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is virtually the same as section 252 of the mandatory injunction; hence the defendant, Nebraska procedure act, and section 4437 of although she did not deny any allegation of Wilson's Revised & Annotated Statutes of the petition, could more to dissolve the temOklahoma for 1903 is exactly the same as porary injunction. section 203 of the Nebraska procedure act It is not necessary to determine as to quoted above. Congress, having put these whether or not the trial judge had the autwo sections of the Nebraska laws in force, thority in law to require the plaintiff to exthereby conferred all of the powers therein ecute a supersedeas bond, in order to prenamed upon the judges of the district courts vent that part of the order directing the posof the territory, and clearly recognized the session of the land to be given back to the deright of the territorial Legislature to re-enact fendant from being carried into execution. these or other similar laws upon the same The order made by the trial judge has been subject. The power was clearly thereby con- reviewed, and a determination reached that ferred upon the judges of the courts, and such order was correct. The error, if any could not be taken away by the Legislature. was made, has not deprived the paintiff of It could only change the procedure. The any substantial right. writs of mandamus and habeas corpus are, by We have examined the appelee's cross-asreason of their peculiar character, usually signments of error, and are o the opinion named specifically in Constitutions and or- that the order made, in so far as it affects yanić law, such as the organic act of this ter- the growing crops, und : all of the circumritory, while injunctions are not necessarily stances, should, with the other provisions named specifically, because this class of ac- thereof, be sustained. The evidence on the tions fall strictly within chancery jurisdiction. final hearing as to the condition of the growNor is the judge of the court prohibited from ing crop may be more satisfactory than it dissolving a temporary injunction because the appears from this record. statute provides that, "if the injunction be

The order of the district judge of Noble granted without notice, the defendant, at county is affirmed, at the costs of appellant. any time, before the trial, may apply, upon

All of the Justices concurring, except BURnotice, to the court in which the action is

FORD, C. J., and HAINER, J., who took no brought, or any judge thereof, to vacate or

part in this court. and IRWIN, J., absent. modify the same." By this statute, if the injunction is granted without notice, the defendant is entitled as a matter of right to

(19 Okl. 240) have the court or judge hear him upon the

GUNN V. TERRITORY. question of the dissolution of the same. The | (Supreme Court of Oklahoma. Sept. 5, 1907.) language was not intended to limit the power 1. OBSCENITY - OFFENSE AGAINST PUBLIC of the court or judge where the injunction is MORALS-EVIDENCE, granted upon notice, but to require it or him

One Bessie Patterson applied to the de

fendant, W. H. Gunn, at his office, for employto hear the defendant where it is granted

ment as an office girl. The two were in the without notice.

office alone. The defendant requested the proseThe assignment that the trial judge com

cutrix to submit to a physical examination in mitted error in the admission and exclusion

order that he might determine if she was virtu

ous, and upon her refusal he ran his hands unof evidence, even if well taken, did not prej- der her clothes and placed them upon her lowudice the plaintiff on his hearing. The court er limbs, and used vile, indecent, lewd, and records which were excluded appear in the

lascivious language to her. Held, that such

acts did not constitute a violation of section case-made, and, even if they had been con

25.72 of the Statutes of Oklahoma of 1893, sidered, the temporary injunction should have which makes it a misdemeanor to "willfully been dissolved. If the district court, in a for

and wrongfully commit any act

* which mer action, took from the plaintiff a part of

openly outrages public decency, and is injuri

ous to public morals." The acts complained of the land in question, as contended by counsel, were not open or public, and did not outrage and gave it to the defendant, and error was public decency, nor injure public morals, but committed thereby, he should have appealed

constituted a personal injury inflicted private.

ly. from the judgment therein rendered.


[Ed. Note.-For cases in point, see Cent. Dig. defendant wils in possession of the land that vol. 37, Obscenity, 8 1.] was restored to her by the trial judge at the

2. SAJE. commencement of this action, anil as to The section of the statute under which the whether she was put into possession of it

defendant was convicted is intended to cover originally by a just or erroneous judgment only those acts for the punishment of which no

other penalty is by statute provided. cannot be litigated in this action, and the files

(Syllabus by the Court.) pertaining thereto were immaterial. The files in this case would be considered by the judge

Error from Probate Court, Oklahoma Counin passing upon this motion to dissolve the

ty; Wm. P. Ilarper, Juilge. injunction, even though they were not formal

W. H. Gunn was convicted of crime, and ly admitted in evidence. The fact that the brings error. Reversed and remandel. defendant was in default oi answer, if sual W. A. Smith, for plaintiff in error. W. 0. be the fact, does not help the plaintiff'. His Cromwell, Atty. Gen., and Don C. Smith, petition did not state a cause of action for Asst. Atty. Gen., for the Territory.

BURWELL. J. Section 25.12 of the Stat- erally a mixed question of law and fact, but utes of Oklahoma of 1893 provides: “Every it cannot be seriously contended that a docperson who wrongfully commits any act tor's private office is such a place as to give which grossly injures the person or property an act committed therein the character of an of another, or which grossly disturbs the open act, especially when no one was prespublic peace or health, or which openly out- ent except the one against whom the act wis rages public decency, and is injurious to pul- committed. The Supreme Court of Indiana lic morals, although no punishment is ex- held, in the case of Jennings v. State, 10 Ind. pressly prescribed therefor lıy this chapter, is 335, that a statute similar to the one under guilty of a misolemeanor." The indictment in which the defendant in this case was prosthis case charges “that the defendant, Dr. W'. ecuted was so indefinite that it did not define II. Gunn, did, in Oklahoma county and in the any public offense, and hence no one could be territory of Oklahoma, on the 10th day of convicted under it; but the Court of Special January, 1. D. 1906, commit an act which Sessions of the First Division of the City of openly outraged public decency and was in- New York (People v. Jost, 36 Misc. Rep. 1:39, jurious to public morals, in this: That, at 73 X. Y. Supp. 220) upheld a conviction under the time and place aforesaid, the suid defend- a statute almost identical with ours. How'ant, being a physician, was maintaining an ever, the validity of the statute is not quesoffice in his residence at No. 310 North Wal- tioned by appellant, and we will not pass upnut street, in Oklahoma City, Okl. T., and on on that question. By referring to cases said day one Bessie Patterson, being an in- which discuss the meaning of the words married female of the age of 17 years, and “openly" and "public," as, for instance, "open of previous chaste and virtuous character, adultery," “public nuisance," and "public through the directions of an employment | morals,” etc., one will see that the acts chargagent, applied to the said defendant at his ed against the defendant do not fall within office for employment as an office girl; that the purview of the statute. That the acts said defendant was alone in his office at said charged constituted an assault there can be time with the said Bessie Patterson; that he no doubt. The prosecution is not for that then and there, willfully and wrongfully, in- crime. The punishment in the opinion of formed said Bessie Patterson that before he some for that offense may be inadequate in could employ her as an office girl it would the circumstances of this case, but we must be necessary for him to make a physical ex- interpret the law as it is, and not as we may amination of her to see if she was a virtuous wish it were. The Legislature has made the girl, and requested the said Bessie Patterson law, and it is the duty of the courts to folto then and there occupy his operating chair, low it as enacted. which she refused to do. He thereupon in- The section of the statute under which the sisted on making a physical examination of defendant was convicted is intended to cover the said Bessie Patterson, and for said pur- only those acts for the punishinent of which pose undertook to, and did, run his, hands un- no other penalty is by statute provided. Con. der the clothes and place them upon the low- ceding the validity of the statute under which er limbs of her, the said Bessie Patterson, the defendant was indicted, the acts chargeil and against her will and protest, and did, constituting the crime of assault, he must be then and there, unlawfully. willfully, and prosecuted, if at all, for that crime. To be wrongfully, use all kinds of vile, indecent and sure, if the assault was made with the intent lewd and Jascivious language, in the presence to commit some other crime detined in the and hearing and to the said Bessie Patter- crimes act, the defendant could be prosecutson, which language is so indecent, lewd and ed for such crime. But the rule is that, if lascivious it is not proper to state herein, the acts charged constitutes any specific crime contrary to the form of the statutes in such defined in the statutes one should be prosecutcases made and provided, and against the el for such crime, an.. not under a blanket peace and dignity of the territory of Okla- statute like the section quoted above. homa." Upon the trial, the jury found the The judgment of the lower court is hereby defendant guilty, and the court sentenced reversed and remanded, with directions to the him to one year in the county jail and to pay lower court to proceed in conformity with the a fine of $.300.

views expressed in this opinion, and to disDoes the indictment charge a public of- miss said action. All of the Justices concurfense? The indictment charges the defendant ring, except IRWIN, J., and GARBER, J., with openly outraging public decency, and absent committing an act injurious to public morals. The facts pleaded in the indictment do not sustain the charge. If the defendaut did the

(19 Okl. 243) acts charged, he outraged decency and com

GOLDSTANDT-POWELL HAT CO. V. mitted an act injurious to morals; but he did

CUFF. not openly outrage publie decency and com

(Supreme Court of Oklahoma. Sept. 5, 1907.) mit in act injurious to public morals. The

1. SALES-ACCEPTANCE or Goods PURCHASED statute is directed against acts which are


Net PURCHASED. committed openly and affert the public. Us

Where an action is brought by a wholeto whether an act is committed openly is yen- saler against a retail merchant for the price of goods sold and delivered. and the defense is the above state of facts, no matter whether that the goods not paid for were not the goods ordered, and that they were returned to the

or not the goods shipped were of the kind wholesale house within two weeks after they

and quality ordered, the defendant was eswere received, and that they were never ex- topped from saying that he did not accept posed for sale, and the eridence is conflicting, them. As to whether or not the goods shipthe issue of acceptance is one of mixed law and fact, which the jury must decide under proper

ped were of the kind and quality ordered, and instructions.

were accepted by the defendant, were issues [El. Xote.- For cases in point, see Cent. Dig.

which the court submitted to the jury, which vol. 13, Sales, § 1.3.]

found in favor of the defendant. These find2. SAME.

ings, being supported by the evidence, are Where a retail merchant orders goods of a conclusive and binding upon the court. Mr. certain class and quality from a wholesale deal

Justice Clifford, in the case of Garfield v. fr. and it ships a part of the goods ordered, and also other goods which were not ordered.

Paris, W '. S. 5.7, 24 L. Ed. 821, commenting the retailer nar par for the goods of the kinil upon the law on this subject, said: "Accept and quality ordered without making himself and receive' are the words of the statute in liable for the goods not ordered, and where he does not accept the goods not ordered, but with

question, but the law is well settled that an in a reasonable time in the light of the sur

acceptance sutlicient to satisfy the statute rounding circumstances, returns them, he will may be constructive: the rule being that the not be liable therefor.

question is for the jury whether the circumEd. Wote.-.For cases in point, see Cent. Dig. vol. 3. Sales.. $ 193.)

stances proved, of acting or forbearing to

act. do or do not amount to an acceptance (Syllabus by the Court.)

within the statute. Questions of this kind Error from Probate Court, Pottawatomie are undoubtedly for the jury." And again, in County: William X. Maben, Juilge.

the same opinion: “Controlling authorities Jetion by the Goldstandt-Powell Hat Com

already referred to show that the question pany against J. J. Cuff. Judgment for de

whether the goods or any part of the same fendant. and plaintiff brings error. Af- were received and accepted by the purchaser firmed.

