Frisco car; and that said car at the time he [ences and conclusions as may be reasonably entered it was standing on a track used by the Frisco Company.

drawn from it, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance therewith. Where the evidence is conflicting, and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration and totally disregarded, leaving for consideration that evidence only which is favorable to the party against whom the motion is leveled." Measured by this standard, we are forced to say that there was error in the rul

dict for defendant; for there was an utter lack and want of evidence to sustain any of the material issues in the case. "Where a verdict for damages is found by a jury which is unsupported by any evidence, the same will be reversed and set aside on appeal." Denver W. & M. Co. v. Adkinson, 28 Okl. 1, 119 Pac. 247. "Where there is entire lack of evidence to sustain any material issue found by a general verdict, such verdict will be set aside, and a new trial granted." Howard et al. v. Farrar, 28 Okl. 490, 114 Pac. 695.

In A., T. & S. F. Ry. Co. v. Cochran, 43 Kan. 225, 23 Pac. 151, 7 L. R. A. 414, 19 Am. St. Rep. 129, the Supreme Court of the state of Kansas denied a recovery in a case similar to the one at bar. That action was brought by Cochran, administrator of the estate of John M. Gibson, deceased, and alleged, in substance, that the defendant company owned and operated and controlled the Southern Kansas Railway Company; that the deceased, Gibson, purchased a ticket from an agent of the defendant at Holliday, Kan., | ing of the court in refusing to direct a verwhich entitled him to transportation on one of the trains of the Southern Kansas Railway Company to Olath, Kan.; that after purchasing the ticket it became necessary for him to cross the tracks belonging to the defendant company, then being used by the defendant company and the Southern Kansas Railway Company; that while crossing the tracks, by reason of the carelessness and negligence of the defendant company, through its servants and employés, the deceased was run over and killed. The jury found that the deceased was a passenger on defendant's Having arrived at this conclusion, it is train, and that defendant had control, direc- unnecessary for us to consider the other tion, and management of the Southern Kan- questions raised by the petition in error. sas Railway Company, and owned a majority Whether or not plaintiff had a cause of of the stock. Mr. Chief Justice Horton, in action against some other party, we do not delivering the opinion, among other things, attempt to say. However, it is clear that said: "The jury found that the person in none existed against this defendant. Cercharge of the ticket office of the station of tain allegations were made by him in his Holliday was agent both for the Atchison petition, yet, so far as defendant is concernCompany and the Southern Kansas Com-ed, none of them have been proved, and, pany; but even if the ticket agent at Holli- as the burden was on him to establish them, day acted for the Atchison Road, and the Atchison Road sold the ticket for the Southern Kansas Road, this did not make the Atchison Road liable for the negligence of the Southern Kansas. The ticket purchased by Mr. Gibson shows that the contract of carriage was made on behalf of the Southern Kansas Railway Company. They were two separate corporations, and the one is not responsible for the negligence of the other." See, also, in support of this proposition, Louisville, etc., Ry. Co. v. Treadway, 142 Ind. 475, 40 N. E. 807; Railroad Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. 783; Railway Co. v. Barnhart, 115 Ind. 408, 16 N. E. 121.

it necessarily follows that the court erred in refusing to sustain the demurrer to the evidence, and also erred in refusing to direct a verdict in defendant's favor.

Entertaining this view of the case, it follows that no good result can be achieved by remanding it for a new trial. It therefore follows that the judgment of the district court of Hughes county should be reversed, and the cause dismissed.

PER CURIAM. Adopted in whole.

BROYLES et ux. v. McINTEER. (Supreme Court of Oklahoma. Nov. 14, 1911.)

(Syllabus by the Court.)

1. REPLEVIN (§ 86*)-ISSUES DETERMINABLE. The statutory action of replevin is sufficiently flexible to authorize both legal and equitable rights to be determined in such actions.

[1] In view of the facts thus established by the evidence, did the court err in refusing to direct a verdict in defendant's favor? In Solts v. S. W. Cotton Oil Co., 28 Okl. 706, 115 Pac. 776, the court, speaking through Mr. Chief Justice Turner, announces the rule in such cases as follows: "The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such infer

NIAL.

Under general denial in replevin, the defendant may make any defense which will defeat plaintiff's claim or right to possession as against the defendant, and under the Code great liberality is allowed such defenses.

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 257-279; Dec. Dig. § 69.*]

Error from Garfield County Court; James B. Cullison, Judge.

2. REPLEVIN (§ 69*)—DEFENSES-GENERAL DE- [ warranted the said mares and horses to be sound, able-bodied, and fitted for farm work, and were not over the ages of 8, 9, and 10 years, upon which representations and warranties the plaintiff relied, etc.; that the said mares and horses were neither sound nor able-bodied nor fitted for farm work, and were above the age of 10 years, and were of ages ranging from 14 to 18 years, all of which was unknown to defendant, but was known to plaintiff; that they relied upon his statements, and were thus deceived and defrauded by him; and that within a few weeks after the purchase and delivery to them of said mares and horses the two horses died from disease and old age, and they then rescinded their contract with the defendant in error, offered to return to him the remaining two mares, and demanded the return of the note and mortgage and bill of sale (conveyance) and assignment of contract for the two lots, etc.

Action by Pat McInteer against J. W. Broyles and wife. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

Adam S. Garis, for plaintiffs in error.

fenses the plaintiffs in error had could only be raised by them in proceedings to foreclose said mortgage, and not in that section. The motion was sustained.

WILLIAMS, J. This proceeding in error is to review the judgment in the lower court, wherein the defendant in error, as plaintiff, instituted an action in replevin against the plaintiffs in error, as defendants, for the possession of "two gray mares, one cow, one The plaintiff replied to the answer. At the calf, two-thirds of the corn in the field, and close of the evidence, the defendant in ertwo-thirds of all other crops on the farm" of ror (plaintiff) moved the court to direct a the plaintiff, located in Garfield county, Okl., verdict in his favor for the personal property alleging a special ownership therein, by virtue | replevied, on the ground that whatever deof a chattel mortgage, executed March 7, 1908, to secure the payment of a promissory note, for $513, and entitled to immediate possession, and a wrongfully withholding from plaintiff (defendant in error) of possession. Defendants answered, denying the special ownership of the plaintiff, as alleged, and his right to the possession of said property, except as to the two gray mares. They further admitted the execution of the note and mortgage, but averred that plaintiff obtained the same by fraud and deceit; that the consideration failed; and prayed that said note and mortgage, together with a conveyance executed to the plaintiff by defendants on certain improvements on two lots in the Steel Plant addition to the city of Enid, and an assignment of contract for said two lots, be declared null and void, and also for judgment for the redelivery from plaintiff to defendants of the possession of said personal property so taken, and, in case possession thereof could not be had, for judgment for the value thereof, and of the improvements described in said conveyance, and their reasonable costs and damages.

It is alleged that the fraud and deceit consisted in the following acts: That the defendants purchased two gray mares and two gray horses of the plaintiff on March 7, 1908, and gave the note and mortgage in evidence in payment for said mares and horses, and at the same time the defendants sold the plaintiff their interest in two lots in Enid, and the improvements thereon, for $325, and executed to him a conveyance therefor and the assignment of contract for the lots, the $325 to be credited on said note; that at the time of said contract the plaintiff expressly

In Payne v. McCormick Harvesting Machine Company, 11 Okl. 318, 66 Pac. 287, it is said: "On the trial of the cause, the defendant submitted two defenses to the right of the plaintiff to recover the property. One defense went to the right of recovery of the debt which the mortgage was executed to secure, and the other to the validity of the lien created by the mortgage. The first defense was that the defendant had purchased a harvester from the plaintiff in 1894, and that it was guaranteed to do good and satisfactory work; that the machine was defective and improperly constructed, and would not do good work; that the company was notified, but kept promising, from time to time, to make the needed repairs and changes, until the year 1898, when the new note was given; that at the time the new note was executed, and as an inducement to get the defendant to execute the new note and mortgage, plaintiff's agent agreed that if the defendant would execute a new note and secure the same by a chattel mortgage the machine company would put the machine in good condition, and make it do satisfactory work in time for the following harvest; and that, relying on these promises, he signed the note and executed the mortgage, but that the plaintiff had entirely failed to comply with said agreement. There was evidence tending to support this defense, although it was contradicted in part. The other defense which was offered by the defendant, and was by the court excluded, was to the effect that

