dollars shall be turned over to the first parties;, poration with its principal place of business and provided, however, that if second parties have a derrick completed in thirty days and begin drilling in forty days, the said one thousand ($1,000.00) dollars shall be turned back to the second parties and the derrick to be held by first parties in lieu of said one thousand ($1,000.00) dollars." For reasons that do not appear in this record, the well was not begun by the plaintiff and the derrick was not erected. The question then arose as to the disposition that should be made of the $1,000 that had been placed in the Oklahoma State Bank as a forfeit to secure the faithful performance of the contract on the part of Mr. Buzzard. There were considerable negotiations in reference to the money in controversy, and in the course of these negotiations the defendant Howell assumed an unfriendly attitude towards the plaintiff. Mr. Howell went to Cushing, Okl., and, without the knowledge or consent of the plaintiff, went through the pretense of authorizing the bank to turn over the money in question to the Jones Oil & Gas Company. Accordingly, on the 17th day of December, 1913, the Oklahoma State Bank turned over the $1,000, placed there in escrow by the plaintiff, to the Jones Oil & Gas Company. This action was instituted against the defendants to recover the said sum, on the grounds that the acts of said defendants in turning over said money to the Jones Oil & Gas Company constitute a conversion of said money and render the defendants liable therefor. There is no conflict as to the material points connected with this controversy. It is admitted that the money was placed in said bank in escrow by the plaintiff, and that Howell had no interest whatever in said money, and that this fact was well known to the bank; that Mr. Howell went to Cushing, Okl., and there had a conference with the officials of said bank, and as a result of this conference the bank turned over the $1,000 to the Jones Oil & Gas Company. The cause was tried to the court without the intervention of a jury, and, at the conclusion of the evidence, judgment was rendered in favor of the plaintiff and against the defendants. A motion for a new trial was duly filed and overruled. The defendants have prosecuted this appeal from the action of the court in overruling their motion for a new trial. [1, 4] The first assignment of error urged by the defendants for a reversal of the judgment in this case is that the district court of Garfield county, Okl., did not have jurisdiction over the person of the defendant Oklahoma State Bank of Cushing, Okl. Service was obtained on defendant Howell in Garfield county, Okl., and a summons was then issued to Payne county, Okl., and service had on the Oklahoma State Bank of Cushing, Okl. It is urged in support of this assignment of error that the bank was a cor in Payne county, Okl., and that as such corporation it was entitled to be sued in the county of its domicile; that the defendant Howell was not a necessary party to said action, but was made a party for the sole purpose of obtaining jurisdiction over the bank in the district court of Garfield county, Okl. The defendant Howell was rightfully made a party to this action for the reason that he joined in the scheme with the bank to turn over this money to the Jones Oil & Gas Company, and the record clearly discloses that the bank was using him for the express purpose of trying to shield itself from any liability to the plaintiff in this transaction. This is an action ex delicto, and the fact that Howell had no pecuniary interest in the $1,000 placed in the bank by plaintiff did not render him immune from an action for collusively joining with the bank in an effort to violate the rights of the plaintiff to the money wrongfully turned over to the Jones Oil & Gas Company. There was no error in overruling the motion of the bank challenging the Jurisdiction of the court over its person. [2] It is urged that the trial court committed error in permitting the plaintiff to introduce certain portions of a deposition at the trial without offering the entire deposition. It appears that the deposition of certain witnesses was taken at the town of Cushing, Okl., and that by agreement both plaintiff and defendants took the testimony of various witnesses. The plaintiff at the trial of this cause offered certain portions of this deposition without offering the entire deposition as evidence. The record discloses that an objection was made by the defendants at the trial to the action of the court in this matter, and when said objection was made it was expressly stated by the court that the plaintiff would be permitted to introduce such parts of the deposition as he desired, but that the defendants would be permitted to introduce any part of the deposition that they desired. The defendants did introduce the entire deposition of the witnesses and all of the evidence contained therein was before the court. We are unable to see that the defendants were prejudiced by the action of the court in this matter. The matter was tried to the court, and it is not pointed out by the defendants that the action of the court resulted in any prejudice to them. In the case of Watson v. Winston et al. (Tex. Civ. App.) 43 S. W. 852, this question was before the court for consideration, and the following rule is announced: "The defendant offered to read" a portion of said "answers of the witness. The plaintiffs objected