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matter of setting aside confirmation and ordering a resale of said above described lands. You will govern yourself accordingly. "E. M. Washington,

"Court Clerk of Hughes County, Okla." The foregoing notice was personally served on defendant by the sheriff of Okfuskee

county, Okl., on the 24th day of July, 1915. [1] Did the foregoing notice meet the requirements of section 6388, R. L. 1910? We think that it did. The foregoing provision

is silent as to the form of notice. It does not even specify that it shall be in writing; does not specify by whom it shall be served; does not state by whom it shall be signed.

Yet we are asked to hold insufficient a no

tice that meets every requirement that is necessary to bring to the knowledge of the defendant the proceedings that are to be taken in the matter of the sale of the land purchased by him. The land, the place, the hour, the nature of the proceedings, are all distinctly set out in this notice, and the authenticity of the notice is made evident by the seal of the court clerk who has charge of the records of the case. It was served by the sheriff of defendant's own county. To say that this notice did not meet the purpose and fulfill the object of the provisions of section 6388, R. L. 1910, is too absurd to need argument to sustain it. The evident purpose of this section was to prevent an undue advantage being taken of a purchaser at a guardian's sale, and give him an opportunity to be heard before any action is taken for the purpose of fixing liability on him for his delinquency in refusing to comply with his bid. When this purpose has been subserved, the object and purpose of the statute has been complied with.

Defendant ignored this notice completely, when called upon to make good the deficiency resulting from his failure to keep his contract. The insufficiency of this notice is that it was not signed by the guardian. Such requirement is not made by the statute, and to hold that the validity of this notice is made dependent upon the signature of the guardian is to read something into the statute that the Legislature in its wisdom did not see fit to incorporate therein. If defendant had any valid reasons to urge why the sale should not be vacated, and a resale ordered, it was his duty to present them to the probate court and there have their validity passed upon.

In the case of Alexander et al. v. Brown, 1 Pet. 683, 7 L. Ed. 680, the question of the sufficiency of a notice was before the Supreme Court of the United States for consideration. It involved the construction of a Virginia statute. The particular statute under consideration provided that, when goods and chattels had been levied on under and by virtue of an execution to satisfy a judgment, the owner of the goods and chattels thus levied upon might execute a forthcoming bond, with good and sufficient sureties, to

the day appointed for sale; that, if said goods and chattels were not forthcoming on the day appointed for sale, it was the duty of the sheriff to return the execution to the clerk of the court from which it issued. It was further provided that upon 10 days' notice to the sureties on the forthcoming bond, and motion of the party to whom the judgment was payable, an execution might issue against the principal and sureties on the forthcoming bond for the amount of the Judg ment. The provision provided for notice, just as section 6388, R. L. 1910, provides, Without prescribing the form or manner of service. The Supreme Court, speaking through Marshall, C. J., as to the requisites of this notice, stated the following rule: "The act of assembly prescribes that the forthcoming bond shall recite the material parts of the execution on which it is taken, but gives no other direction respecting the notice than that it shall be served ten days before the motion. Its sole purpose is to inform the party that the motion is to be made, thereby enabling him to show that the money has been paid, or that for any other reasons execution ought not to be awarded. If it gives him the information which enables him to do this, it effects all the substantial purposes of justice. A false recital of the execution would be fatal, because it might mislead the obligor; but in this case the execution was against William B. Alexander, though the case in which the motion was to be made, not against him alone. He could not mistake because it is admitted that this was the execu tion on which the bond was taken, and the only execution in which the said William B. Alexrendered, an execution issued thereon and levied, ander was a party. After judgment has been the property restored to the debtor, on his bond to produce it on the day of sale, and his failure to do so, we do not think that nice and techniof substantial justice is effected, ought to be cal objections to the notice, where every purpose favored. The law only requires notice, and where the notice is sufficiently explicit, to render mistake impossible, we think it justifies the

award of execution."

The reasoning in the foregoing case is peculiarly applicable to the facts in the instant case. Was the notice to defendant sufficiently explicit to render mistake impossible? We think it was. There is no pretense here that defendant was misled by the notice, or that it did not impart to him every fact essential to make known the purpose of the court to act on the motion to vacate the order confirming the sale.

[2] There remains but one other question to be considered. The trial court excluded all the testimony offered by defendant to substantiate his defense, on the theory that the guardian made representations at the sale that he would pay all back taxes on the land and would remove from the records a certain tax deed from A. Thomas, county treasurer, to R. G. Davenport, on said land, and the special warranty deed from R. G. Davenport to R. J. Burrows.

