to be a very good reason for its admission. | of authority or defective title cannot be In discussing this subject, Wigmore, in his work on Evidence (volume 3, § 1960), says: "If a witness, in the course of his testimony, comes to mention that A. 'possessed' or B. 'owned' or C. was 'agent,' let him not be made dumb under the law, and be compelled by evasions and circumlocutions to attain the simple object of expressing his natural thought. If there is a real dispute as to the net effect of the facts, these may be brought out in detail on cross-examination." Section 1960. The sense and reason of the matter, as well as the authorities cited, impel to the conclusion that it would have been proper to permit officers of the bank to state on their examination in chief who was the owner and holder of the note. No criticism whatever of the ruling is imputed or implied, for the trial court's decision was not in conflict with previous holdings of this court. No prejudice resulted in this case, as later the circumstances under which the bank took the note were quite fully shown, and the note itself was introduced in evidence. No error appears in receiving evidence of statements made by the assumed agent, nor in admitting testimony offered by the defend ants. shown by a mere verified denial, but only by The court instructed that the burden of proof was upon the plaintiff to show that it was the owner of the note and gave value for it before maturity, and that the "note was duly indorsed to the plaintiff by the MidContinent Loan Company or by some one duly and properly authorized by said company to transfer, sell, and indorse the note in question to the plaintiff." The quoted portion correctly stated the law, and, regardless of any other alleged errors in the charge, the jury could not find for the plaintiff without proof of the agent's authority. The judgment is affirmed. All the Justices concurring. STATE. (No. 5358.) (45 Okl. 115) [3] While numerous errors are urged regarding the instructions, it is not necessary to consider them because of a fatal defect in the plaintiff's proof which precluded a recovery in any event. There was no way to pass title by indorsement unless the agent who attempted so to do was thereunto authorized. 3 R. C. L. p. 1101; Sparks v. Dispatch Trans- WELLS FARGO & CO. EXPRESS et al. v. fer Co., 104 Mo. 531, 15 S. W. 417, 12 L. R. A. 714, 24 Am. St. Rep. 315. There is no evidence of such authority, except certain statements made by him, which, of course, were not sufficient. Fence-Machine Co. v. Highleyman, 71 Kan. 347, 80 Pac. 568. There is some evidence that he had authority to take notes for the company, but none that he was empowered to negotiate them. Section 30 of the Negotiable Instruments Act (Gen. Stat. 1909, § 5276) provides that: "Where a signature is forged or made without authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority." Section 5276. (Supreme Court of Oklahoma. Oct. 13, 1914. (Syllabus by the Court.) the Corporation Commission to give an addi- [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 12, 14-20; Dec. Dig. § 10.*] Appeal by Wells Fargo & Co. Express and others from an order of the Corporation Commission. Order affirmed. True, section 66 (Gen. Stat. 1909, § 5312) provides that every holder is deemed prima facie to be a holder in due course until it is shown that the title of the person who negociated it was defective, but section 5305 (Gen. Stat. 1909, § 5305) defines a holder in due course as one who took it in good faith and for value, and who at the time it was negotiated to him had no notice of any defect in the title of the person negotiating it. It is naturally and logically urged that lack from an order of the Corporation Commis*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Cottingham & Bledsoe, of Oklahoma City, for appellants. Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State. LOOFBOURROW, J. This is an appeal "The Corporation Commission of this state has jurisdiction to entertain an action instituted in the name of the state, through the law ofed in the name of the state, through the law officer designated by law to appear before said Commission, to recover from a transmission company the refund of excess charges which were collected by it in violation of the rates fixed by said Commission. "Such action in the name of the state for the recovery of such refunds, for the purpose of the same being distributed to the persons entitled fective regulation and control of public service thereto, is a police regulation incident to the efcorporations by the agencies of the state. "The act of February 10, 1913 (Laws 1913, c. 10), entitled 'An act conferring authority uptroversies between parties growing out of reon the Corporation Commission to adjust confunds for public service; to require all refunds to be turned over to the Commission; to determine the amount of refund, and to whom due; and declaring an emergency'-is not repugnant to section 46 (0) of article 5 (section 123, Williams' Ann. Ed.) of the Constitution of this state. the constitutionality of an act by a party whose "This court will not listen to the objection to right it does not affect, and who has no interest in defeating it." sion of the state of Oklahoma by Wells Fargo & Co., the American Express Company, and the United States Express Company from the action of the Corporation Commission in refusing to approve an additional suspending bond pending appeal from Order No. 203 of the Corporation Commission of the state of Oklahoma to the Supreme Court of the state. The facts relating to the appeal are brief. On the 11th day of June, 1909, the Corporation Commission of the state of Oklahoma issued its final Order No. 203, prescribing rates, rules, and regulations applicable to all intrastate express business in the state of Oklahoma, and all companies engaged therein, effective August 1, 1909. The United States Express Company appealed from said order and gave a bond in the sum of $33,000. On the 12th day of July, 1913, it was required, by the Corporation Commission, to give an additional bond of $277,000. Wells Fargo & Co. likewise appealed from Order No. 203 of the Corporation Commission of Oklahoma and gave a suspending bond in the sum of The bonds should be conditioned as sug$200,000, which bond was subsequently re- gested by the Commission, that is, "That the duced by the Commission to $80,000. On the said companies will respectively pay to the 12th day of July, 1913, it was ordered by the Commission all charges which they may colCommission to give an additional bond in the lect or receive pending said appeal in excess sum of $112,000. The American The American Express of those fixed or authorized by the final deciCompany also appealed from Order No. 203 sion of the Supreme Court, for distribution of the Corporation Commission, executing by the Commission to the parties entitled a supersedeas, or suspending bond, in the thereto," and the order to file good and suffisum of $35,000. On the 12th day of July, cient bonds conditioned as required by the 1913, it was ordered by the Corporation Com-Commission is sustained. All the Justices mission to increase its bond from $35,000 to concur. $140,760, the increase being $105,760. Pursuant to the orders above referred to, each of the companies prepared and presented to the Commission for filing and approval, on the 17th day of July, 1913, bonds in the sums required by the Commission's orders. The Commission refused to approve the bonds, and from the order refusing to approve the bonds the express companies appeal, and it is stipulated between the express companies and the Corporation Commission that the cause be submitted to this court for decision upon the following question: "Are the appellants entitled to give an additional suspending bond conditioned that they will refund to the parties entitled thereto all charges which they may collect or receive pending the appeal, in excess of those authorized by the final decision of the Supreme Court of the state, under the Constitution, or, may they be required by the Commission, under Senate Bill No. 81, approved February 10, 1913, to execute such additional suspending bonds conditioned that they will pay to the Commission all charges which they may collect or receive, pending said appeal, in excess of those fixed or authorized by the final decision of the Supreme Court for distribution by the Commission, to parties entitled thereto, pursuant to the provisions of said Senate Bill No. 81?" Practically every question presented by the briefs of counsel is settled by the opinion of this court in the case of Pioneer Telephone & Telegraph Co. v. State, 40 Okl. 417, 138 Pac. 1033, wherein it is held: (45 Okl. 137) SYFERT et al. v. MURPHY et al. (No. 6587.) (Supreme Court of Oklahoma. Nov. 10, 1914. Rehearing Denied Dec. 22, 1914.) (Syllabus by the Court.) APPEAL AND ERROR (§ 327*)-NECESSARY PAR TIES-DISMISSAL. All persons who were parties to the proceeding in the trial court, and whose interests will be affected by the reversal of a judgment ties in the appellate court, or the proceeding on appeal, must be brought in and made parwill be dismissed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1795, 1814-1820, 18221835; Dec. Dig. § 327.*] Error from District Court, Osage County; R. H. Hudson, Judge. Action by Frank J. Murphy and others against W. W. Syfert and others. Judgment for plaintiffs, and defendants bring error. Dismissed. Martin & Moss, of Tulsa, for plaintiffs in error. Grinstead & Scott, of Pawhuska, for defendants in error. LOOFBOURROW, J. In December, 1909, Frank J. Murphy et al., the owners, entered into a written contract by the terms of which they were to and did convey 240 acres of land in Osage county, Okl., to defendant James E. Hopkins; under this conveyance Hopkins was to plat said lands as a town site and sell the same and pay Murphy et al. half of the selling price; the contract was to continue for three years unless forfeited for nonfulfillment of condition. Before this contract was fully carried out Hopkins mortgaged a portion of said property to plaintiff in error White, to secure individual indebtedness of Hopkins; plaintiff in error Syfert brought a suit in the district court against Hopkins and attached a number of the lots in said town site; thereupon Frank J. Murphy et al. instituted a suit against Hopkins for a rescission of the contract and against White and Syfert, respectively, for judgment that the mortgage and attachment were not liens on the property in question, because of its trust character. The trial court found in favor of Murphy et al. and against both White and Syfert, and also rendered judgment against Hopkins for $1,425; from this judgment plaintiffs in error, Syfert and White, appeal, and the defendants in error, Frank J. Murphy et al., have moved to dismiss the same for the reason that James E. Hopkins is a necessary party to this proceeding, and that no summons in error has been served upon him, nor issuance or service thereof waived. To every phase of the controversy Hopkins was a party; he secured the contract from Murphy et al.; he was White's mortgagor and Syfert's judgment debtor, and in the trial of the cause became the judgment debtor of Murphy et al. Hopkins is a necessary party, and the motion to dismiss the appeal must be sustained. See County Commissioners v. Harvey et al., 5 Okl. 468, 49 Pac. 1006; Outcalt v. Collier, 8 Okl. 473, 58 Pac. 642; Boynton Investment Co. v. Runyan, 36 Okl. 335, 128 Pac. 1094; Weisbender v. School District, 24 Okl. 173, 103 Pac. 639; John v. Paullin, 24 Okl. 636, 104 Pac. 365; Seibert v. First Nat'l Bank, 25 Okl. 778, 108 Pac. 628. Action by Julia A. Tyler against Lucian H. Tyler. Demurrer to defendant's evidence sustained, and defendant brings error, and plaintiff applies for an order directing the clerk to issue execution on judgment. Appeal dismissed. M. Fulton, of Mason, Tex., and R. E. Bowling, of Lindsay, for plaintiff in error. THACKER, C. This cause is brought here for the purpose of reversing a judgment of the trial court sustaining a demurrer to the evidence. The case-made filed herein fails to show any motion for new trial was filed. The appeal, therefore, under authority of Insurance Company of North America v. Little, 34 Okl. 499, 125 Pac. 1098; Ardmore Oil & Milling Co. v. Doggett Grain Co., 32 Okl. 280, 122 Pac. 241; Stump v. Porter, 31 Okl. 157, 120 Pac. 639, and James v. Jackson, 30 Okl. 190, 120 Pac. 288, should be dismissed. PER CURIAM. Adopted in whole. (Syllabus by the Court.) APPEAL AND ERROR (§ 82*)-DECISIONS APPEALABLE-ORDER VACATING JUDGMENT— "FINAL ORder." An order vacating a judgment under sections 4464 and 4465, Stat. 1893 (sections 5267 and 5268, Rev. Laws 1910) is not "final," and no appeal therefrom is authorized by sections 4434 and 4436, Stat. 1893 (sections 5235 and 5236, Rev. Laws 1910). [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 379-385, 414, 416, 478, 479, 482, 483, 517-522; Dec. Dig. § 82.* For other definitions, see Words and Phrases, Commissioners' Opinion, Division No. 1. The appeal is dismissed. All the Justices ty; R. P. De Graffenried, Judge. Action by the Berger Manufacturing Company, a corporation, against School District No. 10 of Muskogee County and others. Judgment for defendants, and plaintiff brings error. Dismissed. John H. Mosier, of Muskogee, for plaintiff in error. J. W. Brady, of Haskell, for defendant in error. THACKER, C. An order vacating a judgment as authorized by section 4464, Stat. 1893 (section 5267, Rev. Laws 1910), upon procedure prescribed by section 4465, Stat. 1893 (section 5268, Rev. Laws 1910), is not a final order (Town of Byars v. Sprouls, 24 Okl. 299, 103 Pac. 1038; Moody & Co. v. FreemanSipes Co. et al., 29 Okl. 390, 118 Pac. 135; Smith v. Whitlow et al., 31 Okl. 758, 123 Pac. 1061; Langston v. Thigpen, 33 Okl. 605, 127 Pac. 258), within the meaning of sections *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 4434 and 4436, Stat. 1893 (sections 5235 and 5236, Rev. Laws 1910); and upon the authority of the above-cited cases this appeal should be dismissed. PER CURIAM. Adopted in whole. (i Okl. 437) ROBINOVITZ v. HAMILL. (No. 3941.) (Supreme Court of Oklahoma. Dec. 8, 1914.) (Syllabus by the Court.) 1. PARTNERSHIP (§ 64*)-FICTITIOUS NAMEAPPLICATION OF STATUTE. Sections 5023 and 5025, Comp. Laws 1909, and section 2444, Id., relate to partnerships composed of two or more persons, and are not intended to apply to one person who, being the sole person interested in a business, adopts a business or trade-name under which the business is conducted. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 87-91; Dec. Dig. § 64.*] 2. NAMES (§ 10*)-ASSUMED NAMES-RIGHT TO USE TRADE-NAME. assumed name without violating section 2444, Comp. Laws 1909, and whether he can maintain an action for breach of contract made under such assumed name without having first complied with section 5023 and section 5025, Comp. Laws 1909. [1, 2] Section 5023, Comp. Laws 1909 (section 4469, Rev. Laws 1910), is as follows: "Except as otherwise provided in the next section, every partnership transacting business in this state under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the district court of the county or subdivision in which its principal place of business is stated, a certificate, stating the names in full of all the members of such partnership, and their places of residence, and publish the same once a week for four successive weeks, in a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper published in an adjoining county." Section 5025, Comp. Laws 1909 (section 4471, Rev. Laws 1910), reads: "The certificate filed with the clerk of the district court provided in section 5023, must be A person, being the sole owner and manag-signed by the partners and acknowledged before er of a business, has, in the absence of a stat- some officer authorized to take acknowledgute to the contrary, the right to assume any ments of conveyances of real property. Pername under which he chooses to conduct his sons doing business as partners, contrary to the business, so long as such business is conducted provisions of this article, shall not maintain any under such name in good faith, and may main-action on or on account of any contracts made tain an action for breach of contracts made or transactions had in their partnership name under such business name. in any court of this state until they have first filed the certificate and made the publication herein required: Provided, however, that if such partners shall at any time comply with the provisions of this article, then such partnership shall have the right to maintain an action in all such partnership *** transactions. [Ed. Note. For other cases, see Names, Cent. Dig. 7; Dec. Dig. § 10.*] Commissioners' Opinion, Division No. 2. Error from County Court, Creek County; W. H. Brown, Judge. Action by Max Robinovitz against J. G. Hamill on a promissory note and an open account. Judgment for defendant, and plaintiff brings error. Reversed. C. F. Chapman, of Sapulpa, for plaintiff in error. Thompson & Smith, of Sapulpa, for defendant in error. Section 2444, Comp. Laws 1909, under the topic, "Fictitious Copartnership," reads: "Every person transacting business in the name of a person as a partner who is not interested in his firm, or transacting business under a firm name in which the designation 'and Company,' or '& Co.' is used without representing an actual partner except in the cases in which the continued use of a copartnership name is authorized by law, is guilty of a misdemeanor." It is contended by defendant in error, in support of the action of the trial court in dismissing the plaintiff's suit, that plaintiff, by doing business under the assumed name Pro HARRISON, C. Max Robinovitz was engaged in the business of furnishing supplies for oil wells and well drilling outfits under the name of the Producers' Supply Company. The defendant owed plaintiff $125 on a prom-ducers' Supply Company, without first havissory note and $30.63 on an open account for ing filed the certificate and made the publicasupplies purchased by defendant from plain- tion required under section 5023, supra, was tiff, and all of which defendant refused to precluded under section 5025, supra, from pay. Plaintiff sued defendant on the note maintaining an action; and also that having and account. At the close of the testimony conducted his business under an assumed defendant moved to dismiss plaintiff's action name in violation of section 2444, supra, the on the ground that plaintiff was doing busi- contract was void and the plaintiff guilty of ness under a fictitious name, to wit, the Pro- a misdemeanor. Neither of these contentions ducers' Supply Company, and not having com- can be sustained, because neither of the proplied with section 5023 and section 5025, visions of statute, supra, are applicable to Comp. Laws 1909, he could not maintain an the facts in the case at bar. Robinovitz alaction, and on the further ground that the leged in his petition, and testified on the contract being made in violation of section stand, that he was the owner and proprietor 2444, Comp. Laws 1909, was null and void. of the business; that no one else was interThe court sustained the motion to dismiss, ested in it; that he owned and controlled and the cause comes here on appeal for deter- the Producers' Supply Company, and that mination of the question whether a person such name comprised him and none other; can conduct a mercantile business under an that defendant had purchased supplies from In 14 Pl. & Pr. 277, under the title "Assum him doing business under the trade-name "It would have been better practice for plaintiffs to have brought their action against M. J. Gill, doing business under the name of M. J. Gill Construction Company; but that they may maintain an action against him in the name of the M. J. Gill Construction Company has not been questioned in the proceeding here; and such a procedure is sustained by respectable authorities upon reasons which appear satisfactory to us. Graham v. Eiszner, 28 Ill. App. 269; Sheridan et al. v. Nation, 159 Mo. 27, 59 S. W. 972; Wooster v. Lyons, 5 Blackf. (Ind.) 60; Baumeister v. Markham, 101 Ky. 122, 39 S. W. 844, 41 S. W. 816, 72 Am. St. Rep. 397; School Dist. v. Pillsbury, 58 N. H. 423." And as to whether a person doing business under an assumed name can himself maintain an action was decided by this court in Roberts v. Mosier, 35 Okl. 691, 132 Pac. 678, in which Justice Williams, speaking for the court, said: "Notwithstanding a person may not change his name without a proper proceeding for that purpose, where it is so prescribed by statute, he may, as at common law, adopt any name he pleases in his business transactions, and such name, or any name by which he is usually known and called, is sufficient by which to desstituted against him; and he is estopped from ignate him in civil or criminal proceedings inrepudiating a name in which he contracts for the purpose of relieving himself of the obligation of the contract. There is nothing so sacred in ficed to its sanctity. a name that right and justice should be sacriSo a person may sue in any name in which he may contract, as well as in any name by which he is generally known." We are satisfied, therefore, that the plaintiff, Robinovitz, had the right to assume any name under which he chose to conduct his business, so long as such business was conducted in good faith, and that he had a right to maintain an action for breach of contracts made under such business name, and that the trial court erred in sustaining the motion to dismiss, and, as there was no other defense to plaintiff's action except that he was doing business under an assumed name, the judgment is reversed, with instructions to reinstate the action and render judgment in favor of plaintiff. PER CURIAM. Adopted in whole. (44 Okl. 398) LIBERTY TP. v. ROCK ISLAND TP. (No. 3489.) (Supreme Court of Oklahoma. Dec. 8, 1914.) (Syllabus by the Court.) 1. TOWNS (§ 1*)-"TOWNSHIP"-POWERS. [Ed. Note.-For other cases, see Towns, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, First and Second Series, Township.] 2. TOWNS (§ 16*)-TOWNSHIPS-DISPOSITION "If, as stated in the petition, he adopted it OF PROPERTY-LEGISLATIVE POWERS. some years ago, engaged in business by that Property held by a municipal or quasi muname, and is known among his business ac-nicipal corporation in its public or governmental quaintances and customers by that designation, right, as a trustee or agent of the state, as conthere is no reason why he should not continue tradistinguished from its private or proprietary to use it. Any contract or obligation he may right, is subject absolutely to the legislative will enter into, or which others may enter into with in respect to its disposition. him by that name, or any grant or devise he may hereafter make by it, would be valid and binding; for, as an acquired and known desig-. nation it has become as effectually his name as the one which he previously bore. I have no hesitation, therefore, in saying that I think he may lawfully use it hereafter, in all transactions, as his name or designation." In 29 Cyc. 270, under the title "Assumed Names," etc.: "Without abandoning his real name, a person may adopt any name, style, or signature, wholly different from his own name, by which he may transact business, execute contracts, issue negotiable paper, and sue or be sued." Dig. § 21; Dec. Dig. § 16.*] 3. Towns (§ 11*)-ORGANIZATION OF NEW 99 When the Legislature has, by special enactment, permitted a township to acquire a park within its boundaries for general park purposes and for the use of all political, religious, and other societies, as well as "for the purpose of holding a fair, or fruit, poultry, or other shows,' for which an admission fee may be charged, with "booths and other privileges," for which a license fee may be charged, all under the government and control of a board of commissioners thereby authorized to be elected as other *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 144 P.-65 |