that defendant could not read a portion of said answers without reading the entire deposition. The court sustained the objection, and required defendant to read the entire deposition if he read any. This was error. The defendant was entitled to read any admission contained in the deposition without being compelled to read questions to which an objection was made the whole deposition." In the case of Watson v. St. Paul City Ry. Co., 76 Minn. 358, 79 N. W. 308, this question was presented for consideration, and the court stated the rule as follows: "Parts only of the deposition were offered, and, as stated before, the second objection was placed on this ground. A party offering evidence taken by deposition is not bound to offer or to read the whole deposition. He may offer and read portions, subject to the right of the court to order that all be read at the same time." The party offering a deposition in evidence is not, as a rule, bound to offer or read the whole of it, but what is not read by him may be read by his adversary. Edgar v. McArn, 22 Ala. 796; Williams v. Kelsey, 6 Ga. 365; Van Horn v. Smith, 59 Iowa, 142, 12 N. W. 789; Morrison v. Wisconsin Odd Fellows' Mutual Life Ins. Co., 59 Wis. 162, 18 N. W. 13; Whitlatch v. Fidelity & Casualty Co., 21 App. Div. 124, 47 N. Y. Supp. 331. There was no error in the action of the court in permitting the plaintiff to offer portions of the depositions without offering the entire deposition, and the weight of authority holds that it would have been error for the trial court to have held otherwise. [3] At the trial of this cause the plaintiff was permitted to interpose objections to certain questions propounded to the witnesses in the deposition. No objection was interposed when the deposition was taken, and it is urged that the action of the court in thus permitting the plaintiff to object to questions in the deposition when none was interposed at the taking of said deposition. the plaintiff being present when the deposition was taken, constitutes error. It is conceded by counsel for the plaintiff that this action of the court was erroneous. Section 5091, Rev. Laws 1910, provides as follows: "Where the adverse party appears at the taking of the deposition, no objections to questions propounded therein shall be considered unless stated at the time and set forth in the deposition: Provided, that it may be otherwise stipu lated by the parties at the time of taking the deposition, and such stipulation set forth in the deposition and certified to by the officer taking the same." We have examined the questions to which the objection was interposed, and upon an examination it is disclosed that all of the and sustained were irrelevant, and an answer thereto could not have been material either to the plaintiff or defendants. They all pertained to matters that had no bearing upon the issues in the case, and could not have influenced the court in reaching his conclusion. Such a technical error as this does not warrant a reversal of this case, for the reason that we are convinced that the evidence rejected could not have changed the result reached by the court. Had the evidence thus rejected been material to a consideration of the issues involved, then a different question would be presented. In view of the rule that obtains in this jurisdiction, that the improper admission or rejection of evidence, if not prejudicial to the party complaining, is not ground for reversal, we are constrained to hold that the action of the court in this matter constitutes harmless error. City of Anadarko v. Argo, 35 Okl. 115, 128 Pac. 500; Mullen v. Thaxton, 24 Okl. 643, 104 Pac. 359; Frick v. Reynolds et al., 6 Okl. 638, 52 Pac. 391. The foregoing assignments of error constitute the only questions that need consideration. While there are numerous other assignments, yet they are all involved in the questions heretofore discussed. The action of the bank in this matter was unwarranted. The parties of the first part to this contract were interested to a considerable extent both in the Jones Oil & Gas Company and the Oklahoma State Bank, and the entire proceedings from the time that the first difference arose between the plaintiff and the oil company show an undue amount of zeal upon the part of the officers of the bank to transfer this $1,000 to the oil company. It was not a technical or inadvertent conversion upon the part of the defendants. But, on the other hand, the record discloses that the entire proceeding was a scheme upon the part of the defendants and the oil company to take advantage of the forfeiture clause in the contract and secure the benefit of the $1,000. This the law forbids them to do. Finding no error in the record, we recommend that the judgment be in all things affirmed. PER CURIAM. Adopted in whole. the approval and under rules and regulations provided by the Secretary of the Interior. The rules and regulations prescribed provide JONES v. WHITLOW, County Treasurer. (No. 8665.) (Supreme Court of Oklahoma. Oct. 22, 1918.) for the payment of the royalties to the Sec (Syllabus by the Court.) TAXATION 181-STATE TAXATION-DEED. Lands, theretofore taxable, purchased from their private owners, with royalties accruing to a full-blood Creek Indian from her restricted allotment, are not exempted from state taxation by a clause in the deed from the grantor making the lands inalienable without the consent of the Secretary of the Interior. retary for the use and benefit of the allottees; but there is