This testimony was held incompetent for two reasons: First, that the guardian had no authority to make any such agreement; second, that if any of these representations

that it was the duty of the purchaser to | M. Wilson and others. From orders on appresent this matter to the county judge before the sale was confirmed.

The evidence offered in support of this defense was properly excluded, for the reason that the rule of caveat emptor applies to the instant case, and for that reason alone the

evidence was not admissible as a defense. Estate of Toady Standwaite (No. 8753) 175 Pac. 542, not yet officially reported; King v. Gunnison, 5 Pa. St. 171; Lewark v. Carter, 117 Ind. 206, 20 N. E. 119, 3 L. R. A. 440, 10 Am. St. Rep. 40; Stonerook v. Wisner, L. R. A. 1915E, 834, note.

plication to withdraw a motion to dismiss and to correct it, etc., defendants, other than D. M. Wilson, bring error. Dismissed.

W. F. Harn and Everest, Vaught & Brewer, all of Oklahoma City, for plaintiffs in error. Wilson, Tomerlin & Buckholts, of Oklahoma City, for defendants in error.

DAVIS, C. This action was begun in the district court of Oklahoma county, October 31, 1914, by L. E. Patterson, against plaintiffs in error and D. M. Wilson. The action was based on a judgment rendered in favor This disposes of the only questions present- of Patterson on March 6, 1914, against the ed for consideration. It therefore follows Oklahoma City Land & Development Comthat, for the reasons set out herein, the judg-pany, J. F. Winans, and W. F. Harn, jointly, ment of the lower court should be set aside, and the cause remanded to the district court of Okfuskee county, Okl., with directions to set aside the judgment entered in favor of the defendant, and enter judgment in favor of the plaintiff for the amount sued for.

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in case No. 2514 in the superior court of Oklahoma county, and sought to inforce an execution and sale of certain real property. On the 20th day of March, 1915, there was entered an order by the district court of Oklahoma county sustaining a demurrer to the petition filed by Mr. Patterson, and leave was granted to Mr. Patterson, plaintiff, to amend said petition within ten days after the entry of said order sustaining the same. The plaintiff did not file any amended petition until the 30th day of April, 1915. On the 14th day of August, 1916, L. E. Pat

(Supreme Court of Oklahoma. Oct. 29, 1918.) terson made an assignment of his interest in

(Syllabus by the Court.)

1. APPEAL AND ERROR 68-INTERMEDIATE OR INTERLOCUTORY ORDERS.

An appeal does not lie to this court from an intermediate or interlocutory order made during the pendency of an action, which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits, unless the appeal sought to be taken comes within some one of the special orders from which an appeal is authorized by statute prior to final judgment in the main action.

2. APPEAL AND ERROR 93—“FINAL ORDER" -STATUTE

A "final order" is one ending the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to determine the rights of the parties.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Final Order.]

3. APPEAL AND ERROR 93 – ORDERS APPEALABLE-FINAL ORDERS-STATUTE.

Orders complained of in the instant case examined and held not to be "final orders" as defined by section 5237, Rev. Laws 1910, from which an appeal lies.

(Additional Syllabus by Editorial Staff.) 4. DISMISSAL AND NONSUIT 37-MOTIONPAYMENT OF COSTS.

Before a motion by plaintiff to dismiss the cause can become effective, it is necessary that all costs accumulated up to the time of the filing of the motion must be paid.

Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by L. E. Patterson and the Interstate Building & Loan Company, substituted as plaintiff for L. E. Patterson, against D.

the judgment which he was seeking to enforce in this action to the Interstate Building & Loan Company. On the 16th day of August, 1916, there was a motion filed by the attorneys for L. E. Patterson, plaintiff, to dismiss said cause with prejudice. It seems from the record and finding of the court that it was the intention of the attorneys for L. E. Patterson to enter a dismissal without prejudice to his further action, but that inadvertently said motion so

filed stated that said cause was dismissed with prejudice. Subsequent to this action, there was a suit commenced by the Interstate Building & Loan Company for the purpose of enforcing the judgment that had been assigned to it by Mr. Patterson against the plaintiffs in error in this case. In December, 1916, it was discovered by the attorneys for L. E. Patterson that the motion of dismissal provided that said cause should be dismissed with prejudice to any other action against defendants. Upon discovery that an error had been made in preparing said motion, an application was filed in said court requesting that plaintiff L. E. Patterson be permitted to withdraw said motion and correct the same so that it might speak the real intent of the plaintiff in said matter. A hearing was had on this application, and at the conclusion thereof the court made the following orders, which may be summarized as follows:

(1) That the amended petition that was filed after a demurrer was sustained to the

original petition, and which was apparently formly held by this court that, before a mofiled without leave of the court on the 30th day of April, 1915, after the expiration of ten days allowed in which to file an amended petition, was filed by and with the consent of counsel for the adverse parties.

