estate of M. M. Meek, deceased, as plaintiff; | court is without jurisdiction to hear and deand that the further proceedings herein pro- termine this appeal, unless the suggestion of ceed in the name of H. C. Olds, administrator of the estate of M. M. Meek, deceased, as plain- amendments to the case-made was such a tiff herein. general appearance as to waive failure to secure consent or give notice of the attempted revivor in this cause.

[1] We are first met with a motion to dis-ity by the defendant in error contra to the miss this appeal upon the ground:

Certainly, if the defendant's attorney cannot legally waive summons in error where the party died subsequent to the rendition of the judgment appealed from and where the cause has not been legally revived, the suggestion of amendments to the case-made in the instant case would not make a proper party plaintiff in this court, and give this court jurisdiction to determine the appeal.

as 'attorney for Thos. F. Yarnell and Mrs. A. I been filed in order for this court to review the M. Yarnell, administratrix of the estate of judgment of the trial court has now expired." Thos. F. Yarnell, deceased,' accepted service of the case-made as follows: 'I, the undersigned attorney of record for Thos. F. Yarnell, and of Mrs. A. M. Yarnell, administratrix of the estate of Thos. F. Yarnell, deceased, defendant in the above cause, hereby acknowledge and certify that the foregoing case-made was duly served upon us this 17th day of May, 1907. On the same date the same attorney waived notice of the signing and settling of the casemade as follows: 'Notice of settling and signing the foregoing case-made in the above-entitled cause is hereby waived, and I hereby agree that said case-made may be settled and signed whenever the same may be presented and in my absence upon the case-made as served and the amendments suggested by me and attached to the case-made. [Signed] A. J. Morris, Attorney for Defendant and Attorney for Mrs. A. M. Yarnell, Administratrix of Estate of T. F. Yarnell, Deceased.' The suggested amendments are made by A. J. Morris, as 'attorney for the defendant.' We are unable to see that these acts constituted an appearance."

[3] That proper parties must be brought to this case is fundamental, and does not need citation of authorities in support thereof, and in the absence of a plaintiff in error, on proper motion an appeal must be dismiss ed. In the instant case, there being no consent obtained or notice given of the attempted revivor, there was in law no revivor, and, therefore, the absence of a plaintiff in error, and consequently this court is without jurisdiction to entertain the appeal.

In Skillern et al. v. Jameson et al., 29 Okl. 84, 116 Pac. 193, it is held:

We are of the opinion that the failure to give notice or to secure consent for revivor of the cause was not cured by the suggestion of amendments to the case-made by the attorney of record of the defendant in error, and therefore the motion to dismiss this appeal is well taken and should be sustained. Appeal dismissed.

PER CURIAM. Adopted in whole.

MOUNT v. TRAMMEL et al. (No. 9010.) (Supreme Court of Oklahoma. Sept. 10, 1918.)

(Syllabus by the Court.)

1. SHERIFFS AND CONSTABLES 97-LEVY OF ATTACHMENT-LIABILITY FOR DAMAGES.

county other than the one in which the action has been instituted, and the officer receiving said writ executes the same as provided by section 4819, Rev. Laws 1910, he is not liable in an ac

When a writ of attachment is issued to any

in the main action.

"Proceedings in error will be dismissed where, tion for damages based on the fact that the land at the expiration of the statutory period for the was subsequent to said levy sold by the owner to institution of proceedings in error, it appears sued the attachment order thereby lost his se an innocent purchaser, and the plaintiff who isfrom the record that intermediate to final judg-curity for the payment of the judgment obtained ment and the filing of proceedings in error in this court a party to the judgment sought to be reversed died, and no order of revivor of the judgment in her favor appears in the record." In St. Louis & S. F. R. Co. v. Nelson, 31 Okl. 51, 119 Pac. 625, it is held:

"A person obtained a judgment in the district court, and, after her death, a petition in error, making her the sole party defendant, was filed in this court, and her attorney of record in the district court accepted service of summons in error. Held, that the petition in error was a nullity for want of a party defendant in error; and that the appellate court acquired no jurisdiction by the acceptance of service of summons in error by the deceased party's attorney of record: and that the cause should be dismissed."