nothing in the act which contemplates control of the property for which the fund is expended. That portion of the act imposing the restrictions necessary to be noticed here reads: "The status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes, shall, as regards restrictions on aliena Error from District Court, McIntosh Coun- tion or incumbrance, be as follows," etc. ty; R. W. Higgins, Judge. Action for injunction by Ella Jones against C. S. Whitlow, as County Treasurer of McIntosh County. From a judgment for defendant, sustaining a demurrer to the petition, plaintiff brings error. Affirmed. John W. Porter, of Muskogee, for plaintiff in error. E. I. O'Reilly, Co. Atty., of Eufaula, for defendant in error. It will be noticed the lands on which the restrictions are imposed are the lands allotted heretofore or hereafter to the allottees. No mention is made of lands purchased by or for the allottees. There is nothing in this language, or in any portion of the act, indicating any intention of Congress to empower the Secretary of the Interior to impose restrictions, or to hold in trust lands purchased for allottees with royalties accruing from their allotments. It is not sufficient to say that the royalties, while in the hands of the Secretary, are held as a trust fund and therefore nontaxable. In the case of U. S. Fidelity & Guaranty Co. v. Hansen, 36 Okl. 449, 129 Pac. 67, the contention was made that, as the United States held the land in trust for the allottee, the money received was impressed with the same trust character as the land, and that the guardian had no right to receive, as guardian, the money paid for the land. In disposing of the contention, in an opinion by Commissioner Rosser, it was said: 'It can hardly be contended that after the money had been paid to the grantor, or to his or her guardian, the trust continues. The Secretary permitted the money in this case to be paid to the guardian. This put an end to the trust in the legal sense.' OWEN, J. Ella Jones, a full-blood Creek Indian, brought this action, in the district court of McIntosh county, to enjoin the county treasurer from collecting taxes on certain described lands in that county. In her petition she alleges that she is a fullblood Creek Indian, and as such received an allotment of lands of the Creek Nation; that this land had been leased for oil purposes, from which certain royalties had been paid to the Secretary of the Interior for her use and benefit; that a portion of this money had been invested for her under the direction of the Secretary in lands theretofore taxable, and against which the treasurer was seeking to collect taxes for 1915; that the deed conveying this land to her contained a provision to the effect that such lands should be inalienable, except with the approval of the Secretary of the Interior, dur- In the case of McCurdy, Co. Treas. Osage ing the lifetime of such grantee, prior to Co., v. United States, 246 U. S. 263, 38 Sup. April 26, 1931; that such lands, purchased Ct. 289, 62 L. Ed. 706, a similar question was with the royalties received from her allot- before the Supreme Court of the United ment, were not taxable, for the reason that States. The question there was whether the her allotment was exempt from taxation, land purchased for a noncompetent Osage and the royalties received therefrom were a Indian with trust funds was exempt from trust fund held by the Secretary for her use state taxation by reason of a clause in the and benefit, and the lands purchased with deed identical with the clause under consuch funds were impressed with the trust sideration here. It was contended there, as relation, and therefore not taxable. She in this case, that as the land had been prayed for an injunction restraining the bought with trust funds for the Indian and treasurer from collecting the taxes. A demurrer was sustained to the petition, and from that judgment she appeals. The question necessary for determination is whether these lands, purchased with funds derived from oil royalties, are impressed with the same restrictions as to nontaxability as the restricted allotment from which the royalties were received. The act of Congress of May 27, 1908 (35 Stat. at L. 312, c. 199), provides for the leasing of these reEtricted lands for oil and gas purposes, with by deed made inalienable without the consent of the Secretary of the Interior, it was, while so held, an instrumentality lawfully employed by the government for the protection of the Indian, and as such exempt from taxation by the state. The act of Congress relating to the Osage Indians (Act April 18, 1912, c. 83, 37 Stat. 87) authorized the Secretary of the Interior, in his discretion, to pay to any Osage allottee, under rules and regulations prescribed by him, all or any part of the Osage trust funds held For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for the benefit of such allottee. The Secretary expended the money which was applied in payment for the allotment of land in the city of Pawhuska. In that case, in an opinion by Mr. Justice Brandeis, it was said: "There is nothing in the act or in the facts to which it applies that indicates a purpose to extend governmental control to property in which released funds may be invested. And there are, in both the act of 1906 and in that of 1912, provisions which show that Congress intended to restrict the tax exemption. By section 2 of the act of 1906 the surplus lands became taxable after three years, even if they