Action by the Cook County Liquor Compa (31 Okl. 636) ny against H. H. Brown and W. C. Kendall. MORROW v. BOARD OF COM'RS OF McJudgment for defendants, and plaintiff brings error. Affirmed. Sigler & Howard and Wm. Pfeiffer, for plaintiff in error. W. F. Bowman and Brown & Brown, for defendants in error. INTOSH COUNTY. (Supreme Court of Oklahoma. Jan. 9, 1912. Rehearing Denied March 26, 1912.) (Syllabus by the Court.) 1. REGISTERS OF DEEDS (§ 3*)—COMPENSATION -STATUTORY PROVISIONS. Section 1738, Compiled Laws of OklahoKANE, J. This was an action commenced St. 1903), which provides "the register of deeds ma 1909 (section 1282, Wilson's Rev. & Ann. by the plaintiff in error, plaintiff below, shall receive from the county for indexing, in against the defendants in error, defendant the numerical index, records already made, in below, as sureties on the bond of one Whit- addition to his other fees, a compensation to be fixed by the county commissioners," does not taker. The plaintiff was seeking to establish authorize the members of the board of county the delinquency of the principal by oral commissioners of a county to enter into a contract statements alleged to have been made by him with the register of deeds of said county to pay him for services rendered under section 1741, to a third person, when the only question Compiled Laws of Oklahoma 1909, which propresented by counsel for plaintiff in error in vides: "The register of deeds of any county in their brief arose as follows: "On page 14 this state, wherein is situated a town in which of the case-made will be found the following prior to November 16, 1907, an office for filing and recording deeds, mortgages, liens, and other (the witness David Dreeben on the stand): instruments was maintained by the United Q. I will ask you to state the admission he (the States, is hereby authorized, empowered, and directed to receive and transfer to his office all principal) made at that time on the amount he the records, files, books, and instruments kept had collected for you, and which he had fail- in such office, and which pertain to and propered to account for?" The defendants objectedly belong in the office of register of deeds; and to this question and the objection was sustained by the court, whereupon both plaintiff and defendant rested and the court upon motion of defendants' attorneys advised the jury to return a verdict for defendants, which was done. Rule 25 (95 Pac. viii) of this court provides, in part, that: "Where a party comA county officer is not entitled to compenplains on account of the admission or re-sation from the county for official services renjection of testimony, he shall set out in his brief the full substance of the testimony, to the admission or rejection of which he objects, stating specifically his objection thereto." There may be circumstances under which evidence of the kind sought to be elicited by plaintiff would be admissible, but the rule of the court has not been sufficiently complied with to advise us whether they existed in the case at bar, and we therefore presume that they did not and that the objection to the question was properly sustained. Underhill, in his work on Evidence, § 73, states the rule as follows: "Thus, where it is sought to introduce the admission of the principal in a suit against the surety, it should be remembered that the latter is only obligated for the principal's acts and not for his language. If, therefore, the admission does not constitute a part of the res gestæ, or, in other words, if it is not a verbal act, then the surety is not bound thereby." We cannot gather from the excerpt set out in counsel's brief whether the admission sought to be elicited was admissible as part of the res gestæ, and therefore indulge the presumption that the court below ruled properly upon the question. when so transferred, such records, files, books, and instruments shall be and become part of the permanent records of the office of the register of deeds in such county." [Ed. Note.-For other cases, see Registers of Deeds, Cent. Dig. § 8; Dec. Dig. § 3.*] 2. COUNTIES (§ 69*)-COMPENSATION-NATURE OF RIGHT IN GENERAL. dered, unless the authority therefor can be [Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 104-115; Dec. Dig. § 69.*] Error from District Court, McIntosh County; Preslie B. Cole, Judge. Action by J. B. Morrow against the Board of County Commissioners of McIntosh County, Okl. Judgment for defendant, and plaintiff brings error. Affirmed. Van Court & Reubelt, for plaintiff in error. John W. Robertson, County Atty., and E. I. O'Reilly, Asst. County Atty., for defendant in error. KANE, J. This was an action commenced by the plaintiff in error, plaintiff below, against the defendant in error, defendant below, for compensation for services performed by him as register of deeds of McIntosh county in relation to the transfer of the old Indian Territory registration records to the office of the register of deeds of the state, under section 1741, Compiled Laws of Oklahoma 1909, which provides: "The register of deeds of any county in this state, wherein