised thereby, namely, the want of legal capacity to sue and defect of parties plaintiff, can be raised by demurrer only when they appear on the face of the petition, for the statutes specifically provide that defendant may demur upon the grounds mentioned in the above section only when they appear on the face of the petition. None of these defects appear on the face of plaintiff's petition. The plaintiff's petition not only stated a cause of action, but plainly construction-their language speaks for itshows on its face his legal capacity to sue, and that he was a proper party plaintiff. It shows that the children were minors; that

These statutes make it very plain that the parent is entitled to the earnings of his minor children until they reach majority, unless he relinquishes to them the right to their earnings, or allows them to obtain employment and fails to demand payment for their services. They are susceptible of but one

self. However, we are not to be understood as denying that in a proper case, the proper court may make such provisions for the care

of minors as the circumstances of the case |ings between the date of notice of demand may equitably justify.

and date of letters of guardianship, was not answered by defendant's plea, and, regard less of the validity of the guardianship proceedings, it was error to render judgment on the pleadings in favor of defendant for that portion of the earnings. His right to recover for the remainder of the services is to be determined from the facts and circumstances, with due regard to the best inter

Section 4903, Comp. Laws 1909, reads: "The abuse of parental authority is the subject of judicial cognizance in a civil action in the district court brought by the child, or by its relatives within the third degree, or by the officers of the poor where the child resides; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and educa-ests of the minors. tion enforced."

From this statute the following is plainly apparent: First, that it recognizes the primary authority of the parent over the minor; second, that to remove such authority it must be by a civil action in the district court; third, that the action must be brought by the child or its relatives within the third degree, or by the officers of the poor where the child resides; fourth, there must be an abuse of parental authority which must be established. In the case at bar no such matters were considered; no such action was taken. It was not an action to remove parental authority on the grounds of abuse of same, but a case which the county court evidently treated as an ordinary petition for guardianship of minors who had neither parent nor guardian, and doubtlessly acted upon the assumption, possibly upon the advice, that such was the case. The petition for guardianship alleges: "That the only relatives of said minors residing in the county of Lincoln, Ralph Sweet, a brother." But whether such be true or not, whether the fact that the father of the minors was living was kept concealed from the court does not affect the question, as it is evident from the record that the court did not take away, nor attempt to take away, the father's statutory right to the minors' earnings. The letters of guardianship are as follows: "State of Oklahoma, County of Lincoln-ss.: In the County Court of said County. The State of Oklahoma to all to whom these presents shall come-Greeting: Know ye, that M. M. Watson of said county of is hereby appointed by the county court of Lincoln county, as the guardian of the person and estate of Joe Elmer Sweet and Flora E. Sweet, minor children of Lulu Sweet deceased. Witness, Fred A. Wagoner, judge of the county court of the county of Lincoln with the seal thereof affix the 8th day of June 1909. [Seal.] Fred A. Wagoner, Judge of the County Court." Exhibit C.

The judgment is reversed, and the cause remanded.

PER CURIAM. Adopted in whole.

(39 Okl. 234)

JACKSON et al. v. MOORE.
(Supreme Court of Oklahoma. Sept. 2, 1913.)
(Syllabus by the Court.)

1. EVIDENCE (§ 376*)
PREDICATE.

ACCOUNT BOOKS

In order to render books of account admissible in evidence under section 5907, Comp. Laws 1909, it must be made to appear by the oath of the person who made the entries that such entries are correct, and were made at or near the time of the transaction to which they relate, or by proof of the handwriting of the person who made the entries, in case of his death or absence from the county.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1628-1646; Dec. Dig. 376.*] 2. PAYMENT (§ 39*)-APPLICATION.

The rule of law is that, if a debtor, owing two or more separate debts, fails to direct in what manner a payment may be applied, the right then passes to the creditor to make whatever application he pleases. And an instruction that "the creditor must apply a payment made by debtor upon the debt most burdensome to the debtor in the absence of an agree ment to the contrary" is erroneous.

[Ed. Note. For other cases, see Payment, Cent. Dig. §§ 104-114; Dec. Dig. § 39.*]

Commissioners' Opinion, Division No. 2. Error from the County Court of Coal County; R. H. Wells, Judge.

Action by J. A. Jackson and another against W. N. Moore. Judgment for defendant, and plaintiffs bring error. Reversed.

C. M. Threadgill, of Coalgate, for plaintiffs in error.

HARRISON, C. This action was begun in the justice court by plaintiffs in error, J. A. Jackson and Fred Warner, against W. N Moore, defendant in error, for the sum of $129.45, balance due on two promissory notes. This appointment goes only to the person Defendants pleaded certain payments which and estate of the minors. Their earnings he alleged had not been credited on said are not a part of their estate within contem- note, and which payments were sufficient to plation of statute, but are the property of satisfy said notes in full. Plaintiffs admitthe father until relinquished by him, or un- ted that the alleged payments had been til his parental authority is removed by a made, but alleged that part of same had been court of competent jurisdiction, and, having credited on an open account against defend sued for his legal rights, his cause of action, ant, after the notes had been given, and the particularly as to that portion of their earn-balance had been applied on said notes. The

cause was tried, and judgment rendered injected the account, inasmuch as it shows on favor of plaintiffs. Defendants appealed to its face that the identification was not such the county court, wherein a verdict and judg- as the statute required, we cannot say the ment was rendered in favor of defendants, court erred in rejecting same. and plaintiffs appealed from said judgment to this court.

[2] The second contention, however, that the court erred in giving the instruction There are two propositions involved: above mentioned, must be sustained. It is First. The refusal of the court to allow plain- true that the said instruction substantially tiffs to introduce in evidence a leaf taken states the rule of the civil law: "But in this from a "loose-leaf ledger" and offered as country, in so far as the common law prethe original entries of plaintiffs' account vails, the rules of the civil law have been against defendant. Second. The giving of greatly modified and in many respects enthe following instructions: "Gentlemen of tirely repudiated." 30 Cyc. 1228. "The genthe jury, at the request of the defendant Ieral rule is that a creditor may apply a paycharge you that the creditor must apply a ment, voluntarily made by the debtor withpayment made by a debtor upon the debt most burdensome to the debtor, in the absence of an agreement to the contrary."

The record does not show such identification as the statutes require. It does not show who made the entries, nor whether they were correct, nor whether they were made Therefore the judgment is reversed, and at or near the time of the transaction to the cause remanded.