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W. Fleming against John M. McCornack, trial court in arriving at the amount of the and Elizabeth J. McCornack, to recover on a judgment. Practically the same errors are principal note for $10,000 and three com- assigned in both motions, some of which mission notes of $750 each, and foreclosure might be well taken if exceptions had been of mortgage. The parties will be referred to saved at the trial, and had been raised upon herein as they appeared in the court below. appeal from the original judgment, but this

Defendants filed answer, and on January | is not the case, and not one of them come 21, 1915, plaintiff appeared in person and by within the class that may be urged here attorney and defendant appeared by attor- upon an appeal from the action of the court ney, and upon trial of said cause judgment upon objections filed, for the reason that was rendered on said date in favor of plain the court had jurisdiction of the subjecttiffs and against defendants in the sum of matter, jurisdiction of the parties, and judg$11,614.48, with interest at the rate of 10 ment was after all parties appeared at the per cent. per annum and $1,000 attorney's / trial, and no motion for new trial filed, and fee as stipulated and set forth in the mort- | no appeal taken from the action of the court gage. On August 6th, plaintiff had execu- in rendering the judgment. tion and order of sale issued upon this judg The questions raised are: First, that the ment, and on August 7th, sheriff advertised cause was not regularly docketed upon the said property to be sold on September 7th. trial calendar for the term at which it was On August 25, 1915, defendants filed motion heard; second, that too much interest had to vacate judgment; same was overruled. been included in computing the amount of On September 20th special execution or or- the judgment; third, that the property was der of sale was returned by sheriff, showing sold for an inadequate consideration, and the property had been sold to J. H. Everest, other objections which could not be seriously assignee. On September 22d the assignee considered. If the motion directed at the filed motion to conform sheriff's sale. On computation of the interest had been directSeptember 25th defendants filed objection to ed at the excess, and shown wherein the and motion to set aside sheriff's sale. On court was wrong, it might have been availOctober 9th defendants filed objection to the able; but this was alleged as a reason for confirmation of sheriff's sale, and on same vacating the entire judgment, and it was aldate the court overruled said motions, and leged that said judgment was void because it confirmed said sale, from which order de contained an overcharge of interest. fendants have appealed, and bring the action [2, 3] From the reading of the record in of the court upon the objection to the con- this case it appears to have been an appeal firmation of the sale here for review,

to delay the effect of the judgment rather There was no motion for new trial filed, than to correct errors thereof. However, no appeal taken to review the action of the none of the matters alleged in said motions trial court in rendering the original judg. would render the judgment void, and are, as ment, and the matters raised here upon the we think, concluded by the decree rendered motions objecting to the confirmation raises and the failure of the defendant to except no jurisdictional questions, and only attacks thereto and appeal therefrom. Said errors certain irregularities with reference to the cannot now be considered upon the motion trial of said cause. Defendants, on page 33 before this court. In case of Guy V. Guy, of their brief, use the following language: 150 Pac. 1058, first paragraph of the sylla

"In this appeal two general propositions are bus is as follows: involved, namely, the validity of the original “The district court has no power to vacate or judgment (on which the sheriff's sale is based), modify its judgment on account of ‘an irreguand the validity of the sale itself and the or- larity in obtaining a judgment or order,' under der confirming and proceedings in connection subdivision 3 of section 5267, Rev. Laws 1910, therewith. The proceedings now before this upon a motion filed after the adjournment of court is a direct appeal from the judgment over the term at which such judgment was rendered ruling the objections to the sheriff's sale and and entered.” confirming the same.'

See McAdams v. Latham, 21 Okl. 511, 96 [1] As we understand the record before Pac. 584; Le Force v. Haymes, 25 Okl. 190,

105 Pac. 644. us, the only thing to be reviewed is the action of the court overruling the objection

In case of Clark v. Roman et al., 151 Pac. to the confirmation of the sale. However,

479, the syllabus is as follows: the defendants in their brief argue the fy their judgments or orders at or after the

"The power of trial courts to vacate or modigrounds raised in their motion to vacate the term does not authorize the setting aside of judgment, but it does not appear that any a judgment or final order at a subsequent term appeal was taken from this action of the for mere errors of law which were properly subcourt. However this may be, this motion term when rendered or made."

ject to review upon motion for new trial at the was filed after the term at which the origi

We have carefully read the record, and nal judgment was rendered, and raises no find no error in the action of the trial court jurisdictional question and no question enu- in overruling the motions complained of. merated in section 5267, R. L. 1910, which cause is therefore affirmed. may be raised by motions of the kind filed, and only attacks certain irregularities of the PER CURIAM. Adopted in whole.