is situated a town in which prior to November 16, 1907, an office for filing and recording deeds, mortgages, liens, and other inThe judgment of the court below is af- struments was maintained by the United firmed. All the Justices concur, except States, is hereby authorized, empowered, and WILLIAMS, J., absent and not participating. I directed to receive and transfer to his office all the records, files, books, and instruments | to receive and transfer to his office all the kept in such office, and which pertain to and records, files, books, and instruments kept properly belong in the office of register of in such office, and which pertain to and deeds; and when so transferred, such rec- properly belong in the office of register of ords, files, books, and instruments shall be deeds. There seems to have been no fee fixand become part of the permanant records ed for that service, and no authority given of the office of the register of deeds in such to any one by law to fix a fee. The next county." The petition alleges, in substance, section (section 1742, Compiled Laws of that on the 17th day of June, 1910, the board Oklahoma 1909) provides that: "The board of county commissioners of said county of county commissioners of the several counpassed a resolution requiring him, as register ties of this state are authorized and empowof deeds, to index all back records which ered to copy or transcribe or to have copied had been transferred to his office, and fix- or transcribed at a rate not to exceed five ing his compensation therefor; that there- cents per folio, any part of the records of upon it became the duty of plaintiff to index any other county whenever such record affect said records, and defendant thereby became such county desiring such transcript or propbound to pay plaintiff for said services at erty situate therein." And the next section the rate set out in said resolution; that un- provides how the work shall be done, and der said contract plaintiff rendered services its force and effect when placed in the office in the sum of $2,635.15, and thereafter filed of the register of deeds. Except the "five a verified statement of said claim with the cents per folio," allowed by section 1742, county clerk of said county, which said supra, none of these sections, nor the succlaim was disallowed; that on or about the ceeding ones of that chapter treating of the 5th day of December, 1910, defendant paid same subject, allow the register of deeds to plaintiff, on account, the sum of $500, but any compensation for any services performed failed and refused, and still fails and re- in relation to such records. fuses, to pay plaintiff the balance due. The [2] A county office is not entitled to comcourt below sustained a demurrer to the pensation from the county for official services petition of the plaintiff, upon the ground rendered, unless the authority therefor can that it did not state facts sufficient to con- be found in the laws of the state, or may be stitute a cause of action in favor of the plain-adduced therefrom by fair implication. State tiff, and against the defendant, and, plaintiff ex rel. Reardon, Co. Atty., v. Hooker, Co. refusing to plead further, judgment was entered in favor of the defendant for costs, to reverse which this proceeding in error was commenced. [1] We think the demurrer was well taken, and that the court below committed no error in sustaining the same. Plaintiff based his right to recover upon section 1738, Compiled Laws of Oklahoma 1909 (section 1282, Wilson's Rev. & Ann. St. 1903), which provides: "The register of deeds shall receive from the county for indexing, in the numerical index, records already made, in addition to his other fees, a compensation to be fixed by the county commissioners." His contention is that that section confers upon the county commissioners the power to fix the fees for the class of services required by section 1741 of the Compiled Laws of Oklahoma 1909, and also makes such fee a charge against the county. There is no room for such a construction. Section 1738, supra, was enacted in 1893, and, of course, was not passed in view of any of the conditions that grew out of the change from a territorial to a state government. The numerical index mentioned in that section is the index mentioned in section 1737 (Compiled Laws of Oklahoma 1909) of the same chapter provided for the purpose of noting all deeds relating to tracts of land. It cannot be said that section 1741, supra, contemplates that class of services. The register of deeds' directions in regard to the old records were Judge, 26 Okl. 460, 109 Pac. 527; State ex rel. Reardon, Co. Atty., v. Harper, Clerk District Court, 123 Pac. 1038, decided at the last term, but not yet officially reported; Coggesshall v. Conner, 120 Pac. 559, decided at this term, but not yet officially reported. It is further contended by counsel for defendant in error that section 1738, supra, has been repealed by section 3382, Compiled Laws of Oklahoma 1909, entitled, "Fees and Salaries," but, in view of what we have heretofore said, that contention is immaterial, as if we held with counsel it would not change the result. The judgment of the court below is affirmed. All the Justices concur, except WILLIAMS and DUNN, JJ., absent, and not participating. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Error from Oklahoma County Court; Sam by which the defendant was to answer was Hooker, Judge. Action by T. H. Ray against M. E. Wade. Judgment for defendant, and plaintiff brings only 36 days from the date of the first pub- [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4032; Dec. Dig. § 1037.*] Error from Creek County Court; Josiah G. Davis, Judge. Action by Gladys Bridges against W. A. Aggers. Judgment for plaintiff, and defendant brings error. Reversed. R. P. Elliott and J. R. Ramsey, for plaintiff in error. HAYES, J. Plaintiff in error, who brought this action in the court below against defendant in error to recover upon a promissory note, caused to be issued at the beginning of the action an order of attachment. Thereafter defendant in error filed his motion to discharge the attachment, which was by the court sustained on November 12, 1910. This proceeding in error, brought to have WILLIAMS, J. The publication notice is reviewed the order of the court dissolving as follows: "State of Oklahoma, Creek Counthe attachment, was filed in this court on ty-ss.: In the County Court in and for said September 28, 1911, long after 30 days after County and State. Gladys Bridges, Plaintiff, making of the order appealed from. Section vs. W. A. Aggers, Defendant. Said defend6093, Comp. Laws 1909, provides that, when ant, W. A. Aggers, will take notice that he any order discharging or modifying an at- has been sued in the above named court uptachment or temporary injunction shall be on an open account for board bill and on made in any case, the party aggrieved shall account of team work and must answer peexcept to such order for the purpose of hav- tition filed therein by said plaintiff on or being it reviewed in the Supreme Court, if he fore the 26th day of December, 1908, or said so desires; and the court, upon his applica- petition will be taken as true and judgment tion, shall fix a time not exceeding 30 days for said plaintiff for $225.50 and the atfrom the discharge or modification of the tachment therein had and granted will be attachment or injunction within which a rendered accordingly. Thompson & Smith petition in error shall be filed in this court. & Wm. Jenkins, Attorneys for Plaintiff. AtThe effect of this statute upon an attempted test: Florence E. Cox, Clerk of said Court." appeal from orders of the character describ- Said notice was published in the Sapulpa ed therein not filed in this court within 30| Light, a weekly newspaper printed and pubdays after the rendition of the order ap-lished in said county; the first publication pealed from has been several times passed upon by this court and held not to confer jurisdiction upon this court to hear and determine same; that such appeals must be filed in the office of the clerk of the Supreme Court within 30 days from the date of such order; and that the court or judge has no power to extend or enlarge this period for taking an appeal. Smith v. Eldred, 121 Pac. 195; Pioneer Tel. & Tel. Co. v. Incorporated Town of Chelsea, 23 Okl. 720, 102 Pac. 83; First Nat. Bank of Hobart v. Spink et al., 21 Okl. 468, 97 Pac. 1019. being made on the 20th day of November, 1908, and the last on December 4, 1908, being for three consecutive weeks. Section 4278, Wilson's Rev. & Ann. St. 1903 (section 5614, Comp. Laws 1909), is as follows: "The publication must be made three consecutive weeks, in some newspaper printed in the county where the petition is filed, if there be any printed in such county; and if there be not, in some newspaper printed in the territory, of general circulation in that county. It shall state the court in which the petition is filed, the names of the parties, and must It follows that this proceeding must be notify the defendants thus to be served that dismissed. he or they have been sued and must answer the petition filed by the plaintiff, on or be TURNER, C. J., and WILLIAMS, KANE, fore a time to be stated (which shall not be and DUNN, JJ., concur. (31 Okl. 617) AGGERS v. BRIDGES. (Supreme Court of Oklahoma. March 12, 1912.) (Syllabus by the Court.) APPEAL AND ERROR (§ 1037*) — NOTICE BY PUBLICATION-SUFFICIENCY. Notice by publication was given as provided by section 5614, Comp. Laws 1909 (section 4278, Wilson's Rev. & Ann. St. 1903), with the exception that the time stated in said notice less than forty-one days from the date of the first publication), or the petition will be taken as true, and judgment, the nature of which shall be stated, will be rendered accordingly." The defendant, by special appearance, moved to quash this publication notice, on the ground that the time stated in the notice by which the defendant must answer or the petition would be taken as true was less than 41 days from the date of the first publication. This contention seems to be sound. The plain letter of the statute is that when a party cannot be brought in by the