(2) The court further found that the motion filed on the 16th day of August, 1916, by L. E. Patterson, plaintiff, to dismiss said cause with prejudice, never became a final order for the reason that at the time said motion was filed there was due certain cost in said action, and by reason of said cost not having been paid that the motion did not operate as a dismissal of said cause.

(3) The court further found that the amended petition filed on the 30th day of April by Ledbetter, Stuart & Bell, attorneys for plaintiff, was not signed by said firm at the time it was filed in said cause, and an order was entered permitting said attorneys to sign their names to said petition as of the date that it was actually filed in said cause. (4) There was a further order entered by the court permitting the Interstate Building & Loan Company, a corporation, to be substituted as party plaintiff in lieu of L. E. Patterson, and accompanied by an order making F. O. Williams a party defendant, and giving to the substituted plaintiff five days within which to file an amended petition.

tion to dismiss a cause can become effective, it is necessary that all costs accumulated up to the time of filing said motion must be paid. This being true, the motion filed by L. E. Patterson to dismiss said cause had no force and effect. Harjo v. Black, 49 Okl. 566, 153 Pac. 1137; State ex rel. v. Pitchford, 171 Pac. 448.

[2, 3] As the cause was pending on March 10, 1917, the orders entered by the district court of Oklahoma county in this matter were interlocutory orders and not subject to review by an appeal therefrom until a final determination of the main action. No one of the orders made by the district court of Oklahoma county determines any question that affects the substantial rights of any one of the defendants herein. Neither is any one of the orders a final judgment. A "final judgment" has been determined to be one ending a particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to determine the rights of the parties. If such orders as were entered in this case were appealable to this court for review before final judgment, there would never be any end of litigation. It would furnish a method and means by which litigation could be carried on ad infinitum. Public policy requires that there should be an end to litigation at some time, and for that reason our statute has wisely provided a salutary rule which does not permit an appeal to this court from an interlocutory order or ruling made by the trial court during the trial of a cause unless specially authorized. All the rulings complained of in this matter could have been excepted to, and, when a final disposition was made of said cause, and a final order, judg

[1] The plaintiffs in error, defendants be low, have prosecuted an appeal to this court by a petition in error to have the foregoing orders reviewed. A motion has been filed in this court to have said appeal dismissed for the reason that the orders thus entered by the trial judge were not final orders, and that his action thereon is not appealable to this court for review until a final determi-ment, and decree entered therein, determining nation has been made of the main action.

Section 5237, R. L. 1910, defines a "final order" as follows:

"An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article."

the respective rights of the parties to this controversy, have been reviewed by incorporating the same in an appeal by petition in error to this court. McMaster v. Bank et al., 13 Okl. 326, 73 Pac. 946; McCulloch v. Dodge, 8 Kan. 476; Flint v. Noyes, 27 Kan. 351; Short v. Nooner, 16 Kan. 220.

'We are therefore of the opinion that the appeal is without merit and should be dismissed, and therefore recommend that the same be done.

PER CURIAM. Adopted in whole.

HUNTER v. STATE ex rel. THOMPSON. (No. 9792.) (Supreme Court of Oklahoma. Sept. 17, 1918. Rehearing Denied Nov. 26, 1918.)

[4] The undisputed evidence shows that at the time the motion was filed on the 16th day of August, 1916, to dismiss the cause of action of L. E. Patterson against defendants, there was due a considerable amount of costs; that this bill of costs was not paid when an application was filed by L. E. Patterson to be permitted to withdraw said motion and correct the same so that it might speak the real intent of the parties. This being true, the cause was pending in the district court of Oklahoma county from the time that the first petition was filed until the Where it appears, in an action between two proceedings were had on said application on claimants to the office of town treasurer over the 10th day of March, 1917. It has been uni- | the custody of the funds, records, and parapher

(Syllabus by the Court.)

781(5)—INEFFECTUAL

APPEAL AND ERROR
DETERMINATION-DISMISSAL.

