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Plaintiff in error says that he is now confined in the determination of his appeal, to violate the county jail at Mangum, Okl., upon order of the conditions of his bond with impunity, the district judge of Jackson county, Okl., and where it is conclusively shown, as in wherein he is charged with murder, and that he is also being held in jail because of failure to give this case, that the plaintiff in error has been an appeal bond, wherein he was sentenced at persistent in violating the conditions of his Norman, Okl., to four years' imprisonment in the bond, his appeal should be dismissed. The state penitentiary. Plaintiff in error says that he has at no time been a fugitive from justice, appeal herein of Charles B. Holden is there and has at no time withdrawn himself from the fore dismissed. jurisdiction of this court in order to defeat the enforcement of any judgment which might be ARMSTRONG and MATSON, JJ., concur. rendered against him; that he is now within the jurisdiction of this court, and is willing i avide by the terms of his bond given in wis cause;

(14 Okl. Cr. 691) that J. M. Edwards and J. D. key are witnesses for the state, wherein the plaintiff in error is

BRICE v. STATE. (No. A-3247.) charged with murder in Jackson county, Okl., (Criminal Court of Appeals of Oklahoma. May and that said parties who made the affidavits are prejudiced against him, and have made said affi

18, 1918.) davits in order that if the plaintiff in error is Appeal from County Court, Oklahoma Coungranted bond upon said charge of murder, he ty; William H. Zwick, Judge. would not be liberated from custody because of E. R. Brice was convicted of a violation of baving to serve the original sentence imposed in the prohibition liquor law, and he appeals. Apthis case if the appeal is dismissed, and thereby peal" dismissed. keep plaintiff in error in custody, and prevent him as far as possible from preparing his case for plaintiff in error. R. McMillan, Asst. Atty.

Twyford, Smith & Crowe, of Oklahoma City, for trial upon the charge of murder."

Gen., for the State. Under the Constitution and the Code of

PER CURIAM. Plaintiff in error, E. R. Criminal Procedure of our state, an appeal Brice, was convicted in the county court of may be taken to this court by any person Oklahoma county on a charge that he did have convicted of a crime to have the judgment possession of eight quarts of wbisky, with the reversed as a matter of right, and under the of the verdict the court sentenced him to be con

unlawful intent to sell the same. In pursuance Constitution the Legislature may prescribe fined in the county jail for 30 days, and to pay the mode in which the right may be exer- a fine of $50. From the judgment an appeal cised. Our Code provides that if the crime was taken by filing in this court on January 21,

1918, a petition in error with case-made. of which the defendant is convicted be a

On March 20, 1918, a motion to dismiss the bailable one, the defendant may give bail, appeal was filed by the Attorney General for and the bond shall stay execution of the the reason that since the appeal was taken the sentence during the pendency of the appeal. said Brice at various times went to Texas for

the purpose of violating the prohibition laws of One of the conditions of the bond as pre both states. In support of said motion the proof scribed by the statute is:

is the same, as in the case of E. R. Bryce v. "That the defendant will appear, submit to State (No. A-2344) 172 Pac. 976, this day de

cided. and perform any judgment rendered by the Criminal Court of Appeals or the court in which

For the reason stated in the opinion in the the original judgment was rendered in the fur: Bryce Case, supra, we are of the opinion that ther progress of the cause, and will not depart have his appeal in this case considered and

the plaintiff in error has waived the right to without leave of court." Section 5995, Řev. Laws.

determined. The appeal herein is therefore dis

missed. Mandate forthwith. The proof on the part of the state in support of the motion to dismiss shows that

(14 Okl. Cr. 691) plaintiff in error had violated the condi

HOLDEN V. STATE. (No. A-3049.) tions of his bond by making frequent trips to Texas for the purpose of transporting in- (Criminal Court of Appeals of Oklahoma. toxicating liquors from Texas back to this

May 18, 1918.) state. The plaintiff in error's affidavit also

Appeal from County Court, Oklahoma Counshows he had violated the conditions of his tyė W. liepodden was convicted of a violation of bond. And see Ex parte Holden, 172 Pac. 978, and Bryce v. State, 172 Pac. 976.