service of a summons personally in a proper case he may be brought in constructively by a publication notice, and that said notice shall state the time by which he must plead to the plaintiff's petition, and that that time shall not be less than 41 days from the date of the first publication. This was not complied with in this notice. This is a plain violation of this statute, which provides that the time stated in the publication notice for the defendant to answer shall not be less than 41 days from the date of its first publication. This length of time is a matter of right, and this notice only gives him 36 days, thereby lessening the time for the period of 5 days. The statute says this shall not be done. This defect affects a substantial right of the plaintiff in error. We are very loath to reverse cases on defects in procedure and on account of defects in the service of process, but these statutes are in force by the acts of the sovereign people, and no court has a right to suspend the law thus solemnly enacted. Section 4344, Wilson's Rev. & Ann. St. 1903 (section 5680, Comp. Laws 1909), provides: "The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." But this is a substantial right that is taken away from this defendant. Under the solemn mandate of the sovereignty, the publication notice is to give him not less than 41 days from the date of the first publication in which to answer. This notice fails to do that, only giving 36 days. The defendant, having entered a special appearance for such purpose, properly saved his right to insist on this violation of the statute that affected his substantial rights. Mortgage Trust Co. of Pennsylvania v. Norris, 8 Kan. App. 699, 54 Pac. 283; Lindsey v. Board, 56 Kan. 630, 44 Pac. 603; Spaulding et al. v. Polley, 28 Okl. 764, 115 Pac. 864, and authorities therein cited. ue of the chattels, and the mortgagee answers, denying the conversion, but admitting the sale of the chattels, pleading a credit on the indebtedness of the proceeds of the sale, and praying judgment for the balance remaining after making this credit, where no reply is filed, a motion for judgment on the pleadings is filed by the defendant after all the evidence has been offered, it is not error to overrule the motion. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1053, 1054, 1070-1077; Dec. Dig. § 350.*] 2. CHATTEL MORTGAGES (§ 292*) - IRREGULAR FORECLOSURE-ACTION FOR DAMAGES. If a chattel mortgage is irregularly foreclosed and the property sold to another than the mortgagee, the mortgagor may treat the action as a conversion of the property by the the measure of his damages in such case being mortgagee, and recover his damages therefor; the excess in value of the property at the time of sale, over the mortgage debt. [Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. § 530; Dec. Dig. § 292.*] Commissioners' Opinion, Division No. 1. Error from District Court, Craig County; T. L. Brown, Judge. Action by J. Ed. Brookshire against C. M. Hoover and the Bank of Welch. Judgment for plaintiff, and defendants bring er ror. Affirmed. Chas. B. Rogers, for plaintiffs in error. W. H. Kornegay, for defendant in error. AMES, C. The first error urged is that the trial court erred in overruling the motion of the defendants for judgment on the pleadings. In his petition, the plaintiff alleged that he was indebted to the defendant bank in the sum of $2,700 which was secured by a chattel mortgage covering a stock of goods, located in the town of Welch, and also by a real estate mortgage on certain lots in that town; that G. M. Hoover was an indorser on his notes, and that the defendants in 1906 took possession of the stock of goods, sold the same and converted the proceeds to their own use; that the stock of goods was worth $4,000, and, after applying his indebtedness to the bank as a credit, there was a balance due him of $1,300, for which he sued. The defendant bank answered. admitting that the plaintiff was indebted It follows that the judgment of the lower to it as alleged, but denying the conversion, court must be reversed. All the Justices and pleading that it took possession of the stock and sold it in connection with the plaintiff and the defendant Hoover for $2,000, leaving a balance due from the plaintiff of $700. In a cross-petition it prayed for the foreclosure of the mortgage on the real estate, and for judgment against the plaintiff for the $700. The defendant Hoover answered, setting up facts showing that he was an accommodation indorser, and alleging, as was alleged by the bank, that the stock had been sold by the plaintiff and the defendants, acting conjointly, and that it brought its full value. No reply was filed by the plaintiff. Upon the creation of the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes state, the cause was removed to the dis- | indebtedness, and then by an accounting trict court of Craig county, and was tried gave the plaintiff credit for the excess, and to the court without a jury. After the evidence had all been introduced, the defendants filed their motion for judgment on the pleadings, which was