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holders in good faith. That in January, 1902, shares of capital stock, with stubs which, be permitted his name to appear as a stock- when a share of stock is issued, is filled out holder in the bank and qualified as a director, giving a history of such issuance, and the upon the faith of his interest in the bank to proofs of record show that when the bank the extent of 10 shares, is admitted. That he closed A. G. Brown was the owner of stock continued in this relationship to the bank vol- certificate 30 of 100 shares, issued January, untarily until his attempted resignation in 1896; No. 31 of 100 shares issued January, the summer of 1903 is settled by the record, 1906; and No. 63 of 200 shares issued May and that he was liable to the creditors of the 26, 1902, a new issue of stock not receipted bank as an officer and stockholder until the for. C. E. Billingsley was the owner of certif21st day of November, 1903, there can, we icate No. 53 of 25 shares, issued December, think, be no question. It is here, then, that 1900; No. 51, 25 shares; No. 56, of 23 shares; the real contest in this case begins and turns No. 57 of 50 shares; No. 58, 50 shares; No. upon the settlement of the question as to 59, 30 shares; No. 65 of 270 shares issued whether or not, when he resigned as a direc- May, 1902; a new issue not receipted for; tor of the bank, he relinquished and trans

No. 69, 75 shares issued March, 1903; a ferred the stock then carried on the books reissue from original certificate No. 67 of of the bank in his name, for the record does 15 shares; No. 71 of 10 shares issued April, not show the bank to have been in a failing 1904; a reissue of all of certificate 58; No. condition at that time, and does show his res- 71 of 10 shares, C. R. Brooks, issued Januignation as a director and the acceptance of ary, 1902; a transfer from all of certificate the same upon that date. It further shows 29; No. 60 of 30 shares, J. G. Edmonson; a purpose on his part at that time to entire- transfer from all of certificates 16, 47, 48, 49, ly sever his connection with the institution, and 51, issued January, 19902; No. 66 of 10 and, in considering the question as to wheth

shares to T. A. Yeal, issued March, 1903; er he did so serer his connection, it must be a transfer of 10 shares from original certifremembered that he did not have actual pos

icate No. 35 issued for 23 shares; No. 70 session of the 10 shares of stock which had of 30 shares issued to J. C. Robb), issued been assigned to him and carried on the December, 1903; a reissue of all of original books of the bank in his name. They were in

certificate No. 51; No. 62 of 10 shares to the bank vault only partially filled out, but E. P. Kelly, issued January 31, 1902; at that time upon being informed by the pres- reissue of all of original certificates 32 and ident of the bank that he had been relieved 32. As will be seen, these certificates named as a director, he made inquiry if there was are for 1,000 shares. The whole stock of anything else necessary for him to sign to the bank and the defendant's 10 shares of secure his complete release of any connection stock are included in the list. The record with the bank, and was informed by the pres. shows, with reference to the introduction of ident that there was not. This certainly bar

this evidence: "Mr. Kleinschmidt: We offer red him from any interest in or demand in evidence that part of the stock book showagainst the assets of the bank, and conclud- ing the shares held by the various stocked the bank as a bank from demanding any- holders of the Capitol National Bank. The thing from him. He did not have possession Court: It may be considered in evidence.” of stock to cancel or surrender. He was re

Then follows the certificates of which the lieved as a director and the stock which had foregoing is an abstract. No other parts of been carried in his name, in fact belonged to the stock book are shown in the record. the president, and the president informed It is urged that this stock certificate book him that nothing further was necessary.