the prohibitory law, and be appeals. Appeal

dismissed. While there is no express provision of the statute authorizing the dismissal of an ap

Twyford & Smith, of Oklahoma City, for

plaintiff in error. S. P. Freeling, Atty. Gen., peal on the grounds stated, yet, in the ab- and R. McMillan, Asst. Atty. Gen., for the sence of a statute to the contrary, we think State. it is a matter within the discretion of the

PER CURIAM. court whether, under the facts and circum- Holden, was convicted in the county court of

Plaintiff in error, C. H. stances admitted, we will consider and de- Oklahoma county on a charge that on the 20th termine the appeal. The plaintiff in error day of January, 1917, he did willfully and uneach time he left the state was in the atti- quarts of whisky from a point unknown in and

lawfully transport, carry, and convey four tude of a fugitive from justice, and thereby through and along Grand avenue, Oklahoma waived the right to have his conviction re- City, to a place known as 310 East Grand aveviewed. We do not think it would subserve nue. In pursuance of the verdict, the court

sentenced him to be confined in the county jail the ends of justice to permit a person con- for 30 days, and to pay a fine of $50. From this court on june 14, 1917, a petition in error , failure to file transcript in this court within the with case-made.

time required by the rules, having been preOn March 28, 1918, a motion to dismiss the sented and submitted heretofore, together with appeal was filed by the Attorney General for the application of said Inman to be relieved che reason that since the appeal was taken the from his default in that particular because of said Holden has been out of the state of Okla excusable neglect: homa and in the state of Texas violating the It is ordered that the transcript on appeal be prohibition laws of both states. In support of filed. The motion to dismiss the appeal of said said motion the affidavits of J. D. Key, sheriff Inman is denied. of Wilbarger county, Tex., and of J. M. Ed. wards, constable in said_county, and made exhibits in the case of E. R. Bryce v. State (No.

(36 Cal. App. 817) A-2344) 172 Pac. 976, are referred to.

Ex parte CARRERA. (Cr. 739.) Upon an examination of the motion to dismiss and the proof supporting the same, to (District Court of Appeal, First District, Caliwhich no response has been filed, and for the

fornia. March 25, 1918.) reason stated in the opinion in the Bryce Case,

Petition by James Carrera for writ of habeas supra, we are of the opinion that plaintiff in

corpus. Petition denied. error has waived the right to have his appeal in this case considered and determined. The Edwin V. McKenzie and Hyman Levin, both appeal herein is therefore dismissed. Mandate of San Francisco, for petitioner. U. S. Webb, forthwith.

Atty. Gen., and Frank L. Guerena, Deputy

Atty. Gen., for respondent. (178 Cal. 811)

In re JONES' ESTATE. (L. A, 5569.) PER CURIAM. Pursuant to the case of Ex (Supreme Court of California. May 17, 1918.) parte Lee, on habeas corpus, 171 Pac. 958, it

is ordered that the warden of the prison at In Bank. Appeal from Superior Court, San San Quentin deliver the petitioner to the sherDiego County; s. M. Marsh, Judge.

iff of Los Angeles county, to whose custody he Proceeding in the matter of the estate of Wild is remanded, and that the superior court of that liam H. Jones Deceased. From an order ad-county take such steps as may be necessary to verse to it, the Chicago Boys' Club, Incorporat- bring the petitioner, James Carrera, before it, ed, appeals. Reversed.

and pronounce judgment upon his conviction James S. Bennett, of Los Angeles, for Chica heretofore had. go Boys' Club. Robert A. Waring, of Sacramento, and J. W. Carrigan and Edwin H. Pen

(65 Colo. 156) nock, both of Los Angeles, for state controller. BECKER V. EMERSON-BRANTINGHAM PER CURIAM. In accord with the stipu

IMPLEMENT CO. (No. 9399.) lation of the parties to this appeal, on the au- (Supreme Court of Colorado. June 3, 1918.) thority of the Estate of Fiske, Deceascd (I.. A. No.5433) 172 Pac. 390, decided April 12, 1918,

Error to District Court, Logan County: H. the order appealed from, in so far as it in any P. Burke, Judge. way affects or relates to the Chicago Boys' Club Action by J. C. Becker against the Emerson. (a corporation), the sole appellant, is reversed. Brantingham Implement Company, a corpora.

tion. Judgment for defendant, and plaintiff brings error. Supersedeas denied, and judge

ment affirmed. PATTEN & DAVIES LUMBER CO. v. DURFLINGER et al. (Civ. 2551.)