remained inalienable. By section 7 of the act of 1912 both the lands and funds of the allottees or their heirs are protected against claims arising prior to competency, inheritance, or removal of restrictions; but it is expressly provided 'that nothing herein shall be construed so as to exempt any such property from liability for taxes.' After quoting the regulations prescribed by the Secretary, to the effect that the money is to be expended under the supervision of the Secretary of the Interior, it was said: "Like the act under which they are framed, these regulations contemplate supervision of the expenditure of money, not control of the property, if any, for which the money is expended. They tend to confirm the contention of the appellant that, after the money is paid out of the bank, it and property in which it may be invested are to be free from any restriction. * While an Indian is still a ward of the nation, there is power in Congress even to reimpose restrictions on property already freed (Brader v. James, 246 U. S. 88, 38 Sup. Ct. 285, 62 L. Ed. 591 * *); but Congress did not confer upon the Secretary of the Interior authority to exercise such power under the circumstances of this case, or to give to property purchased with the released funds immunity from state taxation." * Counsel for plaintiff in error rely upon the case of United States v. Thurston County, 143 Fed. 287, 74 C. C. A. 425, where attempt was made to tax the trust funds while in the hands of the government, and the case of United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. Ed. 532, where it was sought to tax property the legal title of which was in the United States, held in trust and for the benefit of the Indians. There is a clear distinction between the pres ent case and those cases. The judgment of the lower court is affirmed. All the Justices concur, except TURNER and BRETT, JJ., not participating. CORNELIUS v. SMITH. (No. 9312.) Supreme Court of Oklahoma. Oct. 22, 1918.) (Syllabus by the Court.) 1. ATTORNEY AND CLIENT 148(3)-ACTION FOR CONTINGENT FEES-MEASURE OF SKILL AND KNOWLEDGE. have been rendered did not require skill, diligence, or legal knowledge. Held, that the skill, ercised in a lawsuit should be measured in a diligence, and legal knowledge of counsel exlarge degree by the result of the litigation, and not by the number of pleadings filed, or their length, or the number of times counsel appeared in court, or the number of hours consumed in oral argument. 2. APPEAL AND ERROR 1004 (1)-EXCESSIVE VERDICT-ATTORNEY'S FEES-VACATION. A verdict rendered in such action should not be vacated on the ground that it is excessive, unless it clearly appears that the same is so excessive as per se to indicate passion or prejudice on the part of the jury. 3. ATTORNEY AND CLIENT 166(3)—AMOUNT OF FEES-EVIDENCE-NEW TRIAL. A consideration of the entire record in this case does not support the contention that the judgment appealed from is so excessive as to require this court to vacate the same and to order a new trial. (Additional Syllabus by Editorial Staff.) 4. ATTORNEY AND CLIENT 166(3)-ACTION FOR FEES EVIDENCE. In action under oral contract making attorney's fees contingent on successful litigation, evidence of an order of revivor made by plaintiff on death of a party not represented by him was competent on the issue as to the character of his services. 5. ATTORNEY AND CLIENT 166(3)—ACTION FOR FEES-EVIDENCE. In attorney's action under an oral contract for fees contingent on successful litigation, testimony showing the interest of third parties and their receipt of part of amount paid to client for a lease was admissible to show how much client realized for the lease. Commissioners' Opinion, Division No. 2. Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by J. T. Smith against Ira E. Cornelius. Judgment for plaintiff, and defendant brings error. Affirmed. McDougal, Lytle, Allen & Hodges and Smith & Walker, all of Sapulpa, for plaintiff in error. J. T. Smith, of Sapulpa, for defendant in error. GALBRAITH, C. This is an appeal from the judgment of the trial court, rendered upon the verdict of a jury returned in an action to recover an attorney's fee based on an oral contract of employment. Smith, as plaintiff in the lower court, alleged that in September, 1913, the plaintiff in error, Cornelius, was made defendant in a suit pending in the district court of Creek county, involving the title and oil and gas lease covering the allotment of Susie Crow, a deceased Creek Indian, whose allotment was located in the north end of the Cushing oil fields. This allotment embraced two tracts of 80 acres each. Cornelius held an oil and gas lease on the allotment that had been executed to him by Molly Tiger and Baby Cumsey, who claimed to be the sole heirs of the deceased allottee. The legality of this lease was one of the issues involved in that suit. Where, in an action to recover attorney's fees under an oral contract of employment stipulating that the amount of such fee should be contingent upon the success of the litigation, | one ground of defense was based upon the contention that there was no consideration for such Smith in his petition alleged that he was contract, inasmuch as the services claimed to a regularly admitted attorney at law prac ticing at Sapulpa, engaged in the active of the jury, and therefore should be set practice of his profession, and that after Cornelius was made a party to said suit he came and employed Smith to represent him therein, and agreed orally to pay him a nominal fee in the event that the litigation, or other litigations involving the lease which might be brought, was lost, or in the event that the premises were condemned in the meantime for oil and gas mining purposes, and in the event that his interest in the premises was established, or if the matter was compromised, he was to pay Smith a liberal fee, based on the amount Cornelius should obtain thereby; that under said agreement of employment he appeared in said case as Cornelius' attorney, and filed an answer for him, and appeared for him, and looked after his interest in the litigation for a period extending over something like a year; that in September, 1914, Cornelius. disposed of his lease on 80 acres of said land for the sum of $20,000; that later he disposed of his interest in the other 80 acres for the sum of $37,500; that a reasonable fee for the services rendered in said litigation under the terms of said contract would be $10,000, for which amount judgment was prayed. Cornelius answered, denying specifically that he entered into the contract as set out in the petition, but admitted that he employed Smith to file an answer for him, but alleged that he had other attorneys regularly employed to represent him, but that these attorneys were personally interested in this suit, and for that reason did not care to appear for him, but agreed to prepare the pleadings and advise as to his interests, but suggested that Smith be employed to appear in court for him; that his regular counsel prepared the answer, and he delivered it to Smith, and asked him how much he was going to charge to appear for him and represent him under the directions of his general counsel, and that Smith said he would only charge a small fee, and in no event to exceed $250; that with this understanding he delivered the answer to Smith and directed him to file it; that Smith rendered very little service in the case, and that $100 would be ample compensation for the services rendered, and tendered that amount in the court in satisfaction of his claim. aside. This proposition is argued at length in the brief. The character of the services rendered by Smith in the action are belittled. and it is contended that, viewed in any light, with calm deliberation, they could not possibly be found to be worth the amount of the judgment; that the trial court who saw the witnesses and heard them testify found that the verdict was excessive in the sum of $145, and that such finding necessarily involved the finding that the same was the result of prejudice and passion on the part of the jury, and that, if it was, the vice extended to the entire verdict, and could not be cured by a remittitur, but the verdict should have been vacated and a new trial ordered. It is not clear on what ground the court found the verdict to be excessive, and just how he determined the amount that should be remitted. This court has adopted the rule relative to excessive verdicts that they should be vacated on this ground "only when it appears that the verdict is so excessive as per se to indicate passion or prejudice." St. Louis & S. F. Ry. Co. v. Hodge, 53 Okl. 427, 157 Pac. 60. In the instant case the employment was admitted. What were the terms of the contract of employment was the leading issue in the case. If the terms were as Smith contended, then the value of the services rendered was another issue to be determined by the jury. These were issues of fact that were submitted to the jury fully and fairly by the court in a series of instructions which were not excepted to by either party. The jury by its verdict found that the terms of the contract of employment were as alleged by Smith, and the verdict also fixed the reasonable value of the services rendered. There is nothing upon the face of the verdict or upon the record to justify the conclusion that the verdict was the result of passion or prejudice on the part of the jury. On the contrary, the evidence abundantly supported the verdict and judgment. [4, 5] Again, it is argued that the court erred in the admission of certain evidence: (1) In admitting an order of revivor made in the case upon the death of Wallace Jack, one of the parties to the suit. It appears that this order was prepared by Smith, and was The case was tried to the court and a that in doing this he was acting in the interentered upon his request to the court, and jury, and a verdict returned against Corne-est of his client, Cornelius. Although Smith lius and in favor of Smith for $2,145. On did not appear for Wallace Jack, he being the hearing of the motion for a new trial the court found the verdict to be excessive in the sum of $145, and required the plaintiff to remit that amount, and on his doing so a new trial was denied, and the verdict approved for $2,000, and judgment entered for that sum. To review this judgment, Cornelius has appealed to this court. [1, 2] It is contended (1) that the judgment for $2,000 is excessive, and is so excessive that it is apparent that the same was the represented by another attorney in the case. This evidence was competent upon the issue Smith, which was one of the material issues as to the character of the service rendered by in the case. (2) It is complained that testimony was admitted showing the interest of McDougal & Lytle in the suit, and that they received a portion of the $20,000 paid to Cornelius for the lease on the land. testimony was admitted for the purpose of This |