sufficient to constitute a cause of action under section 589 of our Code of Civil Procedure (Wilson's Rev. & Ann. St. 1903, § 4787), which provides: "An action may be brought by any person in possession, by himself or tenant, of real property, against any person who claims an estate, or interest therein, adverse to him, for the purpose of determining such adverse estate or interest"-the judgment of the trial court should be affirmed, for it is apparent that under the allegations of the petition the plaintiff is not entitled to injunetion as prayed for. The plaintiff, however, in addition to her prayer for injunction, asks to have determined the adverse estate and interest of the defendant in and to the lands mentioned and described. For the purpose of the demurrer the allegations of the petition are admitted, which are, in substance, that the plaintiff is the owner in fee simple of the land, and was in possession of the same as the homestead of herself and minor children. at the time certain bankruptcy proceedings were commenced against her husband, out of and through which the defendant claims an interest in the land adverse to her. Whether she may maintain such action, under the statute above quoted, to have determined the adverse estate of defendant, is dependent upon the question as to whether or not she was in possession of the premises at the time of bringing this action.

Counsel for the defendant in error say: "Section 4787 of the statute [above quoted] provides that the action may be brought by any person in the actual possession of the land, or so the statute has been construed by the court." The statute does not use the language "actual possession." The language is: "An action may be brought by any person in possession." The word "actual" has been read into the statute in the decision of courts, probably in each instance in view of the peculiar facts in the case under onsideration. If it is meant by the use of the language "actual possession" that, in order to be in such possession of land as to be enabled to maintain an action concerning the title, a person must be in the present physical possession of it, then we cannot agree with such construction of the statute; for we think that in a case like the present, where a person has a fee-simple title to real estate, and has been in the occupancy thereof as a homestead, and has vacated such occupancy for a temporary and legitimate purpose not inconsistent with a further claim of homestead rights thereto, and no other person has reduced the premises to actual occupancy under an adverse claim of title, he continues in the possession within the meaning of the statute referred to, and may maintain an action to quiet the title thereto. Temporary absence does not vacate possession of real estate.

The word "possession" as used in the statute is not equivalent to the word "occupancy" used in the same connection, and yet it has

been repeatedly held in matters of homestead right, where such rights depend upon occupancy of the premises, that temporary absence is not an abandonment of such occupancy; much less could it be maintained that temporary absence was an abandonment of possession to the extent of depriving a person of a right to bring an action to remove a cloud from title. The Supreme Court of the state of Kansas has repeatedly used the word "actual" in connection with possession in this class of cases, and in Cartwright v. McFadden, 24 Kan. 668, used the following language touching the question of actual possession in determining a right to maintain an action under this statute: "The next question is whether the evidence introduced sufficiently shows that the plaintiff had the actual possession of the property. The court below held that it did. The evidence upon this subject is as follows: The plaintiff, as a witness, testified: 'I am, and at the time this action was brought was, in the possession of the lots in controversy. The lots lie and front on the west side of Buchanan street. Fifteen of them are south of Twelfth street, and seven of them north of Twelfth street, and they are consequently not all in one block. I went upon the lots and took possession. I had them plowed around. I had those south of Twelfth street plowed around, and also those north of Twelfth street. I have been upon the lots several times, and have offered them for sale, and have made sale of some of them. I had a conversation with Cartwright before this suit was commenced. I told him I was in possession of the lots, and he did not dispute it. I have paid the taxes on the lots since I bought them.' And on cross-examination he said: 'I have put no buildings or fence on the lots. I have done nothing further in regard to getting and keeping them than I have stated. than I have stated. The lots were and are entirely unimproved, except as I have stated, and when I went to take possession did not look as if they had ever been improved or inclosed.' We think the foregoing evidence is sufficient to authorize the finding made by the court below that the plaintiff was in the actual possession of the property. Gilmore v. Norton, 10 Kan. 492; Giles v. Ortman, 11 Kan. 59. And therefore we cannot set aside such finding."