McConley & McConley, of Sterling, for plain

tiff in error. Frank L. Grant, of Denver, for (District Court of Appeal, Second District, Cal. defendant in error.

ifornia. April 1, 1918.) Appeal from Superior Court, Los Angeles the plaintiff in error in the district court of

PER CURIAM. This action was brought by County; Leslie R. Hewitt, Judge.

Action by the Patten & Davies Lumber Com-Logan county to have set aside and held for pany, a corporation, against William Durflinger, district court of the city and county of Denver,

naught a judgment rendered against him in the Charles T. Inman, and another. From the judge upon a promissory note and to recover $3,000, ment rendered, Inman appeals, and plaintiff alleged damages growing out of the transaction moves to dismiss the appeal. Motion denied.

in which the note was given. Upon trial to the H. C. Millsap, of Los Angeles, for appellant. court, the action was dismissed at the cost of Behymer & Craig, of Los Angeles, for respond the defendant,

Perceiving no prejudicial error, the application

for supersedeas will be denied, and the judga PER CURIAM. Motion to dismiss the ap- ment affirmed. peal of Charles T. Inman, on the ground of Supersedeas denied. Judgment affirmed.

ent.

(14 Okl. Cr. 690)

of the lessees, and reduce the lessor's remedy, for Ex parte FOSTER. (No. A 3291.)

lessees' failure to commence operations, to en

tering and terminating the lease, but gives him (Criminal Court of Appeals of Oklaboma. April an option to do so, and does not prevent him 11, 1918.)

allowing the lease to continue and recovering on Application of Fred Foster for writ of habeas the covenant to pay rental during default. corpus to be let to bail. Bail denied, and pe- 2. Damages 79(5)— LIQUIDATED DAMAGES tition dismissed.

OR PENALTY-OIL LEASE.

Provision of an oil lease for extracting oil Park Wyatt, of Tecumseh, for petitioner. R. on royalty that if the lessees fail to commence McMillan, Asst. Atty. Gen., and C. G. Pitman, operations by a certain day they will pay the Co. Atty., of Tecumseh, for respondent.

lessor $100 per month during continuance of PER CURIAM. The petitioner, Fred Foss the default, is for liquidated damages, and not

penalty. ter, filed his application in this court for a writ of habeas corpus to be let to bail, and discloses Department 2. Appeal from Superior the fact that he is imprisoned in the county Court, Los Angeles County; Willis I. Morjail of Pottawatomie county charged with the murder of John Villines on the 9th day of Feb

rison, Judge. ruary, 1918.

Action by F. H. Allen against D. C. Narver Stipulations were filed which show that the and others. From an adverse judgment and state was ready to try the cause on the 4th order, defendants appeal. Affirmed. day of March, 1918, but that it was continued at the instance of the defendant on the ground A. A. Kidder, Jr., and Schweitzer & Hutthat he was pot ready. In support of the ap- ton, all of Los Angeles, for appellants. Kimplication for bail here, a record of the proceed- ball Fletcher, of Los Angeles, for respondent. ings had before the trial court on a similar application is offered, supplemented by the stipulations referred to, which stipulations do not VICTOR E. SHAW, Judge pro tem. The contain any new statement of facts.

question presented on this appeal from a After a careful examination of the record we judgment in favor of plaintiff and an order conclude that the petitioner has not met the burden

placed on him by law, and therefore is of court denying defendants' motion for a not entitled to be let to bail as prayed. This new trial involves the interpretation of a cause is yet to be tried on its merits. An opin- lease made by plaintiff to defendants of cerion, therefore, discussing, at length the issues tain lands for use in extracting oil and othraised and the facts disclosed, will not be written.

er mineral substances therefrom, the exBail is denied, and the petition is dismissed. press consideration therefor being a royalty

of one-eighth of the mineral so extracted. (88 Or. 549)

[1] The provision of the lease upon which DE FOE v. DE FOE.

the action is based is as follows: (Supreme Court of Oregon. May 21, 1918.) "It is further expressly agreed and understood

In Banc. Appeal from Circuit Court, Mal that in the event that the second parties (deheur County; Dalton Biggs, Judge.

fendants) shall fail to commence operations by Suit for divorce by Ina L. De Foe against the 4th day of July, 1911, under the terms of Virn J. De Foe. Decree for plaintiff, and de this lease, then and in that event the parties of fendant appeals. Affirmed.

the second part (defendants) will pay the party See, also, 169 Pac. 128.

of the first part (plaintiff) one hundred ($100)

dollars per month for each and every month in Wells W. Wood, of Ontario (McCulloch & which they shall make such default in the comWood, of Ontario, on the brief), for appellant. mencement of operations hereunder." P. J. Gallagher, of Ontario (W. H. Brooke, of Ontario, on the brief), for respondent.

The complaint alleged and the court found

that defendants and each of them wholly PER CURIAM. The record contains a re- failed and refused to commence operations cital of the gross misconduct of the defendant, which it would serve no good purpose to spread on or before July 4, 1911, and from thence upon the pages of the Reports. The delinquen- to March 4, 1913, continuously failed and recy of the defendant is admitted, and the de- fused so to commence operations in accordfense is that it has been expressly forgiven and ance with their covenant so to do, and likecondoned. We are satisfied that there ha been no such forgiveness or condonation as is wise refused to pay the $100 per month or contemplated by our statute.

any part thereof during said period of de The decree was correct, and should be af- fault. No attack is made upon this finding; firmed.

indeed, it is conceded that defendants never (178 Cal. 202)

at any time complied or attempted to comply ALLEN V. NARVER et al. (L. A. 4246.) with their agreement in this respect. Their (Supreme Court of California. April 25, 1918.) contention is that, notwithstanding their ex1. MINES AND MINERALS 78(1)-OIL LEAS. press covenant, the lease constitutes merely ES-FAILURE TO DRILL-REMEDY OF LESSOR. an option on their part, and that plaintiff's

Under a lease for extracting oil on royalty, sole remedy for breach of the agreement was binding the lessees to commence operations by a to enter upon the property and terminate the certain day, and providing that if they fail to do so they will pay lessor $100 per month lease. It is quite true that by another produring continuance of default, the further pro- vision of the lease it was provided that a vision that failure of the lessees to comply with failure on the part of the lessees to comply conditions of the lease or to diligently prosecute with the conditions thereof, or their failure the work of drilling and producing oil will render the lease null and void and of no effect, does to diligently prosecute the work of drilling not render the lease a mere option on the part land producing oil, would render the lease

the pay

null and void and of no effect. This provi "Fixing the amount for damages sustained in sion constitutes an option given to the les contracts for digging oil wells very similar to sor, which, in lieu of insisting upon the pay. Oliver, 158 Pa. St. 277 [27 Atl. 961), and the

the one here involved was upheld in Gibson v. ment of the $100 per month as provided in cases there cited. And it would seem that damthat portion of the lease hereinbefore quoted, ages for breaches of contracts touching future he might or might not exercise at his elec- interests in oil wells of unknown value are of

such remote and speculative character as to tion. Defendants, having agreed to com- bring them peculiarly within the rule that the mence operations before July 4, 1911, could parties should have the right to fix them by munot insist that their failure to perform their tual agreement.” covenants should be equivalent to perform From the nature of the case it would be ance. As said by the court in discussing a impossible to calculate with any degree of like contention in Woodland Oil Co. v. Craw-certainty the amount of damage sustained ford, 55 Ohio St. 161, 44 N. E. 1093, 34 L. by plaintiff by reason of the breach of the R. A. 62, where a great number of cases in covenant made by defendants. In the case support of the proposition are cited:

of McComber v. Kellerman, 162 Cal. 749, 124 “A promise to drill a well cannot be satisfied Pac. 431, the court, considering a like conby a failure to drill such well. The proper con- tention, said: struction to be placed upon such an agreement "It was clearly in the nature of rental for the is, that upon failure of the lessee to drill a well, premises or compensation for the right, and not or pay the rental,

the lessor may elect an attempt to fix a penalty or liquidated damto put an end to the lease, *

or he may

ages. But if it were considered as liquidated elect to have the lease continue in force to the damages, the complaint and proof are sufficient end of the term, and enforce •

to support the judgment. The nature of the ment of rentals, as provided in the lease.”

case and the extreme difficulty of fixing damages So here, under the terms of defendants' arising from the breach of such a contract are

fully shown by the lease itself.” express covenant to pay $100 per month for

There is no merit in the contention that each and every month in which they shall the evidence is insufficient to sustain the make default in the commencement of opera- finding as to the assignment made by the tions, the lessor may, instead of exercising the right which he has to terminate the lease, original lessor in said lease to the plaintif

bringing this action. insist upon the payment of the sum stipu

The judgment and order are affirmed. lated to be paid for failure to comply with the covenant to commence operations and

We concur: MELVIN, J.; WILBUR, J. drill one well each year during the term of the lease. In support of their contention appellants have cited a number of cases,

(178 Cal. 102) chief among which are those of Risch v. CLARKIN V. MORRIS. (L. A. 4126.) Burch, 175 Ind. 621, 95 N. E. 123, and Glas- (Supreme Court of California. April 11, 1918. gow v. Chartiers Oil Co., 152 Pa. 48, 25 On Hearing in Bank, May 10, 1918.) Atl. 232, an examination of which shows 1. JUDGMENT 419_EQUITABLE RELIEFthere was a lack of any covenant on the part AFFIDAVIT FOR SERVICE BY PUBLICATION

SUFFICIENCY. of the lessees in the leases considered to do

An affidavit for publication under Code Civ. the work specified or pay anything as rental Proc. $ 412, on the ground that defendant could or damage for failure to do it. They involve not after due diligence be found within the contracts containing provisions to the effect state, held sufficient to sustain order for publi. that in the event of failure on the part of set aside judgment; it presenting facts tending

cation of summons when attacked by action to the lessees to develop the land or pay rental, to show the exercise of diligence and that de the lessor might terminate the lease. There fendant could not be found. being no covenant on the part of the lessee, 2. PROCESS Om96(4)-AFFIDAVIT FOR SERVICE

BY PUBLICATION-SUFFICIENCY. this was the lessor's only remedy. In the

Such affidavit was sufficient, although it did instant case, however, the lease contains an not declare expressly that affiant did not himself express covenant on the part of the lessees know the whereabouts of defendant, where such to the effect that in case they fail to com- vit and could reasonably be inferred from state

fact is implied from the language of the affidamence operations by July 4, 1911, they will ment therein that affiant was ignorant of the pay the $100 per month for each month dur-whereabouts of defendant. ing which they shall make default therein.

On Hearing in Bank. [2] It is next insisted that the covenant 3. TRIAL C-396(4) EVIDENCE TO SUPPORT to pay the $100 per month must be regarded FINDINGS. as a penalty, and not as liquidated damages, Although the court found the existence of a and since there was no evidence introduced for fraud, where plaintiff failed to offer any evi

state of facts warranting setting aside judgment showing the amount of damages which plain- dence in support of certain material allegations tiff had sustained, no recovery can be had. for relief on ground of fraud, decree for plain. This contention is fully answered by the tiff cannot be sustained. opinion in the case of Escondido Oil & De Department 1. Appeal from Superior velopment Co. v. Glaser, 144 Cal. 494, 77 Court, Los Angeles County; Chas. Wellborn, Pac. 1040, where the court, in discussing a Judge. like claim made therein, said:

Action by Gladys M. Clarkin against J. E. For olbcr cases see same topic and KEY-NUMBER 10 all Key-Numbered Digests and Indexes

Morris. Judgment for plaintiff, and defend-, county; that in that proceeding the guardant appeals. Reversed.

ian had filed a bond with H. H. Yonkin and Hancock & Lawrence and S. M. Johnstone, E. L. McWilliams as sureties, and had causall of Los Angeles, for appellant. Waldo M. ed J. C. Wilmon, William Mead, and A. T. York, of Los Angeles, for respondent.

Trimble to be appointed appraisers of said

minor's property; that on December 4, 1889, SHAW, J. In this action plaintiff sued to said Wilmon and Trimble returned and filed set aside a judgment against her in favor an inventory and appraisement thereof and of J. E. Morris made on October 5, 1911. that W. A. Ryan was attorney for the said The grounds assigned in her complaint for guardian; that affiant had made inquiries of setting aside said judgment were that the Yonkin, Wilmon, Trimble, and Mead as to same was rendered upon service by publica- that w. A. Ryan, the attorney aforesaid, was

the whereabouts of said Gladys M. Clarkin; tion only and that the order for the public cation of summons was procured without fill then deceased, and E. L. McWilliams, the ing any affidavit showing that the said Glad- other surety upon the bond, could not be ys M. Clarkin, defendant in said action, re

found within the city of Los Angeles; that sided out of the state of California, or had said persons are persons who would be most departed from the state of California, or likely to know the whereabouts of said could not, after due diligence, be found with Gladys M. Clarkin; that affiant had also in the state of California, or that she had made inquiries of many other persons from concealed herself to avoid the service of sum

whom he could expect to obtain information mons, and that said Morris, plaintiff in said as to the whereabouts of said defendant and action, falsely represented to the court that had examined the city directories and that such affidavit had been made and thereby from sald search and said inquiries and the obtained said judgment. The defendant al- exercise of said diligence he had been unleged that he had obtained the order for able to find said defendant in the state of publication by means of an affidavit present.

California; and therefore he declared that ed to the court at the time the same was ob- by the exercise of diligent search the defendtained, and that the publication was made ant could not be found within the state of in pursuance of the order made upon such California. The court in its findings in the affidavit, and he denied that he had fraud- present case states that the affidavit does ulently represented to the court at the time not disclose what answers were returned to the judgment was given that the order for his inquiries by the parties of whom the inthe publication of summons had been pro- been made of Owen E. Clarkin, the former

quiries were made, nor that any inquiry had cured otherwise than upon said affidavit. The affidavit itself is referred to and made guardian of Gladys M. Clarkin. Its conclua part of the answer, and it was also intro-sion was that the affidavit did not show suffiduced in evidence. The only question pre

cient diligence, and thereupon judgment was sented in the case is the sufficiency of the given in favor of the defendant canceling affidavit to sustain the order for the publi

the previous judgment. cation of summons.

The rule regarding the sufficiency of affi[1] The affidavit purported to state a case

davits for publication when attacked collatfor the publication of summons

the

erally is clearly set forth in the language of ground that defendant could not after due Mr. Justice Harrison in Rue v. Quinn, 137 diligence be found within the state, as pro

Cal. 651, 66 Pac. 216, 70 Pac. 732, as fol. vided in section 412 of the Code of Civil Pro

lows: cedure. The facts relating to this subject as legal tendency to show the exercise of diligence

"If the facts set forth in the affidavit have a set forth in the affidavit are as follows: on behalf of the plaintiff in seeking to find the That defendant, Gladys M. Clarkin, is a nec- defendant within the state, and that after the essary party and cannot be found within the exercise of such diligence he cannot be found, state of California ; that she had not filed or the same to his satisfaction is to be regarded

the decision of the judge that the affidavit shows recorded any certificate of residence as pro- with the same effect as is his decision upon any vided in section 1163 of the Civil Code; that other matter of fact submitted to his judicial on October 22, 1889, she resided in the city

determination." of Los Angeles, state of California; that We are of the opinion that the affidavit in since the suit was filed, which was four days the case of Morris v. Clarkin under considprior to the making of the affidavit, the affi- eration here presented facts which did have ant had made diligent search and inquiry for a legal tendency to show the exercise of dilsaid defendant; that the summons had been igence on behalf of the plaintiff in seeking to given to the sheriff with instructions to find the defendant, and also to show that the serve the same on said defendant, and that defendant could not be found after such dilihis return thereon had stated that he could gence. In the case of Rue v. Quinn, aforenot find the said defendant in the county of said, the affidavit in controversy stated the Los Angeles; that on October 25, 1889, one return of the sheriff similar to that in the Owen E. Clarkin was appointed guardian of present case; that the affiant himself did said Gladys M. Clarkin, who was then a mi- not know the residence of the defendant;

on

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