It is a book of original entries, and therefore is therefore a naked legal proposition as to the best evidence of who the stockholders whether or not he is liable upon an assess- were at that time. Touching this question, ment against him by the Comptroller of the we have to say that, as against the bank, it Currency. Section 12 of the national bank act is probably the best evidence. The result to (13 U. S. Stat. 102, c. 106. Rev. St. 1878, $

be ascertained from the book are such re5151 [U. S. Comp. St. 1901, p. 31651) provides:

sults as the book is made to speak through “The shareholders of every national banking the methods in which it has been kept. There association shall be held individually respon

is no evidence in this record that the results sible, equally and rateably and not one for deducible from this book are the facts in another, for all contracts, debts, and engage- the case, or that the book has been corments of such association, to the extent of rectly and accurately kept. We say, therethe amount of their stock therein."

fore, that as against the bank the result logWas he, at the time of the failure of the ically deducible therefrom is the best evibank, a stockholder? As between him and dence, and as against the bank almost conpresident, Billingsley, whose stock had been clusive, but as against third persons adverseassigned to him, he was not, and, as between ly interested such effective application of him and the bank for any profit of the bank, record testimony of this kind cannot be he was not. But it is urged that the stock made. A man's liability cannot be fixed by book still showed him a stockholder. This the bookkeeping of some other party, and in book we understand from the evidence to such case such testimony has weight or lacks have been originally a book containing blank weight according as the correctness of the

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bookkeeping is admitted or shown. In this by the well-settled rule of this court cancase we have but a portion of the bank stock not be disturbed where a conflict in the book before us, and no satisfactory conclu- testimony appears. sion can be deduced therefrom. It is con- Under the conclusion here reached the prinfidently urged that just $100,000 of outstand- cipal ground set forth in the motion for å ing stock was shown by the certificates here- new trial is immaterial, which was that a inbefore described. That is true. But is letter, dated July 10, 1903, was signed by this all and conclusive of the fact that such E. P. Kelly, and which signature he denied. list of outstanding stock and stockholders This act of Kelly's, if admitted, would not measures accurately and conclusively what change the conclusion here reached, for his stock and stock holders were alone liable as connection with the bank was not concluded such when the bank failed. The defendant's until the following November, when his resstock passed to his name January 31, 1902. ignation as a director was accepted, and at We have no doubt but that the entire capital which time he was informed by the president stock of the bank was at that time subscrib- of the bank that his connection with the ed for and owned, and yet four months aft- bank was wholly severed. erwards certificate No. 63 for 200 shares was Finding no reversible error in the record, issued to A. G. Brower and marked "a new the judgment of the trial court is affirmed. issue.” At the same time (May, 1902), stock All the Justices concurring, except HAINER, certificate 65 to C. E. Billingsley for 270 J., who presided in the court below, and IRshares, marked "new issue."

This is ap

WIN, J., absent. proximately one-half the capital stock of the bank. It surely was not an original issue of stock, and what other stock is taken up

(19 Okl. 63) by such new issue of stock is left wholly to BLACKWELL, E. & S. W. RY. CO. et al. v. conjecture. Stock certificate No. 66, for 10

BEBOUT. shares, to T. A. Neal, issued March, 1903, was

(Supreme Court of Oklahoma. Sept. 4, 1907.) a transfer from original certificate No. JJ, which original certificate was for 25 shares,


LAW. and stock certificate 69, for 5 shares, to C.

The statute of Oklahoma authorizing railE. Billingsley, issued November 21, 1902, was road corporations to exercise the right of emia transfer from original certificate No. 67, nept domain, and providing the procedure by which original certificate was for 15 shares.

which the damages to the landowner may be

ascertained, and giving to the owner of the It will be observed that this record evi

property as well as the corporation the right to dence touching the last two named certificates institute such proceedings, does not provide an shows that, at the time of the failure of exclusive remedy; but the common-law remedy

afforded the owner in such cases may be purthe bank, there was outstanding, on certif

sued, at the election of the landowner, where icates No. 55 and 67, 25 shares of the capital his property is entered upon and appropriated stock of the bank, and these are not included

for railway purposes. in the record offered to make up the 1,000 2. ABATEMENT-EMIXENT DOMAIN-PEXDEXshares of stock, which plaintiff claims was


DAMAGES BY SUIT. outstanding and alone liable. It will also

Where condemnation proceedings have been be observed that stock certificate 67, with instituted for the purpose of ascertaining the 10 shares thereof not accounted for in the rights of the parties for the appropriation of record of the stock book offered in evidence,

right of way by a railroad company and of fix

ing the compensation of the landowner, such was issued long subsequent to the date of landowner cannot maintain an action at law to the plaintiff's certificate. The record is silent recover damages for the injury done to his propas to who it was issued to. If presumptions

erty, and if such suit is brought it should be

dismissed at the plaintiff's costs. may be indulged in, it would be fair to pre

[Ed. Note.-For cases in point. see Cent. Dig. sume that certificate 67, for 15 shares, was

vol. 1, Abatement and Revival, $ 35.] issued to Billingsley, and that afterwards he

3. SAJE-RIGHTS OF PARTIES. caused certificate 69 to issue for 5 of these

After a railroad company has entered upon shares. Such a presumption would show private lands and appropriated its right of way, 510 shares in C. E. Billingsley. The facts

either with or without the consent of the ownare that the proofs offered from the stock

er, either party may institute condemnation pro

ceedings to determine the relative rights of the book are most unsatisfactory and inconclusive.

parties and ascertain the damages sustained by The trial court manifestly accepted the evi- the owner of the property, or the landowner dence touching the transactions of the bank may sue for damages. on February 27, 1904, as more reliable, and

[Ed. Note.-For cases in point, see Cent. Dig. which shows the stock of the bank outstand

vol. 18, Eminent Domain, $$ 694, 698.] ing at that time to be in Brower, Brooks,

4. APPEAL-VERDICT-PRESUMPTIONS. Billingsley, Nelson, Robb, Neal, and Edmon

Where the person in whose favor a verdict

is rendered is entitled to interest, and there is son, and on which date a 53 per cent. levy nothing in the record from which it can be lias made on the stock of the bank in the determined whether or not the jury took into name of those persons as stockholders; Bil

consideration the matter of interest in fixing the

amount of their award, it will be presumed that lingsley paying such assessment on 510

they included interest. shares. We think the trial court had a right [Ed. Note.--For cases in point, see Cent. Dig. to adopt this view of the testimony, which vol. 3, Appeal and Error, $ 3760.]

5. SAME.

The judgment of the court must follow the verdict, and where the verdict is general and for a sum in gross, and the question of interest was not reserved by the court, and there is nothing in the record to indicate that the jury omitted interest, it will be presumed that it is embraced in the amount of their finding, and the court cannot add interest to the amount found by the verdict of the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 3760.] 6. APPEAL-REVIEW-DETERMINATION.

Where there is no error in the amount fixed by the verdict of the jury, and the judgment is erroneous as to amount and as to the taxation of costs, this court wil not grant a new trial, but will vacate the erroneous judgment and enter in this court the judgment which the trial court should have rendered.

[Ed. Note.-For cases in noint. see Cent. Dig. vol. 3, Appeal and Error, $ 4.507.) (Syllabus by the Court.)

Error from District Court, Woods County ; before Justice J. L. Pancoast.

Condemnation proceedings by the Blackwell, Enid & Southwestern Railway Company and the St. Louis & San Francisco Railroad Company against J. J. Bebout. Judgment for defendant, and plaintiffs bring error. Modified.

Flynn & Ames, Jesse J. Dunn, and Dale & Bierer, for plaintiffs in error. A. C. Towne, for defendant in error.

BURFORD, C. J. The defendant in error was the owner of the southeast quarter of section 28, township 20 north, range 10 west, in Woods county, Okl. The Blackwell, Enid & Southwestern Railway Company, without his consent, and before commencing any proceedings to acquire a right of way, constructed its railroad across said tract and appropriated a portion of it for its right of way, and subsequently leased or transferred its property to the St. Louis & San Francisco Railroad Company. After the strip of land for right of way had been taken and was being used for railway purposes, the Blackwell, Enid & Southwestern Railway Company instituted proceedings for condemnation of said strip for its right of way and for the assessment of damages. Commissioners were appointed and made the assessment and filed a report, fixing the damages at $275. In these proceedings the land was described in the notice, the application for appointment of commissioners, and the report of the commissioners assessing the damages, as the southwest quarter, when it should have been the southeast quarter, the land in controversy. The appraisers were sworn by a United States commissioner, an officer not authorized to administer oaths in such matters. These proceedings were all corrected by amendments by leave of the court, and a new report properly sworn to filed by the commissioners on September 21, 1903.

In order to acquire the right to bind the landowner in condemnation proceedings, the court must have jurisdiction of the property

to be condemned, and also of the owner. In our judgment the proceedings in this case were so defective that the jurisdiction of the subject-matter was not acquired until the filing of the amended and completed report of the appraisers and the amendment of the notice and application to the court for the appointment of viewers, which was all done on the 21st day of September, 1903. Bebout, the landowner, had made his written demand for a jury trial prior to this date, and also refiled the original demand on said date. had 30 days from the filing of the report of the appraisers in which to file his demand for a jury trial. In view of the failure to describe the land in either notice, the application or the report of the commissioners, and the failure of the commissioners to take any oath either before or after making the assessment and award of damages, we are satisfied that his time did not begin to run until the amendment and perfecting of the proceedings on September 21, 1903. Hence his demand for a jury trial was in time, and there was no error in allowing a jury trial upon the issue of the amount of compensation to be awarded the landowner.

The condemnation proceedings were initiated by the Blackwell, Enid & Southwestern Railway Company by service of the original defertive notice upon Bebout upon the 20th day of December, 1902, and from that date to the time of trial various steps were taken in court looking to the completion and confirmation of the proceedings. On November 8, 1902, Bebout filed in the district court of Woods county his petition against the Blackwell, Enid & Southwestern Railway Company, and also the St. Louis & San Francisco Railroad Company, claiming damages for the right of way of said roads across his land. Four several summonses were issued, and an attempt made to serve the defendants; but the first three were successively set aside by the court upon special appearance and motion of the defendants. The fourth summons, which was finally served upon the defendants, was issued December 8, 1903, and served on the 10th day of December, 1903. The defendants appeared and pleaded to the petition, and, among other defenses, set up the pendency of the condemnation proceedings in the same court, to have the damages ascertained for the same causes. The reply was a general denial. On February 3, 1905, the Blackwell, Enid & Southwestern Railway Company seryed upon Bebout an offer to confess judgment for the sum of $550, and filed the same in court on the same day. On February 7, 1905, the court, by special order with consent of all parties, consolidated these two cases and ordered them tried together. The consolidated case was tried to a jury, and a verdict returned assessing damages in favor of Bebout for the sum of $180. Afterwards, on February 21, 1905, the court rendered judgment on the verdict for the sum of $589.20, which was the amount of the verdict, $150 plus $109.20,

which the court allowed and added as inter- to enable such corporation to construct and est from the date of the appropriation of the repair its road and the right to conduct water land by the railway company to the date of to its water stations, and to construct and trial. The plaintiffs in error objected to the maintain proper drains, and may obtain the allowance of any interest by the court, and right to such real estate by purchase or consubsequently moved to modify the judgment demnation in the manner provided by the and for a new trial; all of which were over- law." And also the following section 112; ruled by the court, and exceptions saved. It Wilson's Rev. & Ann. St. 1903, § 1011): "If appears from the record in this case that the the owner of any real property over which Blackwell, · Enid & Southwestern Railway said railroad corporation may desire to locate Company went upon the land in controversy its road, shall refuse to grant the right of way and constructed its road across a portion of through and over his premises, the district the tract, prior to the time that any pro- judge of the county or subdivision in which ceedings were begun to have determined the said real property may be situated as providcompensation of the landowner. Subsequent- ed in this article, shall, upon the application ly, and before the landowner had begun any or petition of either party, and after ten days' proceedings to recover compensation, the rail- notice to the opposite party either by personway company instituted the condemnation al service or by leaving a copy thereof at his proceedings which resulted in an award of usual place of residence, or in case of his $275 and the deposit of that sum in court for non-residence in the territory by such publicathe use of Bebout. It was urgently contend- tion in a newspaper as the judge may order, ed by the company that Bebout had waived direct the sheriff of said county to summon his right to a jury trial by having failed to three disinterested freeholders of said county file his demand for a jury trial within 30 or subdivision (or if there be none such then days after the commissioners had filed their of the territory) as commissioners, who shall first report; but, as we have already said, be selected by said judge, and who must not the proceedings were so defective that juris- be interested in a like question. The comdiction by the court was not acquired of the missioners shall be duly sworn to perform subject-matter until the amendments were their duties impartially and justly; and they made inserting the correct description of the shall inspect said real property and consider land, and the filing of the last report of the injury which such owner may sustain by award, which all appears to have been done reason of such railroad; and they shall ason the same day. Bebout appeared to these sess the damages which said owner will susamended proceedings and demanded a jury tain by such appropriation of his land; and trial, which was allowed him. During the they shall forthwith make report thereof in pendency of these proceedings he instituted writing to the clerk of the said court, setting his independent suit against both of the rail- forth the quantity, boundaries and value of way companies for damages, and issues were the property taken, or amount of injury done formed involving the identical questions in to the property which they assess to the owncontroversy in the condemnation case. It er; which report must be filed and recorded was conteniled in the court below, and also by the clerk, and a certified copy thereof may here, that the landowner was not entitled to be transmitted to the register of deeds of the maintain this independent suit for damages, county or subdivision where the land lies, to but that his remedy was by the statutory pro- be by him filed and recorded (without further (eedings for ascertaining the damages in such acknowledgment or proof) in the same mancases, and the determination of this question ner and with like force and effect as is propractically controls all other questions in vided for the record of deeds. And if said the cause.

corporation shall, at any time before it enOur statute relating to the rights, powers, ters upon said real property for the purpose and duties of railway corporations, among of constructing said road, pay to said clerk other provisions, contains the following (sec- for the use of said owner the sum so assessed tion 109, art. 9, c. 18; Wilson's Rev. & Ann. and reported to him as aforesaid, it shall St. 1903, & 1038): "Every railroad corpora- thereby be authorized to construct and maintion incorporated under this act and any rail- tain its road over and across said premises : road corporation authorized to construct, op- Provided, that if the corporation shall need erate or maintain a railroad within this ter- or require for the purpose of constructing ritory, has power and is authorized to enter said railroad, to take and occupy any real upon any land for the purpose of examining property in any unorganized county, or in and surveying its railroad, and to take, hold other unorganized country where there is po and appropriate so much real estate as may district court established, then the judge of be necessary for the location, construction the district court of the nearest organized and convenient use of its road, including all county or subdivision (wherein such court is necessary grounds for buildings, station, established) upon the line of said road, shall workshops, depots, machine shops, switches, appoint commissioners to assess said damside-tracks turn-tables, snow detenses and ages; and he and they shall perform all othwater stations; ali material for the construc- er duties required of district judges and com; tion of such road and its appurtenances, and missioners by the terms of this article, and the right of waj over ådjaceït land sutlicient either party shall have the right to appeal as in other cases herein provided : And provid- went upon the land of Bebout and attempted further, that the report of the commission- ed to appropriate any portion of it for railer's may be reviewed by the district court, on way purposes, he had the right to require written exceptions filed by either party, in them to stop work until the damages could the clerk's office within sixty days after the be ascertained and deposited with the clerk filing of such report; and the court shall of the court. If he failed to require this to make such order therein as right and justice be done, and stood by until the work was may require, either by confirming, modify. completed, he gained no greater rights than ing, or rejecting the same, or by ordering a he had before, and the railway company got new appraisement on good cause shown; or no better rights by his silence. The failure either party may within thirty days after the to have the damages determined in advance filing of such report file with the clerk a writ- did not change the rights or relations of the ten demand for a trial by jury; in which parties. The provisions of the statute were case the amount of damages shall be assessed still adequate for the determination of the by a jury, and the trial shall be conducted rights of both parties and for the enforce and judgment entered on the verdict in the ment of such rights when determined. same manner as civil actions in the district A corporation having the right of eminent court. If the party demanding such trial does domain may exercise that right wherever not recover a verdict more favorable to him their necessities require it, and in exercising than the assessment of the commissioners, such power the only requirement is that such he shall not recover costs in the district corporation shall make just compensation for court; and all costs in the district court may such private property as it takes or damages. be taxed against him: And provided fur- Ordinarily, the power of eminent domain is ther, that either party may appeal from the exercised under statutory regulations, and decision of the district court to the Supreme where either party is given the right to initi. Court and the money so deposited shall re- ate proceedings for the ascertainment of the main in the hands of the clerk, as aforesaid, damages and to invoke the process of the until a final decision be bad and subject there- law specially provided for such cases, such to. But such review or appeal shall not de- statutory provisions have been held to be lay the prosecution of the work on said rail. exclusive. It is said in 15 Cyc. 980, that: road over the premises in question, if such "Where a statutory remedy is given the own. corporation shall first have paid or deposited er of the property, such statutory remedy is with said clerk the amount so assessed by usually held to be exclusive and to supersede said commissioners; and in no case sball the common-law remedies afforded the ownsaid corporation be liable for the costs on er, particularly where condemnation proceedsuch review or appeal, unless the owner of ings are pending.” And the text is abundantsuch real property shall be adjudged entitled, ly supported by the authorities. Kaukauna upon either review or appeal, to a greater Water Co. v. Green Bay, etc., Canal Co., 142 amount of damages than was awarded by U. S. 254, 12 Sup. Ct. 173, 35 L. Ed. 1001; said commissioners. The corporation shall in Kuhl v. C. & N. W. Ry. Co., 101 Wis. 42, 77 all cases pay the costs and expenses of the N. W. 155; Land v. W. & W. Ry. Co., 107 N. first assessment. And in case of review or C. 72, 12 S. E. 123; Shortle v. Railway Co., appeal, the final decision may be transmitted 130 Ind. 505, 30 N. E. 639; Ft. Wayne v. by the clerk of the proper court, duly cer- Ilamilton, 132 Ind. 487, 32 N. E. 324, 32 Am. tified, to the proper register of deeds to be by St. Rep. 263; Rehman v. New Albany, etc., him filed and recorded as hereinbefore pro- Ry. Co., 8 Ind. Ann. 200, 35 N. E. 292; Caivided for the recording of the report, and ro, etc., Ry. Co. v. Turner, 31 Ark. 494, 25 with like effect."

Am. Rep. 561; Hamor v. Bar Harbor Water From these provisions it is clear that the Co., 78 Me. 127, 3 Atl. 40; Dunlap v. Pully, railway company had the right to take such 28 Iowa, 469; Brickett v. Haverhill Co., 142 portion of the tract of land belonging to Mass. 394, 8 N. E. 119; Brown v. Beatty, 34 Bebout as was required for the construction Miss. 227, 69 Am. Dec. 389; Fremont, etc., and operation of its railroad, and that either Ry. Co. v. Mattheis, 35 Neb. 48, 52 N. W. 698: the railway company or the landowner, if Little Miami R. R. Co. v. Witacre, 8 Ohio St. they failed to agree upon the amount of dam- 590; Cherry v. Lane Co., 25 Or. 487, 36 Pac. ages, had the right to give notice to the other 531; Phillips v. St. Clair Incline Co., 153 Pa. party and apply to the judge of the district 230, 25 Atl. 735; Milwaukee, etc., v. Strange, court for the appointment of commissioners 63 Wis. 178, 23 N. W. 432; Aldrich v. Chesto assess the damages. This right and power hire Ry. Co., 21 N. H. 359, 53 Am, Dec. 212; to initiate the proceedings by which the dam- R. V. Ry. Co. v. Fink, 18 Neb. 82, 24 N. W. ages were to be ascertained is as completely 439. And it seems to be the settled rule that conferred upon the landowner as upon the the entry upon the property and the approrailway corporation. The corporation has the priation of the right of way and construction right to appropriate private property for its of a railroad, prior to the initiation of conuses without the consent of the owner upon demnation proceedings, will not defeat the the condition only that it shall make just rigbt of either party to institute proceedings compensation therefor. If the Blackwell, to condemn, whether the entry was with or Enid & Southwestern Railway Company without the consent of the landowner. 15

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