in purchasing from Sakauf complied with the terms of the statute; and, mentioning this fact, the court said: chita Falls & Northwestern Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded. Dickson & Dickson, of Beaver, for plain "If Levine was required to go further, and show compliance with the statute in the transactiff in error. tion between Sakauf and Chill, then, no matter how many prior transfers there may have been, he would have been required to show the same as to each; and if the rule of evidence as to the presumption of fraud is to be so interpreted, it appears to us that the present statute would be as susceptible to the criticisms made by the Court of Appeals in Wright v. Hart, supra, as the statute there under consideration. We do not think that the statute should be so construed." RUMMONS, C. The plaintiff in error in this case duly perfected its appeal from the judgment of the court below by filing its petition in error, with the case-made attached, in this court on March 20, 1915. Thereafter it duly served and filed its brief in compliance with the rules of this court, which brief seems to sustain the assignments of error made by plaintiff in error. The defendant in error has neither filed a brief nor offered any excuse for his failure to do so. The rule of this court that, where the brief of the plaintiff in error reasonably appears to support the assignments of error, this court will not search the record to ascertain some pos firmed but, if the assignments of error appear to be reasonably supported by the record and the brief, the case will be reversed, is therefore applicable. The judgment of the court below should be reversed and the cause remanded. In the case at bar the transfer from King to Woody was made on the 6th of May, and from Woody to Huston on the 14th of June. It appears from the evidence that Woody gave Huston a written bill of sale, in which he recited that there was no indebtedness against the property, and there was other evidence upon this issue. The court found, how-sible theory upon which the case may be afever, that Huston had knowledge of the claim of plaintiff. Conceding that he did have such knowledge, it would not make the bulk sales law applicable, for if the conveyance from Woody to Huston be void under the law, then a third and a fourth conveyance would likewise be void, and any transfer of the stock, no matter how remote in point of time or numbers, would be void so long as plaintiff had a valid claim against its original debtor. We do not think the law should be so construed. It is not the province of the court to legislate, and the language of the act indicates that such transfer is only void as against the creditors of the transferor. The plaintiff was a creditor of King, and not of Woody or of Huston, and the transaction between Woody and Huston would be governed by the general rules of law respecting fraudulent conveyances. The judgment is therefore reversed, and the cause remanded. All the Justices concur. (60 Okl. 41) WICHITA FALLS & N. W. R. CO. v. ROBIN- (Supreme Court of Oklahoma. July 11, 1916.) (Syllabus by the Court.) PER CURIAM. Adopted in whole. (57 Okl. 391) WERLINE v. ALDRED. (No. 6689.) (Supreme Court of Oklahoma. June 27, 1916.) (Syllabus by the Court.) APPEAL AND ERROR 1236-LIABILITIES ON BONDS JUdgment. By virtue of chapter 249, Laws 1915, where a supersedeas bond has been filed to stay execution on a judgment pending appeal, and the appeal is decided adverse to plaintiff in error, upon proper motion of defendant in error judgment will be rendered here against the sureties upon such bond. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4778-4784; Dec. Dig. ☺~ 1236.] Commissioners' Opinion, Division No. 3. Error from District Court, Woodward County; Jas. W. Steen, Judge. Action by Salmon C. Aldred against George M. Werline. From a judgment for plaintiff, defendant brings error. Motion for judg APPEAL AND Error 773(5) — BRIEFS-EF-ment on supersedeas bond granted. FECT OF FAILURE TO FILE-REVERSAL. Where plaintiff in error has completed its record and filed its appeal in this court, and has served and filed a brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for such failure, this court is not required to search the record to find some theory upon which the judgment may be