(68 Okl. 181)

filed plaintiff demurred thereto, which demur. WESTERN CASUALTY & GUARANTY INS. rer was by the court sustained, and, defendCO. V. CAPITOL STATE BANK OF

ant electing to stand upon its answer, judgOKLAHOMA CITY. (No. 8868.)

ment was rendered in favor of plaintiff and (Supreme Court of Oklahoma. March 5, 1918 an appeal prosecuted to this court where the Rehearing Denied May 21, 1918.) judgment was reversed. Capitol State Bank

of Oklahoma City v. Western Casualty & (Syllabus by the Court.) 1. APPEAL AND ERROR 1097(1)-DECISION 149. The facts alleged in said answer are

Guaranty Insurance Co., 47 Okl. 549, 149 Pac. OF SUPREME COURT-LAW OF THE CASE.

A question decided by the Supreme Court fully set out in the former opinion, and refon a former appeal becomes the law of the case

erence is made thereto for a statement there in all its stages, and will not ordinarily be reversed on a second appeal of the same case of. Upon remand of the case reply was filed when the facts are substantially the same. and the issues were tried to a jury, at the 2. BANKS AND BANKING OM 65-INSOLVENCY conclusion of which the court instructed a -REORGANIZATION-STATUTE.

verdict for defendant and plaintiff prosecutes An insolvent bank may be reorganized under authority of section 306, Rev. Laws 1910,

this appeal. by the stockholders complying with the require- Many uestions are urged, but they all ments of said section which are set out in the resolve themselves into this one proposition, body of this opinion, and not otherwise. 3. BANKS AND BANKING Cm 23 AMENDED

whether the court did right in instructing a ARTICLES OF INCORPORATION-STATUTE. verdict for defendant. A determination of

Amended articles of incorporation may be this question requires an examination of the executed and filed by all the directors and offi

evidence. cers of a corporation under the authority contained in section 1225, Rev. Laws 1910, and an

In 1913 the State Bank of Capitol Hill was amended charter issued, which when issued re engaged in a general banking business at Caplate back and form a part of the original arti, itol Hill, .which at the time was an independcles of incorporation to the same effect as if originally contained therein.

ent town, but was later incorporated into 4. BANKS AND BANKING Om 23, 65—AMENDED and became a part of Oklahoma City. About

ARTICLES OF INCORPORATION-INSOLVENCY, the first of 1913, said State Bank of Capitol STATUTE.

Where a state bank became hopelessly in- Aill being in a failing condition, the bank solvent and was taken in charge by the bank commissioner took possession thereof and commissioner, who sold a part of its assets to exercised a qualified control over it until the B. and associates, who executed articles of in- 25th of April, 1913, when its doors were closcorporation and filed same, upon which a charter was issued authorizing them to do a bank- ed and it ceased to do a banking business. ing business under the corporate name of Cap- Prior to this a deposit of $10,000 had been itol State Bank of Oklahoma City, and where made in said institution by the commissionB. and his associates were in no wise connected with the insolvent institution at any time, held, ers of the land office, and for the purpose this did not constitute a reorganization of the of protecting said deposit the Western Casfailed bank, nor an amendment to its articles of ualty & Guaranty Insurance Company had incorporation.

executed a bond of indemnity. Upon the Error from District Court, Oklahoma bank being closed the plaintiff paid the County; Edward Dewes Oldfield, Judge.

amount of said deposit with interest thereon. Action by the Western Casualty & Guaran. On April 26, 1913, the bank commissioner ty Insurance Company against the Capitol entered into an arrangement with Bonner, State Bank of Oklahoma City. Judgment for Dennis, and Clark by which he sold to Bonner defendant on a directed verdict, and plaintiff and his associates certain of the assets of the brings error. Affirmed.

