(186 P.) in every case where evidence is submitted to them tending to show that the fire was communicated by a locomotive of the railroad, and, no matter how strong the countervailing evidence may be, it is for the jury and not for the court to determine whether it is sufficient to rebut the statutory presumption of negligence. Any other rule would involve on the part of the court an invasion of the province of the jury." 2 Thompson, Commentaries on the Law of Negligence, § 2342. proven. If a court undertakes to weigh such In Atchison, T. & S. F. R. Co. v. Geiser, 63 Kan. 281, 75 Pac. 68, 1 Ann. Cas. 812, in discussing whether it is a question of law for the court, or of fact for the jury, to determine when the prima facie case of negligence made by showing that the fire was caused by the operation of the railroad. is overcome by showing on the part of the the latest and best appliances, and managed railroad that its engine was equipped with in the best possible manner by competent employés, the court said: It must be conceded, however, that the cases construing such statutes are not harmonious. Some cases hold that rebuttal proof that the engine causing the fire was properly constructed, equipped, inspected, maintained, and operated, is as broad as the presumption of negligence, and justifies the trial court in directing a verdict. According "In the case at bar sufficient evidence was to other authorities, it is necessary for the offered by the plaintiff to make out a prima jury to weigh the statutory presumption of facie case. The railway company then offered negligence in the balance, against the evi-proof going to establish the fact that the engine which set out the fire was equipped with the dence of the defendant in rebuttal. The latest and best appliances to prevent the escases pro and con are collated in Continen-cape of fire therefrom, was in good repair, and tal Insurance Co. v. Chicago & N. W. R. R. Co., 97 Minn. 467, 107 N. W. 548, 5 L. R. A. (N. S.) 99. We cannot hope to reconcile the conflicting views expressed in these cases, and shall not undertake the task, but shall content ourselves with saying that upon principle the most satisfactory view of the question seems to be that which regards the presumption or prima facie case in favor of the plaintiff in the nature of substantive evidence for the purpose of creating a conflict in the evidence, and therefore a question of fact is presented for determination by the jury. The reasoning upon the point, found in the case of Great Northern R. R. Co. v. Coats, 53 C. C. A. 382, 115 Fed. 452, is very satisfactory, and seems to us to be sound and convincing: "We cannot well understand upon what theory the statement of persons, who were in charge of a locomotive when it occasioned a disastrous fire, that it was properly and prudently managed, etc., must be accepted by a court as conclusive, and as overturning, as a matter of law, the presumption of negligence raised by other testimony. It would seem, rather, that the triers of the fact ought, in such a case, to consider how far the interest of such witnesses their natural desire to absolve themselves from all blame may have colored their evidence, and how far their statements are consistent with other facts and circumstances which have been * was being skillfully handled by competent em- did not err in refusing to grant the motion We are of the opinion that the trial court er defendant had overcome the prima facie case made by plaintiff was not one of law for the court to determine, but one of fact for the jury. A further claim is made that the court erred in denying defendant's motion for a new trial. The evidence was conflicting, and it was for the jury to decide whether the charge of negligence had been substantiated. . Upon the whole case, we find no error, and the judgment of the lower court is affirmed. CUNNINGHAM, C. J., and ROSS, J., con cur. MEMORANDUM DECISIONS HARRIS v. STATE. (No. 468.) (Supreme | Action by Florence B. Coughlin against Herbert Court of Arizona. May 21, 1919.) Appeal from Lemp, as executor of John Lemp, deceased, to Superior Court, Maricopa County; R. C. Stanford, Judge. Charles Harris was convicted of aggravated assault with a knife made upon a police officer, and he appeals. Judgment affirmed. Wiley E. Jones, Atty. Gen., for the State. CUNNINGHAM, C. J. The appellant was duly charged by information with the commission of an aggravated assault with a knife upon one Mickey, a police officer of the city of Phenix. Upon a trial the jury returned a verdict of guilty. At the trial, appellant's counsel did not introduce appellant as a witness, and gave as his reasons, the following: "Now, if the court please, at this particular time I will state the defendant was on the witness stand in the preliminary examination, and his evidence was taken down and after reading the evidence of the state, and the evidence of the defendant, they are so nearly the same that I don't see any reason for prolonging this trial. Practically the only difference in the state's evidence and the defendant's evidence is the fact that the defendant says that one of the officers struck him in the eye with his fist when he was arresting him prior to the time he used the knife, and the officer says he didn't, and that is practically the only difference in the evidence. An examination of the evidence given in behalf of the state, convinces us that the verdict is amply supported thereby. We find no reversible error on the record, and no effort has been made to point out to this court a claim of error. judgment is affirmed. ROSS and BAKER, JJ., concur. The ATKINSON v. L'ABBE et al. (No. 9573.) (Supreme Court of Colorado. April 19, 1919.) Error to District Court, City and County of Denver; Clarence J. Morley, Judge. Action between G. W. Atkinson, an individual doing business as the Liberty Amusement Company, and George A. L'Abbe and others. The former brings error. On application of Atkinson for a supersedeas. Supersedeas denied, and judgment of the trial court affirmed. John Horne Chiles, of Denver, for plaintiff in error. John M. Maxwell and Garwood & Garwood, all of Denver, for defendants in error. PER CURIAM (GARRIGUES, C. J., and ALLEN and BURKE, JJ.). This cause is now before us on the application of plaintiff in error for a supersedeas. Upon consideration of all matters here presented, no error appears, and no necessity is disclosed for a discussion by this court of any of the questions raised. The supersedeas is denied, and the judgment of the trial court affirmed. Time for filing a motion for rehearing having been waived by plaintiff in error, the clerk of this court will issue remittitur forthwith. COUGHLIN v. LEMP. (Supreme Court of Idaho. March 19, 1919.) Appeal from District recover money paid on contract for purchase of real estate. Judgment for plaintiff, and defendant appeals. Reversed. Alfred A. Fraser, of Boise, for appellant. Frawley & Koelsch and N. Eugene Brasie, all of Boise, for respondent. MORGAN, C. J. This case and that of Blake v. Lemp, 179 Pac. 737, were tried together in the district court and presented together here. The facts of the two cases are similar, and their questions of law are identical. Upon authority of Blake v. Lemp, the judgment in this case is reversed. Costs are awarded to appellant. RICE, J., concurs. BUDGE, J., concurs in the conclusion reached. DICKINSON V. BLACKWOOD, County Treasurer. (No. 9882.) (Supreme Court of Oklahoma. April 15, 1919.) Error from District Court, Cotton County. Action by Jacob M. Dickinson, as receiver of the Chicago, Rock Island & Pacific Railway Company, against G. C. Blackwood, as County Treasurer of Cotton County. Judgment for defendant, and plaintiff brings errors. Reversed and remanded. C. O. Blake, of El Reno, for plaintiff in error. E. L. Richardson and Lon Morris, both of Walters, for defendant in error. RAINEY, J. This is an action instituted by Jacob M. Dickinson, as receiver of the Chicago, Rock Island & Pacific Railway Company, against G. C. Blackwood, as county treasurer of Cotton county, Okl., to recover certain taxes alleged to have been illegally collected from it by said Blackwood, as treasurer of said county. The illegality alleged in the taxes is that they were in excess of the maximum amount chargeable and collectable under the laws of this state. The trial court sustained a demurrer to plaintiff's petition, from which it appealed to this court. The defendant in error, the defendant below, has filed the following confession of error: "Comes now the defendant in error, and confesses error in sustaining of the demurrer by the honorable trial court, and consents that this cause may be reversed and remanded to the honorable district court of Cotton county, Oklahoma, for further proceedings. Morris & Wells, for defendant in error." It is so ordered. HARDY, C. J., and HARRISON, PITCHFORD, and MCNEILL, JJ., concur. Ex parte BERRY. (No. A-3468.) (Criminal Court of Appeals of Oklahoma. April 30, 1919.) Petition by Charles Berry for writ of habeas corpus. Dismissed. D. M. Martindale, of Tulsa, for petitioner. R. McMillan, Asst. Atty. Gen., for the State. PER CURIAM. Petition of Charles Berry for writ of habeas corpus dismissed. ELLIOTT v. STATE. (No. A-3505.) (Criminal Court of Appeals of Oklahoma. May 22, County; J. C. Robberts, Judge. (180 P.) Earnest Elli- | is conclusive and uncontradicted. No brief has ott, convicted of manslaughter in the first degree, been filed, and for this reason, when the case appeals. Appeal dismissed, and cause remanded, with directions. Dan Huett and H. J. Sturgis, both of Enid, for plaintiff in error. W. C. Hall, Asst. Atty. Gen., for the State. PER CURIAM. Plaintiff in error, Earnest A. Elliott, was by information filed in the district court of Garfield county charged with the crime of murder. It is alleged that on or about the 16th day of June, 1918, in said county, he did kill and murder one Elmer Muir, by shooting him with a pistol. Upon his trial the jury returned a verdict finding him guilty of manslaughter in the first degree. Motions for new trial and in arrest of judgment were duly filed and overruled. On December 17, 1918, judgment was rendered, and he was sentenced to serve a term of 10 years in the penitentiary. From the judgment an appeal was perfected by filing in this court on January 31, 1919, a petition in error with case-made. Plaintiff in error, by his counsel of record, has filed a motion to dismiss his appeal, and to said motion is attached the affidavit of plaintiff in error that he has requested his attorneys of record to file said motion to dismiss the appeal. It is therefore considered and ordered that said motion be sustained, the appeal herein dismissed, and the cause remanded to the trial court, with direction to cause the judgment and sentence to be carried into execution. Mandate forthwith. RIGGERT V. STATE. (No. A-3151.) (Criminal Court of Appeals of Oklahoma. May 20, 1919.) Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge. Herman Riggert was convicted of a violation of the prohibitory liquor law, and he appeals. Affirmed. W. J. Davidson, of Oklahoma City, for plaintiff in error. The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State. PER CURIAM. Plaintiff in error, Herman Riggert, was convicted on an information charging that he did unlawfully have possession of 8 quarts of whisky and 60 half pints of whisky with the intention of selling the same. On the 1st day of June, 1917, judgment was rendered, and he was sentenced to be confined in the county jail for 90 days and to pay a fine of $150 and the costs. From the judgment he appealed, by filing in this court on September 28, 1917, a petition in error with case-made. The proof on the part of the state, showing possession of the intoxicating liquor as charged, was called for final submission, the Attorney General moved to affirm the judgment. An examination of the record discloses that the errors assigned are destitute of merit. The judgment of the lower court is therefore affirmed. Mandate forthwith. Ex parte ROBERTS. (No. A-3148.) (Criminal Court of Appeals of Oklahoma. May 20, 1919.) Application for habeas corpus by Sam Roberts to be let to bail. Bail denied. C. L Hill, of Wewoka, for petitioner. The Attorney General and R. McMillan, Asst. Atty. Gen., for respondent. PER CURIAM. A petition filed on behalf of Sam Roberts on September 27, 1917, for a writ of habeas corpus to be let to bail, discloses that he is held in custody by virtue of a certain commitment issued by Ed Warren, a justice of the peace of Tulsa, upon a preliminary examination held upon a complaint wherein petitioner and H. B. Bowden were jointly charged with the murder of Lewis Potee in Tulsa county on the 15th day of June, 1917. It further appears that the application for bail in the district court of Tulsa county was denied. It is averred that the proof is not evident, nor the presumption great, that petitioner is guilty of murder. Attached to said petition is a transcript of the testimony taken upon said preliminary examination and the hearing before the district court. A rule to show cause was entered and issued, returnable September 29, 1917, at which time the cause was submitted. Upon the return day, and after an examination of the record, it was the conclusion of the court that petitioner had not met the burden placed upon him by law, and the application for bail was denied, and the petition dismissed. The statute (Gen. St. 1915, § 6974; Code Civ. Proc. & 83) does not require that an application to open a default judgment be verified. 2. JUDGMENT 176-OPENING JUDGMENT VALID DEFENSE - CONSTRUCTION OF STATUTE. Where a default judgment has been opened up at the instance of parties who have a valid defense, Gen. St. 1915, § 6974 (Code Civ. Proc. §83), relating to procedure, should receive a liberal construction. It is seriously contended that the statute can only be complied with by the filing of an affidavit, and that oral testimony is not competent. This would make the filing of an ex parte affidavit of more force and effect than testimony produced in open court where the plaintiff as well as the court has an opportunity to cross-examine and ascertain whether or not the party making the application had actual notice. Where a judgment has been opened up at the instance of parties, who have, as in the present case, a valid deGen. St. 1915, § 6974 (Code Civ. Proc. fense, the section of the Code should receive 83), providing that an applicant to open a dea liberal in place of a narrow technical confault judgment shall make it clear to the court's struction. It hardly requires a liberal consatisfaction by affidavit that during the pend-struction, however. Its plain purpose is the ency of the action he had no actual notice, etc., may be complied with by oral testimony in open 3. JUDGMENT 162(3) APPLICATION TO OPEN JUDGMENT-ORAL TESTIMONY- STATUTE. court. requirement that before a default judgment taken upon service by publication only shall be opened, it must be made to appear to the satisfaction of the court that the applicant Appeal from District Court, Cherokee had no actual notice in time to defend. FreCounty. On motion for rehearing. Motion denied. R. E. Rosenstein, of Baxter Springs, and Stephens & MacCaskell, of Columbus, for appellant. Maurice McNeill, of Kansas City, Mo., and C. A. McNeill and Al F. Williams, both of Columbus, for appellees. quently the applicant lives at a distant place, and so the statute expressly authorizes the showing to be made by affidavit. It was not necessary for the Legislature to authorize district courts to hear oral testimony upon an issue of fact. It is usually an advantage to the plaintiff to have the application heard on oral testimony. Besides, it is hardly conceivable that this question was raised in the court below; if the mere failure to file an affidavit had been relied upon and called to the trial court's attention, the objection could have been readily met by the filing of an affidavit of the same persons who testified PORTER, J. [1] As exhibits to a motion for rehearing there is the affidavit of the clerk of the district court stating that to his knowledge no affidavits were filed in support | orally. of the application to open judgment; also affidavits of two different sheriffs to the effect that before they served plaintiff with notice of the applications they took the precaution to compare the copies with the original application and that the latter was not sworn to. However, the statute does not require the application to be verified. [2, 3] There is and can be no controversy over the fact that the court opened up the Judgment on the oral testimony of two witpesses, who were examined by the defendants and were cross-examined by the plaintiff. The sole contention presented by the motion for rehearing which deserves attention arises over the construction of section 83 of the Code of Civil Procedure, which pro | The opinion contains the statement that plaintiff's contention is that defendants failed to show "by affidavit or otherwise" that they had no actual notice, etc. It is said this misstates plaintiff's contention. The opinion will be corrected to show the contention is that the filing of an affidavit was necessary. In the opinion the paper filed by the former judge of the district court was referred to as an affidavit. This was taken from a statement in the abstract; but our attention is challenged to the fact that the paper signed by the former judge was a certificate, and not an affidavit. In this respect the opinion may be considered as corrected. Rehearing denied. All the Justices concurring. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and See Criminal Law, 448, 511, 1170; dence, 317; Homicide, 228, 234; band and Wife, 333; Witnesses, ABSTRACTS OF TITLE. See Pleading, 369. ACCOUNT. items of indebtedness omitted by mistake on a settlement of an account, if there is no other objection.-Id. Where an account has been adjusted by the parties, if any mistake is subsequently discovered, the whole account need not be opened and readjusted, but the mistake may be corrected, and the rights of the parties readjusted as to such mistake.-Id. 19(2) (Cal.App.) In an action in assumpsit on an item of an account which was omitted by mistake in an accounting, admission in evidence of the details of the accounting was proper.-White v. Thompson, 180 P. 953. ACKNOWLEDGMENT. See Forgery, 6; Limitation of Actions, 148, 150; Notaries, 11. ACTION. See Abatement and Revival; Dismissal and Evi- See Action, 38; Appeal and Error, 27(1) (Or.) A complaint held to state a cause of action in damages for fraud and deceit, and not one on the theory that the original contract had been deviated from to such an extent that it was not controlling on the parties, and that there was a new contract implied to pay fair or reasonable value of work done.-Multnomah County v. Standard American Dredging 367; Set- Co., 180 P. 508. ACCOUNT, ACTION ON. ACCOUNT STATED. See Assignments, 24. 8 (Cal.App.) An account stated does not bar a recovery for items not within the contemplation of the parties when settlement was made, nor for such as were left open for further considerations.-White v. Thompson, 180 P. 953. (Cal.App.) While a suit to open, surcharge, or falsify an account is one proper for equitable jurisdiction, yet the rule seems to be established that a stated account need not be impeached by a direct action brought for that purpose, but may be impeached for fraud and mistake, either at law or in equity, whenever it is brought forward as a defense.-White v. Thompson, 180 P. 953. III. JOINDER, SPLITTING, CONSOLI- 38(1) (Nev.) The formal chancery bills for accounting, discovery, and the like are no longer used, but the remedies are preserved, and, conceding complaint to be a good specimen of a bill in equity, nevertheless, if it states but one cause of action, whatever else it may contain, the defendant cannot successfully demur on the ground of improper uniting of several causes.— Walser v. Moran, 180 P. 492. A complaint reciting one connected history of the property affected by an agreement through a series of acts on the part of defendants which contributed to and culminated in the alleged injuries to plaintiffs, showing defendants have a connected and common interest in the one subject-matter of the action, and charging the defendants with an inexcusable disregard of a duty voluntarily assumed by their (993) An action in assumpsit will lie to recover for 180 P.-63 |