Examining the petition under consideration, we find the facts admitted by the demurrer to be: That the plaintiff is an abandoned wife, and the head of a family of three minor children, aged 16. 14, and 12 years, respectively, whom she is trying to educate, to accomplish which she removed temporarily from the land in question to Oklahoma City about the 10th of September, 1905, with intent to return thereto as soon as she could give them the rudiments of a common school education. That she was in the occupancy of said land as a homestead when an involuntary proceeding in bankruptcy was commenced against the estate of her husband, out of and by rea

son of which proceedings a deed has been authorized and executed to her said land to the defendant, T. S. Pike, which is a cloud upon her title. That the defendant Pike intends to reduce said lands to his possession. That defendant has, in fact, no title to the land, and prays to have this fact adjudicated and determined, and defendant's claim under such deed canceled and held for naught. She does not say that she is in possession of the land, but states the facts from which the court may determine such question; and this, we think, is sufficient. And from the facts so pleaded we are of the opinion that at the bringing of the action she was in such possession as to entitle her to maintain this action, and that,' therefore, the demurrer was wrongfully sustained.

The judgment of the district court is reversed, and said cause remanded, with instructions to vacate the judgment sustaining the demurrer and enter an order overruling the same. All the Justices concurring, except PANCOAST, J., who presided in the trial court.

(17 Okl. 562)

ST. LOUIS & S. F. R. CO. v. CLARK. (Supreme Court of Oklahoma. Sept. 7, 1906.) APPEARANCE-OBJECTIONS TO JURISDICTION

WAIVER.

Where a court acquires no jurisdiction over the person of the defendant by an attempted service of process, and the defendant appears specially for the purpose of challenging the jurisdiction of the court, and the court thereupon overrules his motion to such jurisdiction, the defendant may save his exception, file his answer, and proceed to trial without waiving such error, and he may take advantage of such error on appeal to a higher court. Following Chicago Bldg. & Mfg. Co. v. Pewthers, 63 Pac. 964, 10 Okl. 724.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appearance, § 143.]

(Syllabus by the Court.)

Error from from Probate Court, Oklahoma County; Wm. P. Harper, Judge.

Action by R. J. Clark against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Flynn & Ames, for plaintiff in error. Mosier, Dudley & McMahan, Clifton J. Pratt, and Leigh Clark, for defendant in error.

GILLETTE, J. This action was commenced in the probate court of Oklahoma county in September, 1904, by the defendant in error against the plaintiff in error for the recovery of the sum of $150.30. Summons was issued on the 7th day of September, 1904, and was returned by the sheriff, with the following indorsement of service thereon: "Territory of Oklahoma, Oklahoma County-ss.: I hereby certify that on the 7th day of September, 1904, I personally served the within summons on the within-named defendants by delivering to each of them person

ally a true copy of the same, with all indorsements thereon, to L. T. Pool, as local agent for the St. Louis & San Francisco R. R. Co. Dated this 7th day of September, 1904. M. A. O'Brien, Sheriff. W. C. Saddler, Deputy Sheriff." dler, Deputy Sheriff." The railroad company made a special appearance, and moved the court to quash and set aside the summons, which motion, omitting the title of the cause, is in the words and figures following, to wit: "Special Appearance and Motion. Comes now said defendant, St. Louis & San Francisco Railroad Company, a corporation, appearing specially and for the purpose of this motion only, and moves the court to quash and hold for naught the summons and pretended service thereof in said cause, for the reason that same was not issued, served, and returned according to law. Flynn & Ames, Attorneys for Defendant." This motion was by the court overruled and denied, to which ruling defendant excepted. The amended petition set out three causes of action, alleging in the first the nondelivery by the railroad company of a car of coal containing 50,000 pounds of coal, valued at $56.35, and in the second count alleging the nondelivery by the railroad company for a car load of coal valued at $60, and in the third count alleging the loss by the railroad company of 10,230 pounds of coal of the value of $16.65. To this amended petition the defendant railroad company, after the overruling of its motion, answered by a general denial.

Upon the issues thus made up, the cause came on for trial on June 9, 1905, before a jury, and at the conclusion thereof the jury returned a verdict in favor of the plaintiff (defendant in error) for the full amount prayed for, to wit, $150.30. From this judgment and the order of the court overruling the motion of the railroad company for a new trial, the cause comes to this court on appeal by case-made.

