said cause of action alleged in plaintiff's petition; and that it appears from all the pleadings in said cause that the said plaintiff is entitled to judgment as prayed for in its petition. Now, therefore, said plaintiff moves the court for judgment in this cause upon the pleadings as prayed for in plaintiff's petition."

The cause came on to be heard before the court upon said motion for judgment upon the pleadings, and the court overruled the motion for reasons expressed in the argument, which, as stated by the court, was the fact that the journal entry and the matter of funding the judgment indebtedness of the county is not on file, never has been filed, there is no filing marks, and has never been recorded, and the entire absence of any record as to a term of court at that time or any entry concerning the entry of judgment in that case." While said cause was still pending and not finally disposed of, the court adjourned to the next day, and upon the reconvening of the court Mr. Darrow, attorney for defendant in error, read and presented to the court a motion asking that the journal entry in the matter of funding the judgment indebtedness of the county be entered upon the journal of the court nunc pro tune, which motion was as follows:

"In the District Court of Day County, Oklahoma. In the Matter of the Funding of the Judgment Indebtedness of the County of Day and Territory of Oklahoma. Motion to Enter of Record the Journal Entry of Judgment Relating to the Issue of Day County Funding Bonds of July 10, 1900. Comes now the state of Kansas, by C. C. Coleman, its duly qualified and acting Attorney General, and John S. Dawson, its duly qualified and acting Assistant Attorney General, and shows to the court that the state of Kansas is the owner of certain judgment funding bonds of Day county, Oklahoma, issued July 10, 1900, in the district court of Day county, Oklahoma, under and by virtue of a judgment pronounced by said court on said date, in pursuance to a proceeding in said court invoked by the board of county commissioners in accordance with the laws of Oklahoma Territory, at a special sitting of said court at Grand, Day county, Oklahoma, designated and ordered by the Supreme Court of Oklahoma Territory and by the Honorable Chief Justice of said Supreme Court, and held in accordance therewith. And the state of Kansas is the bona fide holder in good faith of bonds 11, 12, 13, 14, 15, 16, and 18 of said issue, and is vitally and materially interested. both in law and in equity, in the matters involved in the proceeding whereby the judgment and other indebtedness of Day county was determined on said July 10, 1900, as aforesaid, and where the assessed valuation of the taxable property of said Day county and the statutory limit of indebtedness which might be and was funded into judgment funding,

bonds of said county were determined and adjudicated. And the state of Kansas further shows the court.that the journal entry of judgment and findings of the district court of Day county, Oklahoma, is in the custody of the clerk of said district court of Day county, but for some reason unknown the said journal entry does not appear of record. Wherefore, the state of Kansas prays the court that the court now order the journal entry aforesaid to be entered of record in the records of the district court of Day county, and for such other precautions as may be necessary to preserve intact the proceedings of said court in the matter of the funding of the judgment indebtedness of Day county. Oklahoma, had and done at the sitting of said court at Grand. Day county, Oklahoma. on July 10, 1900, aforesaid. And the state of Kansas, your orator herein, as in duty bound, will ever pray, etc. The State of Kansas, by C. C. Coleman, Atty. Gen. of Kansas, and John S. Dawson, Asst. Atty. Gen. of Kansas, Attorneys and Solicitors for the State of Kansas. "Territory of Oklahoma. Day County-ss.:

"John S Dawson, being duly sworn, on his oath says that he is Assistant Attorney General of the state of Kansas; that he is familiar with the matters set forth in the above motion; that all of the allegations and statements therein are true. so far as he knows positively, and, as to all other matters therein set forth, he believes them to be true, and that your orator, the state of Kansas, is well entitled at law and in equity to the relief prayed for therein.

"John S. Dawson. "Subscribed and sworn to before me, a notary public of Day county, Oklahoma, this 27th day of March.

"[Seal.] C. B. Leedy, Notary Public. "My commission expires August 15, 1906.” Notice of a purpose to file such motion was on the day before the filing of the same served upon E. S. Sharp, county attorney, and W. II. Monser, county clerk of Day county. Upon the filing of such motion counsel for the plaintiff in error objected to the consideration of it, for the reason that sufficient facts were not shown to justify the relief asked for. The court thereupon announced that he would hear the evidence, which offer was objected to by counsel for plaintiff in error and the objection overruled. The court thereupon entered its judgment directing the recording of the journal entry of judgment of July 10, 1900, authorizing the issuance of funding bonds, the coupons of which bonds. issued pursuant to and in compliance with the judgment of the court of July 10, 1900, are in issue in this case, which judgment of the court so entered was in words and figures as follows:

"And now, to wit, on March 28, 1906, at a regular sitting of the above-named court, the state of Kansas appeared by John S.

Dawson, its attorney, and moved the court to enter of record the journal entry of judgment relating to the issue of Day county funding bonds of July 10, 1900, and the bond notice and publisher's affidavit thereto appertaining; and the said state of Kansas showed the court that the state aforesaid was the owner of certain of the bonds of Day county of the judgment funding issue of July 10. 1900, issued by the board of county commissioners of Day county, Oklahoma Territory, under and by virtue of a proceeding had before the above-named court at the sitting of said Day county district court on said July 10, 1900, and that the said state of Kansas is vitally and materially interested and affected thereby. And it appearing that the said journal entry of the findings and proceedings had in said court on July 10, 1900, pertaining to the issue of Day county judgment funding bonds of said July 10, 1900, has been reduced to writing and is in the custody of the clerk of the district court of Day county, but the said journal entry has not been entered of record, and the court having been fully advised and informed in the premises and of all matters material and pertaining thereto, it is therefore decreed, adjudged and ordered that the clerk of the district court do now and here record the said journal entry and bond notice aforesaid, pertaining to the issue of the Day county judgment funding bonds of July 10, 1900, in the matter as entitled above. J. L. Pancoast, Judge Day County District Court."

This journal entry of the judgment of July 10, 1900, entered of record, is set out as Exhibit A of the plaintiff's petition. After hearing the motion to make the journal entry of July 10, 1900, this cause was further called for hearing upon the motion for judgment on the pleadings, and the court thereupon set aside its former order overruling the motion for judgment on the pleadings, and, upon reconsideration of the same, sustained said motion and rendered judgment in favor of the plaintiff in the sum prayed for in the petition herein. Motion for new trial having been made and overruled, which prayed for a new trial upon the ground that the judg ment was not sustained by sufficient evidence and for error of law occurring at the trial and excepted to at the time, the plaintiff in error, defendant below, brings the cause to this court praying a reversal for the errors complained of.

E. S. Sharp, Co. Atty., and Cowgill & Dunn, for plaintiff in error. C. C. Coleman, Atty. Gen., and John S. Dawson, Asst. Atty. Gen., for defendant in error.

GILLETTE, J. (after stating the facts as above). This action having been determined in the court below upon a motion for judgment on the pleadings, and owing to the importance of the subject-matter, we have set out at length, in the statement of facts,

the pleadings and proceedings had and considered upon the trial of the cause. It will be observed that, while the action is founded upon written instruments, the answer setting up such defense as the county of Day, plaintiff in error, had to the allegations of plaintiff's petition, was not verified, by reason whereof the allegations of the petition, touching the execution of the instru ment sued on, under the provisions of section 4312, Wilson's Rev. & Ann. St. 1903, are taken as true. Such statute provides: “In all actions, allegations of the execution of written instruments and endorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney." By the pleadings in the case therefore, when the same was submitted to the trial court for consideration upon the motion for judgment on the pleadings, it was admitted: First, that Day county was a duly organized and existing municipal corporation of the territory of Oklahoma as in the petition alleged; second, that on July 10, 1900, at a lawful sitting of said court, the board of county commissioners, by authority of the court, executed the bonds, the coupons of which are herein sued on, and said bonds were signed by the chairman of the board of county commissioners of said county and attested and signed by the duly qualified and acting county clerk, and were thereafter signed by the duly qualified and acting judge of the district court of said county, whose acts were duly attested by the duly qualified and acting deputy clerk of said district court; third, that the coupons sued on herein were and are the coupons of the bonds so as aforesaid executed, and were signed by the chairman of the board of county commissioners of said county and attested by the county clerk. There was therefore such admission in the pleadings as to support a judgment based thereon, and the same must stand, unless the allegations of the answer present some fact touching the validity of the bonds and coupons presented by the petition which entitled the, defendant to a hearing thereon. We will, therefore, notice and consider the allegations of the answer in connection with the admitted facts in the case.

