MAYO et al. v. OVERSTREET et al. (No. 13236.) (Supreme Court of Oklahoma. May 7, 1924. (Syllabus by the Court.) 1. Guardian and ward 163-Approval and settlement by county court of annual account of guardian not conclusive upon ward. surety, the Southwestern Surety Insurance Company, against Nora May Overstreet and another. From the judgment rendered, the former appeals. Remanded, with instruc tions. E. C. Stanard, C. H. Ennis, and M. L. Hankins, all of Shawnee, for plaintiff in error. Hatchett & Semple, of Durant, for defendants in error. "The approval and settlement by the county court of an annual account of a guardian is LYDICK, J. In this case, J. J. Mayo was not final and conclusive upon the ward. Such guardian of the estates of Nora May Overapproval and settlement of an annual account street and Daisy Lillie Overstreet, minors, by the county court is only prima facie evi- who were the daughters of the wife of J. J. dence of its correctness, and such account is Mayo by a former marriage. The guardiansubject to re-examination upon the hearing of ship was a joint one, and the matter was the final account by such guardian." In re Cobb's Estate, 66 Okl. 53, 166 Pac. 885. pending in the county court of Bryan county, Okl. The guardian had given his bond 2. Evidence 584(1)—"Prima facie evidence" in said proceedings, as by law required, defined. and the Southwestern Surety Insurance Com"Prima facie evidence of a fact is such ev-pany, a corporation, was the surety upon his idence as in the judgment of the law is suffi- bond. The guardian absconded and, upon the cient to establish the fact, and, if not rebutted, order of the court for the guardian to apremains sufficient for that purpose." Hamilton v. Blakeney, 65 Okl. 154, 165 Pac. 141. pear and make final report, the said surety [Ed. Note.-For other definitions, see Words company upon his bond appeared and made and Phrases, First and Second Series, Prima the reports for and on his behalf. Facie Evidence.] wards appeared and filed objections to the reports. A hearing was had in the county court and judgment rendered, settling said accounts and adjudging the guardian to be 3. Appeal and error 768-Contention of appellant may be sustained where appellee's brief incomplete. When the plaintiff in error asserts in his brief that there is in the record no evidence to support a finding of fact made by the lower court and there sets out the substance of evidence which on its face is sufficient to show such finding of fact to be erroneous and cites the pages in the record where such evidence appears, and the defendant in error in his brief fails to set out any evidence or the substance thereof sufficient to support such finding of fact or to advise the court where such evidence may be found in the record, this court will not search a voluminous record to find evidence to support such finding of fact, but will sustain the contention of the plaintiff in error in that regard. 4. Guardian and ward 141-Guardian held without right to deny wards' title to funds of mother recovery of which barred. From the sale of an estate the mother of two minor children received money belonging to her, but which, by her mistaken opinion of the law, she thought belonged to the said children, and, so believing, paid same over to their guardian and the guardian so received and inventoried, and reported it to the county court as the estate of his wards. On his final accounting in such county court, the mother asserted no claim to such money and any claim which she could make was barred by the statute of limitations. The guardian had no right to deny the title of his wards to said funds. Appeal from District Court, Bryan County; Geo. S. March, Judge. Proceedings between J. J. Mayo, guardian The indebted to the minors in the sums therein specified. The said surety company for itself and on behalf of its principal, the guardian, appealed to the district court of Bryan county, where a trial de novo was had and judgment rendered by the district court, again settling said accounts and finding the guardian to be indebted to each of his wards in sums specified in said judgment. The case is brought here on appeal by petition in error with case made attached. The plaintiffs in error assign 25 specifications of error, but in their last analysis they really raise but one question, and that is, that the judgment of the lower court is not sustained by the evidence when applied in accordance with the law. The guardian had charge of these estates in his official capacity for a number of years before he absconded and during that time had made many reports in form and manner required by law and which reports the county court had duly examined and approved. In the trial of the case in the lower court, these approved reports of the guardian were introduced in evidence, and much other testimony was heard in relation to the final report of the guardian made by the surety, and which was then under consideration. On the settlement