The first error of the court below complained of by the plaintiff in error is that the motion to quash the summons and service on the railroad company was improperly overruled. There is no escaping the correctness of this contention. In the case of Chicago Building & Manufacturing Company v. J. Pewthers, 10 Okl. 724, 63 Pac. 964, it is held that: "Where a court has no jurisdiction over the person of the defendant, and the defendant appears specially for the purpose of challenging the attention of the court to such irregularity, and the court thereupon overruled his motion to its jurisdiction, he may save his exception, file his answer, and proceed to trial without waiving such error, and he may take advantage of such error on appeal to a higher court..

To the same effect is Bentz v. Eubanks, 32 Kan. 321, 4 Pac. 269; Dickerson. v. Burlington & M. R. R. Co. (Kan. Sup.) 23 Pac. 936; Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237; Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942;.

Mex. Cent. Ry. Co. v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699; G., H. & San Antonio Ry. Co. v. Gonzales, 151 U. S. 496, 74 Sup. Ct. 401, 38 L. Ed. 248; Secrest v. Arnett, 5 Blackf. (Ind.) 366; Mullen v. N. & N. C. Canal Co. (N. C.) 19 S. E. 106; Kinkade v. Myers (Or.) 21 Pac. 557; Woodbury v. Henningsen (Wash.) 39 Pac. 243; Ency. P. & P. vol. 2, p. 630, etc. The sufficiency, therefore, of the service of the sumions in this case to give the trial court jurisdiction over the railroad company, plaintiff in error, must depend entirely upon the provisions of our statute and the return of the officer upon the writ, above set out. Section 4268 Wilson's Rev. & Ann. St. 1903, $$ 4269-4271, are all the provisions of our statute governing the service of process upon railroads in this territory:

"Sec. 4268. A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office of usual place of business of such corporation, with the person having charge thereof.

"Sec. 4269. Every railroad company or corporation, and every stage company doing business in the Territory of Oklahoma, or having agents doing business therein for such corporation or company, is hereby required to designate some person residing in each county, into which its railroad line or stage route may or does run, or in which its business is transacted, on whom all process and notices issued by any court of record or justices of the peace of such county may be served.

"Sec. 4270. In every case such railroad company or corporation, and stage company, shall file a certificate of the appointment and designation of such person, in the office of the clerk of the district court of the county in which such person resides; and the service of any process upon the person so designated, in any civil action, shall be deemed and held to be as effectual and complete as if service of such process were made upon the president, or other chief officer of such corporation or stage company. Any railroad company, corporation or stage company, may revoke the appointment and designation of such person upon whom process may be served, as hereinbefore provided, by appointing any other person qualified as above specified, and filing a certificate of such appointment, as aforesaid; but every second or subsequent appointment shall also designate the person whose place is filled by such appointment.

*

"Sec. 4271. If any railroad or stage company, or corporation, fail to designate or appoint such person, as in the preceding sec

tions is provided and required, such process may be served on any local superintendent of repairs, freight agent, agent to sell tickets, or station keeper, or such company or corporation in such county, or such process may be served by leaving a copy thereof, certified by the officer to whom the same is directed, to be a true copy, at any depot or station of such company or corporation, in such county, with some person in charge thereof, or in the employ of such company or corporation, and such service shall be held and deemed complete and effectual."

In none of these is there any provision for service of process upon a railroad company in the manner certified to by the return of the officer in this instance. The service upon a corporation other than railroads must be made upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer, or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent. And the return of the sheriff or other officer making the service must show why the service was not made upon one of these chief officers before a return showing service upon any of the other officials named can be justified or upheld. It is equally true that service upon a railroad company must be made upon the chief officials or agents designated in sections 4269-4271, and, in case service cannot be made upon the chief officer or agent appointed upon whom service is to be made. the return must show why it was not served upon one of these, and what the official character of the person was upon whom it was served. The statute undoubtedly contemplates that an attempt must first be made to obtain service upon the president, etc., or chief officer, before resorting to service upon the other class of persons, officials, or agents. In the case of St. Louis, V. & T. H. R. Co. v. Dawson, 3 Ill. App. 120, the court says: "The statute has divided the officers. agents, and employés into two classes, and service upon one class is primary to service upon the other, and, before service had upon those of the second class can give the court jurisdiction, it must appear affirmatively that service could not be had upon those persons embraced in the first class, on account of the existence of the causes for which the statute authorizes service upon the persons embraced in the second class." In the case of Union Pac. Ry. Co. v. Pillsbury, 29 Kan. 652, Mr. Justice Brewer, rendering the opinion, says: "The defendant in error obtained judgment before a justice of the peace against plaintiff in error upon a bill of particulars alleging default in a breach of a contract to convey certain goods. goods. * * The return on the summons shows that it was served by delivering a copy thereof 'to D. W. March, Agent of said U. P. R. R. Co., Manhattan, Kansas.' Where this was served, or what kind of an agent said defendant said D. W. March was, is not shown. Such

*

service is insufficient. It does not show that said March was president or chairman of the board of directors, or other chief officer, cashier, treasurer, secretary, clerk, or managing agent, and is therefore not good, either under section 68, c. 80, Comp. Laws 1879, or section 13, c. 81, Comp. Laws 1879. Neither does it show service upon any person named as the service agent of a railroad corporation, under sections 68a-6Sc, c. 80, Comp. Laws 1879, or upon any person authorized to receive service in case of a failure by a corporation to name such service agent, or at a place designated in such sections. For aught that appears, said March may have been an agent to purchase coal, or to transact any temporary business on behalf of the company, with no office or residence in the county. The sections above referred to provide ample and easy means for service upon a railroad corporation, and before it can be adjudged in default, and subjected to a judgment upon default, the record must affirmatively show that in some of the ways named in the statute service has been made upon it. None such appears here, and therefore judgment was improperly rendered against it." The statute referred to in this decision was then in the same form and language in which it now exists in sections 4268-4271 of Oklahoma statute above set out.

The same subject was again before the Supreme Court of Kansas in the case of Dickerson v. Burlington & H. R. R. Co., 23 Pac. 936, in the syllabus of which case the court says: "A return upon a summons against a railroad company that it was 'served by delivering a copy thereof, with the indorsements thereon duly certified, to Mr. Fish, agent of the within railroad company,' is, of itself, no sufficient evidence of service, as it contains no description or hint of the character of his agency." That was an action commenced before a justice of the peace, and after the overruling of its motion to quash the summons the railroad company entered a general appearance, and defended the action upon its merits, as was done in the case now at bar, and in reference to this phase of the case the court, in the body of the opinion, say: "It is claimed that, because the attorneys of the railroad company subsequently took part at the trial of

In

the case, they made a general appearance, and cured all defects in the service of the summons. They first made a special appearance for the purpose of testing the validity of the service, and, their motion to set aside the service and to quash the summons being overruled, they took part at the trial under protest. This was not such an appearance as would give the justice jurisdiction over the person of the railroad company." Ency. P. & P. vol. 18, p. 925, it is said: "Every provision of the statute upon which the validity of such service depends should appear by the return to have been complied with; and if the service can be made upon particular persons only under specified contingencies or at a particular place, as, for example, under statutes providing that service cannot be had upon certain officers or agents except in the absence of the president or other chief officer at the business office of the corporation, etc., the existence of such conditions should appear when the return shows service upon any of such persons”citing a large list of authorities.

Several other questions were presented to the court below in the motion for a new trial, and are renewed and argued in the brief of plaintiff in error in this court. The cause is not briefed on behalf of defendant in error. We have therefore examined the jurisdictional queston here determined, upon the determination of which the cause must be remanded for further procedure in the court below. The other questions raised by the brief of plaintiff in error are important legal subjects, which may not arise on retrial of the case, and which, when determined, will be better determined in a cause where the parties thereto have sufficient interest therein to aid the court by at least an expression of their views with reference thereto.

For the error here determined, the judgment of the lower court is reversed, and the cause remanded, with direction to sustain the defendant's motion to quash the summons and the service thereof, the costs of this court to be taxed to the defendant in error. All the Justices concurring.

BURWELL, J., concurs in conclusions reached, but not all the reasons therefor stated in the opinion.

(15 Wyo. 136)

STATE v. THOMPSON. (Supreme Court of Wyoming. Nov. 20, 1906.) MASTER AND SERVANT-REGULATION-HOURS OF LABOR-OFFENSES-OPERATION OF MINES. Rev. St. 1899, § 2586, provides that eight hours shall constitute a day's labor for all "coal miners and laborers," etc. Section 2587 de lares that the word "day," in all contracts between any owner, lessee, or operator of any mine with any such miner or laborer, shall mean eight hours, and section 2589 declares that any owner, lessee, or operator, his or its agent, employés, or servants violating any of the provisions of the chapter, shall be fined, etc. Held, that the words "employé" or "servants," used in section 2589, should be construed to mean employés or servants or the mine owner occupying positions of "agents," and not to include miners and laborers, so that a miner was not subject to punishment under the penal provision for working more than eight hours a day.

