* * we must hold that the later repeals the form- | act of 1799 remained in force after the enacter, or give to the later no effect at all, and thereby convict the Legislature of doing a vain thing in passing the later act. In other words, the later act, in granting to the sheriff power to adjourn from day to day a regular term only, when the former act granted him the power to adjourn from day to day both a regular and a special term, granted to him part of a power already possessed, and thereby implied, by failing to include it, that his former power to adjourn the special term was excluded, and that to so adjourn a regular term was all the power he was intended to exercise. When this condition exists the later act repeals the former. 1 Lewis' Sutherland, Stat. Con. § 250 says: "Where a later act grants to an officer or tribunal a part of a larger power already possessed, and in terms which, interpreted by themselves, import a grant of all the power the grantee is intended to exercise, it repeals the prior act from which the larger power had been derived. By a statute of Kentucky of 1799 the county courts had power to appoint county jailers to serve during their pleasure. In 1802 a provision was inserted in an act to amend the penal laws, 'that the several county courts respectively shall have full power to remove the keepers of the county jails whenever it shall appear to them that such jailers have been guilty of neglect of duty.' This was held to repeal the prior statute." The case where this was held is Gorham v. Luckett, 6 B. Mon. (Ky.) 146. The opinion was by Marshall, J., who, after stating the inquiry to be * whether there is in the twentieth section of the act of 1802 any sufficient indication of the legislative will or intention that thenceforth the office of jailer should not be held at the mere pleasure of the county court, but should only be subject to forfeiture by neglect of duty, in a masterly discussion of the question said: "But supposing, as we must do, that the legislators of 1802 understood well the pre-existing law on the subject, to which this twentieth section relates; that they knew that the county court had already the power of removing the jailer, not only for breach of duty, but for any other cause, and without cause, and without questionthen the inquiry comes, for what purpose and with what intent do these legislators introduce into this act for amending the penal laws a section which professes to make a formal and substantial grant of power, which, construed by its own terms, would be universally understood as granting a new power, and therefore as expressing the whole power which it was intended that the grantee should have? Why make an express grant of a part of the power, if, understanding that the whole power, including this part, was already vested in the court, it was intended that the whole power, including this part, * ment of the twentieth section of the act of * * confers, or removing them whenever it shall appear to the court that such jailers have been guilty of a neglect of duty. If this twentieth section had been the first and only enactment on the subject, all must have concurred in the conclusion that it was intended to regulate the whole subject, and that it granted all the power which the court was intended to have. The difficulty, or rather the embarrassment, in the case arises from the fact that a previous law had given to the same grantee unlimited power on the same subject, and that this twentieth section makes no reference to the previous law, and contains no express words of restriction or change, but, granting an express and limited power, is framed as if it were the first and only act on the subject. But do not these circumstances indicate that it is to be construed as if it were the only act on the subject? Or shall the first act, which is inferior in authority so far as they conflict, so far affect the construction of the last as to deprive it of all effect? We say the last act must have effect according to its terms and its obvious intent. And as both cannot have full operation according to their terms and intent, the first and not the last act must yield. If it could be supposed to have been a matter of doubt whether under the act of 1799 the county court had power to remove the jailers for neglect of duty, or if any motive could be assigned for introducing a separate section, expressly granting this power, except the purpose of expressing the whole power which the courts were to have, then the basis of the construction which we have assumed would be greatly weakened, if not destroyed. But we do not perceive that any other