overruled, and it is this ruling which is assigned as error. charged the plaintiff with the payments which the defendants had made for his benefit on the real estate subject to the mortgage, showing a balance due by the plaintiff in the sum of $45.65, for which judgment was rendered. [1] It is obvious from this brief statement of the pleadings that the plaintiff admitted The whole case turns upon the sale of his indebtedness to the bank, but, in sub- the stock by the defendants, and, as they stance, claimed that it had been paid by the were mortgagees in possession, they are appropriation of the stock of goods, leaving chargeable to the plaintiff with the reasona balance due the plaintiff, and that the able value of the stock, unless the sale was defendant bank based its right to recover made by his consent, or in accordance with the balance which it alleged was due upon the terms of the mortgage. It is not claimed the fact that there had been no conversion that the sale was made in accordance with of the stock by it, and therefore that there the terms of the mortgage, but that the was a balance due it of $700, and that the plaintiff consented to the sale in the manpetition and cross-petition grew out of the ner and form in which it was made. Upon same transaction, and related to the same this question of fact the evidence was conoriginal debt. If the claim of the plaintiff | tradictory, and the court has found that was true, it is manifest that the defendant the sale was over the protest of the plainwas not entitled to judgment on its cross- tiff. There being evidence reasonably tendpetition, and under this state of facts, in ing to support this finding, it will not be connection with the fact that the evidence disturbed here. In Harrill v. Weer, 26 Okl. had all been offered before the motion was 313, 109 Pac. 539, which also arose in the filed, we do not think it was error to over- Indian Territory, Mr. Justice Hayes, in derule the motion for judgment on the plead-livering the opinion of the court, says: ings. The remaining assignment of error is that the court erred in overruling the motion for new trial, because the judgment rendered in favor of the defendants was too small, and because it was not supported by the evidence, and was contrary to law. There was evidence tending to show that, after the maturity of the debt, the plaintiff was unable to pay it, and possession was delivered to the defendants under the mortgage, and the evidence of the defendants tended to show that they were requested to sell at private sale, and that the plaintiff concurred in their actions. On the other hand, the evidence of the plaintiff tended to show that he objected to the sale and demanded the foreclosure, as provided by the mortgage, which required public sale after 15day notice. A jury having been waived, the court filed its findings of fact, showing the existence of the debt as alleged, that the defendants took possession of the stock after default, and "that on the 28th day of April, 1906, the defendants G. M. Hoover and Bank of Welch unlawfully and over the protest of the plaintiff removed the stock of drugs and fixtures mortgaged to the Bank of Welch from the Indian Territory and disposed of them to one George F. Woodland, of Parsons, Kan., and said stock of goods was out of the jurisdiction of the court at the time of filing the suit and at the time of the hearing of the evidence and at the time of trial, and could not be returned to the plaintiff." The court further found that the value of the stock was $2,900, which was more than sufficient to pay the "There is a line of authorities which hold upon good reason, we think, that, if a chattel mortgage is irregularly foreclosed and the property sold to other than the mortgagee, the mortgagor may treat the action as a conversion of the property by the mortgagee and recover his damages therefor; the measure of his damages in such case being the excess value of the property at the time of the sale over the amount of the mortgaged debt. Burton v. Randall, 4 Kan. App. 593, 46 Pac. 326; Wygal v. Biglow, 42 Kan. 477, 22 Pac. 612, 16 Am. St. Rep. 495; Berg v. Olson, 88 Minn. 392, 93 N. W. 309; Bryan v. Baldwin, 52 N. Y. 232; 2 Cobbey on Chat. Mortgages, par. 1026." Again, in the same opinion, it is said: "In selling trust property under the provision of a deed of trust, the terms of the deed of trust must be substantially followed; and failure to give a notice stipulated for renders the sale subject to be set aside." And in support of this the court cites Whitehead v. Coyle, 1 Ind. App. 450, 27 N. E. 716; Silva v. Lopez, 5 Haw. 262; Jones on Chat. Mortgages, § 795. The facts in the case at bar having been determined against the defendants by the trial court, the plaintiff had a right to maintain his action for conversion, and to recover the difference between the amount of his debt and the reasonable value of the property at the time of the conversion. As the court applied these principles to the case, we do not think error was committed, and the judgment should be affirmed. PER CURIAM. Adopted in whole. |