of the final accounting of the guardian, the annual reports that had been filed by the guardian and approved by the court are prima facie proof of their correctness. [1, 2] In the case of Hamilton v. Blakeney, of Nora May Overstreet and another, by his 65 Okl. 154, 165 Pac. 141, this court said: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Prima facie evidence of a fact is such dence as in the judgment of the law is sufficient to establish the fact; and, if not rebutted, remains sufficient for that purpose." (227 P.) [4] The plaintiffs in error set out a great many items contained in the final report of the guardian as to both of these estates and which they claim were erroneously disallowed by the lower court. They fail to set out in their briefs the evidence or substance thereof which they say is sufficient to sup Admissions by the guardian against his own interest and contained therein are strong evidence against the guardian in further proceedings in relation to his accounts, while claims made by the guardian therein on his own behalf are merely prima facie proof of their correctness. Proof of the incorrectness of any of these former approved reports of the guardian and proof of all matters ma-port these items or to inform the court just terial to the final accounting under consideration by the court may be made even in the absence of the guardian who has absconded and who is not personally defending his report. This may be done by any evidence either direct or circumstantial, which is competent under the well-recognized rules of evidence. See 12 Ruling Case Law, 1154; Tilman v. Tilman (Okl. Sup.) 177 Pac. 558; In re Cobb's Estate, 66 Okl. 53, 166 Pac. 885; In re Bates' Guardianship (Okl. Sup.) 174 Pac. 743; In re Lewis' Estate, 81 Okl. 240, 196 Pac. 341; In re Myers' Estate, 93 Okl. 143, 219 Pac. 943 (filed October 30. 1923). The plaintiffs in error in their brief assert that the lower court, without evidence to support its action, wrongfully surcharged the guardian's approved annual reports as to his wards, as follows: In the estate of Nora May Overstreet': where that evidence may be found in the record. The final account relied upon here was never approved by the county court, and therefore it does not amount to prima facie proof of the items therein contained. On behalf of the guardian, the surety asserts a claim for services performed by him. It seems that the only act of much importance which he performed was to embezzle all the funds of these children and run away, and we are not willing to allow him a commission on the funds which he has stolen. Years ago, there was sold certain lands belonging to the estate of a deceased sister of these wards, and the proceeds of the sale came into the hands of the mother of these wards. The money belonged to the mother as heir of the deceased, but she believed it belonged to these wards, and accordingly paid same over to the guardian as the property of the wards. This guardian received same in his official capacity and inventoried same and reported it to the county court as 126 00 part of the estate of the wards. The mother does not now make any claim to such money, and any claim she could make is barred by the statute of limitations. The guardian cannot here deny the wards' title to such money. See Anderson v. Anderson, 45 Okl. 653, 146 Pac. 709. $ 35 36 5 00 130 00 $375 36 In the estate of Daisy Lillie Overstreet: Error in computation.. First annual report... Second annual report.... Joint report filed February 15, 1916. Total $60 00 35 38 7400 5 00 $231 41 On behalf of the guardian, the surety as57 03 serted that allowance should be made to the guardian for the room and board furnished the wards, his stepchildren, in the home of the guardian and his wife. It appears that the wife, who was the mother of the children, had much funds of her own, and the lower court may rightfully have held that this support came from the mother and not the guardian, and that it was not the intention of the guardian to charge his minor stepdaughters for such support as he may have given them. [3] The plaintiffs in error set out these alleged errors with much particularity in their briefs, calling attention to the approved reports of the guardian in evidence supporting their contention and asserting that the evidence offered in the court below does not show facts sufficient to justify the lower | court in making the deductions and surcharges therefrom which it made. An examination of that part of the record cited by plaintiffs in error seems to support their contention. The defendants in error have failed to set out in their briefs any evidence sufficient to overcome the contentions thus made by plaintiffs in error or to inform the court of the substance of such evidence or where it may be found in the record. To meet the issues thus presented in this court, the defendants in error are required by rule XXVI of this court to set out such evidence As to these items discussed and