2. ATTACHMENT 170-SERVICE OF WRITRECORDING RETURN.

An officer serving a writ of attachment in a county other than the one in which it was issued is not required to have his return recorded in the office of the court clerk of the county where the land is situated that is attached, as in

case of an execution when issued to another is obtained.

county other than the one in which the judgment

1-NA

Additional Syllabus by Editorial Staff.) 3. ATTACHMENT 1-EXECUTION TURE AND PURPOSE OF REMEDIES. The writs of attachment and execution are essentially different; the former is issued for the purpose of seizing property and holding the same in order that, if a judgment should be obtained, the property thus seized will be forthcoming to satisfy said judgment, while the latter is a writ issued for the purpose of enforcing a judgment that has been obtained.

Commissioners' Opinion, Division No. 2. Error from District Court, Roger Mills County; T. P. Clay, Judge.

In the body of the opinion it is said: "The statute contemplates that where a proceeding in error is brought in this court, which may be accomplished by the filing of a petition in error and having summons issued, counsel of record for defendant in error in the trial court may be served, or may waive service of summons; but such action must be begun in this court, and that action cannot be begun without some person as defendant in error. An attorney cannot, by the acceptance of service or waiver thereof, enter the voluntary appearance of a person who was dead before the attempt to begin the action was made. Ritchey et al. v. Seeley, 68 Neb. 120 [93 N. W. 977] 94 N. W. 972 [97 N. W. 818]. The statutory period within which a proceeding in error must have in error.

Action by Finley P. Mount, receiver of the M. Rumely Company, against R. L. Trammel and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Swan C. Burnette, of Cordell, for plaintiff

DAVIS, C. This cause of action was begun in the district court of Roger Mills county, Okl., on the 26th day of June, 1915, by the plaintiff in error, hereinafter referred to as "plaintiff," against the defendants in error, hereinafter referred to as "defendants."

defendant R. L. Trammel and his bondsmen for the sum of $954, interest and cost. It is charged that R. L. Trammel was negligent in that he failed and neglected to have noted on the execution docket of the court clerk of Roger Mills county, Okl., the date that said attachment order was received, and also was negligent in not having his return on said attachment recorded in the office of the court clerk of Roger Mills county, Okl., so that notice might be imparted to all persons seeking to purchase said real estate that the plaintiff had a lien on said real estate by virtue of the attachment order that was levied on the same. The defendants filed a demurrer to the petition of the plaintiff on the 13th day of July, 1915. On the 11th day of December, 1916, the demurrer was heard and sustained. The plaintiff elected to stand on his petition and gave notice of appeal to the Supreme Court of this state. In due time an appeal was lodged in this court to have the action of the lower court reviewed and set aside.

The petition discloses that on the 28th day of February, 1913, M. Rumely Company brought its action against D. B. Gahan in the district court of Washita county, Okl., to recover a judgment in the sum of $660.15. When this action was begun, an attachment writ was issued out of the district court of Washita county, Okl., and sent to the sheriff of Roger Mills county, for the purpose of having certain real estate in that county attached. When the sheriff of Roger Mills county, Okl., received this writ of attachment, he executed the same as provided by law and returned the writ, together with an appraisement of the real estate, to the court clerk of Washita county, Okl. On the 28th day of March, 1913, the case of M. Rumely Company v. D. B. Gahan was heard in the district court of Washita county, Okl., and judgment was rendered in favor of plaintiff for the sum of $654 with interest thereon from the 28th day of March, 1913, at the rate of 8 per cent., together with an attorney's fee of $75, and a further judgment was rendered sustaining the attachment proceeding instituted by the plaintiff in said suit and ordering the sheriff of Roger Mills county to sell the real estate in Roger Mills county that had been attached under and by virtue of said order issued at the commencement of said action, by the court clerk of Washita county. On the 19th day of May, 1915, M. Rumely Company in pursuance of an order of United States court assigned the judgment obtained in said action against D. B. Gahan to Finley P. Mount, receiver of M. Rumely Company, a corporation. The defendant R. L. Trammel was the duly elected, qualified, and acting sheriff of Roger Mills county, Okl., at the time the writ of attach-like manner.” ment was issued by the court clerk of Washita county, and as such sheriff executed the writ on the 6th day of January, 1913. The defendants J. F. Cole, Woll Donald, and W. M. Brooks were sureties on the bond of R. L. Trammel.