State Bank of Capitol Hill, for which he reLedbetter, Stuart & Bell, of Oklahoma City, ceived full value in cash. Certain other asfor plaintiff in error. Wilson, Tomerlin & sets of the bank amounting approximately Buckholts, of Oklahoma City, for defendant to $54,000 were retained by the bank comin error.

missioner for the purpose of reimbursing the

guaranty fund, which was called upon to pay HARDY, J. This action was commenced by out approximately the sum of $32,000. Bank Western Casualty & Guaranty Company, a guaranty warrants were issued for this corporation, against the Capitol State Bank amount which were paid by Bonner and his of Oklahoma City, a corporation, to recover associates, who also paid to the bank commis$10,000, with interest thereon, and an attor- sioner a premium of about $2,200 on the transney's fee of $1,000, on account of plaintiff | action, and an agreement was entered into being required to pay $10,000 because of its whereby Bonner, Dennis, and Clark should being surety upon an indemnity bond execut- organize a new banking institution and pay ed by defendant under its alleged former up a capital of $10,000. Thereupon Bonner, name of State Bank of Capitol Hill which Dennis, and Clark executed and later filed had been given to protect a deposit of in the office of the secretary of state what $10,000 made by the commissioners of the was denominated "amended articles of incorland office in said bank. Upon answer being poration" of the Capitol State Bank of Okla

homa City, which articles were complete and , holders of the State Bank of Capitol Hill full in every particular, but in the first para- complied with any of the conditions stated. graph thereon it was stated that instead of Neither did they surrender their stock to the name "State Bank of Capitol Hill this Bonner, Dennis, and Clark. The stock held bank shall be known as Capitol State Bank by them was never canceled, but so far as of Oklahoma City.” Said articles were ap- the record is concerned is still in their hands. proved by the bank commissioner and a The charter of that bank was never taken charter issued to the Capitol State Bank of up by the bank commissioner nor delivered Oklahoma City, whereupon Bonner, Dennis, to Bonner and his associates, nor is it, or has and Clark paid up a capital of $10,000 in it ever been, in their possession. Clearly this cash, held a stockholders meeting, elected di- was not a reorganization of the failed bank. rectors and officers, none of whom were in

The conclusion here reached is not in conterested in or connected with the State Bank flict with the case of First State Bank of of Capitol Hill, appointed reserve agents, Oklahoma City v. Lee, 166 Pac. 186. In that Issued certificates of stock to the stockhold. case it was agreed that the First State Bank ers, and proceeded to carry on a banking of Oklahoma City was the same institution business in all respects as required by law. as the First State Bank of Oklahoma City

An assessment It was expressly understood and agreed be before it became insolvent. tween the bank commissioner and Bonner, was made against the stockholders after its Dennis, and Clark that said Bonner and his failure for 100 per cent to repair its capital associates did not assume the obligation to stock, which assessment was paid, and the pay the deposit made by the commissioners fee and his associates, who canceled same on

stockholders transferred their stock to Mene of the land office and secured by the bond of the books of the corporation and issued new plaintiff; it being expressly understood that certificates in their place to themselves. The same was excluded from the terms of their capital of the failed institution was repaired agreement. The question, as we view it, is, and the reserve substituted and the requireDid the transaction between the bank com- ments of section 306 substantially complied missioner, Bonner, Dennis, and Clark and with. In addition to tois, the subject-matthe subsequent conduct of Bonner and his ter of that action was the leasehold, which associates amount to a reorganization of the was sold to Menefee and his associates, and State Bank of Capitol Hill, or was it the after its reorganization the bank occupied institution of a new and different bank? the building for a period of time, paying the