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RAINEY, J. This is a mandamus proceeding, instituted in the district court of Tillman county, Okl., by Floyd M. Thompson, defendant in error, against C. M. Hunter, plaintiff in error, to require the plaintiff in error to surrender possession of and deliver to the defendant in error the books, records, funds, and paraphernalia of the office of town treasurer of the town of Grandfield. A peremptory writ was issued by the district court, and from said judgment the plaintiff in error has appealed to this court.

has been duly approved, and also having on file
his oath of office in due form of law, and is now
being recognized as the lawful treasurer of said
town by the board of trustees thereof.
"Wherefore the defendant in error prays the
court that the appeal herein be dismissed."

There is attached to the motion a certified

copy of the resignation, and the proceedings of the board of trustees accepting the same. In response to the motion to dismiss it is urged that the resignation filed by Mr. Hunter has been withdrawn, and that he desires

to proceed with the case. In support of the allegations in the response there is attached thereto Mr. Hunter's affidavit, in which he states that his letter of resignation was written after he had been informed that he would be assigned to overseas duty within a short time, that soon thereafter, having learned that he would remain at Ft. Sill, he had written a letter withdrawing his resig nation, and that he desired to continue in said office until the expiration of the term for which he was elected. In the reply to the answer to the motion to dismiss the appeal it is shown that on the 15th day of July, 1918, the board of trustees in regular session accepted Mr. Hunter's resignation, at which time they had not received any letter that such letter had never been presented to from him withdrawing his resignation, and them. The resignation having been filed and accepted before the board of trustees was advised of its attempted withdrawal, Mr. Hunter is no longer treasurer of said town, and therefore not entitled to the custody of the funds, records, and paraphernalia of the of

It appears that the said C. M. Hunter was the duly elected treasurer of said town, but on account of his absence from the town, due to his enlisting in the military service of the United States, the board of trustees of said town declared his office vacant and appointed Floyd M. Thompson as treasurer for the unexpired term. At the time of the trial, and when the case was submitted at the June term of this court, Mr. Hunter was loFor the reasons stated, the motion, to discated at Ft. Sill, Okl. After the cause was submitted, and on, to wit, July 29, 1918, de-miss the appeal is sustained. All the Jus fendant in error filed the following motion to dismiss the appeal:

"Comes now the above-named defendant in error and moves the court to dismiss the appeal

of plaintiff in error herein for the following good

and lawful reasons, to wit:

"(1) Because the plaintiff in error is no longer town treasurer of the town of Grandfield, Okl.; that said C. M. Hunter did, on the 13th day of July; 1918, tender his resignation as treasurer of the town of Grandfield, Okl., and ordered any suits to be withdrawn which were instituted in his behalf, and also ordered the First National Bank of Grandfield, Okl., to turn over to his regularly and lawfully appointed successor any and all funds to his credit as such treasurer, and further requesting that his accounts be audited, which said resignation was, on the 15th day of July, 1918, duly presented to the board of trustees of said town in regular session assembled, and by them accepted. A true and correct certified copy of the minutes of the said board of trustees of said meeting or session of July 15, 1918, showing said resignation and the action of said board thereon, is hereto attached, marked for identification Exhibit A, and made a part hereof.

(2) That since said resignation, and the acceptance thereof, all questions raised by said appeal have become moot.

"(3) That defendant in error is now the duly appointed and qualified treasurer of said town, having on file good and sufficient bond, which

fice.

tices concur.

FARWELL v. WILCOX. (No. 9131.) (Supreme Court of Oklahoma. Oct. 22, 1918.)

(Syllabus by the Court.j

1. PARTNERSHIP 105-WRONGFUL DISSO-
LUTION-ASSUMPSIT FOR DAMAGES.
Where a partner breaks the covenants of a
partnership and thereby wrongfully by force
and fear, causes its dissolution, the other may
maintain an action of assumpsit against him
for the damages resulting.
2. PARTNERSHIP 1221-WRONGFUL DIS-
SOLUTION-MEASURE OF DAMAGES.

The damages in such cases are the profits which would have accrued to the plaintiff from a continuation of the partnership business and which was a loss to him by the unauthorized dissolution.

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Farwell. Judgment for plaintiff, and de- other on a cause of action arising from partfendant brings error. Affirmed.

W. A. Briggs, of Oklahoma City, for plaintiff in error.

Adams & Smith, of Taloga, for defendant

in error.