is one for the jury, to which list of citations R. X. MoConnell and Chambers, Taylor &

many more may be given of equal weight

and directness." See, also, Am. & Eng. Enc. Ilooker, for plaintiff in error. C. G. Pitman,

of Law (2d Ed.) vol. 21. p. 1088 for defendant in error,

Vor did the defendant, by accepting and BURWELL, J. The Goldstandt-Powell Hat

paying for the goods ordered, make himself

liable for the goods shipped to him which Company is engaged in the wholesale busi

he did not order. The defendant had a right ness in Kansas City, Mo., and on or about November 17, 1904, it, through its traveling

to pay for the goods ordered and return those salesman, sold the defendant a bill of goods plaintiff delivering the remainder of the goods

not ordered. He could also insist upon the consisting of bats, caps, gloves, etc. The

ordered, or waive the same. The authorities gools were not all shipped at one time. The first shipment, amounting to about $190, was

cited by counsel for appellant regarding the

interpretation of contracts for the sale of received by the defendant at his place of busi

different articles of personal property at one ness in Maud, Okl., during the first week in December, 1904. When the defendant opened

sale, and their insistence that a vendee un

der such circumstances must receive all of the boxes in which the goods were shipped, he

the different articles, have no application to found only about $10 or $50 worth of the good

this case. were of the sizes and kinds of goods ordered.

The jury found that the articles These he put on the shelves for sale. The

returned by the defendant were not ordered remainder of the shipment he set back and

by him, and hence they were not included in never offered to the trade. On December 17,

the contract of purchase. 1.701, the defendant wrote to the wholesale

The judgment of the probate court of 'Pothouse, stating that the goods sent to him were tawatomie county is affirmed, at the cost not what he had ordered, and requesting the

of appellant. All of the Justices concurring, house to send him the remainder of the goods

except IRWIN, J., absent. as per his order given the traveling salesman. On December 19, 1904, he received the

(19 Okl. 104) remainder of the order, and, finding that the

MCCLELLAN r. MIYOR. goods sont lii:n in that shipment were not the (Supreme Court of Oklahoma. Sept. 4. 1907.) goods ordered, he boxed them up, as well as 1. WRIT OF ERROR-REVIEW OF EVIDENCE. the other goods which he had not ortlered, Where the case-made cloes not contain an and returned them to the wholesale house at

a verment by way of recital to the effect that

it contains all the evidence introduced on the Kansas City; but, although it received due

trial of the cause, this court will not revjow notice from the transportation company and any question which requires an examination of the defendant, it never would receive the the evidence in order to arrive at its correct

determination. goods, and brought this suit for the purchase

El. Wote.--For cases in point, sep Cont. Dig. price thereof. The defendant paid for the

Vol. 33. Appeal and Error. $$ 916, 2017.) goods not returneil by him. On the trial thie

2. SAME-CASE-VADE-VERIFICATIOx. jury found for the defendant.

The certificate of the judge to a case-made It is contended by the appellant that, under, verifies and makes conclusive, as to their truth

[ocr errors]

fulness, all recitals and averments made in the are authorized or recognized. The case itsei. case; but this rule does not apply to certif

must contain the positive avernient, by way of icates of counsel, or to other matters incorporated into the case.

recital or other equivalent showing, that it

does contain all the evidence submitted or (Syllabus by the Court.)

introduced on the trial of the cause, and in Error from District Court, Kay County ; the absence of such recital this court will not before Justice Bayard T. Hainer.

review any question depending upon the facts Action by Otis A. Minor against John F. for its determination.” This rule is concluMcClellan. Judgment for plaintiff. Defend- sive of the case at bar. ant brings error. Affirmed.

Notwithstanding this rule, we may say that D. S. Rose, for plaintiff in error. Hackney

we have examined the whole record, and, up

on the assumption that the case does contain & Lafferty, for defendant in error.

all the evidence, we are of the opinion that

the cause was rightly decided upon the law BURFORD, C. J. This was an action by

and facts, and that the plaintiff in error is in Minor against McClellan to enforce specific

no position to complain. performance of a contract to convey real es

The judgment of the district court of Kay tate. Issues were made and the cause tried

county is affirmed, at the costs of plaintiff to the court. Upon the evidence introduced in error. All the Justices concur, except the court found the issues in favor of the

HAINER, J., who tried the cause below, not plaintiff and decreed specific performance of

sitting, and IRWIN, J., absent. the contract. The defendant below brings the cause here on petition in error and prays for a reversal of the judgment.

(19 Okl. 115) None of the questions presented and argued ROGERS V. McCORD-COLLINS MERCANby counsel for plaintiff in error can be de

TILE CO. terminell without a review of the evidence in

(Supreme Court of Oklahoma. Sept. 4, 1907.) troduced on the trial of the cause. The casemade attached to the petition in error con


TION. tains what purports to be the evidence; but

Generally, when an order is made denying this court has established the rule that, un- a motion to quash service of summons, and a less the case-made contains the recital or its final judgment is rendered, an appeal will lie equivalent, the case contains all the evidence

from such judgment, and the ruling arising

upon the motion to quash service may be asintroduced on the trial of the cause, this

signed as ground for reversal, and, if no appeal court will decline to consider any question is taken, the matter arising on the motion to dependent upon an examination of the evi- quash service becomes res adjudicata ard a bar dence for its determination. Frame v. Ryel,

to the right of the defendant to raise the same

question upon a subsequent motion involving 14 Okl. 536, 79 Pac. 97; Board of Washita

the seme subject-matter, County v. Hubble, 8 Okl. 169, 56 Pac. 1038; 2. APICARANCE-GENERAL APPEARANCE. Sawyer Lumber Co. v. Champlain Lumber Co.,

Where a motion is made in which ques16 Okl. 91, 8+ Pac. 1093; B. K. & S. W. Ry.

tions are raised which go to the jurisdiction of

the court over the parties, and in which quesCo. v. Grimes, 38 Kan. 241, 16 Pac. 472; Ry

tions are also raised which cannot be raised by an v. Madden, 46 Kan. 376, 26 Pac. 680; special appearance, but can only be heard upon Pelton r. Bauer, 4 Colo. App. 339, 35 Pac. a general appearance, the parties will be taken

and held to have entered a general appearance, 918; Eddy v. Weaver, 37 Kan. 510, 15 Pac.

and in such case defects in the service of sum492; Hill v. Bank, 42 Kan. 364, 22 Pac. 324. mons will be deemed and held to have been

The case in question contains a statement waived, even though such appearance be made signed by counsel, as follows: "The foregoing

after judgment and upon a motion to vacate

and set aside such judginent. contains a true and correct statement of all

(Syllabus by the Court.) the pleadings, motions, orders, evidence, findings, judgments, decrees, and proceedings up

Error from Probate Court, Lincoln Counon which judgment was rendered.” This is

ty; Fred A. Wagoner, Judge. not equivalent to a statement that the case

Action by the McCord-Collins Mercantile contains all the evidence introduced on the Company against J. M. Rogers. Judgment trial of the cause. Nor is a statement or cer- for plaintiff, and defendant brings error. tificate of counsel of any greater weight or

Affirmed. significance than any other document copied S. A. Cordell and J. B. A. Robertson, for into the case. The court verifies and makes plaintiff in error. S. D. Decker, for defendconclusive every recital contained in the case; ant in error. but this rule does not apply to certificates of counsel or of other officers which may be in- PAXCOAST, J. This action was brought corporated into the case. This court said, in in the probate court of Lincoln county to reSawyer Lumber Co. v. Champlain Lumber cover the sum of $127.50. Suminons was ('o., 16 Okl. 90, 81 Pac. 1093: "There is a regularly issued and was served on the 24th certificate of counsel that the case contains day of November, 1901, by leaving a certiall the evidence, and also a certificate of the

fied copy

thereof. with the indorsements stenographer that his transcript contains all thereon, at defendant's usual place of resithe evidence; but neither of these certificates dence. On the 5th day of June, 1905, the

plaintiff appeared specially and moved to quash and set aside the summons and service thereof, for the reason the defendant was not at the time of service a resident of the county or territory. Evidence was introduced upon this motion, and overruled by the court, and judgment was thereupon rendered as upon default. Following this, on the 15th day of June, 1905, the plaintiff in error filed a motion, supported by affidavits, praying that the judgment rendered on the 5th day of June be set aside, upon the ground that the defendant was a nonresident when seryice was made, and that the court þad no jurisdiction of the person of the defendant. Evidence was introduced upon this motion also, and beard by the court, and after consideration thereof the court overruled the same. Time was given to make a case upon the last order. The case-made, however, contains the record of the action of the court upon the notion to quash, as well as upon the motion to set aside the judgment, although no time was given to make a case upon the first motion. No extension of time having been given to make a case upon the ruling upon the motion to quash service, the action of the court in that regard cannot be considered in this appeal, except in so far as the court may be apprised of the first action of the court, and in so far as it may be necessary to consider the same in connection with the subsequent orders. It seems, however, from the record, that this motion was heard, and upon the hearing that evidence was introduced and considered, which was held by the court insufficient, and the return of the sheriff and the service was sustained.

It is insisted by the plaintiff in error that both of these motions ought to have been sustained. There was, however, evidence offered and considered, and we think that the return of the sheriff was sufficient as against the evidence offered by the defendant. The affidavits offered by the defendant are very unsatisfactory. The affidavit of the wife of the defendant was incompetent and could not have been considered by the court. The other affidavits contain conclusion and evidently appeared to the court as evasive and unsatisfactory. Upon this, however, the only question that can be considered here is the question arising upon the motion to set aside the judgment. This same question, having been presented to the court upon the motion to quash service, became res adjudicata, and the court would have been justified in overruling the motion upon that ground, if none other. An order overruling a motion to quash summons and service is as conclusive on apreal from a subsequent order involying the same question, and becomes res adjudicata to the same extent, as if the order had been made upon the final judgment. Generally, when an order is made denying a motion to quash service of summons, and a final judgment is rendered, an appeal will

91 P.--35

lie from sucb judgment, and the ruling arising upon the motion to quash service may be assigned as ground for reversal, and, if no appeal is taken, the matter arising on the motion to quash service becomes res adjudicata and a bar to the right of the defendant to raise the same question upon a subsequent motion involving the same subject-matter. While there are exceptions to the letter of this rule, yet, whenever the exceptions have been recognized, they have been based upon what seems necessary for the full protection of the rights of the parties. "Orders made on motions affecting the substantial rights of parties from which an appeal lies, if the matter in question has been fully tried, are as conclusive upon the issue necessarily decided as are final judgments.” Halverson y. Orinoco, 89 Minn. 470, 95 V. W. 320; Board of Commissioners of Wilson County v. McIntosh, 30 Kan. 234, 1 Pac. 572.

It is insisted by the plaintiff in error that a void judgment can always be attacked, eren collaterally. As an abstract proposition of law this is probably correct, but this was not a void judgment. At most it was only voidable, and it is also true that the court upon a proper showing could have quashed the service, inasmuch as the seryice was not personal, but by leaving a copy at what was claimed as the usual place of residence of the defendant. This could only be taken advantage of by a special appearance, and should the defendant in such a case at any time make a general appearance, such general appearance would have waived any defect of service. Not only that, but a general appearance in such a case may be made even after judgment, and when so made will have the effect of waiving any defect which may appear in the service.

In the brief of the plaintiff in error in this case, they argue two propositions which can in no wise be taken advantage of by special appearance, and an appearance in any case which is designated as a special appearance, and in which special appearance propositions are contended for which cannot be taken advantage of by a special appearance, but can only be heard upon a general appearance, the parties will be taken and held to have made a general appearance. Counsel argue, upon pages 10 and 11 of their brief, that the judg. ment was rendered without testimony; also, that the petition was not subscribed by the plaintiff in error, and for this reason the court erred in rendering judgment; also, the service was made

made on Thanksgiving Day. The first two of these propositions are not matters that can be considered under the head of a special appearance. They are matters that do not pertain to the jurisdiction of the person, and the defendant, haring presented these two matters to the court, will be deemed to have entered a general appearance in the action, and, having entered a general appearance, all matters affecting the service are waived, and the court will be held

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