verdict? If it does not, then it is the duty of the court after a verdict to set it aside and grant a new trial. Must the court go through the idle ceremony in such a case of submitting to the jury the testimony on which plaintiff relies, when it is clear to the judicial mind that if the jury should find a verdict in favor of plaintiff that verdict would be set aside and a new trial had? Such a proposi tion is absurd, and accordingly we hold the true principle to be that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury." And in Bowditch v. Boston, 101 U. S. 18, 25 L. Ed. 980, the settled doctrine of the Supreme Court of the United States is stated as follows: "It is now a settled rule in the courts of the United States that whenever, in the trial of a civil case, it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such a verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge | to direct the jury to find according to the views of the court. Such is the constant practice, and it is a convenient one. It saves time and expense. It gives scientific certainty to the law in its application to the facts, and promotes the ends of justice. Merchants' Bank v. State Bank, 10 Wall. (U. S.) 604, 637, 19 L. Ed. 1008; Improvement Company v. Munson, 14 Wall. (U. S.) 442, 20 L. Ed. 867; Pleasants v. Fant, 22 Wall. (U. S.) 116, 22 L. Ed. 780." In Cawley v. LaCrosse City Ry. Co.. 101 Wis. 154, 77 N. W. 181, the Supreme Court of Wisconsin states the rule as follows: "Candor compels us to say that in this case the learned trial court appears to have shifted a duty onto the jury which was plainly judicial, and, when they failed to discharge it properly, allowed the result to stand as the law of the case. The jury did not find the fact because there was no controversy in that regard. They said that the conduct on the part of defendant was actionable negligence, and conduct on the part of plaintiff was consistent with ordinary care, when the proper application of well-settled rules of law would have led to a contrary result. The peculiar . circumstances of this case move us to reiterate, what has often before been said by this court, that though the rule that where there is any credible evidence which, under any reasonable view of it, will sustain a recovery, and there is opposing evidence, it is for the jury to say where the truth lies, should be firmly adhered to, where the evidence is clearly susceptible of only one reasonable inference, the motion for a nonsuit, or the direction of a verdict accordingly, should be granted as a matter of right, which implies a judicial duty to decide that way, and not to abrogate the judicial function and shift it onto the jury. Finkelston v. Railway Co., 94 Wis. 270, 68 N. W. 1005. A proper administration of justice requires that such a situation should be met, and the duty involved be discharged as contemplated by our judicial system, just as much as that the province of the jury to decide the facts from the evidence, where there is any conflict in that regard, should not be invaded by the court. The scope of judicial duty, and of that of the jury as well, is clearly marked, and a failure to maintain the integrity and inviolability of either is subversive of the system itself, and tends to throw doubt upon its efficacy to secure the highest attainable degree of justice between individuals, and to promote the ends of good government." Tested by these decisions, we think the undisputed testimony shows that the plaintiff was guilty of such contributory negligence as would preclude her from recovering in this case, and therefore the motion to direct a verdict for the defendant should have been sustained. This is not a case, as was stated by the Supreme Court of the United States in Elliott v. Chicago, Milwaukee & St. Paul Railway Company, supra, in which one, placed in a position of danger through the negligence of the company, confused by his surroundings, makes perhaps a mistake in choice as to the way of escape, and is caught in an accident. For in the case at bar the plaintiff was in no danger. She was at a place of absolute safety on the east side of the street car track. She suddenly, as she states, "circled around" from a place of safety and drove heedlessly and carelessly over the track, without looking for an approaching car from the south, and without taking the ordinary care and precautions that she was bound to exercise under the circumstances for her own safety. Hence she was clearly ailty of contributory negligence, as a matter of law. The judgment of the district court is therefore reversed, and the cause remanded, with directions to award a new trial. BURWELL, J., who presided in the court below, not sitting; all the other Justices concurring, except IRWIN, J., absent. (19 Okl. 367) BUTTS et al. v. ANDERSON et al. (Supreme Court of Oklahoma. Sept. 5, 1907.) NEW TRIAL-GROUNDS. The district court is only authorized to grant new trials for the causes, in the manner, and within the time set forth in the statute, and it is manifest and material error to grant a new trial for the reason the complaining party is unable to procure any one who can transcribe a deceased stenographer's shorthand notes of the proceedings on the trial. [Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, § 189.] (Syllabus by the Court.) Error