1218.] HARRIS, J. [1] The decree appealed from 2. APPEAL AND ERROR 1106(4), 1218-compels the defendant to pay $12.50 each MANDATE-RECALL-WHEN GRANTED.

month until Roy F. Crim becomes 18 years of age, without stating the date of his birth or in any way fixing his exact age; and the mandate informed the trial court that this part of the decree had been affirmed, and directed the entry of an appropriate decree. The decree on the mandate, entered on March 23, 1916, calculates the accrued monthly allowances on the assumption that Roy F. Crim was still under 18 years of age. The defendant did not, previous to filing the motion to recall the mandate, make any special objec

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1041, 1048; Dec. Dig. 572(2).] 2. JUDGMENT 576(1) — CONCLUSIVENESS "If the court decide to revive the judgment, SUBJECT-MATTER-REVIVOR OF JUDGMENT. in whole or in part, it shall so order, and the The sustaining of a demurrer to a petition papers and proceedings shall be attached to to revive a judgment, based on an erroneous the original files in the cause, and an entry of reruling that the judgment was barred by limita-vivor made in the judgment docket and judgtions, is not conclusive against the validity of ment book." Section 263. the judgment when presented as a claim against the estate of a decedent while the judgment was

Error to County Court, City and County of fully be revived by the court." Whether the Denver; Ira C. Rothgerber, Judge.

any further action by the court or the peti- | would be expected, if filed in a court of tioner, there is nothing in the record which record; but, under the liberal rule of concan be regarded as res adjudicata. If the struction of such pleadings in an inferior court held that the judgment was invalid by court, we consider them sufficient. statutory limitation, in reliance upon a supposed ruling by the Court of Appeals (Jones v. Stockgrowers' Bank, 17 Colo. App. 79, 67 Pac. 177), such holding, being wrong under more recent decisions, was not effective to invalidate a judgment, as to which there was no need of revival. Had the court overruled the demurrer and entered an order of revivor, it would not have changed the situation, since the judgment was already in force for several years to come. Likewise a refusal to enter such an order could not have affected the judgment.

[3] In any view of the case, we cannot regard the abandoned proceeding in the district court as affecting the rights of the claimant. The judgment had not expired by limitation. It was in force when the act of 1901 (chapter 88, Laws of 1901) was passed, and was thereby made valid for the term of 20 years from the date of its entry; that is, until 1917. Balfe v. Rumsey, 55 Colo. 97, 133

Pac. 417, Ann. Cas. 1914C, 692.

The county court was right in allowing the

claim, and the judgment is affirmed.

GABBERT, C. J., and HILL J., concur.

MILLER v. WOOD. (No. 6561.) (Supreme Court of Oklahoma. Feb. 8, 1916. Rehearing Denied March 21, 1916.)

(Syllabus by the Court.) LANDLORD AND TENANT 66(2)-TITLE OF LANDLORD ESTOPPEL OF TENANT.

A tenant, while remaining in possession, even after the expiration of his term, is precluded, on the doctrine of estoppel, from either setting up an adverse title to defeat an action of ejectment, or, without first surrendering possession, making a contest with his landlord over the title held by him at the time of securing the right of entry.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 203, 204; Dec. Dig. 66(2).1

Commissioners' Opinion, Division No. 1. Error from County Court, Marshall County; J. I. Henshaw, Judge.

Action by S. G. Wood against P. W. Miller. Judgment for plaintiff, and defendant brings

error. Affirmed.

George E. Rider and E. S. Hurt, both of Madill, for plaintiff in error. Kennamer & Coakley, of Madill, for defendant in error.

BREWER, C. This suit was brought by S. G. Wood, as plaintiff below, in a justice of the peace court of Marshall county, against the plaintiff in error, Miller, for possession of certain farming lands. The pleadings were not drawn with that formality and care that

It appears from the record that Wood, who was in possession of the lands rented the same to Miller for the year 1912 and that Miller farmed said lands for that year, but refused to vacate after the expiration of the term of his tenancy, which occurred on December 31, 1912, but repudiated his contract of tenancy and claimed the right to remain on the premises, under another contract he had made with other parties, who claimed the right of possession or title to the lands. Plaintiff gave defendant three days' notice required by law to vacate and surrender up the premises; and on January 3, 1913, defendant having failed to surrender possession, this suit was brought. A trial was had in the justice court and resulted in favor of plaintiff, and defendant appealed to the county court, where he filed a lengthy answer, in title and right to possession of the premises, which he sought to attack his landlord's by setting up an outstanding title in others, under whom he claimed that he had made a

contract of tenancy about the time his tenancy with his former landlord had expired. The county court found the issues for plaintiff and awarded restitution of the lands. From this judgment, defendant below brings this proceeding in error.

The brief of plaintiff in error is devoted principally to an attack on the execution and legality of a lease under which Wood, plaintiff below was holding the land when he rented same to Miller; it being claimed that Such lease was illegal. The truth of the matter is that certain other lessees undertook to have determined the question of the validity of different leases, executed by the owner of these lands to different parties, and to do so in this suit, brought against Miller, who was confessedly the tenant of Wood, and who, at the time of suit, was holding over after his term of tenancy had expired, without having surrendered possession to his landlord. This he had no right to do. He had gone into possession under Wood as his tenant, and had farmed the lands for the year 1912, in peace and quiet, and he will not be heard, after the expiration of his

term, without having surrendered possession, to deny the title of his landlord. This law is elementary and needs no reasoning in support of its soundness.

In Larney v. Aldridge, 31 Okl. 447, 122 Pac. 151, it is held:

after the expiration of his term, is precluded, "A tenant, while remaining in possession, evenon the doctrine of estoppel, from either setting up an adverse title to defeat an action of ejectment, or, without first surrendering possession, making a contest with his landlord over the title held by him at the time of securing the right of entry."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

See, also, Welchi v. Johnson, 27 Okl. 518, ty and instituted a replevin action therefor 112 Pac. 989.

against the said Miller and plaintiff Jim Dustin, constable, and defendant, R. Hardy, signed the replevin bond as surety, and the attached property went into the possession of the said Rosa McKinney. On the 14th day of November, 1912, judgment was rendered by default in favor of Miller in the attachment action, and in favor of the defendants in the replevin action. This action was instituted upon said replevin bond against R. Hardy, the surety thereon.

The defendant answered this action by alleging that the property attached in the orig

Plaintiff in error complains that it is not clearly shown that notice to vacate the premises was given. We do not think this claim is well founded. The evidence is positive and certain that such notice was given more than three days before the bringing of the suit, as required by law, by the testimony of plaintiff, and also of a man who served the notice; and it is not denied by defendant. It fully appears that there was no contention made in the court below that the notice was not given, or that it was insufficient, and that this point is first made here. We do not un-inal suit had been taken possession of under dertake to pass upon the question of the title to this land, or which of the various leases mentioned in the record is valid. These questions must be determined in a proper court-one provided for settling this class of disputes. All that we determine here, and all that the trial court determined, was that defendant had gone into possession of the lands as the tenant of plaintiff, held over beyond his term, and would not surrender possession as he ought to have done; and that, in this situation, he is estopped from denying or questioning the title of the man under whose authority he entered and enjoyed the possession, without having first surrendered that possession back to the person from whence it came.

This cause should be affirmed.
PER CURIAM.

Adopted in whole.

DUSTIN et al. v. HARDY. (No. 6133.) (Supreme Court of Oklahoma. March 7, 1916. Rehearing Denied March 28, 1916.)

(Syllabus by the Court.)

1011(1)-FINDINGS OF

APPEAL AND ERROR
FACT-CONFLICTING EVIDENCE.

It has always been the settled policy of this court not to disturb the findings of the trial judge where the evidence is conflicting.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. 1011(1).]

Commissioners' Opinion, Division No. 4. Error from County Court, Carter County; W. F. Freeman, Judge.

Action by Jim Dustin and others against R. Hardy. Judgment for defendant, and plaintiffs bring error. Affirmed.

Sigler & Howard, of Ardmore, for plaintiffs in error. W. F. Bowinan, of Ardmore, for defendant in error.

a writ of attachment that was void, and in order to avoid the effect of quashing said attachment it had been agreed that no judgment would be taken that would bind R. Hardy, the surety on the replevin bond. Upon conflicting testimony the trial court decided in favor of defendant, and the plaintiffs prosecute this appeal.

It appears from the testimony that, when the two cases involving the attached and replevied property were called for trial, attorneys representing the several parties were present, and it was brought to the attention of plaintiffs' attorneys that the attachment writ had been served by one Fount Dustin, who was not an officer, and had not been specially appointed to execute the attachment writ, and it was there agreed that the attachment was void, but as to the further agreement the evidence of the attorneys on each side conflicts.

It could serve no good purpose to review the evidence introduced at the trial. We have carefully considered the same, and it amply sustains the finding of the trial judge, and it has always been the settled policy of this court not to disturb the findings of the trial judge where the evidence is conflicting.

Attorneys for appellant have urged several technical grounds against the decision of the trial court. Questions like the one at bar. involving the keeping of agreements with opposing counsel, should be met squarely upon their merit, and we are not disposed to go into superfine legal technicalities to enable attorneys to avoid such agreements. We recommend that the judgment be af firmed.

PER CURIAM. Adopted in whole.

PEED v. GRESHAM et al. (No. 7861.) (Supreme Court of Oklahoma. March 7, 1916.) (Syllabus by the Court.)

MATHEWS, C. This was an action against the surety on a replevin bond. Plaintiff Miller commenced an action against one 1. MANDAMUS 170-PLEADING-WRIT AND McKinney and caused an attachment to be RETURN-TRIAL OF ISSUES. issued and levied upon certain property. 4913-4915. Rev. Laws Okl. 1910), the alterBy statute in this jurisdiction (sections Immediately following his wife, Rosa McKin-native writ and return thereto constitute the ney set up a claim to the attached proper-pleadings in a mandamus proceeding, and the

issues thereby joined must be tried and the fur- | alternative writ of mandamus, containing ther proceedings had in the same manner as in substantially the allegations of the petition as a civil action. to the sufficiency of the recall petition, but omitting the part thereof to the effect that the refusal of the respondent to call the

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 376; Dec. Dig. 170.]

72

RIGHT TO REMEDY

2. MANDAMUS DISCRETIONARY ACTS OF MINISTERIAL OFFI-election was arbitrary and without authority

CER.

Where the duties devolving upon a ministerial officer require the exercise of discretion and judgment, and such officer has acted, although erroneously, a writ of mandamus may not lawfully issue to review, reverse. or correct the erroneous decision of such officer, nor to control his decision, even though there may be no other method of review or correction provided by law.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 134; Dec. Dig. 72.] 3. MANDAMUS 74(2)-ISSUANCE OF WRITMUNICIPAL OFFICER-DISCRETIONARY ACTS.

of law, and for the sole purpose of defrauding the relators and all other electors out of the opportunity of voting upon said recall petition. In his return to the alternative writ the respondent admitted that the recall petition was numerously signed by the electors of the city of Collinsville, and that by virtue of the charter of said city he was the proper officer to call the election for the purpose of voting thereon, and further calls attention to several sections of the charter, prescribing and defining his duties, among them section 2, which provides in effect that when any petition for the recall of any commissioner shall have been filed, published, and certified, as provided in said charter, it shall be the duty of said commissioner, to whom said petition has been delivered, to immediately call a meeting of the board of commissioners, as provided herein, and it shall be the duty of said board of commissioners to ascertain whether said petition contains a sufficient number of signatures, as provided herein, by checking same with Error from District Court, Rogers County; the last general election list; and if said W. J. Campbell, Judge.

But where an inferior officer is vested with the exercise of discretion or judgment, his duties are clear, and there are not sufficient controverted facts to call for the exercise of discretion and judgment, or where such officer acts arbitrarily or fraudulently, a writ of mandamus may be issued to require the performance of his duty. Held, in this case, there being no allegation or proof showing that the defendant acted arbitrarily or fraudulently, it was error to issue the writ of mandamus and to make same perma

nent.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 151; Dec. Dig. 74(2).]

Mandamus by William M. Gresham and others against Frank Peed, Commissioner of Collinsville, Okl. Judgment for plaintiffs, and defendant brings error. Reversed and remanded, with directions.

Jno. M. Goldesberry and Mack R. Shanks, both of Collinsville, and T. L. Brown, of Claremore, for plaintiff in error. Ertell & Hart, of Claremore, for defendants in error.

KANE, C. J. This proceeding in error was instituted for the purpose of reviewing the action of the trial court in issuing a peremptory writ of mandamus, requiring the plaintiff in error, as commissioner of the city of Collinsville, to call an election for the purpose of voting upon a recall petition, filed pursuant to the provisions of its charter, for the purpose of removing from office two of the respondent's fellow commissioners. In the petition praying for the issuance of the writ the relators, defendants in error here, allege in substance that they are qualified electors and citizens of said city of Collinsville; that the recall petition was circulated, signed, and filed in pursuance of the provisions of the city charter, but that the respondent, whose duty it was to do so, arbitrarily and without authority, and without excuse or valid reason, and for the purpose of defrauding the relators and all other electors of said city out of the opportunity of voting for the recall of said commissioners. Upon the foregoing petition being filed, the trial court issued an

petition contains sufficient legal signatures, it shall be the duty of said board of commissioners to order and fix a date for holding said election, as herein provided. If said petition shall be found to contain less than the required number of signatures, the said board of commissioners shall make a finding to that effect, and shall cause said finding to be published in a newspaper of general circulation in the city of Collinsville.

The respondent then further alleges that he did perform all the things mandatory upon him to do and perform, as such commissioner under the charter of said city; that at the hearing held pursuant to section 2 the petition was found to contain less than the required number of signatures, and for said reason, among others which it is unnecessary here to mention, said respondent refused to call said election on said recall petition. After quite an extended hearing upon the issues thus joined the trial court made findings in favor of the petitioners, whereupon the mandatory writ was issued, as prayed for.

[1-3] It is conceded that the charter vests in the respondent the authority to hold the hearing provided for by section 2, that he held the same and made and published his findings, as stated in his return, and that there are no provisions of law providing for an appeal from such action. The case is therefore governed by the well-established principle that whenever any person or persons have authority to hear and determine any question, their determination is, in effect,

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