Exceptions from District Court, Sheridan County; Carroll H. Parmelee, Judge.

An information was filed against Al Thompson for alleged violation of the mining-labor law, and from an order sustaining a demurrer thereto, the state excepts. Under Rev. St. 1899, §§ 5378, 5380. Affirmed.

James H. Burgess, Pros. Atty., and W. B. Mullen, Atty. Gen., for the exceptions. J. J. Rowen, opposed.

BEARD, J. An information was filed in the district court of Sheridan county by the county and prosecuting attorney against the defendant, charging "that Al Thompson, late of the county aforesaid, on the 12th day of March, A. D. 1906, at the county of Sheridan, in the state of Wying, being then and there a coal miner, mining coal, and then and there an employé of the Wyoming Coal Mining Company, the said company being then and there the owner of the Monarch coal mine situated in Sheridan county, Wyoming, and engaged in mining and extracting coal from said mine, did, while in the employ of the said Wyoming Coal Mining Company, and while mining and extracting coal in said mine, knowingly, willfully, and unlawfully perform in said coal mine, mining coal as aforesaid, on the said 12th day of March, A. D. 1906, more than eight hours of actual labor, to wit, ten hours of actual labor-the said labor or any portion of the same not being then and there necessary for the protection of property or of human life. ** The defendant demurred to the information on the ground "that the said information does not state facts sufficient to constitute an offense punishable by the laws of the state of Wyoming." The district court sustained the demurrer, and, the county attorney refusing to amend and electing to stand on the information, the court rendered judgment dismissing the action and discharging the defendant, to which exceptions were duly taken, and the county attorney has filed a bill of exceptions in this court under the provisions of sections 5378, 5379, 5380, Rev. St. 1899.

87 P.-28

The provisions of our statutes under which this information was filed are contained in sections 2586. 2587, 2588, 2589, Rev. St. 1899, and are as follows:

"Sec. 2586. Eight hours shall constitute a day's work for all coal miners and laborers now employed, or who may be hereafter employed, in any coal mine in this state, except in cases where it may be necessay to work more than eight hours per calendar day for the protection of property or human life: provided, that in all such cases the miners and laborers so employed and working to ex'ceed eight hours per calendar day shall be paid upon the basis of eight hours constituting a day's work."

"Sec. 2587. In all contracts hereafter made between any owner, lessee or operator of any coal mine, with any such miner or laborer for his services as such, the word day when used shall be construed to be eight hours: provided, that nothing in this chapter contained shall be construed to prohibit or prevent any such owner, lessee or operator from operating his or its coal mine more than eight hours in any twenty-four."

"Sec. 2588. The eight hours in this chapter provided for, shall be construed to mean eight hours of actual labor and shall not include the time consumed in going to and returning from work."

"Sec. 2589. Any owner, lessee or operator, his or its agent, employés or servants, violating any of the provisions of this chapter. shall be fined not less than fifty dollars, nor more than three hundred dollars, or imprisoned not more than three months, or both."

The foregoing quotations contain the entire statute upon the subject; and, if the defendant does not come within the class of persons enumerated in section 2589, then it is clear that the information charges no offense. The first section of the statute enacts that eight hours shall constitute a day's work for all coal miners and laborers employed in any coal mine; but does not attempt to fix the number of hours that shall constitute a day's work for any other class of persons employed in or about the operations of the mine. The second section defines the meaning of the word "day" when used in any contract made between the owner, lessee, or operator of a coal mine with such miner or laborer for his services as such. It is only in contracts between the operators of coal mines and a miner or laborer in the mine and for his services as such that the word "day" is to be construed to be eight hours. Thus it will be seen that by those sections of the act miners and laborers are treated as a distinct class of employés, and it is nowhere in the act declared, in terms, to be unlawful for them to work more than 8 hours in any 24. The object of the statute, we think, was to prevent the employers of such miners and la