other items set out in their brief and which we have not already referred to, the attorneys for the plaintiffs in error have failed to satisfy the requirements of rule XXVI of this court, heretofore applied in their favor, by setting out evidence sufficient to sustain their contention. Allowance of all such items is denied. The judgment of the lower court is therefore modified, so that the same shall show that on October 8, 1921, when the judgment | premises as a tenant of J. W. Sunderland, was rendered in the district court, the said J. J. Mayo as guardian, was indebted to Nora May Overstreet, now Tyler, only in the sum of $1,478.38 and he was indebted to Daisy Lillie Overstreet only in the sum of $438.59. The case is remanded to the lower court, with instructions to modify the judgment in accordance with the terms of this opinion. the defendant herein. That relying on his lease with the owner of the premises he sowed crops on the land. That the defendants claim some interest in the land, the exact nature of which is to the plaintiff unknown. That defendants have taken possession of the land and are interfering with plaintiff in the care of the crops so planted. That plaintiff should cut and harvest his JOHNSON, C. J., and HARRISON, WAR- crops before June 1, 1922, but cannot do so REN, and GORDON, JJ., concur. because of the interference by the defendants. SUNDERLAND et al. v. BISHOP. (No. 13539.) Plaintiff alleges in paragraph 6 of his petition as follows: "That this plaintiff has no adequate remedy at law; that the defendants and each of them claim by, through or under the said Flossie (Supreme Court of Oklahoma. June 17, 1924.) Baker, and that by reason of said fact this Equity will protect the possession of real estate by the granting of a temporary injunction, where the facts show possession in one, and an attempt by the other to forcibly interfere with such possession and commit trespass with damages, without reference to the solvency of the parties, and such possession will be protected until final hearing. 2. Injunction 128-Proof of prior possession by plaintiff in action to enjoin trespass on land is sufficient to entitle him to relief until right to possession determined. In an action to enjoin trespass upon land, proof of prior possession and the planting of crops by the plaintiff is sufficient to entitle him to relief until the right to possession has been determined. Commissioners' Opinion, Division No. 3. Appeal from District Court, Tulsa County; Redmond S. Cole, Judge. Action by C. W. Bishop against J. W. Sunderland and others. From a judgment for plaintiff, defendants appeal. Affirmed. Thompson, Wilson & Thompson, and Thompson & Springer, all of Tulsa, for plaintiffs in error. plaintiff is unable to maintain an action in forcible entry and detainer, and that this plaintiff cannot recover in any action at law in sufficient time to save and protect the said crops. and that there is great danger that this plaintiff will be irreparably damaged if the said defendants are permitted to continue to interfere with the occupation of said premises by this plaintiff; that this plaintiff owns and is in quiet possession of neighboring property which cannot be profitably managed without possession of the premises described in said lease." Upon this petition plaintiff prays for a temporary injunction, restraining defendants from trespassing on the land or interfering with his possession, and that the leasehold for the year 1922 be declared in the plaintiff. The cause came on for hearing May 29, 1922, upon the application for a temporary injunction, and plaintiff offered the verified petition in evidence, and the same was admitted over objection of the defendant and exception noted, and thereupon plaintiff rested his case. The defendant introduced evidence disclosing defendant had been a tenant and in possession of the land for some years under written lease executed by the owner Flossie Baker; that he so held the land during 1921; and on January 17, 1921, defendant Sunderland subleased the land to plaintiff, which sublease contained a proviso re Rogers & Jones, of Tulsa, for defendant in citing that, if Sunderland obtained the right error. of possession for the year 1922, the plaintiff had the option of subleasing from Sunderland for the year 1922. It further appears from the evidence that defendant told the plaintiff he (defendant) had an oral agreement of lease for the year 1922 which was to be reduced to writing, and on February 1st this oral agreement for possession of the land was reduced to writing and appears in the record as a written lease, duly executed but never filed for record, and 27 days from the due execution of the lease from the owner to the defendant, or on, to wit, February 28, 1921, the plaintiff entered into a written lease with the owner for possession of the RUTH, C. This action was instituted by defendant in error for injunction and to quiet title to lands, claimed by plaintiff in error, defendant