HOOKER, C. Wilcox sued Farwell to recover damages alleged to have been caused to him by Farwell ousting him by force and fear from a partnership which he contends they had made and operated in Dewey county from August, 1915, to April, 1916. Wilcox contends that one M. owned certain property in the city of Seiling and also a Ford agency which he wanted to sell for the sum of $3,000, and that he wanted to buy it, but did not have the money, so he (Wilcox) interested Farwell in the deal, and Farwell refused to pay over $2,500 for same, and in order to consummate the transaction he paid to M. $500 and Farwell paid to him $2,500, and the deed was made to Farwell to the property and the Ford agency was taken in the name of Farwell, and he and Farwell operated the business as a partnership, agreeing to share equally in the business until his part of the profits was sufficient to pay to Farwell the entire sum of money advanced by him for the real estate and for the business in the purchase of cars, and then the real estate was to be conveyed to him and the Ford agency assigned to him; that about April 1, 1916, Farwell forcibly ousted him from the business and threatened to do him personal violence if he attempted to enter the place of business again, and this, notwithstanding the partnership had made large profits on the sale of cars and accessories, etc., which amounted to about $10,000, one-half of which he claims was his and all of which Farwell had appropriated to his own use, and, if the same had been applied as contemplated, the money due by him to Farwell would have been repaid and the real estate should have been conveyed to him and the Ford agency transferred to him; and that when Farwell forced him out of the partnership he was thereby damaged to the extent of his profits.

Farwell asserts that Wilcox was to furnish certain sums of money to be used in this enterprise by a certain time, and that he was not to have that interest unless he paid the money, and that Wilcox failed to procure the money, although the time was extended for him frequently, and, when he ascertained that Wilcox could not make the payment, he forfeited his right to participate in the business.

These theories were submitted to the jury under proper instructions, and a verdict was returned for the defendant in error, and the plaintiff in error has appealed here and urges several reasons why the judgment of the lower court should be reversed:

nership transactions, there must be an accounting and dissolution and the partnership affairs must be settled so it may be ascertained if any sum be due to the partners after its debts are paid.

(2) That the transactions involved here were oral and within the statute of frauds. (3) That instruction No. 5 was wrong. [1, 2] The Supreme Court of the United States, in Karrick v. Hannaman, 168 U. S. 328, 18 Sup. Ct. 135, 42 L. Ed. 484, said:

"A partner who assumes to dissolve the partnership, before the end of the term agreed on tion at law against him by his copartner for in the partnership articles, is liable, in an acthe breach of the agreement, to respond in damages for the value of, the profits which the plaintiff would otherwise have received."

And in Bagley v. Smith, 10 N. Y. 489, 61 Am. Dec. 756, the court held:

against another for a breach of the copartner"One partner may maintain an action at law ship articles in dissolving before the period therein limited."

And in Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415, Masterton v. Brooklyn, 7 Hill (N. Y.) 61, 42 Am. Dec. 38, Savery v. Ingersoll, 46 Hun (N. Y.) 179, and Wakeman v. Wheeler, 101 N. Y. 205, 4 N. E. 264, 54 Am. Rep. 676, the rule is announced that the damages in such cases are the profits which would have accrued to the plaintiff from a continuation of the partnership business and which are lost by the unauthorized dissolution.

And in 20 R. C. L. 928, it is said:

As has already been seen when a partner breaks the covenants of a partnership and thereby wrongfully causes its dissolution, the other him for the damages resulting. may maintain an action, of assumpsit against Most authorities agree that the damages recoverable by one partner for his copartner's wrongful acts in disprofits for the residue of the term fixed by the solving the copartnership include anticipated articles, and that a partner wrongfully excluded from the business is entitled to his share of the profits on the completion of the venture."

And in 30 Cyc. 466, it is said:

"In this country it (meaning an action) will the firm or for the wrongful dissolution of the lie also for the wrongful ouster of a party from firm before the expiration of the agreed term of its existence."

Newsom v. Pitman, 98 Ala. 526, 12 South. 412; Hunter v. Land, 81 Pa. 296; Dunham v. Gillis, 8 Mass. 462; Ross v. Henderson, 77 N. C. 170; McCollum v. Carlucci, 206 Pa. 312, 55 Atl. 979, 98 Am. St. Rep. 780; Karrick v. Hannaman, supra-support the text quoted.

And in Webster v. Beau, 77 Wash. 444, 137 Pac. 1013, 51 L. R. A. (N. S.) 84, it is stated:

"In most of the cases upon breach of a partnership contract, the breach is the exclusion of the wronged partner from the business, or the refusal to go with him in business. The measure of his damages in such case is his loss by the breach, which, apart from the question of misappropriation of contributed property, etc., is the amount of profits which he would have made, had the contract been carried out accord

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