[1-4] The question whether the Capitol rent thereon according to the terms of the State Bank of Oklahoma City was legally in- lease which had been executed by the bank corporated or paid the fees required by law prior to its insolvency. The facts are so disis a question in which plaintiff is not inter- similar that a statement of them distinguish. ested. If in fact said bank was not legally es the case from this. No assessment was incorporated and is not a reorganization of made against the stockholders of the State the State Bank of Capitol Hill, plaintiff's Bank of Capitol Hill to restore or substitute action must fail. The manner of reorganiz-its capital or reserve, or to place it in a soling a bank under the laws of this state is vent condition, and none of the stock was acprescribed by section 306, Rev. Laws 1910, un- quired by Bonner, Dennis, and Clark, being der the authority of which a failed bank may

retained by the old stockholders. Upon this be reorganized by complying with the fol- state of facts the law of the case is stated

in the former appeal where it was said: lowing particulars: The stockholders must repair its credit, restore or substitute its between the bank commissioner and Bonner,

"It cannot be said that by virtue of the contract reserve, and place it in condition so that it Dennis, and associates and their action there is qualified to do a general banking business under, a solvent institution arose, phenix-like, as before it was taken possession of by the which became liable, not only for the amounts

from the ashes of the old defunct corporation, bank commissioner, and its credits and funds due the general depositors whom it agreed to must be repaired in all respects, and all ad- pay, but also for the debts due to another class vances, if any, made from the depositor's pate in the proceeds derived from the sale of

of creditors who were not entitled to particiguaranty fund must be fully paid before it the assets, and who were excluded from payis permitted again to reopen for business. ment by the purchasers of the assets by the

In our judgWhen all of these conditions have been com express terms of the contract.

ment, the liability of Bonner, Dennis, and asplied with the bank commissioner is author- sociates and of the new banking institution ized to issue a written permission for reopen- launched by them by permission of the state ing said bank in the same manner as permis- ment with the bank commissioner, and this

bank commissioner is limited by their agreesion is granted to do business after original agreement does not contemplate the payment incorporation thereof. This section author- by them, or the institution formed by them, of izes stockholders of the failed bank to com- mentioned in the contract, to wit, the claims of

any of the debts of the old bank, except those ply with the conditions enumerated and to the general depositors.” reorganize the insolvent institution. This The articles of incorporation filed by Bonright is not conferred directly or by implica- ner, Dennis, and Clark on April 26th were tion upon any one else. None of the stock | not amended articles of incorporation as con

tended, even though denominated as such. By virtue of section 1225, Rev. Laws 1910, amend- CRANE CO. v. NAYLOR et al. (No. 8335.) ed articles of incorporation may be executed (Supreme Court of Oklahoma. March 5, 1918, and an amended charter issued which when Rehearing Denied May, 21, 1918.) issued shall relate back and be considered and be a part of the original articles of in

(Syllabus by the Court.) corporation to the same effect as if original. 1. MECHANICS' LIENS Cw132(14) - SUBCON.

TRACTOR'S LIEN-STATUTE. ly set forth therein, but in order to amend

Under section 3864 Rev. Laws 1910, the its articles of incorporation it is necessary theory upon which the lien of a subcontractor for the new articles to be filed signed by all may be sustained is that his material or lien has the directors and officers of the company statement is filed in the proper office within 60

benefited the owner's premises ; and if the lien The mere fact that the paper executed was days from the time the material is last furnishdenominated "amended articles of incorpora- ed to the owner by the subcontractor, the state. tion" could not make it such unless executed ment is filed within the time authorized by stat

ute. in pursuance to the authority of section

2. SUFFICIENCY OF EVIDENCE. 1225, which was not done. None of the offi.

The evidence in this case examined, and cers, directors, or stockholders of the State it appearing that the material furnished by the Bank of Capitol Hill were interested in or subcontractor was delivered to the premises of participated in the execution of the so-called statement was filed by the subcontractor

within

the owner on December 3, 1917, and the lien amended articles of incorporation. This in- 60 days thereafter, the subcontractor is entitled strument was nothing more nor less than to a lien upon said property to secure the payoriginal articles of incorporation executed by ment of his claim. persons who were strangers to or had no in- Commissioners' Opinion, Division No. 3. terest in or connection with the State Bank Error from District Court, Pittsburg County: of Capitol Hill.

W. R. Higgins, Judge. The judgment must be affirmed. All the Action by the Crane Company against Sim Justices concur.

Naylor and others. Judgment for defendants, and plaintiff brings error. Reversed

and remanded for new trial. SOUTHWESTERN SURETY INS. CO. v. A. C. Markley, of McAlester, for plaintiff CAPITOL STATE BANK OF OKLA. in error. W. H. H. Clayton, Jr., and Gordon HOMA CITY. (No. 9095.)

& McInnis, all of McAlester, for defendants

in error. (Supreme Court of Oklahoma. March 5, 1918. Rehearing Denied May 21, 1918.)

HOOKER, C. The record shows that in Error from District Court, Oklahoma County; the month of March, 1913, William Weaver, Edward Dewes Oldfield, Judge.

the owner of the real estate here, entered inAction between the Sonthwestern Surety, In; to a verbal contract with Liddell & Mann, by surance Company and the Capitol State Bank of Oklahoma City. Judgment for the latter, the terms of which they were to install three and the former brings error. Affirmed.

sections of an Ideal boiler, with trimmings Embry, Crockett & Johnson, of Oklahoma and fixtures, and to furnish the labor and City, for plaintiff in error. Wilson, Tomerlin material therefor in a building located on & Buckbolts, of Oklahoma City, for defendant said real estate, for which they were to rein error.

ceive the sum of $225, to be paid when the HARDY, J. This case involves an issue be work was completed; that before the work tween the Southwestern Surety Insurance was done Liddell retired from the partner Company and the Capitol State Bank of Oklahoma City. In June, 1913, the board of county ship, and David Mann performed the concommissioners of Oklahoma county commenced tract with Weaver, and completed the same an action against the State Bank of Capitol about the 7th of November, 1913; that about Hill and plaintiff herein to recover the sum of the 8th of October, 1913, the firm of Liddell $5,000, which sum was alleged to have been deposited by the county treasurer of Oklahoma & Mann ordered the materials which they county in said State Bank of Capitol Hill to were to furnish to William Weaver under secure the payment of which the Southwestern said contract from Crane Company at the Surety Insurance Company had executed a agreed price of $157, and the said Crane depository bond. Judgment was rendered in favor of the board of county commissioners for Company on the 16th day of October, 1913, said sum with interest thereon, and it is to re- shipped said materials, no freight allowance, cover this sum that this action is brought; it to Liddell & Mann, and said materials arriv. being alleged that the Capitol State Bank of Oklahoma City was originally incorporated un- ed in McAlester on the 3d of November, 1913, der the name of State Bank of Capitol Hill, at which time they were taken by David and was and is the same institution as reor- Mann from the freight depot and installed ganized. The facts in this case with the ex: in their place on the William Weaver propceptions stated are identical with those in the case of Western Casualty & Guaranty Insurance erty. Crane Company, not receiving the purCo. v. Capitol State Bank of Oklahoma City, chase price, on the 27th day of December, 172 Pac. 954, and the questions of law involved 1913, duly executed and filed with the clerk are identical.

Upon authority of that case the judgment is of the district court of Pittsburg county its affirmed. All the Justices concur.

affidavit and itemized statement of its ac

count and mechanic's lien statement contain *Even in those jurisdictions in which a lien ing the amount and value oi said material as may be acquired for material furnished though

it has not actually been incorporated in the provided by statute, for the purpose of es

building, structure or improvement, it is genertablishing a lien upon said property to secure ally held that the lien cannot attach in the abthe payment of its indebtedness. It appears sence of a delivery of the material upon the from the evidence that this material thus premises, or other act equivalent thereto, as

notice to or an implied assent by the owner. furnished by Crane Company to Liddell & Mann was ordered from the American Radi

In Barker Lbr. Co. v. Marathon P. M. Co., ator Company, at Buffalo, N. Y., and that the 146 Wis. 16, 130 N. W. 867, 36 L. R. A. (N. S.) same was consigned by the American Radia 877, the Supreme Court of Wisconsin said: tor Company to Liddell & Mann on the 16th the principal contractor at the latter's place of

"But if the subcontractor delivers material to day of October, 1913, and delivery made to business, which materials are neither incorporatthe common carrier on that date, to be trans- ed into the structure, delivered upon the premported for Liddell & Mann as above stated.