After the judgment obtained by M. Rumely Company against D. B. Gahan was assigned to the plaintiff, Finley P. Mount, an order of sale was issued out of district court of Washita county, Okl., for the purpose of selling the real estate attached in Roger Mills county, Okl., in said action. When it was sought to sell the real estate thus attached it was discovered that the real estate in question had been sold subsequent to the attachment and prior to the date that the order of sale was issued by D. B. Gahan to an innocent purchaser. This suit was instituted for the purpose of securing a judgment against the

[1] There is but one question for determination in this case, and that is as to whether or not a writ of attachment, when issued in another county other than the one in which the suit is instituted should be served by the officer receiving the said writ in the same manner as an execution. We have not been favored with a brief in this case by the defendants, but notwithstanding this fact we have endeavored to make a thorough investigation to see whether or not there was any error on the part of the court in sustaining said demurrer.

Section 5183, R. L. 1910, is as follows:

"When an execution is issued to the sheriff of

any county other than that in which the judgment was rendered, the sheriff, after indorsing the date of its reception thereon, shall deliver the same to the clerk of the district court of his county, who shall thereupon enter the same in the execution docket in the same manner as if it had issued from the court of which he is clerk; and before the sheriff shall return any such writ, he shall cause his return to be entered in

Section 4816 provides:

"Orders of attachment may be issued to the sheriffs of different counties, and several of them may, at the option of the plaintiff, be issued at the same time, or in succession; but only such as have been executed shall be taxed in the costs, unless otherwise directed by the court."

Section 4819 reads:

"Execution of Order.-The order of attachment shall be executed by the sheriff, without delay. He shall go to the place where the dethat, by virtue of said order, he attaches said fendant's property may be found, and declare property at the suit of the plaintiff; and the officer, with two householders, who shall be first sworn or affirmed by the officer, shall make a erty attached, which shall be signed by the offitrue inventory and appraisement of all the propcer and householders, and returned with the order."

Section 5156 provides as follows:

"The officer to whom a writ of execution is delivered, shall proceed immediately to levy the

same upon the goods and chattels of the debtor; but if no goods and chattels can be found, the officer shall indorse on the writ of execution, 'No goods,' and forthwith levy the writ of execution upon the lands and tenements of the debtor, which may be liable to satisfy the judgment; and if any of the lands and tenements of the debtor which may be liable shall be incumbered by mortgage or any other lien or liens, such lands and tenements may be levied upon and appraised and sold, subject to such lien or liens, which shall be stated in the appraisement."

Section 5161 provides as follows:

99

to be a 'seizure,' and it is no less a seizure when made under an attachment than when made under an execution. The seizure is made in the same way under the one as under the other. The acts necessary to a valid levy of an attachment are equally essential to the valid levy of an execution (2 Freem. Ex'ns [2d Ed.] § 262), and the converse of the proposition is also true. The object of the attachment of personal property is to seize and hold it until judgment is rendered, so that it may be taken and sold under execution. The object of levying an execution upon personal property is to seize and sell it, so as to make out of it the amount recovered by the judgment."

"If execution be levied upon lands and tenements, the officer levying such execution shall call an inquest of three disinterested household[3] It will be seen from the foregoing opiners, who shall be resident within the county ion that the statute of Illinois provides that where the lands taken in execution are situate, an attachment shall be served in the same and administer to them an oath, impartially to The appraise the property so levied on, upon actual manner that an execution is served. view; and such householders shall forthwith re- opinion has no application to the case at bar turn to said officer, under their hands, an esti- for the reason that the sections of our statmate of the real value of said property.' ute heretofore set out provide the manner in which the execution shall be served and also the manner in which an attachment shall be served. The writs are essentially different. The attachment is issued for the purpose of seizing property and holding the same in order that, if a judgment should be obtained, the property thus seized will be forthcoming to satisfy said judgment. An execution is a writ issued for the purpose of enforcing a judgment that has been obtained.

[2] It is contended by the plaintiff in this case that, when an order of attachment is issued to any county other than the county in which the suit is instituted, it should be served in the same manner as an execution. In other words, it is contended that, on the receipt of the attachment by the sheriff of said county, he should have noted on the execution docket of the court clerk of said county the date that said attachment writ was received, and, when said writ had been executed, that he should then have noted on the execution docket of the court clerk of said county his return showing the manner in which said writ was executed; that all this should be done before the attachment writ is returned to the court from which it issued. To sustain this contention counsel for the plaintiff has cited only two cases. An examination of these two cases shows that neither one sustains such contention. The first case cited is Union National Bank v. Byram, reported in 131 Ill. 92, 22 N. E. 842. An examination of this case discloses that the question for determination before the court was the construction of the statute of Illinois in reference to the manner in which an execution should be served and whether or not a writ of attachment should be served in the same manner as an execution. That part of the case that pertains to this phase of the case is as follows:

The case of Still v. Focke et al., 66 Tex. 715, 2 S. W. 59, is cited by counsel for plaintiff to sustain his position. An examination of this case discloses that section 4829, Rev. Statutes of Texas, provides the manner in which an attachment writ shall be served when issued to any other county than the one in which the suit is instituted. It provides that the officer who receives said writ shall execute the same, and, before returning said writ to the court from which it issued, he shall fille a copy of his return in the court of the county in which the levy is made. This case is not authority for the position sought to be maintained for the reason that the statutes of Texas provide the particular manner in which to serve an attachment in cases like the one at bar. These are the only two cases cited by counsel to sustain his contention in this matter.

We have been unable to find any court that has followed the rule sought to be enforced "The objection that the statute provides no in this case. There is no contention but that mode of levying the writ of attachment will also the sheriff, R. L. Trammel, upon receipt of disappear upon a comparison of the attachment the attachment writ served the same as proact with the act in regard to judgments and exe-vided by the laws of this state, and we do

cutions. Section 26 of the attachment act pro

vides that 'the practice and pleadings in attach- not feel constrained to place a greater burment suits, except as otherwise provided in this den upon the officer who receives a writ than act, shall conform, as near as may be, to the the law itself places. In fact, when the statpractice and pleadings in other suits at law.' The word 'practice,' as here used, includes the ute provides the express manner in which a mode of serving mesne process and the mode of writ shall be served, if the officer complies executing final process. It refers to the manner literally with the law, we feel that he has in which an attachment writ is to be levied, and also to the manner in which a writ of fi. fa. or discharged his entire duty. an execution is to be levied. Fleischman v. Walker, 91 Ill. 318. The word 'levy' is applied judgment of the lower court should be afto attachment writs as well as to executions. firmned.

An attachment writ is levied upon personal

property in the same way in which an execution

We are therefore of the opinion that the

and further pleaded contributory negligence. CREEK COAL MINING CO. v. PAPROTTA. The plaintiff recovered judgment in the lower court for $2,250.

(No. 9023.) (Supreme Court of Oklahoma.. July 23, 1918. Rehearing Denied Sept. 24, 1918.)

(Syllabus by the Court.)

1. The first question presented for our consideration is the action of the court in overruling the motion of the defendant for a continuance upon the grounds of absence of ma

1. CONTINUANCE ✪~46(7) — ABSENCE OF WIT-terial testimony, which it alleged with due NESS AFFIDAVIT-SUFFICIENCY.

An affidavit for a continuance, grounded on the absence of a material witness, must set forth a statement of facts showing the probability of procuring the evidence of such absent witness; and where it fails to do so, and the trial court overrules the same, its action thereon will not be disturbed on appeal.

2. EVIDENCE 477(3) OPINION EVIDENCEPHYSICAL CONDITION.

It is not error to permit a nonexpert witness to express an opinion concerning the physical ability of an injured party to perform labor, where such opinion is based upon facts that are obvious, and does not call for the expression of an opinion arrived at by the process of reasoning and deduction.

diligence it had been unable to procure. The application for a continuance sets forth the institution of suit on the 23d day of March, 1915, and in its affidavit for a continuance the defendant alleges that one Allen Hayden was a material witness, and that the present whereabouts of the said Hayden is unknown. The application further sets forth that the defendant learned that Hayden was located in Oklahoma City, and that about the 1st day of December, 1915, it addressed a letter to said witness in Oklahoma City, which was returned; and that defendant afterwards learned that he was at Oilton, Okl., and addressed a letter to him at that place, which Where the trial court sustains an objection was also returned; and afterwards defendto a question, such ruling is not open to review ant learned that he was in Joplin, Mo., and by this court in the absence of a record showing addressed a letter to him there, which was the facts to which the witness would testify. returned; and the affidavit concluded by stat4. MASTER AND SERVANT 286(28)-INJURY ing that defendant does not know where the TO EMPLOYÉ-DEMURRER TO EVIDENCE. We have examined the evidence in this case, and are of the opinion the court committed no error in overruling the demurrer interposed

3. APPEAL AND Error 692(1)—RULINGS ON EVIDENCE-REVIEW.

thereto.

5. TRIAL 234(9)-INSTRUCTIONS.

Where improper evidence is received at the instigation of the complaining party, it is not error for the trial court in its instructions to eliminate the same from the consideration of the jury. 6. APPEAL AND ERROR ~1033(5) INSTRUCTIONS-HARMLESS ERROR.

Where the trial court gives erroneous instructions, which are favorable to the complaining party, he is not prejudiced thereby, and the case will not be reversed by reason thereof.

Commissioners' Opinion, Division No. 3. Error from District Court, Okmulgee County; Ernest B. Hughes, Judge.

Action by Gustave Paprotta against the Creek Coal Mining Company. Judgment for plaintiff, and defendant brings error. Affirmed.

present whereabouts of the witness is, but that it believes he may appear in the vicinity of Henryetta for the purpose of procuring

work from this defendant or from some of the other mining companies in the country. The case was tried in December, 1916, more than a year after the effort of the defendant to locate the witness, and there was nothing shown which indicated any probability whatever that the witness would be produced or located so his deposition might be taken.

[1] In an application for a continuance on the ground of the absence of a material witness, the showing must recite and set forth the location of the witness, or, if his location is unknown, then the showing must recite and set forth a sufficient state of facts that the court can conclude therefrom the probability of obtaining the testimony of an absent witness; and where the affidavit for a continuance fails to disclose such state of facts,

W. W. Witten and W. W. Wood, both of this court cannot say the trial court abused Okmulgee, for plaintiff in error. H. R. Chris- its discretion in overruling the same, and, untopher, of Henryetta, Fred M. Carter, of Ok-less it clearly appears that such is the case, mulgee and Malcolm E. Rosser, of Muskogee, the court will not interfere with the ruling for defendant in error.

of the lower court thereon. Walton v. Kennamer, 39 Okl. 629, 136 Pac. 584; Hutchings v. SPRINGER, C. This action was instituted Cobble, 30 Okl. 158, 120 Pac. 1013; Keen & in the district court of Okmulgee county by De Wade v. Fletcher, 31 Okl. 791, 123 Pac. the plaintiff to recover the sum of $15,000 842; Walker Bond & Co. v. Purifier, 32 Okl. for alleged personal injuries caused by the 844, 124 Pac. 322. negligent acts of the "timberman" in prying [2] 2. It is next claimed the trial court erred some stones from the roof of the room, or in permitting nonexpert witnesses testifying knocking some props from under the same for plaintiff to answer questions calling for where the plaintiff was at work, and which an expression of their opinion concerning the fell upon the plaintiff, and thereby produced physical condition and ability of plaintiff to the injuries of which complaint is made. For perform labor. The authorities are in haranswer the defendant filed a general denial mony on the question that, where the in