affirmed; and, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3110; Dec. Dig. 773(5).] See, also, 157 Pac. 305. C. W. Herod, of Woodward, for plaintiff in error. Chas. Swindall, of Woodward, for defendant in error. HOOKER, C. The plaintiff, Salmon C. Aldred, obtained a judgment in the lower court against the defendant, Geo. M. Werline, for the sum of $2,377.75, with interest at 6 per cent. from the 29th day of January, 1914. This proceeding in error was commenced to review said judgment and a supersedeas bond was executed, approved, and filed by Geo. M. Werline, as principal, and Chas. Nelson, D. P. Cotter, and E. L. Thompson, as sureties, and Commissioners' Opinion, Division No. 1. Error from District Court, Beaver County; W. C. Crow, Judge. Action by G. W. Robinson against the Wi- execution on said judgment stayed. The case was affirmed by this court heretofore, and a motion has been made for judgment against the sureties on the supersedeas bond. Under authority of Long v. Lang & Co., 152 Pac. 1078, Starr v. Haygood, 156 Pac. 1171 (No. 4526), Oklahoma Fire Insurance Company v. Kimpel, 157 Pac. 317 (No. 6634), and Brown v. Davis, 157 Pac. 925 (No. 7504), none of which are officially reported, the motion must be sustained. Judgment is therefore entered in this court against Chas. Nelson, D. P. Cotter, and E. L. Thompson, for the sum of $2,377.75, with interest at 6 per cent. from January 29, 1914, until paid, and for the costs of the suit for which execution may issue out of the trial court. PER CURIAM. Adopted in whole. (59 Okl. 114) NICHOLSON et al. v. BINION, Sheriff, et al. (No. 7498.) authority of Werline v. Aldred, 158 Pac. 893 (No. 6689, not yet officially reported), and authorities there cited, that said motion be sustained; and judgment is therefore entered against I. B. Levy and H. W. Pentecost In the sum of $116.01, with 6 per cent. interest thereon from April 14, 1914, and for the further sum of $25, with like interest from said date. PER CURIAM. Adopted in whole. (60 Okl. 123) PIONEER CONST. CO. et al. v. FIRST STATE BANK. (No. 5841.) (Supreme Court of Oklahoma. Nov. 16, 1915. Rehearing Denied Jan. 11, 1916. Second Petition for Rehearing Denied July 25, 1916.) (Syllabus by the Court.) BILLS AND NOTES 137(1)—CONSTRUCTIONS -"ANY." Where a note contains the stipulation that all defense on the ground of any extension of the time of payment was waived, the use of the (Supreme Court of Oklahoma. June 27, 1916.) word "any" before "extension" indicates that (Syllabus by the Court.) APPEAL AND ERROR 1236-LIABILITIES ON BONDS-JUDGMENT. By virtue of chapter 249, Laws 1915, where a supersedeas bond has been filed to stay execution on a judgment pending appeal, and the appeal is decided adverse to plaintiff in error, upon proper motion of defendant in error judgment will be rendered here against the sureties upon such bond. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4778-4784; Dec. Dig. 1236.] Commissioners' Opinion, Division No. 3. Error from District Court, Oklahoma County; J. W. Hayson, Judge. Action by Ethel Nicholson and another against M. C. Binion, as Sheriff of Oklahoma County, and others. From a judgment for defendants, plaintiffs bring error. Motion for judgment on the supersedeas bond of plaintiffs in error granted. See, also, 158 Pac. 384, 152 Pac. 370. Choate & Choate, of Oklahoma City, for plaintiffs in error. Bennett & Pope, of Okla homa City, for defendants in error. HOOKER, C. The defendant in error, McAdams & Haskell, on the 14th day of March, 1914, recovered a judgment against one Ethel Clopton Scott for the sum of $116.01, and for the further sum of $25 attorney's fees, with 6 per cent. interest thereon until paid and costs of said suit. Execution was issued upon said judgment and levied by M. C. Binion, sheriff of Oklahoma county, upon certain property of the said Scott. Whereupon she instituted this action to restrain a sale thereof; judgment being rendered against her in the lower court, she appealed to this court and executed a supersedeas bond with I. B. Levy and H. W. Pentecost as her sureties, which bond was duly approved and filed. The appeal here having been decided adversely to her and a motion having been made for judgment against the sureties on said bond, one or more extensions of time of payment were contemplated. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 334, 335, 337; Dec. Dig. 137(1). First and Second Series, Any.] Commissioners' Opinion, Division No. 3. Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by the First State Bank against the Pioneer Construction Company and another. Judgment for plaintiff, and defendants bring error, Affirmed. Oliver C. Black, of Oklahoma City, for plaintiffs in error. R. E. Gish, and Burwell, Crockett & Johnson, all of Oklahoma City, for defendant in error. RITTENHOUSE, C. On October 23, 1908, the Pioneer Construction Company and N. S. Sherman made, executed, and delivered their certain promissory note for $500 to the First State Bank of Oklahoma City, which note contained the following clause: "The indorsers, guarantors, and assignors severally waive presentment for payment, protest, note, and all defense on the ground of any extenand notice of protest for nonpayment of this sion of time of its payment that may be given by the holder or holders, them or either of them, or to the makers thereof." Under this clause the bank made several extensions of the time of payment without the consent of N. S. Sherman, who claimed to have signed the note as surety, and the sole question presented for our consideration arises upon that issue. It is contended that the words "any extension," mean only one extension. In this we cannot agree. The use of the word "any" before "extension" indicates that one or more extensions of the time of payment was contemplated by the parties. The word "any" was defined in Re Appeal of McNeal, 35 Okl. 17, 128 Pac. 285, wherein this court in doing so adopted the definition tionary, "one indifferently out of a number," | The assignments of error presented in the and, as explained by that authority, "as ap-| brief of plaintiffs in error are as follows: plied to individuals, 'any' was formerly (and (1) Said court erred in overruling the motion in dialect English is still) used pronominally of plaintiffs in error for a new trial. (2) for one of two, but in educated usage any Said court erred in not rendering judgment and any one are now applied only to one of for plaintiffs in error. (3) The court erred three or more; either and neither being used in permitting the said defendant in error to in referring to one of two." Applying this introduce oral testimony to prove the age of definition to the facts in the case at bar, we said John B. Jordan, the said John B. Jorfind that the word "any" preceding "exten- dan being a Cherokee Indian, and the cension" would mean that N. S. Sherman waived sus roll of the Five Civilized Tribes being conall defenses to the note on the grounds of clusive proof of said age. (4) The court any number of extensions of the time of pay-erred in refusing to render judgment in favor ment. In the case or Winnebago County of the plaintiffs in error and against said deState Bank v. Hustel, 119 Iowa, 115, 93 N. fendant in error, decreeing that the right, tiW. 70, it was held that: tle, and interest of said Sarah J. Mullendore by virtue of a deed obtained May 28, 1912, was while John B. Jordan was a minor and was null and of no force and effect. "Where a note contained a stipulation that all defenses on the ground of any extension of the time for payment was waived, the use of the word 'any' before 'extension' indicated that any one of an indefinite number of extensions was intended." These assignments of error all seek to present errors occurring at the trial. Plaintiffs in error having failed to except to the order of the court overruling their motion for new trial, the assignments of error present no question which this court can review. Beall We therefore conclude that more than one extension might be allowed, and the defense to each extension was by the terms of the note waived. The judgment of the trial court should v. Mutual Life Ins. Co., 7 Okl. 285, 54 Pac. therefore be affirmed. PER CURIAM. Adopted in whole. (59 Okl. 245) JORDAN et al. v. MULLENDORE. (No. 6770.) (Supreme Court of Oklahoma. June 27, 1916.) (Syllabus by the Court.) APPEAL AND ERROR ERROR-DISMISSAL. 