from District Court, Kingfisher County; before Justice C. F. Irwin. Action by J. H. Butts and J. A. Butts BURFORD, C. J. The plaintiffs in erro brought their action in the district court of Kingfisher county, Okl., to recover from the defendants in error upon a written contract for building material furnished by them to the defendants and for the enforcement of a mechanic's lien against the real estate upon which the building material had been used. The defendants in error answered, first, by a general denial, and, second, by alleging that the plaintiffs in error were dealers in lumber and building material at Kingfisher, Okl., and as such dealers were members of a pool or unlawful agreement with other lumber dealers, in restraint of trade, and for such reason were not entitled to recover in said action. To this answer the plaintiffs replied by general denial. On March 11, 1904, the cause was tried to the court; a jury having been waived by both parties. After hearing the evidence the court found for the plaintiffs and against the defendants, and rendered judgment in favor of the plaintiffs, Butts & Co., against H. H. and Emma E. Anderson, the defendants, for the sum of $762.67, with interest at 6 per cent. from May 22, -, and decreed the foreclosure of the lien filed by plaintiffs. It appears that the clerk failed to record this judgment upon the journals of the court until the 13th day of March, 1905. On March 14, 1904, the defendants. filed their motion for new trial, which was by the court overruled, and time given to make and serve case for an appeal. record occupied this status until March 13, 1905, at which time the defendants filed a second motion for new trial, in which it was alleged as grounds therefor that after the trial of the cause, and before the defendants had been able to procure a transcript of the evidence submitted on the trial, the court stenographer died, and no one had been found who was able to read his notes, and that defendants were, for this reason, entitled to a new trial. This motion was presented to the court on March 14, 1905, and by the court sustained, for the reason, as set forth in the order and judgment of the court, "that the defendants were unable to get a transcript of the evidence of the trial held on March 11, 1904, by reason of the death of the court stenographer, Thomas F. Millikan." To this order granting a new trial the plaintiffs excepted, and bring the cause here on appeal from such order. The This court in the case of Weller v. Western State Bank (No. 1,917, decided Feb. 14, 1907) 90 Pac. 877, stated the rule to be that orders of the trial court granting new trials should not be reversed unless it can be seen that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law, without which error the ruling of the court granting the new trial would not have been made, yet where the question presented was one purely of law, and the reviewing court is satisfied that an error of law was committed by the trial court, the order granting the new trial will be reversed, and the judgment reinstated. Applying this rule to the case at bar, what is the result? Our Code of Civil Procedure controls in such matters. Section 295, Civ. Code (Wilson's Rev. & Ann. St. 1903, § 4493), provides: "A new trial is a re-examination in the same court of an issue of fact, after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated and a new trial granted on the application of the party aggrieved for any of the following causes affecting materially the substantial rights of such party: First. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. Second. Misconduct of the jury or prevailing party. Third. Accident or surprise which ordinary prudence could not have guarded against. Fourth. Excessive damages, appearing to have been given under the influence of passion or prejudice. Fifth. Error in the assessment of the amount of recovery whether too large or too small, where the action is upon a contract, or for the injury or detention of property. Sixth. That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law. Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. Eighth. Error of law occurring at the trial, and excepted to by the party making the application." By the provisions of section 4497, the maximum time in which any proceedings may be commenced for the granting of a new trial is one year from the date final judgment was rendered. The cause for which the court granted a new trial does not even remotely come within any of the causes set forth in section 4493 for which the trial court may grant a new trial. The next statutory provision in relation to new trials is section 4760, Wilson's Rev. & Ann. St. 1903, which is as follows: "The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made: First. By granting a new trial for the cause, within the time and in the manner prescribed in section two hundred and ninety-nine. Second. By a new trial granted in proceedings against defendants constructively summoned as provided in section seventy-eight. Third. For mistake, proper notice by either party the court will settle the case. Upon such a case he may file his petition in error and have the judgment complained of reviewed by the appellate court. While the law contemplates that either party may have the stenographer to transcribe his shorthand notes, upon payment of the necessary fees therefor, it does not contemplate that such is the only method of preparing a record for a case made. neglect or omission of the clerk, or irregular-ments as he may deem necessary, and upon ity in obtaining a judgment or order. Fourth. For fraud practiced by the successful party in obtaining the judgment or order. Fifth. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth. For the death of one of the parties before the judgment in the action. Seventh. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending. Eighth. For errors in a judgment shown by an infant in twelve months after arriving at full age, as prescribed in section four hundred and four. Ninth. For taking judgments upon warrants of attorney for more than was due to the plaintiff when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment." These several provisions embrace the causes for which the district court may set aside its judgments and grant new trials. The causes for which a court may grant new trials are for errors or omissions occuring prior to the rendition of judgment, except for newly discovered evidence after the trial, for which cause the judgment may be vacated and a new trial or. dered. In the case under consideration the cause was regularly tried and judgment rendered. The motion for new trial was filed long after judgment, and was based upon statutory grounds; but no statutory grounds were found to exist. It is true the clerk had failed to record the judgment; but this did not go to the merits of the controversy, or affect any substantial right of the defendants. The court had the power at any time to cause its clerk to make a record of the judgment it had rendered, and if the court had rendered a judgment, and it is conceded by both parties that the judgment was regularly rendered on the 11th day of March, 1904, and the clerk failed to record such judgment, it was the duty of the court to direct the clerk to properly record its proceedings, and this could be and was in fact done nunc pro tunc. The cause upon and for which the court set aside its judgment was that after the trial, and after the judgment had been rendered, the court stenographer who took the shorthand notes of the trial had died, and the defendants, desiring to appeal the case, could find no one who could transcribe the shorthand notes of the deceased stenographer. We know of no law, nor have we been advised of any, which empowers the court to grant a new trial because of the inability of the judgment debtor to procure his record or prosecute his appeal. The law provides that the party desiring to take an appeal will prepare a case, setting out substantially so much of the record as will make apparent the errors relied upon, and the service of his prepared case upon the adverse party, who may, if not satisfied with its contents, propose such amend Ever since courts of record have been established and courts of appeals authorized to review the proceedings whereby judgments have been obtained, records have been prepared, the oral testimony of witnesses reproduced in writing, and the rulings of the court and exceptions thereto saved, and it is only within the past quarter of a century that shorthand reporters have been known to the courts. It is a manifest injustice to the plaintiff in this case to have his judgment vacated and a new trial ordered, not for any error in the proceedings or mistake of the parties or court officers, but because, long after the judgment was rendered, a condition arose by which the dissatisfied party was unable to perfect an appeal from a judgment which this court must presume was right and just. The district court erred upon a pure and simple question of law, and granted a new trial without cause, when it was in duty bound to overrule the motion. The ruling and order of the court sustaining the motion and granting a new trial is reversed, set aside, and vacated, and the said motion for new trial is overruled, at the costs of the defendants in error; and said judgment is reinstated in full force and effect as originally rendered and entered. All the Justices concur, except IRWIN, J., who tried the case below, not sitting. (19 Okl. 208) ALLEN DUDLEY & CO. v. CLEVENGER et al. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. SHERIFFS-FEES AND COSTS-RETURN-CONCLUSIVENESS. The return of a sheriff on an order of replevin is conclusive and binding against him; and where he shows by his return that he deivered cattle seized by him under the writ to the defendant, with the consent of the plaintiff. within 10 days after taking such property under such writ, he cannot be allowed as a part of the costs of the case for feeding and caring for such cattle for a period of 70 days. 2. SAME-EXPENSES IN REPLEVIN. Where a sheriff takes charge of property under an order of replevin, he can only be allowed for caring for the same during the time that he is in possession thereof. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sheriffs and Constables, § 72.] (Syllabus by the Court.) Error from District Court, Canadian County; before Justice C. F. Irwin. Action by Allen Dudley & Co. against O. M. Clevenger and A. Baird. Judgment for defendants, and plaintiffs bring error. Reversed and remanded. Blake, Blake & Low, for plaintiff in error. J. W. Clark, H. L. Fogg, and W. L. Baxter, for defendants in error. BURWELL, J. The plaintiffs, Allen Dudley and S. L. Dudley, partners doing business as Allen Dudley & Co., on February 2, 1904, commenced an action against O. M. Clevenger and A. Baird for the possession of 63 head of cattle in the district court of Canadian county. On the 4th day of February, 1904, having filed the necessary affidavit and bond, the clerk of the court issued a writ of replevin for these cattle, which was placed in the hands of the sheriff,. who duly served the same on February 5, 1904, by taking possession of the cattle. The sheriff retained possession of these cattle for 24 hours, and at the end of that time delivered them to the defendant O. M. Clevenger, with the consent of the plaintiffs' attorney. On November 21, 1904, the action was dismissed by plaintiffs at plaintiffs' cost. On November 26, 1904, the sheriff filed in the clerk's office a bill for feeding and caring for these cattle, which, omitting the caption, was as follows: Sheriff's costs for feeding and pasturing cattle replevined in the above-entitled case: Feeding fifty-nine head for 70 days at .. $619 50 103 25 $822 75 J. C. Ozmun, Sheriff. This bill was taxed as costs by the court against the plaintiffs. A motion was filed to retax the costs, which was overruled, and the plaintiff appeals from such order; and the only question presented by the appeal is the allowance of this item of $822.75 to the sheriff for caring for the cattle. Section 4352, Wilson's Ann. St. Okl., provides for the filing of the affidavit of replevin and what such affidavit shall contain; and section 4353 fixes the conditions of the replevin bond; and then section 4354 refers to the order or writ of replevin. We here quote it, together with other sections of the statutes in relation thereto : "Sec. 4354. The order for the delivery of the property to the plaintiff shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein." "Sec. 4356. The sheriff shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detainer of the property, or leave such copy at his usual place of residence. "Sec. 4357. If within twenty-four hours after service of the copy of the order, there is executed by one or more sufficient sureties of the defendant, to be approved by the sheriff, an undertaking to the plaintiff, in not less than double the amount of the value of the property, as stated in the affidavit of the plaintiff, to the effect that the defendant will deliver the property to the plaintiff, if such delivery be adjudged, and will pay all costs and damages that may be awarded against him, the sheriff shall return the property to the defendant. If such undertaking be not given within twenty-four hours after service of the order, the sheriff shall deliver the property to the plaintiff. "Sec. 4358. The plaintiff may, within twenty-four hours from the time the undertaking referred to in the preceding section is given by the defendant, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he must be deemed to have waived all objections to them. When the plaintiff excepts, the sureties must justify, upon notice, as bail on arrest. The sheriff or other officer shall be responsible for the sufficiency of the sureties until the objection to them is waived, as above provided, or until they justify." From these sections of the statutes it will be observed that the law directs the sheriff to seize the property, and, if the defendant fails to execute a bond, within 24 hours after the service of the writ, conditioned for the delivery of the property to the plaintiff, if such delivery be adjudged, the sheriff shall deliver the property to the plaintiff; but, if the defendant executes such bond, then the plaintiff has 24 hours in which to except to the sureties. This makes 48 hours that the sheriff may hold the property replevined; and, if he desires, he may also hold it a reasonable length of time after this, to afford the sureties an opportunity to justify, and during all of this time he is entitled to charge up as costs in the case the expenses of caring for such property. But the law does not contemplate that the sheriff shall remain in possession of property seized by him in replevin actions for a long period of time, covering weeks and months. Under the statutes above quoted either the plaintiff or the defendant should be given possession of the property within a few days at most after its seizure by the sheriff. It is true that the parties to the suit might stipulate as to what may be done with the property, and such agreement would be binding. If the property is retained, or delivered to some one else, by virtue of an agreement, the return of the sheriff should show that fact. The sheriff's return should always show what he has done with the property. Turning to the record in the case under consideration, we find that the sheriff states in his return to the order of replevin that he received the same on February 4, 1904, and served it by taking into his possession the property in controversy, describing it, and then states that, "after keeping the same for the period of 24 hours, I delivered the abovedescribed property to O. M. Clevenger, with consent of attorney for plaintiff." The return is duly signed by the sheriff, and was filed in the office of the clerk of the court on February 15, 1904, or 10 days after the order of replevin was received by him. This return shows that the sheriff returned the property to the defendant O. M. Clevenger, with the consent of the attorney for the plaintiff, and this delivery of the property to the defendant could not have been later than February 15, 1904, for that is the day on which the return was filed with the clerk of the court. If this return is true, the sheriff could not have had possession of the cattle for a period of 70 days, for which he put in his claim. The expense bill for caring for these cattle is not accompanied with any explanation or showing as to why it should be allowed. Under the return made by the sheriff, in no circumstances could he charge for caring for these cattle for a period of more than 10 days. He took charge of them on February 5, 1904, and delivered them to the defendant O. M. Clevenger before making his return on February 15, 1904. A fair interpretation of his return is that he delivered the cattle to the defendant immediately after the expiration of 24 hours. Under the law the sheriff is bound by his return. In 18 Ency. of Pleading and Practice, p. 981, the law is stated as follows: "It is the general rule that, when an officer's return comes in question in a proceeding wherein rights may be based thereon as against the officer, he may not be heard to contradict it" -citing authorities. In the case of Cox et al. v. Patten et al. (Tex. Civ. App.) 66 S. W. 64, the Court of Civil Appeals for the state of Texas, in a case where a sheriff was sued for conversion, said: "In an action against a sheriff for conversion of cotton sold under execution, the sheriff's return indorsed on the execution, showing a levy upon the cotton, precludes him from denying the legality of such levy." The Supreme Court of Colorado, in the case of People, to Use of Kenfield, v. Finch et al., 19 Colo. App. 512, 76 Pac. 1120, in discussing the effect of an officer's return, said: "Did the facts pleaded in the second, third, and fourth defenses constitute a defense to the cause of action alleged in the complaint? As to the second defense: Bishop v. Poundstone, 11 Colo. App. 73, 52 Pac. 222, was an action against a constable and his sureties upon his official bond for damages by reason of the unauthorized release by the constable of property levied upon under writs of attachment. The constable's return on the writs was that he had levied upon the property and afterwards released it. At the trial the constable was permitted to testify in contradiction of his return upon the attachment writs. The court said: "The officer was concluded by his returns, as were also the sureties on his bond, and the evidence was inadmissible. An incorrect return may be amended, so as to show the facts; but the amendment must be made in the cause in which the writ issued, and, when made, it becomes the return. Except upon application to vacate or amend in the court having jurisdiction of the writ, the incorrectness of the return cannot be shown by the officer, or by the parties or privies to the suit. Freeman on Executions, §§ 365, 366. If the return of an officer did not, as against himself and all parties connected with the litigation, import absolute verity, the records of the courts would be unreliable, and the administration of justice involved in uncertainty and confusion." " The authorities are practically uniform in holding that an officer is concluded by his return. The return may be amended; but. whatever the return, it is conclusive as against the officer making it. Therefore it necessarily follows that the trial court committed reversible error when it allowed the sheriff for feeding and caring for the cattle seized by him under the order of replevin for a period of 70 days, when the sheriff's return affirmatively shows that he could not have had the cattle in his possession for a period to exceed 10 days. If the return made by the sheriff was incorrect, he should have obtained leave of court and corrected it. Without such amendment, he is bound by the recitations therein. It is possible that the sheriff is entitled to compensation for keeping these cattle for the period that elapsed between the time he made the levy and the filing of the return. His return shows no expense therefor; but, desiring that full justice may be done, instead of entering judgment on the record as presented, the case will be reversed and remanded, with direction to disallow all of the item of $822.75 for feeding and pasturing the cattle in question, unless the sheriff shows himself entitled thereto under the rules stated in this opinion. It is so ordered. All the Justices concurring, except IRWIN, J., who presided at the trial below, not sitting. Where one sows wheat on land embraced in a homestead entry under a contract that he is to have two-thirds of the crop and the entryman one-third, and before the maturity of the crop the entryman sells his improvements and growing crops to another and relinquishes his homestead entry, so that such other person may file on the land, and such other person files on the land, he acquires, not only the right of possession to the land itself, but also title to all improvements and growing crops thereon. [Ed. Note.-For cases in point, see Cent. Dig vol. 41, Public Lands, § 102.] |