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county might institute a proceeding of this kind and carry it through the courts at Grand, and, after the statute of limitations had run against the judgments funded, defeat liability upon the bonds because the proceeding in court, which the county, through its board of commissioners, was a party to, was not held at Ioland. Such consideration seems to illustrate the soundness and justice in the rule of the courts that the judgment of a court of record cannot be collaterally attacked, and can only be questioned by a proceeding in error or by some authorized direct proceeding for that purpose. From these considerations we are of the opinion that the district court did not err in refusing to consider the defendant's third ground of defense and in rendering judgment for the plaintiff notwithstanding the grounds of defense there in stated.

One other ground of defense, the fourth, as set forth in defendant's answer, remains for consideration, which, in substance, is that the bonds issued were in excess of 4 per cent. of the last-assessed valuation of the taxable property in the county. The answer alleges that such valuation was $469,289.77, and that, considering the outstanding indebtedness of the county not funded, togethed with taxes levied and uncollected, and all other property, money, and resources belonging to said county July 10, 1900, not more than $11,200 of the bonds of said county could, at that time, have been lawfully issued, and that therefore $5,600 of such bond issue was illegal and void. By this defense the defendant seeks to try over again a question that was of paramount importance and before the court for consideration when it

this determination by this court is questioned by counsel for plaintiff in error, who base their conclusions upon the proposition that the district court, when hearing a question touching the issuance of funding bonds, does not reach a conclusion which in effect amounts to a judgment. If this is a correct conclusion, we can see no purpose in having the question of the issue of bonds brought before the court at all. Under the statute the court must hear and determine the question as to whether or not the issuance of such bonds is authorized under the law, and it would seem that, when a court of competent jurisdiction has before it a legal question to determine, and has heard and determined that question, such determination, unappealed from, is thereafter res adjudicata.

It is urged that the judgment of the court of July 10, 1900, authorizing the issuing of the funding bonds in question, was not a judgment in the sense in which that expression is used, and that there was no judgment until it was entered upon the order made nunc pro tunc. The finding of the court July 10, 1900, was embodied in a journal entry of that date and was signed by the judge hearing the case and recited the things that were found and determined. It was a judgment as to all the intents and purposes and upon all the questions submitted to and necessary of determination by the court in order to authorize the further action had, to wit, the issuance of the bonds. It is true it was not that character of judgment which authorized or required an execution to issue for its enforcement, but it was nevertheless a judicial determination of

authorized the issuance of the bonds July the existence of facts necessary to the exe

10, 1900. The record shows that at the time the court authorized the issuance of said bonds it found that the amount including outstanding indebtedness did not exceed 4 per cent. of the assessed valuation of the taxable property of Day county, according to the last assessment valuation of the assessor of said county, and the question here presented is whether or not that question may be retried in this action for the purpose of defeating a part of the bond issue of July 10, 1900. Touching this question, this court, in the case of Territory v. Hopkins, 9 Okl. 149, 59 Pac. 980, said: "The court having determined the validity of the bonds involved in this proceeding, and having decreed that they are valid obligations and issued in strict conformity with the laws of this territory and no objections or exceptions having been made to the issuance thereof, and no appeal having been taken therefrom, the decree and judgment of the court is therefore final and conclusive upon all matters put directly in issue, tried, and determined in that proceeding. This doctrine has been clearly enunciated and uniformly upheld by the decisions of the Supreme Court of the United States." The soundness of

cution of the bonds, and which facts when determined were conclusively and finally determined, unless appealed from. Such determination cannot thereafter be attacked except for fraud or want of jurisdiction. Such judgment or conclusion was executed when the bonds were signed. The entry of the judgment upon the journal of the court at a subsequent date probably served no purpose other than to make the record of the court complete in that respect.

With these questions settled, was there such evidence before the court as to justify the rendition of a judgment upon the pleadings? That the plaintiff was an innocent purchaser of the bonds is not questioned. Such bonds and coupons were negotiable instruments and passed by delivery. They were past due when the action was brought, and liability thereon was denied, and payment refused. The petition of the plaintiff set forth the particular bonds the coupons sued on belonged to. The recitals in the bonds from which the coupons were taken were that they were issued pursuant to the laws of Oklahoma. They bore the unquestioned signature of the officials of Day county, together with that of the judge of the

district court of that county, attested by the clerk and seal of the court; also, the indorsement on the back, by the territorial auditor who certified such bonds to be legally and regularly issued in accordance with an act of the Legislature of March 12, 1897. It has been the universal holding of the courts that, where negotiable bonds or securities on their face import by recital a compliance with the law under which they were issued, the purchaser is not bound to look further for evidence of compliance with the law authorizing their execution. In this case they were not only issued as the act of the officials of Day county, but, in addition, the bonds recite that they are issued as the act of the district court and therefore go upon the market as instruments, the authority to issue which has been judicially determined. As to the effect of such recitals, and the fact that the plaintiff in error is bound thereby, see 62 U. S. 539, 16 L. Ed. 208, Knox v. Aspinwell; 99 U. S. 86, 25 L. Ed. 363, Hackett v. Ottawa; 105 U. S. 342, 26 L. Ed. 1127, Ottawa v. National Bk.; 103 U. S. 683, 26 L. Ed. 526, Walnut v. Wade; Waite v. Santa Cruz (C. C.) 89 Fed. 619; 65 U. S. 287, 16 L. Ed. 664, Bissell v. Jeffersonville.

From the record before us it is apparent that the bonds to which the coupons in question belong were regularly issued for the purpose of funding the judgment indebtedness of Day county, that when issued they were authorized by the determination of the district court of Day county, that they have passed to the plaintiff, an innocent purchaser, and that the county is liable for the full face value thereof; and we conclude that the district court did not err in the rendition of the judgment complained of.

The judgment of the district court will therefore, be affirmed. All the Justices concurring, except PANCOAST, J., who presided in the court below, not sitting, and IRWIN and GARBER, JJ., absent.

(19 Okl. 414)

FLOIR et al. v. TERRITORY. (Supreme Court of Oklahoma. Sept. 5, 1907.) CRIMINAL LAW-NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

A motion for a new trial upon the ground of newly discovered evidence, made after the term at which the defendant was convicted and sentenced, which motion sets forth the evidence relied on, is not sufficient to justify a new trial of the cause, unless from a consideration of it the court can determine that the result of the trial would probably have been different, had such new evidence been heard upon the trial. [Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2336.]

(Syllabus by the Court.)

W. S. Denton and Roberts & Curran, for plaintiffs in error. P. C. Simons, Atty. Gen., for the Territory.

GILLETTE, J. In order to a consideration of this case, which is an appeal from an order overruling a motion for a new trial, made after the term when judgment was entered and sentence pronounced, upon the ground of newly discovered evidence, and in considering such motion and the ground laid therefor, it is necessary first to notice the defendants' ground of defense on the trial of the cause. They were charged with lar ceny by stealth and fraud, in the felonious taking of merchandise, the property of C. H. and Luella Richards, at Rusk, in Woods county, Okl.; the indictment setting out the time and place and the property alleged to have been stolen. When the case came on for trial the defense interposed and relied upon by the defendants was set out in a statement to the jury by one of defendants' counsel, as shown by the record in the case, and was in substance that, while defendants were absent from their home in the state of Kansas as witnesses in a cause pending against the complaining witnesses at Wichita, Kan., a scheme was devised, planned, and executed for the purpose of having a continuance of the case then and there pending against Richards, and that during that time and for that purpose Richards slipped down to Flohr's place, in Woods county, Okl., near Rusk, and in the nighttime secreted his (Richards') property upon Flohr's place, and the next morning sent an officer there and had him find the property so secreted. The property alleged to have been stolen was set out in the indictment, and a description of it required 14 pages of closely typewritten matter, a large portion of which was recovered by a writ of replevin. Such a defense to an indictment charging the larceny of such property by fraud and stealth precludes the theory that Flohr and his wife had the possession of the property at his home at all, but substantially avers that, when the same was found there, it was by reason of the fraudulent and vicious act of Richards in secreting it there without his (Flohr's) knowledge or consent, and during his and his wife's absence from home.

The evidence upon the trial of the case showed that the property, when found at his place. was secreted in different portions of the house, some of it in the back part of and inside an organ, and some in the attic of the building; that, when Dr. Richards and his wife left Rusk, they left the key to their place of business with one Chamberlain, and that Flohr obtained possession of it from him by writing Richards, who was then in Illinois, that Chamberlain was disposing of the

Error from District Court, Woods County; property and was not caring for it, and that before Justice J. L. Pancoast.

Charles Flohr and Emma Flohr were convicted of crime, and bring error. Affirmed.

if he (Flohr) had possession of it he would take good care of the same. Thereupon Richards telegraphed to Chamberlain to turn

dence is therefore placed in much doubt, judging the same from the basis of the motion for a new trial alone; and it seems to us, when considered in connection with the defense made by Flohr upon the trial of the cause, it is so fully discredited as to justify the trial court in refusing to grant a new trial based thereon.

the key over to Flohr. Chamberlain testi- | authenticity of this newly discovered evified that upon receipt of such telegram he did turn the key over to Flohr. The testimony of Flohr himself upon the trial of the case upon cross-examination showed that he procured the key and possession of the store from Chamberlain; that he lived some ten miles from Rusk, and had no opportunity to know what Chamberlain's acts were; and that such statements written to Richards were made in the consciousness that he did not know the facts. In this way the evidence for the prosecution upon the trial of the cause accounted for the ability of Flohr to have gotten possession of the property charged to have been fraudulently stolen. From this it will appear that Flohr's possession of the property was, upon the trial, accounted for by each side upon theories that were directly antagonistic-upon the part of the territory by proof tending to establish a fraudulent larceny of the same, and by the defendant's attempting to show that the property was fraudulently taken to his premises by Richards with a view of accusing him of the larceny thereof. These conflicting theories were settled by the verdict of the jury against the Flohrs.

Upon this motion for a new trial on the ground of newly discovered evidence it is proposed to show as a matter of defense to the charge of larceny in the indictment that the property charged to have been stolen, and which was found secreted at Flohr's house, was there by the mutual consent of the parties, through an alleged credit statement made by Dr. Richards to a business house in Wichita, Kansas, to which credit statement there was attached a written exhibit, and in which exhibit appears the following:

"I instructed Mr. Flohr, who had the keys to the store while I was away, to take all the jewelry and silverware in the store to his place, and I kept the most expensive jewelry and silverware, including.



I also gave him or sent him keys to my trunk, where good gold watches and rings, etc., and told him to take it out and put in security somewhere, in case of fire or robbery or burglary. He took all this, includ ing the musical instruments, silver-mounted ebony brushes, and silver-mounted combs, the best of the fancy china ware, perfumes, and some other things up to his house for safekeeping. I should think he has about $1,000 or $1,200 worth of goods in this line at his place." This written statement is attached to the credit statement, without any reference in the credit statement to the same; the person making it averring that, when Richards made it, he (Richards) said he would make a more complete property statement, which he afterwards did, and handed him the statement containing the language above quoted. The execution and delivery of this statement is positively denied by Richards and his wife, who also deny that the same is in the handwriting of either of them. The

The defense now proposed, that Flohr received these goods under the direction of Richards and took them from the store to his dwelling house, 11 miles distant, is at direct variance with the defense stated at the beginning of the trial, to wit, that Dr. Richards had, while he (Flohr) was absent from home in Wichita, slipped down there and secreted them in the house for the purpose of accusing him of the larceny of them. The motion for a new trial, if granted for such a reason, would be equivalent to authorizing a new trial upon such separate and distinct grounds as to permit the defendant to confess that he had originally defended the case upon false and malicious grounds. wherein he sought to charge Dr. Richards with an offense more heinous than the one charged in the indictment against himself, and, having been defeated in such falsehood, he now seeks to present the truth. Courts will not permit litigants to aver a given statement of facts to be true, and, when defeated in such averment, to have another trial upon a theory which confesses the first to have been falsely presented.

There is one other matter presented by the record deserving of notice. In the credit statement made at Wichita, Richards in the enumeration of his business obligations set forth an item of indebtedness to Charles Flohr in the sum of $200, and also the fact that there was certain property at Flohr's place belonging to him, which Flohr claimed he held in satisfaction of $200 indebtedness from Richards to him. Touching this indebtedness and this property, it appears from the record that there was a cattle deal between them wherein Flohr received some 23 head of cattle from Richards which had a mortgage on them, which Richards testified he considered paid in the transfer of the cattle. This transaction was made the subject of investigation on the trial of the cause. Flohr claimed that he held certain property, such as mill fixtures and a buggy and harness, found in his possession, as security for this indebtedness; Richards denying that he had any right to the possession of the same for such purpose. The testimony pro and con upon this subject shows that there was an unsettled difference between them with regard to this $200 item, and the fact that Richards should make mention of it in listing his obligations in a statement of liabilities to a mercantile concern we do not think would be such a confesssion of fact as to justify the granting of a motion for a new trial. The important question upon the trial

was not so much the matter of indebtedness of Richards to Flohr as it was the question as to whether or not the property of Richards found at Flohr's place had been by Richards hypothecated to Flohr as a matter of security or in discharge of such obligation. This Richards denied, while Flohr attempted to account for his possession by claiming that that particular property was at his place by authority of Richards in the settlement of such $200 item of claimed indebtedness. Such indebtedness may be admitted, and Flohr still be guilty as charged. The mercantile statement of Richards, if known at the time of the trial, would have been competent as an item of evidence for the consideration of the jury, but we think not of such importance as that the verdict of the jury would have probably been changed in consideration of it. The judgment of the court below is therefore affirmed. All the Justices concurring, except PANCOAST, J., who presided in the trial court, not sitting, and IRWIN and GARBER, JJ., absent.

(19 Okl. 422)

BLOCK v. PEARSON et al. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. MECHANICS' LIENS-PROPERTY SUBJECT.

By the provisions of section 4817, Wilson's Rev. & Ann. St. 1903, one who, under contract with the husband of the owner of land, furnishes material for the erection of a building upon said land, is entitled to a lien upon such land and the improvements thereon for the amount due for such material.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 85.] 2. SAME PROPERTY OF LESSEE.

A lessee, who holds under a lease from the school land leasing board, is an "owner" of land as contemplated in the mechanic's lien law, and such a lien may attach to such a leasehold estate subject to the paramount interest of the United States, the lessor, or the holder of the fee.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 21.]


Where a referee for the trial of a cause in the district court is not ordered to report the evidence, but is ordered to hear the evidence and report his findings of fact and conclusions of law, the evidence so taken can only be made a part of the record and subject to review by the trial or Supreme Court by having the referee allow and sign a bill of exceptions containing the evidence taken by him.

[Ed. Note. For cases in point, see Cent. Dig. vol. 21. Exceptions, Bill of. § 41.] 4. SAME-FINDINGS OF REFEREE.

Where the evidence taken upon a trial before a referee is not made part of the record, the findings of such referee are conclusive upon the parties, as well as the court, and cannot be reviewed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error, § 2910.]


Where a party desires to have the proceedings before a referee reviewed, he should file a motion for new trial before the referee, and have the same ruled upon before the report of the referee is filed in court; and, in order to preserve a record before a referee, a bill of ex

ceptions should be prepared and presented to the referee for his allowance and signature, to be filed in court with his report. (Syllabus by the Court.)

Error from District Court, Comanche County; before Justice Frank E. Gillette.

Action by G. H. Block against W. J. Pearson and others. Judgment for defendants, and plaintiff brings error. Reversed, with directions.

Stevens & Myers. for plaintiff in error. W. E. Hudson, for defendants in error.

BURFORD, C. J. Prior to the year 1903, one O. P. M. Butler leased from the school land leasing board section 36, township 2 north, range 12 west, reserved for school purposes, and adjacent to the city of Lawton, in Comanche county, Okl. The lessee was permitted to plat a portion of the section for town site purposes as an addition to the city of Lawton, and to sublease the lots embraced in said addition. The lots in controversy in this case were leased to E. T. Pearson, a married woman and the wife of W. J. Pearson. L. H. Robinson entered into a contract with W. J. Pearson to furnish the material and construct a dwelling house on the lots leased to Mrs. Pearson. G. H. Block furnished the material which was used in the construction of the house and received no compensation therefor. He filed a lien upon the property, alleging that W. J. Pearson was the owner of the property, and that he furnished the material under a contract with the contractor, Robinson. On April 25, 1903, the plaintiff in error, G. II. Block, commenced his action in the district court of Comanche county against the defendants in error. W. J. Pearson, E. T. Pearson, L. II. Robinson, and O. P. M. Butler, in which he sought to recover personal judgment against W. J. Pearson for the amount of his claim for material used in the construction of said house, and the enforcement of a lien against the property. Robinson and Butler made no defense. The Pearsons answered setting up that the title to the land was yet in the United States; that Mrs. Pearson occupied the same by virtue of a lease from Butler, who was the lessee of the school land leasing board, and she did not purchase the material or enter into the contract for the construction of said house: that W. J. Pearson had no interest in the property: that he had contracted with Robinson to build the house upon his wife's lease, but that he had not made any contract with Block for the material used in the construction of said house. A reply was filed setting up the authority of Butler from the school land leasing board to subdivide the land and sublease the lots for town site purposes. The cause was ordered to a referee for trial, with directions to hear the evidence and report his findings of fact and conclusions of law. This was done; the referee recommending a judgment for the defendants for their costs.

The court approved the report of the referee and rendered judgment that the plaintiff take nothing by his action, and that he pay the costs of suit. From this judgment the plaintiff below has appealed, and the case is before us for review.

There are some questions argued in the brief of plaintiff in error that we cannot consider on the record presented. The case contains the evidence taken before the referee, but there was no bill of exceptions allowed and signed by the referee preserving the evidence, nor was there any order of the court directing the referee to report the evidence. There is no order of court making the evidence taken before the referee a part of the record. Hence the evidence is no part of the record, and was not properly before the district court for consideration, nor is it before this court for its considera

This question was before this court in the case of Howe v. City of Hobart, 90 Pac. 431, wherein we held that: "The evidence taken before a referee in a cause where the referee is directed to try the cause, make findings of fact and conclusions of law and report the same to the court, can only be preserved and made available for review in the district or Supreme Court by incorporating the same into a bill of exceptions, and having the referee to allow and sign the same." This rule might probably be avoided by having the court order the referee in the first instance to report the evidence taken, together with his findings of fact and conclusions of law thereon; but neither of these steps were followed in the case at bar, and consequently we cannot review any question which, for its determination, depends upon a consideration of the evidence. Upon this state of the record, the findings of fact stated by the referee and adopted by the court are absolutely conclusive upon all parties, as well as upon the court.

The only question we are authorized to inquire into is whether or not there was error in the conclusions of law applied to the facts found. The referee found that Mrs. E. T. Pearson was the lessee of the lots upon which the lien was claimed; that she held as the sublessee of Butler, who was the lessee of the school land leasing board; that her husband, W. J. Pearson, had no interest in the land; that he procured the building to be erected upon her lots for her use and largely at her expense, although he procured some of the means upon his own credit; that W. J. Pearson contracted with Robinson to construct the house; and that W. J. Pearson was about the premises a great deal of the time and acting as agent for his wife. In relation to the claim of plaintiff, he found as follows: "December 28, 1902, Robinson and W. J. Pearson entered into a contract whereby for the sum of $1,000 Robinson was to build on said lot a dwelling; the material and workmanship to be first-class. Plaintiff furnished materials which went into the con

struction of the house. The materials furnished were for the prices agreed upon between plaintiff and Robinson. Pearson had full knowledge that Robinson was getting the materials from plaintiff, and knew when he paid Robinson that plaintiff had furnished materials for the house. Pearson paid the full contract price to Robinson and to others for work and material; the amount of cash paid to Robinson being $568.40, February 28, 1903. l'earson directed plaintiff to charge the materials to him and promised to pay for them. That materials which plaintiff furnished and which went into the construction of the house amounted to $863.70, no part of which has been paid plaintiff. Pearson moved into the house in February, 1903. Pearson accepted the house as completed according to contract. At the time of the execution of the lease by Butler, E. T. Pearson was a married woman, and W. J. Pearson was her husband." Other findings show that Mrs. Pearson was the lessee; that Block filed his lien statement in proper time; and that Butler, the lessor of Mrs. Pearson, was the lessee from the school land leasing board of section 36, township 2 north, range 12 west, which embraces the lots in controversy. Upon these facts the referee stated as conclusions of law that the plaintiff was not entitled to a lien, for the reason that he had given no notice to Mrs. Pearson of the filing of such lien, as required by the provisions of section 4819, Wilson's Rev. & Ann. St. 1903, and that having proceeded against a subcontractor, and alleged a sale to a subcontractor, he was not entitled to a personal judgment against Pearson. Before the cause proceeded to judgment, the plaintiff applied for and obtained leave to amend his lien statement to conform to the facts as found by the referee, so as to show that the contract was made with W. J. Pearson, the husband of the owner of the property, and to amend the petition by appropriate allegations, changing the facts to conform to the amended lien. These amendments must be treated as made, and they changed the entire theory of the pleadings. The case was tried as one against W. J. Pearson, as owner, and in which Block had furnished .material to Pearson's contractor. The facts having shown that Mrs. Pearson was the owner, that W. J. Pearson was her husband, and that Block had sold the material to him to go into the construction of her house, the law as stated by the referee became inapplicable to the issues. There seems to have been no objection made to the request to amend the lien statement and petition or to the allowance of such request. The trial court followed the recommendations of the referee and rendered judgment in favor of the defendants. seems that either the amendments of the lien statement and petition were overlooked, or the statute on the subject was misapplied. Section 4817, Wilson's Rev. & Ann. St. 1903, governing the amended lien statement


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