305-ASSIGNMENTS OF 474; Bradford v. Brennan et al., 15 Okl. 47, This appeal should therefore be dismissed. (59 Okl. 253) SCHUBER et al. v. McDUFFEE et al. (No. 7068.) Upon an appeal, where the only errors as- (Supreme Court of Oklahoma. June 27, 1916.) signed occurred at the trial and the plaintiff in error failed to except to the overruling of his motion for new trial, the assignments of error present no question which this court can review, and the appeal will be dimissed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1759-1764; Dec. Dig. 305.] Commissioners' Opinion, Division No. 1. Error from District Court, Pawnee County; L. M. Poe, Judge. Action by Sarah J. Mullendore against John B. Jordan and others. Judgment for plaintiff, and defendants bring error. Dismissed. Hayes & Cleeton, of Cleveland, and L. V. Orton and McNeill & McNeill, all of Pawnee, for plaintiffs in error. Blake & Hazlett, of Cleveland, for defendant in error. RUMMONS, C. Plaintiffs in error in this case appeal from the judgment of the district court of Pawnee county, by case-made. In due time, after the rendition of judgment, plaintiffs in error filed their motion for new trial, which was by the court overruled. To this ruling upon the motion for new trial plaintiffs in error saved no exceptions. (Syllabus by the Court.) ABATEMENT AND REVIVAL 72(9)—APPEAL AND ERROR 334(4)-PARTIES-DEATHREVIVOR. Where a judgment creditor dies after an appeal from his judgment is perfected, and subsequent to alleged assignment of his judgment to contesting claimants, both of whom are strangers to the record, and an administrator of his estate has been duly appointed and has qualified as such, the appeal and judgment will not be revived upon the application and in the name of either such assignees over the objec tion and protest of the plaintiffs in error, who seek a revivor in the name of the administrator, when it does not clearly appear that neither the other claimant, as assignee, the plaintiffs in error, nor the estate of the deceased would be prejudiced thereby. In such case the appeal and judgment may properly be revived in the name of the administrator, with leave to each person claiming as assignee to interplead and take such steps as may be necessary and proper for the protection of his interests in said judgment. [Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. § 391; Dec. Dig. 72(9); Appeal and Error, Cent. Dig. §§ 1855, 1857; Dec. Dig. 334(4).] Commissioners' Opinion, Division No. 6. Error from District Court, Alfalfa County; James B. Cullison, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by G. J. McDuffee against D. S. | clearly appear which, if either, claimant sucSchuber and others. Judgment for plaintiff, ceeded to the rights and interests in the and defendants D. S. Schuber and another judgment which G. J. McDuffee possessed at bring error. On death of G. J. McDuffee, the date of its rendition, the action should proceeding in error and judgment revived in be revived in the name of the administrator, name of administrator. but the movants, Blanchard and Hill, should Ben F. Williams, of Norman, H. M. Gray, of Oklahoma City, and J. P. Evans, of Byron, for plaintiffs in error. Titus & Talbot, of Cherokee, for movant Blanchard. V. L. Knodler, for movant Hill. each be permitted to interplead and take any proper steps therein which will preserve their respective rights in the subject-matter of this litigation. PER CURIAM. Adopted in whole. (59 Okl. 234) CLARK, C. The plaintiffs in error are seeking a reversal of a personal judgment rendered against them in favor of one G. J. MUSKOGEE ELECTRIC TRACTION CO. McDuffee by the district court of Alfalfa V. DOSS. (No. 5001.) county on August 21, 1914. The said G. J. McDuffee died January 18, 1916, and one (Supreme Court of Oklahoma. June 27, 1916.) H. P. McDuffee was thereafter duly appointed administrator of his estate. On February 11, 1916, one M. A. Blanchard asked that the action be revived and that he be substituted as defendant in error, alleging ownership of the judgment by virtue of a deed of assignment thereto executed by the said G. J. McDuffee to him on September 29, 1915. This motion is resisted by the plaintiffs in error, who allege ignorance as to the execution or validity of such deed of assignment, and say that prior to the date on which it is claimed such instrument was executed the judgment had been assigned to other parties, and notice thereof given to plaintiffs in error, and they ask that the action be revived in the name of the administrator, to whom Blanchard gave due notice of his claims and of his said motion, but