The first allegation, that the bonds Nos. 11 to 18, inclusive, and interest coupons thereto attached, a portion of which coupons were not issued pursuant to any law or authority, and are therefore not a binding obligation, is not discussed in the brief of plaintiff in error or insisted upon as a material ground of defense; nor can we see how such a defense can be made. The bonds recite that they are issued pursuant

to the authority conferred by article 2, c. 5, p. 76, of the Session Laws of Oklahoma for 1897, and the trial court, at the time of the endition of its judgment in this case. took judicial notice of the provisions of such statute, which authorizes the issuance of municipal bonds of the character of the bonds and coupons in question. The next material allegation of the answer was that no court was held in Day county on July 10, 1900, the day on which the instruments sued on were by the district court authoriz ed to be issued, and a judgment indebtedness found to exist which, under the authority of the statute, was authorized by the court to be funded into judgment funding bonds. By this plea, we take it that it was intended by the plaintiff in error to plead what is commonly termed nul tiel record. which is ordinarily proved by inspection of the record. The bonds, from which the coupons sued on were taken, as shown by the petition, recited the holding of the court July 10, 1900, and the authority of the court of that date to execute the same; and Exhibit A to the petition sets out the journal entry of that date fully authorizing the execution of the bonds, to which journal entry was attached the certificate of the clerk of the court that such journal entry was correct. There was, however, no record upon the journal of the court of a session of the court held on that date, and the journal entry attached to plaintiff's petition and certified as correct nowhere appeared on the records of the court. When, under this plea, the conditions of this record were called to the attention of the court, the motion for judgment upon the pleadings was overruled, and further proceedings in the case temporarily suspended, during which time a motion was made and filed in the court by the defendant in error, asking to have entered upon the records of the court nunc pro tunc journal entry of the judgment of July 10, 1900, authorizing the issuance of the bonds. Notice was served upon the county attorney and county clerk of the pendency of such motion, at that time, and a hearing was had thereon the next day. The plaintiff in error appeared as to said motion, upon which hearing it was made to appear that the journal entry of July 10, 1900, was among the files of the court, but had never been entered of record, and testimony was offered showing a session of the court on that day, to wit, July 10, 1900, at which time a hearing was by the court had upon the question of the issuance of the bonds of the county to fund the judgment indebtedness against the county. As a conclusion of the hearing, and by reason of the facts shown to exist, the court ordered the journal of the session of July 10. 1900, to be made of record then. Upon such record being made, the motion in this case for judgment upon the pleadings was renewed, and such motion sustained.

It is urged by the plaintiff in error that it was error to order the journal entry of July 10, 1900, to be made of record at that time nunc pro tunc. But we are unable to see or understand how such question can be considered in this case. No such order was made in this case, nor was the motion to enter the journal entry of July 10, 1900, filed in this case. Such motion was entitled, "In the matter of the funding of the judg ment indebtedness of the county of Day and territory of Oklahoma," which was followed by the words "Motion to enter of record the journal entry of judgment relating to the issue of Day county funding bonds of July 10, 1900." The motion thereafter sets forth that it is made by the Attorney General of the state of Kansas, who appeared on behalf of the state as owner of the funding bonds of Day county issued July 10, 1900, by authority of the honorable district court of that county, and asks that an order nunc pro tunc be entered of the journal of July 10, 1930, showing the authority of the court to issue the judgment funding bonds which were issued of that date. The motion was verified as to its allegations. An appearance was entered in the matter of such pending motion by counsel for Day county, and it was then heard by the court, resulting in the order, as above stated, directing the record of the proceedings of July 10, 1900, to be then made. If there was any error committed in the matter of such proceedings, such error can be reviewed only by an appeal of the cause to which they relate. Such proceeding was no part of this case, and, as no appeal was taken from the order of the court directing an entry of the journal of July 10, 1900, such journal must stand of record with the same force as if recorded the date on which the judgment was found. We may say, however, touching such procedure, that we know of no reason why a person interested in a judgment of a court of record should not appear before the court at any time and ask to have the journal of the court made correct and complete as of the date such record should have been made; and, we think, the court should entertain and hear and determine such motion upon due notice to those adversely interested, and where, as in this case, the default originally was that of the court and its officials, and not of the party, we think it the duty of the court to make its records complete at any subsequent date when the default is called to the court's attention, and that this may and should be done when justice demands, without the formality of a motion, as the court upon its own motion may and should make its record complete. Mitchell v. Overman, 103 U. S. 65, 26 L. Ed. 369; Borer v. Chapman, 119 U. S. 596, 7 Sup. Ct. 342, 30 L. Ed. 532. It will be noticed that this procedure by which the journals of the court of July 10, 1900, were by order of the court made of record, took place while the action under consideration

was pending. and, we think, that if the making of such record changed the defense of the plaintiff in error, or was a matter of such surprise as that further procedure in the case could not then be reasonably had, the plaintiff in error would have been entitled to a continuance or any necessary delay of the proceedings, but none was asked, and no appeal was taken from the nunc pro tunc order. The record made pursuant to such order must stand as the record of the court of July 10, 1900, and was a record of the court when the plea of nul tiel record was overruled, and judgment was entered upon the motion for judgment on the pleadings. The plaintiff's petition sets forth the journal entry of July 10, 1900, and, as the plea of nu tiel record is ordinarily determined by the record, such record having been made complete, the court had before it upon the pleadings and the record all the facts necessary to a final determination of that plea.

The third defense presented by the answer of the plaintiff in error is that the county seat of Day county was established by an act of Congress at Ioland, and that the district court of said county could only be legally held at such county seat, and that no court was held at Ioland on July 10, 1900, and no proceedings were there had in the district court of Day county touching the finding of the county's indebtedness. It appears from the record that on. July 10, 1900, the session of the district court of Day county was held at Grand, instead of at Ioland, and was being held at Grand at the time this case was heard. Under the provisions of the organic act of the territory of Oklahoma, it is made the duty of the Supreme Court to define the judicial districts of said territory, and to fix the time and place of each county seat in each district, where the district court shall be held, and designate the judge who shall preside therein. An order of the Supreme Court therefore, fixing a term of court, is made pursuant to the requirements of the organic act. A term of court in any county is only held pursuant to an order of the Supreme Court fixing such terms. From the record before us it appears that the Supreme Court of the territory had, prior to July 10, 1900, fixed a term of court for Day county for that date, and had fixed the place at Grand, and specified that such term was for the issue of county bonds. As the courts of this territory are organized, we think that judicial notice of such an order may be taken, for it is equivalent to a statute fixing a term of court, and the journal entry of a proceeding had in the court on that date is sufficient to establish the fact that the court was held pursuant to such order. All this was before the court when it finally considered the motion for judgment on the pleadings as fully as though the same had been established by testimony introduced for that purpose, and was probably so established as

that it could not be disputed by oral testimony admissible under the pleadings, for courts will take judicial notice of their own sessions. That the term of court was held at Grand, instead of at Ioland, may therefore be regarded as settled. That Grand was the place where all the public business of Day county was and is transacted was and is a matter of such public notoriety that the court and all persons interested would take notice of, and would not and could not question or ignore, it. That Ioland was the originally established county seat is also a fact beyond controversy. That Ioland has been abandoned as a townsite for many years, and was so abandoned prior to the year 1900, is a matter of such general knowledge as that it would seem to be trifling with justice to presume that there was any controversy over the question as to where the actual seat of justice for the transaction of public business for that county was located. There remains, therefore, only the question as to whether or not the determination of the court sitting at Grand, in the county of Day, was a binding and conclusive determination against parties litigant, appearing in the court and without objecting at the time, and submitting to the court their controversies to be determined by it. If Ioland was the county seat de jure, Grand was the county seat de facto, and this the district court of Day county, being a court of general jurisdiction, would take judicial notice of, and the validity of the proceedings had could not be questioned in a collateral proceeding.

as

In a case almost identical with this case. the Supreme Court of Colorado used the following language (In re Chas. Allison, 13 Colo. 525, 22 Pac. 820, 10 L. R. A. 790, 16 Am. St. Rep. 224): "No issue made with the definition usually given, that a 'court' consists of 'persons officially assembled under authority of law, at the appropriate time and place, for the administration of justice'; nor it is denied that the place of meeting is an important element in the definition. We shall maintain the proposition that, under the admitted facts before us, there was a de facto location of the county seat at the town of Conejos, and that therefore the judgment under consideration is not vulnerable in the present proceeding. For more than 12 years Conejos has been regarded as the lawful county seat. During this period, unquestionably it has been the county seat in fact; that is, the county buildings, offices, and records have. without exception, been at that place, and the county business, including that of the district and county courts, has all been transacted there. The people of the state and the different departments of the state government have recognized Conejos as the place where the county seat was lawfully established. No direct judicial proceeding has ever been instituted for the purpose of determining the legality of such location in fact, or for the purpose of restoring the county seat to Gau

daloupe. On the contrary, the inhabitants of the county, so far as we are advised, have universally acquiesced in this disposition of the county seat. During these 12 years property has been bought and sold, and public moneys have been expended in permanent improvements at the town of Conejos, upon the strength of its being the county seat. Estates of deceased persons have been there administered upon, and the interests of minor heirs have been there adjudicated. At that place property rights of all kinds have been litigated and determined, and criminals have been tried, convicted, sentenced, and executed, or sent to the penitentiary. In this state, the power to locate and remove the county seat is lodged by the Constitution exclusively with the inhabitants of the county. They may, by a popular vote, establish or change the county seat at will, save that removals cannot be made oftener than once in four years. Their absolute power over the subject is restricted only by the limitation mentioned and the statutory regulations prescribing the manner of calling and conducting the election. The knowledge of the inhabitants of Conejos county that the county seat had in fact been removed from Gaudaloupe, and established at the town of Conejos, cannot be questioned; nor can we presume that. while acquiescing during 12 years in the change, they have been ignorant of the manner in which it took place; and, since the entire control of the subject has always been in their hands, we are inclined to the view that their conduct in the premises should be treated as such a confirmation of the unauthorized transfer, or at least such a waiver of objection thereto, as justifies an application of the de facto doctrine, so far as judicial proceedings that have taken place under all the forms of law at the town of Conejos are concerned. This conclusion is reinforced by the facts above narrated, showing a universal outside recognition of Conejos as the de jure county seat during the long period mentioned. We are aware of no principle of law that compels us to hold all such proceedings void, and thus entail the appalling consequences that would inevitably follow. We do not hold that there may be a de facto court, although this view has been vigorously and ably maintained. Burt v. Winona & St. P. R. Co., 31 Minn. 472. 18 N. W. 285, 289, 4 Am. & Eng. Corp. Cas. 426, and note. When a court or office is created by statute, and when the statute creating it is unconstitutional, there is no de jure court or office, as the case may be (Ex parte Stout, 5 Colo. 509), and under such circumstances we have the highest authority for the view that there can be no de facto court or office (Norton v. Shelby County. 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178). But we are here dealing with a court unquestionably de jure so far as its establishment and organization are concerned-a court presided over by a judge, the legality of whose title and office is

not challenged-and our position is simply that, though a county seat may have been originally unlawfully removed, but subsequent circumstances may supervene which authorize the view that the proceedings of such a tribunal at the place of relocation are valid, and forbid litigating collaterally, by habeas corpus, the regularity of the removal. The foregoing views do not conflict with those expressed by Coulter v. Routt County Com'rs, 9 Colo. 258, 11 Pac. 199. A general law exists, as already suggested, providing that the district court shall be held at the county seat of the various counties. The special act considered in the Coulter Case applied to the county of Routt alone. It provided for holding the terms of the district court at the town of Yampa, which was not and never had been a county seat. This court held that the act conflicted, in this respect, with the constitutional provision inhibiting special legislation "regulating county and township affairs." Thus it will be seen that the decision is not in conflict with the view that, when the county seat itself is removed, though the removal be de facto merely, the place of holding the court may, under circumstances like those here presented, also be changed." See, also, Watts v. State, 22 Tex. App. 572, 3 S. W. 769; Robinson v. Moors, 25 Ill. 135; 11 Cyc. p. 368 (4); 7 Am. & Eng. Cyc. of Law, p. 1045.

If there is any controversy concerning the county seat of Day county, and the power of officials to transact public business at Grand, instead of at Ioland, such controversy can be settled only in a direct proceeding for that purpose. Questions of this character have often been before the courts, and it has been the universal holding that the judgment and conclusions of courts of record cannot be collaterally attacked upon the ground that the court at the time of the transaction of the business was not held at the county seat or place designated for the holding of such court, unless the question is presented in the case and at the time of the hearing complained of. In this case, which is an action to recover upon the coupons of bonds of Day county, the execution of which was authorized by the judgment of the district court of said county, it is sought to question their validity because of the fact, as alleged, that the district court when it authorized the execution of such bonds was sitting at Grand, instead of at Ioland. The recitations of the bonds, as well as the allegations of the journal entry authorizing their execution, show that the proceedings in the court, as a conclusion of which such bonds were authorized, were begun and had upon the application of the board of county commissioners of said county, and it appears that, pursuant to such proceeding and judgment, certain judgments of record were funded into the bonds, the validity of which is here brought in question. It would be a proceeding at right angles with equity and justice to say that the