below, under a lease, and for convenience the parties will be designated as they appeared in the lower court. Plaintiff's petition alleges one Flossie Baker owned certain lands, and on February 28, 1921, she leased the same to the plaintiff for a period of one year beginning January 1, 1922, and the lease was duly recorded. That during the year 1921 the plaintiff was in quiet and undisputed possession of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Okl.) SUNDERLAND v. BISHOP lands for the year 1922, and at the time stated in the petition should show that an ir- First. On the face of the petition it is disclosed that the only injury or damage that might be suffered by the plaintiff was the labor expended in preparing the land and planting the crop, plus the cost of seed, or in any event, the plaintiff's injury could not exceed the value of the matured crop less cost of planting, harvesting and marketing the same and may be fully compensated in money damages. that Second. Although plaintiff avers there is great danger of irreparable injury if defendants are not enjoined from interfering with his possession of the land, he alleges no facts by which the court may determine that irremediable mischief may flow from the acts of the defendants. Third. The petition does not allege that defendants were insolvent and could not respond in, damages, and there is no suggestion anywhere in the record that they were not fully able financially to so respond, and for this reason the petition is fatally defective. In support of these propositions the defendants rely upon the following cases as authorities in the instant case: First. "Where, in an injunction, the alleged injury is such that it can be compensated in money damages and the defendants are unquestionably solvent, the injunction should not be granted, but plaintiffs should be left to their remedy for damages." Marshall v. Homier, 13 Okl. 264, 74 Pac. 368; Harris v. Smiley, 36 Okl. 89, 128 Pac. 276. "The averment of irreparable injury in a bill is futile, in the absence of allegations of facts from which the court can see that irremediable mischief may be reasonably apprehended from Indian Land Trust the threatening wrong." Co. v. Shoenfelt, 135 Fed. 484, 68 C. C. A. 196; Mechanics' Foundry v. Ryall, 75 Cal. 601, 17 Pac. 703; McHenry v. Jewett, 90 N. Y. 58; 1 High on Injunction, § 722; Beach on Injunction, 34; Roma Oil Co. v. Long, 68 Okl. 267, 173 Pac. 957; Gvosdanovic v. Harris, 38 Okl. 787, 134 Pac. 28. [1, 2] An examination of the cases cited and relied upon discloses a state of facts wholly at variance with the facts in the instant case, and while the rule therein is correctly stated as a general proposition of law, specific instances may render the rule inapplicable. In the instant case the plaintiff was for the year 1921 unquestionably in the quiet, undisputed, and lawful possession of the lands, and remained in possession during 1922, or until his quiet possession was interrupted by the acts of the defendants, and the possession for 1922 was acquired. by virtue of a lease duly executed by the owner of the land and duly filed of record in the office of the county clerk, while defendants' claim was merely based upon an unrecorded lease executed by the owner, and defendant was not in possession of the land, and where the plaintiff is in possession of the land, equity will not permit one out of possession to take the law into his own hands, and, by force, wrest possession of the property from the plaintiff, and then be heard to say that plaintiff must resort to an action at law for possession for every trespass committed; for in such situation plaintiff is entitled to appeal to a court of equity to protect his possession by injunctive relief without regard to the question whether the defendant is insolvent or not. In Deskins v. Rogers (Okl. Sup.) 180 Pac. 691, Hardy, C. J., speaking for this court, said: "A person in possession ought not to be harassed and annoyed by being required to bring a new suit every day to oust a trespasser from possession as long as he persists in trespassing upon the premises in controversy, for the day has passed when a wrongdoer may repeatedly trespass upon real estate in the possession of another and threaten to continue indefinitely such wrongful acts, and not feel the restraining hand of equity simply because he may be financially able to make reparation at the end of numerous lawsuits for the wrong committed according to the measure of damages which the rules of law prescribe. Under such circumstances, the party in possession has no adequate remedy at law. It may be true that for a single act or a single trespass the award will afford adequate relief, but where repetitions thereof are threatened and the injuries which follow such trespass are irrepara In Crutcher v. Johnstone, 62 Okl. 92, 162 ble, injunction will ordinarily issue. "The petition neither alleges that an irrep- 1 Joyce on Injunc. § 523; 5 Pom. Eq. Jur. p. 829. § 