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

the plaintiff's agent, who obtained the note (rule of practice that, in order to secure a reand mortgage, had fraudulently procured him | versal of a judgment of a court of competent to execute a mortgage upon the crops for jurisdiction, error must be made to affirma1899, when he in fact only intended to mort- tively appear, and that the reviewing court gage the growing wheat crop of 1898; that will presume that the trial court has done he was unable to read, and directed the everything necessary to have been done to plaintiff's agent what property to describe in support its judgment, yet a defendant in the mortgage; and that said agent incorpo- error should not rest under the security of rated other property in the mortgage without this presumption to such an extent that he his knowledge, and then fraudulently mis- does not in any way in this court seek to read the mortgage to the defendant, and thus sustain such judgment. For the taxpayers of obtained his signature by said deception and this state maintain this court, and litigants fraud. The first defense went to the right availing themselves of its services should by of recovery on the note, and consequently to every endeavor seek to expedite its business, defeat any lien. The second defense was in- so that an unnecessary burden may not be tended to defeat the lien only. It will be put on the taxpayers by having the judges borne in mind that this was not an action consume unnecessary time to search through to recover on the debt, but was an action in the records, when the litigants could, by filreplevin to recover possession of the proper- ing briefs, avoid this, and thereby aid the ty, for the purpose of enabling the plaintiff court, so that it could better keep up with to foreclose its mortgage by a sale of the its work. mortgaged property. The court permitted The judgment of the lower court is reversbut one defense to go to the jury, and the in-ed and remanded, with instructions to grant structions should have been confined to the a new trial. All the Justices concur.

FOX v. ZIEHME et al.

(Syllabus by the Court.) 1. LIMITATION OF ACTIONS (§ 180*)-DEmurrer -BAR OF LIMITATIONS.

law as applicable to the evidence on the issues made. The question of whether the parties had failed to comply with the terms of the written contract under which the machine was originally sold was not involved, (Supreme Court of Oklahoma. Dec. 12, 1911.) except as incidental to and explanatory of the reasons for any subsequent or new agreement. The plaintiff was entitled to recover the mortgaged property, unless the defendant had established the new agreement, and the failure to comply with it by the plaintiff, as contended for by him, and as it was claimed was entered into as an inducement to the giving of the note and mortgage."

[1, 2] In McFayden et al. v. Masters, 11 Okl. 16, 66 Pac. 284, it is said: "Great latitude is allowed in actions of replevin, and the statutory action is considered sufficiently flexible to authorize both legal and equitable rights to be determined in such actions, and it is the policy of the Code to, in so far as possible, settle all the equities in the prop erty which is the subject of the controversy in one action."

Where the petition shows on its face that the cause of action set out therein is barred that ground should be sustained, and the overby limitations, a demurrer urged specially on ruling of which is error.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 670-675; Dec. Dig. § 180.*]

2. JUDGES (§ 51*)-MOTION FOR CHANGECOMPLIANCE WITH STATUTE.

Defendant made application for a change of judge, on the 10th day of August, 1909, under the provisions of article 1, c. 27, Sess. Laws 1907-08, which had been repealed by the act approved March 22, 1909 (Sess. Laws 1909, c. 14, art. 1). Held not a sufficient compliance with the statute in force to authorize the court in sustaining the motion, and no committed in denying the same. Dig. § 51.*] [Ed. Note.-For other cases, see Judges, Dec.

error was

3. PLEADING (§ 345*)—JUDGMENT ON PLEADINGS.

It is error for a trial court to sustain a motion for judgment on the pleadings where the answer properly raised the bar of the statute of limitations as well as the statute of frauds; and the existence of an oral contract, without which plaintiff could not recover.

[Ed. Note. For other cases, see Pleading, Cent. Dig. $§§ 1055-1059; Dec. Dig. § 345.*]

It is not essential to determine in this case whether the county court had authority to order the bill of sale or conveyance to the lots canceled and delivered back to the plaintiffs in error. It is sufficient that the evidence as to fraud under the issues was competent for the purpose of showing that the plaintiff was not entitled to recover on the note, and when that was established the lien was defeated. Under the abstract and statement of facts in the brief of plaintiff in error, the cause should have been submitted to the jury under proper instructions. We have also examined the record, and it seems to Action by Albert Ziehme et al., doing busibear out the abstract and statement of facts. ness as Ravenswood Exchange Bank of ChiThe defendant in error has neither made cago, Ill., against O. G. Young, Artis Kenany appearance in this court through coun- nedy and Virgil Kennedy, partners, under sel, nor filed any brief. While it is a settled the firm name of Earlboro Hardware Com

Commissioners' Opinion, Division No. 1. Error from Pottawatomie County Court; E. D. Reasor, Judge.