ises, nor placed under control of the owner of

the structure, no lien arises, because the mateIt is contended by the plaintiff in error

rial cannot be said to have been furnished for, here that inasmuch as a delivery of this ma- in, or about the erection of the structure." terial was not made at McAlester until No

The theory upon which the lien of subconvember 3, 1913, that its lien claim filed on

tractors is sustained is that the subcontracDecember 27, 1913, was within the 60 days' tor's material or labor bas benefited the owntime allowed a subcontractor by virtue of er's premises, and the subcontractor could section 3864, Revised Laws 1910, and that not possibly have any lien, unless his matesaid company is entitled to a llen upon said rial or labor improved the owner's premises, premises;

is claimed by the defendants in error that the of the statute would be that when the mate

so it would seem that a reasonable meaning material was furnished and delivered on the rial is last furnished to the owner and not 16th of October, 1913, to Liddell & Mann when last furnished to the contractor. In by Crane Company, as on that date the same Smalley v. Gearing, 121 Mich. 190, 79 N. W. was delivered to a common carrier for transportation to said firm at McAlester, f. o. b. 1114, 80 N. W. 797, the Supreme Court of Buffalo, N. Y., and that by virtue thereof the

Michigan said: furnishing and delivery was completed upon the complainants, as well as the defendant own,

"The other defendants are lien claimants, and said day, and that said Crane Company, un

ers, attack their respective claims upon several der the statute aforesaid, was allowed only different grounds. Claim of Ashland Brown60 days from that date in which to file a

stone Company: It appears that in April,

1895, the company had a quantity of stone at lien upon said property, and, not having done the dock in the city of Detroit. It was sold to so, it is not entitled to recover in this action. Gearing for this building for $1,841.88, and

[1, 2] The question involved here is, When freight from the dock to Gearing's yard, to be was the delivery of said material to be made delivered there. It was delivered thereon May

14th. Mr. Gearing stated that it was to be by Crane Company to Liddell & Mann? The used in that building, and it was sold for that record is silent as to the terms of the con purpose. In June following, another quantity tract between them as to where this delivery was sold for $787.85, and delivered at Gearing's

The was to be made, but the material was to be first stone sold was cut at Gearing's yard at

yard. Notes were taken on these sales. used by Liddell & Mann at McAlester, Okl. his expense. On account of the delay in the Our statute (section 3864, Revised Laws building, none of this stone was put into the

Be1910) provides that the lien statement must building until after September 11, 1895.

tween this date and October 1st, he took this be filed within 60 days after the date upon stone, from time to time, to the building. Some which materials were last furnished or labor of the stone was not put in until October 1st. last performed. As stated, there is no con- The statement of lien was filed by the comflict as to the date when the shipment was plainants that, this claim not being filed until

pany November 9, 1895. It is claimed by commade by the American Radiator Company 5 months after the last stone was delivered at for Crane Company to Liddell & Mann at Gearing's yard, the lien cannot attach. It McAlester, Okl., which was on October 16, is also claimed that about 1,000 cubic feet of 1913, nor is there any dispute as to the date total amount of the claim of the company is $2,

this stone never went into the building. The said material arrived at McAlester and was 629.73. The court below disallowed the claim received by Liddell & Mann, which was No- for the stone not put in the building, and alvember 3, 1913. Section 3864, Rev. Laws lowed the balance at $1.949.73. The statute of

1891, by section 5, provides that 'verified state1910, provides that:

ment or account shall be filed within sixty days "Any person wbo shall furnish any such ma from the date on which the last of the materials terial or perform such labor as a subcontractor, shall have been furnished or the last of the laetc., may obtain a lien upon such land, or im bor. shall have been performed by the person provements, or both, from the same time, in claiming the lien.' It is claimed by the stone the same manner, and to the same extent as the company that the 60 days began to run from the original contractor, for the amount due him date that the materials were delivered at the for such material and labor.

building. On the other hand, it is contended

by complainants that the 60 days began to run So the question presented here is, When from the time that the last of the materials were was this material furnished so as to entitle furnished by the stone company to Gearing at the subcontractor to a lien upon this proper- be settled by the construction which is to be

his yard June 8, 1895. This contention must ty? In 18 R. C. L 922, it is said:

given to the language of the statute. The lien

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