the record is silent as to whether the "other parties," referred to in the motion of plaintiffs in error as prior assignees of the judgment, have any knowledge with reference thereto. Subsequent to the date on which the plaintiffs in error moved to revive the action in the name of the administrator, and on the 19th day of June, 1916, one D. P. Hill filed herein his motion that the action be revived, and that he be substituted as defendant in error in lieu of the deceased, alleging ownership of the judgment by virtue of an assignment to him on September 7, 1915, and prompt notice thereof to the plaintiffs in er ror. The record is silent as to whether the administrator himself is claiming this judgment as an asset of the estate. He has, however, manifested no interest in the result of this litigation, and has made no appearance herein; neither has there been a suggestion from any source that an inquiry and judicial determination be had as to the right of either Blanchard or Hill to be substituted as defendants in error. This proceeding in error was pending in this court before either of these alleged assignments were executed, and, as it does not (Syllabus by the Court.) 1. DAMAGES 26-PERSONAL INJURIES—FUTURE SUFFERING. The jury, in a personal injury case, may take into consideration, in assessing the damage, the pain and suffering which may reasonably be expected in the future, provided evidence has been presented tending to show that the person injured will, with reasonable certainty, experience future pain as a result of the injury. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 69, 236; Dec. Dig. 26.] 2. DAMAGES 163(1)-PERSONAL INJURIESFUTURE SUFFERING-PROOF. and suffering may be submitted to the jury: There are two rules by which future pain (1) If the injury is objective, and it is plainly apparent from the nature of the injury that the injured person must, of necessity, undergo pain and suffering in the future, the jury may infer that fact from proof of such an injury alone. (2) But where the injury is subjective, then, to warrant a jury to return a verdict for future pain and suffering, there must be produced evidence by expert witnesses that the plaintiff, with reasonable certainty, will experience future pain and suffering as a result of the injury. [Ed. Note.-For other cases, see Damages. Cent. Dig. §§ 454, 455; Dec. Dig. 163(1).j Commissioners' Opinion, Division No. 6. Error from Superior Court, Muskogee County; F. L. McCain, Judge. Action by Clarence O. Doss against the Muskogee Electric Traction Company. From a judgment for plaintiff, defendant brings error. Reversed and remanded for new trial. Blakeney & Maxey, of Muskogee, for plaintiff in error. S. M. Rutherford, Jas. W. Cosgrove, and Guy F. Nelson, all of Muskogee, for defendant in error. CRUMP, C. This is an action for personal injuries alleged to have been sustained by the defendant in error through the negli gence of the Muskogee Electric Traction Company, the plaintiff having been injured while on one of the cars of plaintiff in error, in the city of Muskogee, Okl., said injury being caused by a collision with a box car on one of the sidings of plaintiff in error. The plaintiff produced no testimony showing that the injury, if any he received, was objective, nor was there any testimony showing that the injury, if any received, was subjective, and in the absence of this testimony it was error for the trial court to instruct the jury that: "If you find, under the evidence and the instructions of the court, a verdict in favor of the plaintiff, you should assess his damages in such an amount as you believe from the evidence will be a fair and reasonable compensation to him for the pain of body, if any, which he has suffered caused by his injuries in question, and for such pain of body, if any, as the evidence shows he is reasonably certain to suffer in the future as a result of such injuries, if any." [1, 2] In the case of Shawnee-Tecumseh Traction Company v. Griggs, in an opinion by Commissioner Mathews, reported in 151 Pac. at page 230, this court says: "The jury, in a personal injury case, may take into consideration, in assessing the damage, the pain and suffering which may reasonably be expected in the future, provided evidence has been presented tending to show that the person injured will, with reasonable certainty, experience future pain as a result of the injury.' "There are two rules by which future pain and suffering may be submitted to the jury: (1) If the injury is objective, and it is plainly apparent, from the nature of the injury, that the injured person must of necessity undergo pain and suffering in the future, the jury may infer that fact from proof of such an injury alone. (2) But where the injury is subjective, then, to warrant a jury to return a verdict for future pain and suffering, there must be produced evidence by expert witnesses that the plaintiff, with reasonable certainty, will experience future pain and suffering as a result of the injury." It therefore follows that, inasmuch as there is no testimony in the record authorizing the giving of such an instruction, it is error, and for that reason the judgment should be reversed and remanded for a new trial. LAMY. (No. 6545.) (Supreme Court of Oklahoma. March 28, 1916. Rehearing Denied July 19, 1916.) (Syllabus by the Court.) BANKS AND BANKING 17-OFFICERS 99 -LIEUTENANT GOVERNOR-COMPENSATION. A public officer is bound to perform the duties attached to his office for the compensation fixed by law. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 21, 22; Dec. Dig. 17; Officers, Cent. Dig. §§ 142-147; Dec. Dig. 99.] 2. OFFICERS 101-COMPENSATION OF OFFICERS RECOVERY OF AMOUNTS PAID. Where sums of money have been illegally drawn from the treasury of the state as salary, to which an officer was not entitled, such money may be recovered from such officer in an action brought by the proper authority. [Ed. Note.-For other cases, see Officers, Cent. Dig. $$ 158-162; Dec. Dig. 101.] Commissioners" Opinion, Division No. 1. Error from District Court, Canadian County; J. J. Carney, Judge. Action by the State, on the relation of Charles West, Attorney General, against George W. Bellamy. Judgment for defendant, and plaintiff brings error. Reversed and remanded. Chas. West, Atty. Gen., and S. I. McElhoes, Asst. Atty. Gen., for plaintiff in error. RUMMONS, C. This action was commenced in the district court of Canadian county by plaintiff in error against the defendant in error to recover the sum of $2,462.50, with interest, for salary drawn by defendant in error as chairman of the state banking board while the defendant in error was the duly elected, qualified, and acting Lieutenant Governor of the state. A general demurrer was interposed to the petition of plaintiff in error, which was sustained by the court. Plaintiff in error excepted and elected to stand upon its petition. Judgment was rendered for defendant in error dismissing the action, to reverse which judgment this proceeding in error is prosecuted. [1] The law is well settled in this state that an officer must perform all the duties attached to his office without receiving other compensation than that provided by law. Finley v. Territory, 12 Okl. 621, 73 Pac. 273; Broaddus v. Pawnee County, 16 Okl. 473, 88 Pac. 250; Anderson v. Grant County, 44 Okl. 164, 143 Pac. 1145. The Constitution fixed the salary of the Lieutenant Governor at $1,000. The Legislature created a state banking board, composed of the Governor, Lieutenant Governor, president of the state board of agriculture, state treasurer, and state auditor. Session Laws 1907-08, p. 145. No provision for additional compensation to these state officers for their services was ever made by the Legislature. The state banking board by resolution fixed a salary of $1,500 per annum for the chairman of the board, and the defendant, as a mem ber of the board, was elected chairman. The petition alleges that the sum sought to be recovered in this action was paid out to the defendant in error while holding the office of Lieutenant Governor as such salary. Upon the authority of the cases above cited there can be no question that the defendant in error was not entitled to receive this salary. [2] It is also well settled that fees and salary paid to a public officer without authority of law may be recovered at the suit of the proper authority. Anderson v. Grant County, supra; Grant County v. Ernest, 147 Pac. 322. The petition of the plaintiff in error therefore clearly stated good causes of action, and the trial court erred in sustaining the demur rer thereto. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 158 P.-57 |