pany, and Pleasant Fox, to recover on cer- | declaring on the notes, as aforesaid, containtain promissory notes. Judgment for plain-ed the following allegation in an attempt tiffs. Pleasant Fox brings error. Reversed to state a cause of action against Fox: as to Fox. "Plaintiff further states that on or about the

Roscoe C. Arrington and A. M. Baldwin, for Pleasant Fox, plaintiff in error. T. G. Cutlip, for O. G. Young, Artis Kennedy, and Virgil Kennedy. Frederick King, for defendant in error Ravenswood Exchange Bank of Chicago, Ill.

day of July, 1904, one Pleasant Fox purchased the two-thirds interest of defendthe said partnership, and as a part of the ants Virgil Kennedy and Artis Kennedy in oral contract of purchase agree with said Artis Kennedy and Virgil Kennedy to assume, and did assume two-thirds of the indebtedness of the said Virgil Kennedy and Artis Kennedy, and on said date became a partner of said defendant O. G. Young, and that the said defendants Pleasant Fox and O. G. Young continued to do business as such partners under the firm name and style of Earlboro Hardware Company, continuing their business in the same name as the former partners had used"-and at the close of each cause of action states: “And the said notes are a part of the indebtedness assumed by Pleasant Fox as a partner."

ROBERTSON, C. On March 3, 1905, the Ravenswood Exchange Bank of Chicago, Ill., an unincorporated joint-stock company, of which Albert Ziehme was president, began an action in the probate court of Pottawatomie county against O. G. Young, Artis Kennedy, and Virgil Kennedy, partners, doing business under the firm name of Earlboro Hardware Company, and sought thereby to recover certain sums of money, alleged to be due on five promissory notes, given by the said Earlboro Hardware Company, to the Except as above stated, the name of Fox St. Louis Jewelry Company, and by it as-nowhere else appears in the amended petisigned to the said Ravenswood Exchange tion. O. G. Young, Virgil Kennedy, and ArBank. On April 25, 1905, judgment by de- tis Kennedy filed separate answers, and alfault was entered against O. G. Young, Arleged that Fox orally agreed to assume the indebtedness evidenced by the notes, as a part purchase price for the store. A peculiar circumstance in this case appears in that the defendants filed their motion to vabank appeared and consented thereto, and cate the judgment on October 28th, and the the court vacated the said judgment on the same day, and on the very next day plaintiff filed its amended petition, and Young, and Artis and Virgil Kennedy on this same day, and without issuance and service of and alleged that Fox orally agreed more summons, appeared and filed their answers than three years and six months prior to said date to pay the said notes sued on as a part consideration for stock of goods which he had at that time purchased from them.

tis Kennedy, and Virgil Kennedy for the full amount sued on. Fox, the plaintiff in error, was not a party to this suit, his name nowhere appearing in any of the papers. He was not served with process, nor did he

make any appearance. On October 28, 1908,

three years and six months after the rendition of said judgment, the defendants in said cause, to wit, O. G. Young, Artis and Virgil Kennedy, filed a motion in the county court of Pottawatomie county to vacate said judgment "because the said judgment was void, in that at the time of filing the petition and the rendition of the judgment the firm of Earlboro Hardware Company was composed of O. G. Young and Pleasant Fox, and that said Pleasant Fox was not made a party to said action, and for that reason no judgment could be rendered against said hardware company without service of summons, or a waiver of the same, and no appearance was made to the merits of the action. Wherefore, the movants ask an order setting aside said judgment, for said judgment was rendered without jurisdiction. T. G. Cutlip, Attorney for Defendants." The same day the plaintiff bank filed the following: "I hereby accept service of the above notice, and consent that the hearing thereon may be presented, heard, and determined at any time. Frederick King, Attorney for Plaintiffs." And the court on the same day entered an order vacating said judgment.

Fox filed a motion to dismiss the alleged cause of action as to him, which was overruled by the court, and exceptions saved, and also filed a general demurrer, which after alleging that the petition failed to state facts sufficient to constitute a cause of action against him, also specifically alleged that the amended petition on its face showed that the statute of limitations had run against the alleged cause of action, and also that the alleged contract to answer for the debt, default or miscarriage of another, not being in writing, was within the statute of frauds, and therefore void, and, further, for the reason that there was a defect of parties defendant, in that Fox was misjoined with After the judgment had been set aside, the his codefendants and each of them, and also bank obtained leave to file an amended peti- for the further reason that the several caustion, and for the first time the name of es of action were improperly joined, and that plaintiff in error appears in the pleadings the court had no jurisdiction of the person in this case. The amended petition, after of the defendant, or of the subject-matter

be bound by any judgment which may have been rendered therein.

It therefore appears on the face of the pleadings in the case at bar that the oral contract, which Fox is charged with having made, was entered into July, 1904, and this suit, so far as Fox was concerned, was not instituted until the 28th day of October, 1908, more than 3 years later.

of the action; which demurrer was over- | the original sult, and no one contends that ruled by the court and exceptions saved. he was, hence he could not by any means After which Fox filed an answer setting up the same defenses. Thereafter he filed an application for a change of judge, sworn to by himself and corroborated by two persons resident of the county, alleging that he could not have a fair and impartial trial because of the bias and prejudice of said E. D. Reasor, the trial judge, which application was also overruled, and exceptions allowed. Whereupon the plaintiff filed a motion for judgment on the pleadings for the reason that: "The answers of each and all the defendants herein are insufficient as a matter of defense against plaintiff's petition and do not state facts sufficient to constitute a defense thereto"-which motion was sustained by the court, and a judgment was entered against the defendants, and each of them, for the sum of $343 and costs. Motion for new trial was duly made, presented, overruled, exceptions taken and the defendant Fox brings this appeal to reverse said judgment.

The court erred in overruling the motion to dismiss, as well as in overruling the demurrer filed by Fox. According to the amended petition filed by the bank on the 29th day of October, 1908, Fox did not purchase the interests of the Kennedys until July, 1904, or of Young until November, 1904. This is also admitted by the answers of Young, and the Kennedys, filed on the same date that the amended petition was filed. Thus, it is apparent, that even though Fox did orally agree to pay the notes sued on, yet more than three years had elapsed since that promise had been made, before the bank made any effort to collect the same from Fox. It makes no difference that the bank had been trying to collect this from Young and the Kennedys; they were sued in their individual capacity, and we must also remember that the motion made by Young and the Kennedys, and which was sustained by the court, and by reason thereof the judgment was set aside, was based upon the ground that no service had been made in the first instance, and that, therefore, the court had no jurisdiction over the parties or the subject-matter of the controversy, and that in consequence thereof the first judgment was void. And, as has been said, this motion having been sustained, we are led to believe that the court found as a matter of fact that there was no service on any of the defendants in the original suit. The journal entry in the original action fails to show any service of any kind, but that is a matter we need not concern ourselves with, for according to our view of the case it would make no difference whether the judgment in the original case against Young and the Kennedys was good or void, so far as the plaintiff in error, Fox, is concerned. This

Section 5550, Snyder's Compiled Laws, Oklahoma, 1909, provides that: "Civil actions, other than for the recovery of real property, can only be brought within the following periods after the cause of action shall have accrued, and not afterwards: First. Within five years: An action upon any contract, agreement or promise in writing. Second. Within three years: An action upon a contract not in writing, express or implied." The mere fact that the suit had originally been filed against Young and the Kennedys, and the judgment thereafter set aside, and an amended petition filed, wherein Fox for the first time was made a party, would not cause the amendment to relate back to the commencement of the suit. The bank at the time it filed the suit against Young and the Kennedys in 1904 was satisfied that they were the proper parties to sue, as they were, without a doubt, as is shown by the record in this case, and it will not be permitted now to come in and say that it was mistaken in a matter of that kind, and at the same time allege that Fox did not purchase the stock, and thereby become liable according to its own contention until July, 1904. Fox, under the pleadings was not a codefendant with Young and the Kennedys, at the commencement of the original action, and the doctrine of the relating back to amendments had no application whatever to the case at bar. In Nelson v. First National Bank, 139 Ala. 578, 36 South. 707, 101 Am. St. Rep. 52, is found the following: "The doctrine of the relating back of amendments to the commencement of a suit is a fiction of law, and should never be applied when it would operate to cut off a substantial right of defense to new matter introduced by the amendment to the complaint, though connected with the original cause of action. The statute of limitations furnishes a defense as meritorious as any other."

In Butt v. Carson, 5 Okl. 164, 48 Pac. 183, it is said: "Thus where a suit is instituted against several parties as codefendants, and summons is not served upon one of them, it has been held that it was too late to bring him in subsequent to the institution of the suit, and before service of summons the statute of limitations has run in his favor."

[1] Therefore, the court not only committed error in overruling the motion to dismiss the amended petition as against Fox, and in