plausible motive can be assigned. And as, notwithstanding the act of 1799, it was entirely within the legislative power to withdraw, restrict, or modify the power of removal thereby given to the county courts, and the courts had no right of resistance or refusal, we regard the subsequent grant of a more limited power, advisedly and formally made, as implying the resumption of the old grant, and a restriction of the power according to the terms of the new one, as by the acceptance of a new lease during a subsisting term, the rights of the tenant are governed by the terms of the new grant." And so we say that, as to give the former act full force and effect according to its terms would result in expunging the later act from the statute, and rendering its enactment a vain thing, and as both cannot, and the legislative intent was that both should not, stand, the former and not the later must yield. In line with this repeal by implication is Curtis v. Gill et al., 34 Conn. 49. In that case the act of 1866 provided that whenever a judgment rendered by a justice of the peace shall exceed $5, an appeal shall be allowed. The appeal was from a judgment rendered for less than that amount. Appellant contended that the statute simply allowed an appeal when the judgment exceeded $5, but did not, even by implication, repeal the old law, which allowed an appeal in all cases where judgment was for less than that amount. But the court held otherwise, and that the later statute, by implication, repealed the pre-existing statute, which allowed appeals in all cases. See, also, Parrott v. Stevens, 37 Conn. 93; Werner v. Phelps, 36 Conn. 357; Swann, Auditor, v. Buck, 40 Miss. 268; Gibbons et al. v. Brittenum et al., 56 Miss. 232. We are therefore of opinion that the former act was repealed by the later; that the sheriff was without authority to adjourn the term as he did, and that as the same had lapsed at the time the motion for a new trial was passed upon, the action of the court was coram non judice and void. Reversed. All the Justices concur, except DUNN, J., absent and not participating, and Justice KANE, who dissents. (38 Okt. 444) STATE SAVINGS BANK OF MANCHESTER, IOWA, v. BEDDEN et al. (Supreme Court of Oklahoma. July 8, 1913.) (Syllabus by the Court.) APPEAL AND ERROR (§ 356*)-PETITION IN ERROR-TIME OF FILING-JURISDICTION. ed between the rendition of the final order Where more than six months has intervensought to be reviewed and the filing of the petition in error in the Supreme Court, this court has no jurisdiction to review such final order. Error, Cent. Dig. §§ 1926, 1927; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 356.*] Error from District Court, Roger Mills County; G. A. Brown, Judge. Action between the State Savings Bank of Manchester, Iowa, and W. A. Bedden and From the judgment, the Savings Bank brings error. Dismissed. others. D. W. Tracy, of Sayre, for plaintiff in error. E. L. Mitchell, of Cheyenne, for defendants in error. TURNER, J. This case presents error from the district court of Roger Mills county. The judgment herein was rendered on the 13th day of December, 1911, and the petition in error was filed in this court December 3, 1912, almost a year after the rendition of final judgment in the trial court. An act approved February 14, 1911, Session Laws Okla. 1910-11, p. 35, provides: "All proceedings for reversing, vacating or modifying judgments, or final orders shall be commenced within six months from the rendition of the judgment or final order, complained of." This is jurisdictional; and where, as here, more than six months has elapsed, this court is without authority to review the action of the trial court. Wedd v. Gates, 15 Okl. 602, 82 Pac. 808; Tishomingo Elec., etc., Co. v. Harris, 28 Okl. 10, 113 Pac. 713; FairbanksMorse & Co. v. Thurmond et al., 31 Okl. 612, 122 Pac. 167; Healy v. Davis, 32 Okl. 296, 122 Pac. 157. The proceeding is therefore dismissed. All the Justices concur, except WILLIAMS and DUNN, JJ., absent and not participating. (38 Okl. 790) TUCKER v. HUDSON et al. (Supreme Court of Oklahoma. June 3, 1913. Rehearing Denied July 22, 1913.) (Syllabus by the Court.) 1 APPEAL AND ERROR (§§ 327, 565*)-PARTIES -SERVICE OF CASE-MADE. All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs in error or as defendants in error, before such judgment can be reviewed; and where a review of the judgment is sought by means of a petition in error and case-made, service of case-made must be had against all parties to the judgment before any question presented by the case-made can be reviewed by this court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1795, 1814-1820, 18221835, 2507-2510; Dec. Dig. §§ 327, 565.*] money and for costs. To the petition in error is attached both a case-made and a transcript of the record. The case-made was never served upon defendants in error Arkansas Valley Townsite Company and H. C. Hannah. It is therefore void, and no question which is attempted to be presented by the case-made can be considered. National Surety Co. v. Okla. Presbyterian College for Girls et al., 132 Pac. 652 (recently decided, but not yet officially reported); State ex rel. Hankins, Co. Atty., v. Holt et al., 34 Okl. 314, 125 Pac. 460. [2] The only question attempted to be presented for review upon the transcript is the overruling of the demurrer of plaintiff in error, Tucker, to the petition of defendant in error Frank Hudson in the court below. The grounds for the demurrer urged are misjoinder of parties defendant; but such objection does not constitute a ground for demurrer, and should have been presented by motion to strike out the unnecessary parties. Bourland v. Madill State Bank et al., 32 Okl. 761, 124 Pac. 314. [3] It is also urged that the petition does not state facts sufficient to constitute a cause of action, because the action is barred by the statute of limitation; but the petition does 2. PARTIES (§ 92*)-MISJOINDER-DEMURRER. not disclose upon its face that the action is Under section 5629, Comp. Laws 1909, mis-barred by the statute of limitation, and it is joinder of parties defendant is not a ground for demurrer. [Ed. Note.-For other cases, see Parties, Cent. Dig. $$ 150-152; Dec. Dig. § 92.*] 3. LIMITATION OF ACTIONS (§ 180*)-DEMUB RER. Where a petition upon its face does not show that the cause of action is barred by the statute of limitations, a demurrer thereto, urged specially upon that ground, should be overruled. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. $$ 670-675, 681; Dec. Dig. § 180.*] 4. PLEADING (8 406*)—MISJOINder of CausES -WAIVER OF OBJECTIONS. Whenever the causes of action have been improperly joined, if no objection be taken thereto by demurrer, the defendant waives same. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1355-1359, 1361-1365, 1367-1374, 1380; Dec. Dig. § 406.*] Error from County Court, Pawnee County; N. E. McNeil, Judge. Action by Frank Hudson and others against A. W. Tucker. Judgment for plaintiffs, and defendant, Tucker, brings error. Affirmed. H. A. Johnson, of Perry, for plaintiff in error. W. L. Eagleton, of Norman, for defendants in error. HAYES, C. J. [1] This proceeding in error is prosecuted from a joint judgment against plaintiff in error and defendants in error Arkansas Valley Townsite Company and H. C. Hannah, in favor of defendant in error Frank Hudson for a specific sum of only when such facts appear upon the face of the petition that this defense may be presented by urging same in a demurrer upon that ground. Betz v. Wilson, 17 Okl. 383, 87 Pac. 844. [4] It is also urged in this court that there is a misjoinder of actions. Whatever merit this objection may have in fact, plaintiff in error cannot avail himself of it here, for he failed to set up such objection as a ground of demurrer to the petition in the court below, and this omission constitutes a waiver of this alleged defect in the petition. Section 4742, Rev. Laws of Okla.; Woodman v. Davis, 32 Kan, 344, 4 Pac. 262. All other errors urged are such only as can be presented upon a case-made. Since no error requiring a reversal is presented, the judgment of the trial court is affirmed. All the Justices concur. (39 Okl. 98) ST. LOUIS & S. F. R. CO. v. DAVIS. (Syllabus by the Court.) APPEAL AND ERROR (§ CC2*)-PRESENTATION FOR REVIEW-DENIAL OF NEW TRIAL Where the petition in error does not assign as error the overruling of the motion for new trial, no question is properly presented in this court to review errors alleged to have oc curred during the progress of the trial in the Commissioners' Opinion, Division No. 1. Action by Eugenia Davis against the St. Louis & San Francisco Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant brings error. Dismissed. W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt and J. H. Grant, both of Okla- | homa City, for plaintiff in error. S. A. Cordell and W. L. Johnson, both of Chandler, for defendant in error. ROBERTSON, C. There is a motion by defendant in error to dismiss this appeal, which must be sustained. The petition in error does not assign as error the overruling of the motion for a new trial, and, therefore, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below. Hunter v. Hines, 33 Okl. 590, 127 Pac. 386; Burrus v. Funk, 29 Okl. 677, 119 Pac. 976; Meyer v. James, 29 Okl. 7, 115 Pac. 1016; Martin V. Gassert, 17 Okl. 177, 87 Pac. 586. The appeal, therefore, should be dismissed. As the evidence introduced on the trial reasonably tended to show that the assured had iron-safe clause provision of the policy, the reasonably and substantially complied with the same is sufficient to sustain on that issue a finding in favor of the assured. [Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 1555, 1707-1728; Dec. Dig. § 665.*] 4. INSURANCE (§§ 375, 397*)-WAIVER OF FOR- (a) The same rule applies to an assistant adjuster performing the duties of a chief adjuster, unless his authority is limited to the knowledge of the assured. (b) Held, under the facts disclosed by the record, that the knowledge of the adjuster in adjusting the loss and carrying on the arrangements, by which deductions were made from the original policies and the same policies as reduced continued in force thereafter for such amounts, bound the company, and under the finding of the jury created an estoppel. Cent. Dig. §§ 948-951, 956-965, 1078-1082; [Ed. Note.-For other cases, see Insurance, Dec. Dig. §§ 375, 397.*] Error from District Court, Garvin County;' R. McMillan, Judge. Action by A. D. Coon against the Western Reciprocal Underwriters' Exchange. Judgment for plaintiff, and defendant brings error. Affirmed. Burwell, Crockett & Johnson, of Oklahoma City, for plaintiff in error. J. B. Thompson, of Pauls Valley, for defendant in error. WILLIAMS, J. The defendant in error, as plaintiff, sued the plaintiff in error, as defendant, to recover the sum of $3,000 on three insurance policies covering the following items: (1) $1,000 on a stock of merchandise, The assured declared on certain insurance policies, alleging that he had performed all the conditions imposed upon him thereunder. The assurer answered by general denial, and plead-consisting of drugs, druggists' sundries, pated specially facts constituting a waiver or es- ent medicines, books, musical instruments, toppel on the part of the assurer as to the pro- jewelry, watches, etc.; (2) $500 on his store vision contained in said policies, to the effect and fixtures and office furniture, and $500 that they should be void and become forfeited "if the subject of the insurance be on his stock of merchandise; and (3) on his or become incumbered by a chattel mortgage." store and office furniture and fixtures, and Held, that said provision related to a condition $500 on his stock of merchandise. subsequent, and the pleading of such facts by reply did not constitute a departure. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 358-384; Dec. Dig. § 180.*] 2. INSURANCE (§ 621*)-ACTION ON POLICYPREMATURITY. In each policy it being provided, in effect, that no liability would attach in favor of the assured until 60 days after the notice, ascertainment, estimate, and proof of loss had been furnished to the assurer, and the action having been commenced prior to the expiration of said time, but after such expiration the assured having amended his petition, showing the time of the presentment of such proof of loss, and [1] In St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 23 Okl. 79, 99 Pac. 647, by this court, the assured, in an action on an insurance policy, alleged that it "had fully complied with all the terms and conditions of said policy on its part." The assurer answered that the assured had not complied with that condition requiring proof of loss within 60 days. For reply the assured admitted the allegation, and pleaded facts sufficient to constitute a waiver. It was held that the allegation of the reply con the stituted a departure. The policy sued on after the loss and damage provided that "the insured shall within | plaintiff made proper proof of loss and damsixty days after loss make proof of same to age in writing * * that he has fully the insurance company, and that a failure performed his part of the contract." This to do so within that time shall cause a for- amended petition was filed over 60 days after feiture of any claim under such policy." said proof of loss was presented to the assurer, to wit, April 23, 1910. In the reply the assured states that he "admits that the property covered by the policy of insurance, attached to and made a part of plaintiff's petition herein, was incumbered and mortgaged. He admits that a small part of said property, to wit, one Herring-Hall-Marvin safe, one eight foot jewelry salesman showcase, one six foot silent salesman showcase, one four foot cigar silent salesman case, one national cash register, were mortgaged to the Alexander Drug Company, of Oklahoma City, Okla., to secure the payment of a note dated Strafford, Okl., June 30, 1909, and due four months after date, for the sum of $283.64; but plaintiff alleges and shows to the court that at the time he took out the policy of insurance the agent of the company was informed of said fact, and wrote the policy and delivered to this plaintiff with full knowledge thereof. The plaintiff, there In Merchants' & Planters' Ins. Co. v. Marsh, 34 Okl. 453, 125 Pac. 1100, 42 L. R. A. (N. S.) 996, by Supreme Court Commission No. 2, it was alleged "that more than sixty days have elapsed prior to the commencement of this suit, after sufficient proof of the loss and damage by fire as aforesaid, and that the plaintiff has duly complied with all the terms and conditions of said policy to be kept or performed." The defendant answered, pleading that the assured had violated the clause "prohibiting additional insurance without consent of the company indorsed on the policy, also that a portion of the goods insured had been removed from the premises without such consent, and also that the title to the property was not as stated in the policy. * To this answer the assured replied, pleading facts constituting a waiver or estoppel. full knowledge of the incumbrance thereon, as herein before set forth, the defendant waived the provisions of its said contract and is now estopped to set up and plead the same as a defense against plaintiff's cause of action herein." . In Springfield Fire & Marine Ins. Co. v. Halsey, 34 Okl. 383, 126 Pac. 237, by Supreme | fore, says that having issued said policy with Court Commission No. 2, it was alleged that "plaintiff had complied with all the conditions precedent to an action, and that defendant had refused payment of said policy." The defendant answered by general denial of the allegations in the petition, and further pleaded a breach of the terms and conditions of the policy, in that assured had failed to take inventories and keep same as provided by the policy, and had failed to keep such books and inventories in a fireproof safe, as were provided for in said policy, and that by reason of plaintiff's failure to keep such books and inventories in a fireproof safe as had been provided for and agreed upon in said policy, he had violated the express terms of said policy, and forfeited his right to recover under same. The assured by reply pleaded facts constituting a waiver. In Gage v. Connecticut Fire Ins. Co., of Hartford, Conn., 34 Okl. 744, 127 Pac. 407, by Supreme Court Commission No. 1, the as-reply, when the same are required to be sured alleged general performance by him of the duties imposed under the contract. The assurer by answer pleaded "various breaches by the plaintiff of the conditions in the contract." The reply pleaded facts constituting a waiver or estoppel. In St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., supra, no authorities are cited as to the question of departure, and the subsequent cases by the two divisions of the Commission merely follow that case. In none of these cases is it disclosed by the statements of facts whether the alleged breaches were, by provisions of the insurance contracts, made conditions precedent. In the amended petition, in the case at bar, it was alleged that "on or about The answer by assurer pleaded a certain provision of the insurance contract, that "if the subject of the insurance be personal property, and be or become incumbered by a chattel mortgage," that the policy shall be void, and alleged that the property covered by the contract sued on was incumbered and mortgaged, and by reason of that fact the insurance contracts became forfeited, and the assured was not entitled to recover in the action. Obviously, as pleaded, this was a condition subsequent. The following cases hold that where facts constituting a waiver, estoppel, or excuse for the nonperformance of a condition precedent are pleaded by way of pleaded in the declaration or petition, a departure from the original pleading resulted: Murray v. Bright et al., 9 Ky. (2 A. K. Marsh.) 146; Pollard v. Taylor, 5 Ky. (2 Bibb) 234; Lanitz v. King, 93 Mo. 513, 6 S. W. 263; Pier v. Heinrichoffen, 52 Mo. 333; Trainor v. Worman, 34 Minn. 237, 25 N. W. 401; First National Bank v. Hatch, 78 Mo. 24; Nichols v. Larkin, 79 Mo. 265; Potts v. The Point Pleasant Land Co., 47 N. J. Law, 476, 2 Atl. 242; Eidlitz v. Rothschild, 87 Hun, 243, 33 N. Y. Supp. 1047; Houghton v. Jewett, 2 Tyler (Vt.) 183; Watson v. Joslyn, 29 Vt. 455. Under our Code the petition must contain "a statement of facts constituting the cause of action, in ordinary and concise language, and without repetition." Section 5627, Com |