492; 22 Cyc. 836; 14 R. C. L. § 158, p. 457; O'Brien v. Murphy, 189 Mass. 353, 75 N. E. 700; Edwards v. Haeger, 180 Ill. 99, 54 N. E. 176; Colliton v. Oxborough, 86 Minn. 361, 90 N. W. 793; Baldwin v. Fisher et al., 110 Minn. 186, 124 N. W. 1094; Cobb v. Atl. Coast Line R. Co., 172 N. C. 58, 89 S. E. 807; Moore & Co. v. Daugherty et al., 146 Ga. 176, 91 S. E. 14; Metropolitan Land Co. v. Manning, 98 Mo. and lien" therein provided for shall extend to App. 248, 71 S. W. 696." The rule in the Deskins Case, supra, has very recently been approved by this court in Midland Valley R. Co. v. Imler et al., 225 Pac. 919 (not [yet] officially reported), wherein Mr. Justice Warren for the court says: "This court has consistently held that it will protect the possession of real estate by a temporary injunction, where forcible possession is sought to be taken under claim of adverse title, preserving the peaceable possession until the final determination of the suit"-citing Glasco v. School Dist., 24 Okl. 236, 103 Pac. 687; Murphy v. Fitch, 35 Okl. 364, 130 Pac. 298; Deskins v. Rogers (Okl. Sup.) 180 Pac. 691. In the case at bar there is no question of the plaintiff's lawful possession during the year 1921, as he leased from the defendant and plaintiff secured the lease for 1922 from the owner, and proceeded to plant crops. No hardship could be imposed upon the defendant by enjoining him from harassing and annoying the plaintiff until his crops were fully matured, harvested, and marketed, and the rights of the parties may be fully determined before a court of competent jurisdiction in a proper proceeding instituted for that purpose. Finding no error in the judgment appealed from, the judgment of the court below, for the reasons herein stated, should in all matters be affirmed. and include "reasonable attorney's fees and other, costs of collection," and that upon default in the payment of any installment, or any part thereof, all deferred payments may be matured, at the option of the holder, and "suit may be brought at once to recover judgment for the entire principal, accrued interest, attorney's fees and costs." and the holder, of the tax bill has determined, after default in the payment of an installment, to mature all the deferred payments, but has not commenced action, and the property owner offers to pay the installment in default, interest, and penalty, held, that the right to demand the payment of attorney's fee had not accrued to the holder of the tax bill. Property 3. Municipal corporations ~572 The property owner may free himself from When a tender is necessary to establishment of any right against another party, it is reasonably certain that the offer, if made, would waived or becomes unnecessary when it is have been refused. 5. Statutory provision. When a tender of money is alleged in any pleading, it shall not be necessary to deposit the money in court when the pleading is filed, but it shall be sufficient if the money is deposited in court at trial, or when ordered by the court. Commissioners' Opinion, Division No. 5. Appeal from District Court, Tulsa County; Valjean Biddison, Judge. Action by F. P. McCormick against Lorenzo Grier. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions. J. J. Henderson, of Tulsa, for plaintiff in error. Randolph, Haver & Shirk and H. M. Gray, all of Tulsa, for defendant in error. The questions of jurisdiction of the trial court in this action and the powers of a city, organized and existing under a freeholder's charter, to regulate matters wholly within said city as to local improvements and assessments against property for payment of same, have been settled by decisions of this court in the following cases, which are hereby adopted: Berry v. McCormick, 91 Okl. 211, 217 Pac. 392; Kreager et al. v. McCormick (Okl. Sup.) 182 Pac. 78; Partee v. Trinidad Paving Co. THOMPSON, C. This action was brought (Okl. Sup.) 172 Pac. 945; Nitsche v. State Se- by F. P. McCormick, defendant in error, curity Bank of Zanesville, Ohio, et al. (Okl. Sup.) 170 Pac. 234; Berry v. Eureka Construc- plaintiff below, against Lorenzo Grier et al., tion Co., 76 Okl. 146. 183 Pac. 517; Sapulpa plaintiffs in error, defendants below, for the v. Land (Okl. Sup.) 223 Pac. 640, not yet offi- purpose of enforcing collection of certain cially reported. tax bills issued to defendant in error by the not to have accrued. 2. Municipal corporations 572-Right to de- city of Tulsa and for the purpose of declarmand attorney's fees by holder of tax bill helding a lien on certain real estate of plaintiff in error and for the foreclosure and An action to enforce a tax lien, evidenced sale of said real estate to pay the indebtedby a tax bill, regularly issued by a municipal ness, evidenced by the tax bills, and for atcorporation in payment of street improvements, torney fees and costs. where the tax bill recites that the "obligation The parties to this action will be referred For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |