(28 Okl. 552)

BURNETT v. DURANT. (Supreme Court of Oklahoma. April 14, 1911.) (Syllabus by the Court.) APPEAL AND ERROR (§ 1133*)-REVIEW-AFFIRMANCE. Where objections and exceptions are not made or saved to proceedings in the trial court and the appeal here appears to be without merit, the judgment rendered will be affirmed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4450-4453; Dec. Dig. § 1133.*]

Error from District Court, Creek County; W. L. Barnum, Judge.

Proceedings by Edith Durant, by Monday

Durant, her next friend, against Bates B.
Burnett, guardian of Edith Durant. From
an order of removal, defendant brings error.
Affirmed.

Hughes & Miller, for plaintiff in error. Robertson, Kean & Bohannon, for defendant in error.

against Yakish for specific performance of the contract, and alleged that the building was worth $550 and the lot $450; that after the contract was made and plaintiff still in possession said building was destroyed by fire; that he had tendered her $100, which with $100 cash paid at the time of executing the contract and a $250 mortgage assumed by him, aggregating $450, was all the lot was worth, and demanded a deed, which he said had been refused, and prayed the court for a decree as stated. Upon the issues joined the case turned upon the question as to which of the contending parties should suffer the loss of the building destroyed by fire. The court, after pronouncing the contract one of absolute sale of real estate with an agreement to convey at a future date on payment of the purchase money, said: "In contracts of this kind between individuals, the vendee is, in equity, the owner of the estate from the time of the contract of sale, and must sustain the loss if the estate be destroyed between the agreement and the conveyance, and will be entitled to any DUNN, J. This case presents error from benefit which may accrue to it in the interim. the district court of Creek county, and it is This rule has become elementary, and is the second time that the controversy growsupported by all the text-writers, and prac-ing out of this proceeding has been brought tically all the courts. If the equit- to the attention of this court by the plaintiff The other cause is entitled Burable title passed to Dunn when the contract in error. of sale was executed, then the loss occasion- nett v. Jackson, and reported in 111 Pac. ed by the destruction of the buildings by 194. fire without fault of the vendor is the loss of the vendee, and he cannot refuse to comply with the contract on that ground. If, after the contract is entered into, and before the conveyance is executed, the buildings are destroyed by fire, the loss will fall on the purchaser. 1 Sugd. Vend. c. 7, § 2; McKech-birth had resided in the territory now emnie v. Sterling, 48 Barb. (N. Y.) 330; 1 Pom, Eq. Jur. § 368; 2 Warv. Vend. 850; Reed v. Lukens, 44 Pa. 200 [84 Am. Dec. 425]; Lombard v. Congregation, 64 Ill. 482; Snyder v. Murdock, 51 Mo. 175." And further, in the syllabus, said: "Where a valid contract for sale of real estate has been enter

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ed into, the deed to be executed at a future
day, it is no defense, in an action to recover
balance of purchase money, that the estate
has been diminished in value by the destruc-
tion of the buildings thereon by fire, unless
it is shown that the vendor was in some way
at fault in causing such fire."
See, also,
Brewer v. Herbert, 30 Md. 301, 96 Am. Dec.
582; Vancouver Nat. Bank v. Law, etc., Co.
(C. C.) 153 Fed. 440.

It is unnecessary to consider further the testimony or other assignments of error.

We are of opinion that the court erred in not overruling the demurrer as to the wheat and sustaining it as to the corn, and for that reason this case is reversed and remanded, with directions to divide the costs equally between plaintiff and defendant. All the Justices concur.

Therein is set forth a statement of the proceedings sufficient to relieve us of any extended recital here. After the decision of that case the cause came on for hearing in the district court of that county, and

that court found on the uncontroverted evidence adduced that Edith Durant since her

braced in Muskogee county, Okl., and during all of such time had been under the care and custody of her parents. Plaintiff in tion for removal of guardianship from the error stood upon a demurrer to the applicacounty court of Creek county to the county

court of Muskogee county, and from the deof Creek county to carry in effect the judgcree rendered directing the county court ment rendered by transmitting to the county court of Muskogee county the original papers in this cause, together with certified copies of all orders and judgments, plaintiff in error has brought the case here for review.

A number of assignments of error are set forth in the brief of plaintiff in error,

but it is difficult to find sufficient of merit therein upon which to predicate and write an opinion. The claim is first made that under the statute (section 1 of chapter 25, p. 37, Sess. Laws Okla. 1910), the transfer herein not having been made within 20 days after the application, the court had no jurisdiction to render any order directing the transfer, and that hence the same was void. The statute involved reads as follows: "When

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 115 P.-18

it is made to appear that any probate mat- | counsel admit in their brief, that the act ter pending in any court of this state which, without the emergency would have become by acts of Congress and the Constitution, | effective June 17, 1910, and as the applicawas transferred from the courts of the terri- tion herein was not filed until after that tory of Oklahoma and the United States date, this will eliminate from consideration courts in the Indian Territory to the courts this contention. of this state, is not in the county where It is next contended that Monday Durant the venue of such suit, matter or proceed- had no such interest as would authorize him ing would lie if arising after the admission to make the application for the removal proof this state into the Union, the court where ceedings. The statute under consideration such suit, matter or proceeding is pending provides that the court may upon his own shall, upon the application of the guardian, motion when a proper showing has been executor or administrator, or any other per- made for a removal order the same. Furson having a substantial interest therein, or thermore, no objection whatever was made upon his own motion, when a proper showing by plaintiff in error to the appearance of has been made for a removal, within twenty Monday Durant in the county court. He days after application is made therefor, make was there recognized as having authority to an order transferring such suit, matter or appear, a stipulation was entered into with proceeding to the county where the venue him, and, when the cause reached the diswould properly lie if such suit, matter or trict court, that court specifically ordered proceeding had arisen since the admission that the petition for transfer of the cause of this state into the Union, by transmit-be prosecuted for the benefit of said ward by ting to such county the original papers, to- her next' friend, Monday Durant. This was gether with certified copy of all orders and sufficient to give him full power and right judgments, upon the payment of all accrued to prosecute this action even had it been costs; provided, that where any minor is the lacking before. See section 5563, Comp. owner of an estate situate in a county or Laws Okl. 1909, and Hill v. Reed, 23 Okl. in counties other than that of his domicile 616, 103 Pac. 855. and a guardian or curator has heretofore been appointed for such minor or his estate in any such county other than that of the domicile of such minor, such suit, matter or proceedings shall be transferred in the manner and under the conditions herein provided, to the county of the domicile of such minor; and provided further, that such original papers, together with such certified copies of all orders and judgments, shall be filed in the court to which it is removed, and the same shall proceed as if ordinarily filed therein, without further service of notice." If it is not plainly manifest that the limitation of 20 days set forth in the statute is merely directory and that a transfer on a proper application made after that time would not be void, and the contention made be thus refuted, the record discloses that while the application was originally filed in the court on the 3d day of June, 1910, on motion duly made, the court on the 20th day of June, 1910, gave leave to withdraw the application filed and to refile the same as of that date, and at the same time set the date of hearing thereon for the 25th day of June, 1910. No exception or objections were made to this order, and hence the order which was made on July 1, 1910, was within 20 days after the application was made, even were the statute given the force contended for by counsel.

The next contention is based on the same error, to wit, that the emergency provision of the act mentioned was void for the reason that the Legislature lacked the authority to pass the same; it being claimed by counsel that the determination of this question is one for the courts and not for the Legisla

It is next objected because the district court rendered judgment against plaintiff in error for the costs created by this proceeding. This was within its discretion, and we see no error therein. Section 5468, Comp. Laws of Oklahoma 1909. On the occasion of the going down of the opinion in Burnett v. Jackson, above referred to, this court said: "In order that the administration of the affairs of this estate shall be as little interfered with as possible, the appeal should receive early consideration at the hands of the district court, and, if for any reason the same cannot be sustained, there should be a prompt mandate to the county court to the end that it may proceed in accordance with the order made." It may be that the plaintiff in error enjoys abstractly the legal right to prosecute against his ward these proceedings, which result in tying up and embarrassing the administration of her estate, but it is difficult for us, in the light of this and the previous record, to see any good faith in them or to discover any good purpose that is or can be served by the procedure adopted. It may be that the courts lack the power to prevent or better control proceedings of this character, but, if they do, there is presented a field for legislation which ought not to go unoccupied.

The judgment of the district court is affirmed, and the costs of this proceeding in this court are assessed against the plaintiff in error personally.

TURNER, C. J., and KANE and HAYES, JJ., concur. WILLIAMS, J., concurs in con

[Ed. Note. For other cases, see Courts, Cent. the justice of the peace to issue a warrant Dig. §§ 322, 323; Dec. Dig. § 95.*1

The only question presented by him on this appeal is whether the warrant issued by the FRICK, C. J. The appellant applied to justice of the peace of Albany county, Wyo.. the district court of Weber county, Utah, for was issued "upon probable cause supported a writ of habeas corpus upon the ground that by affidavit" as required by the constitutional he was illegally restrained of his liberty by provision we have quoted. Counsel for appelone Thomas E. Browning, Chief of Police of lant contends that the verification of a comOgden City. The writ was duly issued, and plaint charging one with a crime is insuffisaid Browning produced the appellant and cient to authorize the issuance of a warrant made return to the writ under oath, in when such verification is based upon belief which he set forth the authority under which or upon information and belief only; the he held the appellant in custody as an alleg-contention being that such a verification is For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

not sufficient to establish the probable cause required by the Constitution and that such a verification is not tantamount to the affidavit required by that instrument.

Interstate extradition, or rendition, as it is sometimes called, is based upon section 2 of article 4 of the Constitution of the United States, which, so far as material here, reads as follows: "A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall on demand of the executive authority of the state from which he fled be delivered up to be removed to the state having jurisdiction of the crime." As might well be expected the courts are not entirely in harmony with respect to what constitutes a charge of crime sufficient to require the executive of one state to deliver up the accused upon the request of the executive of another state. Ex parte Spears, 88 Cal. 640, 26 Pac. 608, 22 Am. St. Rep. 341, is an example of the cases which hold that a statement on information and belief is insufficient, while In re Keller (D. C.) 36 Fed. 681, affords an illustration of that class of cases which holds that a positive statement that a crime has been committed may be sufficient if verified upon belief. For the purposes of this decision, however, it is not necessary for us to harmonize the conflicting decisions or to review the cases upon this subject, for the reasons hereafter appearing.

or territory having jurisdiction of the crime. An indictment found by a grand jury or a complaint under oath before a magistrate competent to administer an oath and issue a warrant of arrest is the established American manner of making a legal charge of crime and thus initiating criminal proceedings against a party; and Congress saw fit to adopt this manner of making the charge in the extradition of fugitive criminals." While, as we have said, the authorities are not in perfect harmony with respect to what constitutes a sufficient charge of crime to warrant the chief executive of the state to which the person accused of crime has fled to deliver him up, yet we think the great weight of authority conforms to the statement quoted from Mr. Spear namely, that if a crime is charged under oath in direct and positive terms, and if a charge in that form is sufficient to authorize the issuance of a warrant by the magistrate before whom the charge is made for the arrest of the accused under the laws of the demanding state, it is ordinarily held sufficient to authorize the chief executive upon whom requisition is made to honor the same. It may also be that a form of pleading is permitted in a state in which the warrant of arrest is issued which does not require the person making the complaint to absolutely and positively charge a crime, but permits that to be done on information or belief, then such [1] By act of Congress passed in February, complaint must nevertheless be supported by 1793 (Act Feb. 12, 1793, c. 7, 1 Stat. p. 302), the affidavit or sworn statement of some perit is in effect provided that a fugitive from son who is cognizant of the facts, and from justice who has fled from one state to an- which affidavit or sworn statement, taken in other may be demanded by the chief execu- the form of a deposition or otherwise, it is tive of the first state from the chief execu- made to appear that a crime has been comtive of the state to which he has fled when mitted, and that there is probable cause to the person demanding such fugitive "pro- believe that the accused is the person who duces a copy of an indictment found or an committed the same. Where the requisition affidavit made before a magistrate of any is based upon an indictment found, or upon state or territory charging the person de- an information which is based upon a premanded with treason, felony or other crime liminary examination by magistrate such certified as authentic by the Governor or indictment or information is ordinarily held chief magistrate of the state or territory sufficient to authorize such requisition. It, from whence the person so charged has fled." however, is not necessary in this proceeding The foregoing provision in substance is the to determine the sufficiency of the complaint, law upon the subject to-day as appears from information, or affidavit to authorize the U. S. Comp. Laws 1901, § 5278, p. 3597. The granting of a requisition under all circumtheory upon which Congress acted in adopt- stances and upon any request of the chief ing said statute is, we think, well stated by executive of any state in the Union. It is the author in Spear on the Law of Extra- sufficient for us to determine now whether dition at pages 362 and 363, where it is said: the warrant issued by the justice of the "The evident theory of the statute is that peace in the state of Wyoming was sufficient the legal accusation, namely, an indictment to authorize the arrest of appellant in that or affidavit, charging the party with the com-state. mission of crime that would have justified his arrest and commitment to prison, or holding him to bail, in the state or territory in which the crime is charged to have been committed, had he not fled therefrom, shall be sufficient to authorize his arrest in the state or territory where he has sought ref

[2] The Supreme Court of Wyoming in construing the constitutional provision we have quoted, in the case of State v. Boulter, 5 Wyo. 236, 39 Pac. 883, held that a warrant based upon "an information verified on information and belief" does not constitute the probable cause which authorizes the issuing

AND INFORMATION (§_3*) FELONIES IN INDIAN TERRITORY-PROCEDURE.

sion aforesaid. This being the law of Wy- 3. INDICTMENT
oming that must control the arrest drawn
in question in this proceeding. If, therefore,
the warrant upon which the Governor of
Wyoming based his requisition to the Gov-
ernor of this state is void, then it must fol-
low that the warrant issued by the Governor
of this state under which appellant is held
for removal must also be void.

With regard to the numerous cases cited by counsel representing the officer in whose custody the appellant is held, we desire to say that a careful examination of them only strengthens the conviction that the courts are not in harmony with regard to what constitutes a sufficient verification to a complaint which forms the basis for the arrest of one charged with a crime. Many of the cases cited by counsel, however, support our conclusions, while but few, if any, are directly at variance with them. While some disagree with the conclusions reached by the Supreme Court of Wyoming, others do not. In view of the decision of the Supreme Court of Wyoming we have no alternative except to declare the detention of the appellant illegal.

It is therefore ordered that the judgment of the district court of Weber county remanding the appellant to the custody of said Browning for the purpose of removal from the state of Utah to the state of Wyoming is reversed, and the appellant is discharged from the detention and imprisonment set forth in his application.

MCCARTY and STRAUP, JJ., concur.

(5 Okl. Cr. 374)

Ex parte ADAIR.

(Criminal Court of Appeals of Oklahoma. April 25, 1911.)

(Syllabus by the Court.)

1. HABEAS CORPUS (§ 27*)-RIGHT TO RELIEF -JURISDICTION.

If the petitioner be imprisoned under a judgment of a court which had no authority to render the judgment complained of, then relief may be accorded by habeas corpus.

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 22; Dec. Dig. § 27.*]

2. COURTS (§ 26*)-JURISDICTION.

A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act.

Article 5 of the amendments to the Constitution of the United States, providing that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury," guarantees to a defendant, charged with the commission of a felony in the Indian Territory prior to statehood, an unalterable right to he accused by indictment only.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 9-23; Dec. Dig. § 3.*1

4. INDICTMENT AND INFORMATION (§ 3*)—NECESSITY OF INDICTMENT-FELONY IN INDIAN TERRITORY.

In such cases, the indictment is a necessary prerequisite to give the court jurisdiction. [Ed. Note. For other cases, see Indictment and Information, Dec. Dig. § 3.*]

Application of Jesse Adair for writ of habeas corpus. Writ allowed.

Geo. K. Powell, for petitioner. Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, J. The petitioner, Jesse Adair, was tried and convicted in the district court of the Third judicial district, sitting in and for Muskogee county, of the crime of forgery, and was sentenced to be imprisoned in the state penitentiary at McAlester for the term of seven years. Judgment and sentence was pronounced and entered on March 9, 1909, and was executed by delivering the petitioner to the warden of the penitentiary at McAlester, where he has been and is now confined.

Petitioner avers that all the proceedings under which he was tried and convicted were coram non judice and void, and that he is deprived of his liberty without due process of law.

[1] The petition and the answer and return to the writ show that an information was filed and presented in said district court on the 12th day of October, 1908, by the county attorney of Muskogee county, wherein said petitioner, Jesse Adair, and one Charley Thompson were jointly charged with the crime of forgery, alleged to have been committed on the 16th day of August, 1907, in that portion of the state which, prior to statehood, constituted the Indian Territory.

Upon conviction the defendant Charley The AtThompson appealed to this court. torney General filed a confession of error, and his conviction was reversed (Charley Thompson v. State, 4 Okl. Cr. 236, 111 Pac. 662) it there being held that: "A defendant charged with the commission of a felony

[Ed. Note.-For other cases, see Courts, Dec. prior to statehood, in that portion of OklaDig. § 26.*]

homa which then constituted Indian Terri

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes