terest, if any, which the said Harry L. Doutt | money, the exact amount of which is uncermight have in said land, or any of it, be and tain. He testified, "several hundred dollars" the same is hereby awarded to the plaintiff as and certain live stock, the value of which alimony." is not determined. The decree is attacked by the following assignments of error: "(1) The want of power and jurisdiction in the court to make the same, affecting the property rights as it does. (2) That the division of the property provided in the decree is unfair and unjust to the husband. (3) The decree is contrary to law. (4) Error in excluding competent and relevant testimony at the trial." The facts, briefly stated, are as follows: The plaintiff in error was 33 years of age when married to the defendant in error, and [1, 2] There is not any serious question as to the power and jurisdiction of the court to make the character of the decree entered by the trial court in this action, under section 4969, Rev. Laws 1910. This statute empowers the court to make such award and division of the property as it thought reaconsideration of the evidence in the record sonable in the light of the evidence. From a we would not be inclined to disturb the decree, if the plaintiff had been stripped of all the property on account of his reprehensible conduct. As to the power of the court under this section of the statute, this court said in the case of Hildebrand v. Hildebrand, 41 Okl. 306, at page 313, 137 Pac. 711, at page 713: its decree awarding alimony in property valued was 46 years of age at the time of the trial in December, 1916. The parties were married in Kansas and removed to Bartlesville, Okl., and the husband was a tool dresser and followed this business for something like a year after marriage, when they removed to the town of Owasso, in Tulsa county, Okl., and there purchased a grocery stock, lot, and store building; the grocery stock amounting to the sum of $300. At the time of the marriage the husband had something like $200 or $300, and the wife had some thing like $300 or $400. This was the capital that the parties had to begin married life. The wife received from her mother's estate the sum of $1,300, which was put into the business and invested in property. The grocery business at Owasso was conducted for about 12 years and had grown until the inventory thereof, just prior to the trouble, amounted to upwards of $4,000. The parties, while living together, acquired 170 acres of land in Tulsa county, located in three separate tracts, and the building and lot where the grocery business was conducted in town. The title to the real estate was taken in the name of the wife, and the grocery business was conducted in the name of the husband; she contending that the title was taken in her name because it was her money that paid for the property, and he contending that the title was so taken as a matter of safety, so that in the event that the grocery business failed they would have the real estate on which to start anew. In October, 1913, an orphan girl 13 years of age was taken into the family; they having no children of their own. In June, 1915, the girl gave birth to This statute clearly vested the court with a child and accused the husband of being power and authority to make the decree apthe father thereof. He was arrested on a pealed from, and the disposition of the propcriminal complaint filed by the girl, and erty does not seem to be unfair or unjust thrown into jail, and the grocery store clos-under the circumstances disclosed by the reced, and afterwards taken over by the creditors. The decree, it will be observed, confirms the title of all the real estate, including the town lot in Owasso and the 170 acres of land in the country, in the wife, and finds that the husband's interest in the land does not exceed $400, and divests that interest by decreeing the same to the wife as permanent ord. Again, the plaintiff in error complains that the court erred in excluding the testimony offered to prove his reputation for morality in the neighborhood where he lived. Even if this were error, and it is not clear that it was, it would not justify a reversal of the decree. There is evidence in the record, and not denied, that the husband and the The at the farmhouse in the country while the wife remained in town attending the store. The fact that some of the neighbors thought the man to be a moral man would not prove him guiltless of the offense charged. trial court heard the witnesses testify, and had an opportunity to observe their demeanor on the stand, and therefore was in a much better position to pass upon their credibility than we are upon the printed record. This fact naturally impels us to give much weight to the findings of the trial court. A consideration of the evidence fails to convince us that the finding of the court below was wrong. We are not willing to disturb the same, and therefore consider that the decree appealed from should be affirmed. It is so ordered. PER CURIAM. Adopted in whole. THOMPSON et al. v. STEVENS. (No. 8515.) (Supreme Court of Oklahoma. Oct. 22, 1918.) (Syllabus by the Court.) 1. APPEAL AND ERROR 544(1)-BILL OF EXCEPTIONS OR CASE-MADE-REVIEW. Errors alleged to have occurred on the trial of the cause cannot be reviewed by this court, in the absence of a bill of exceptions or casemade. 2. EXCEPTIONS, BILL OF 40(1)-TRIAL 31-TIME OF TAKING-REDUCING TO WRIT ING. The party objecting to a decision must except at the time the decision is made, and time may be given to reduce the exceptions to writing, but not beyond the term, unless the decision excepted to be made in vacation or at chambers. 3. EXCEPTIONS, BILL OF 38-TIME OF ALLOWANCE-AFTER TERM. Where no time is asked or granted for reducing exceptions to writing at the time the decision excepted to is made, a bill of exceptions, allowed and signed after the expiration of the term, is a nullity, not a part of the record proper, and will not be considered on appeal. Commissioners' Opinion, Division No. 1. Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by V. H. Stevens against James S. Gladish, R. H. Thompson, Mattie M. Thompson, and others. Judgment for plaintiff, and the named defendants bring error. Affirmed. Jas. S. Gladish, of Oklahoma City, for plaintiffs in error. A. E. Pearson and W. R. Withington, both of Oklahoma City, for defendant in error. RUMMONS, C. The only assignment of error argued in the brief of plaintiffs in error is that the decision and judgment are not sustained by the evidence and are contrary to law and to the evidence. A prop er consideration of this assignment of error requires a review of the evidence and the proceedings at the trial. Plaintiffs in error appeal by transcript, in which is incorporated a purported bill of exceptions. The motion for new trial was overruled on February 4, 1916. Plaintiffs in error prayed an extension of 60 days from that date in which to make and serve a case-made, which extension was ordered. On August 4, 1916, after adjournment of the term at which judgment was rendered, plaintiffs in error presented to the trial judge a bill of exceptions, which was on said day signed by the judge, attested by the clerk, and filed in the office of the clerk. [1-3] Defendants in error contend that the purported bill of exceptions cannot be considered in this court, for the reason that the exceptions were not reduced to writing at the time the decision was made, nor within any time allowed by the court to reduce the same to writing, but the same were reduced to writing and presented to the trial court, and signed after the term at which the judgment was rendered. We are constrained to agree with the contention of defendants in error. In the case of Liquid Carbonic Co. v. Rodman, 52 Okl. 211, 152 Pac. 439, Mr. Commissioner Brewer, who wrote the opinion of the court, says: "In this situation, the so-called bill of excep tions is a nullity, and cannot be considered. Exceptions may be taken in writing to a decision on questions of law occurring at the trial, and they may, after presentation, approval, and signing by the judge, be filed in the case as a part of the record, and thereafter be incorporated in a transcript; and in this manner they may be brought to this court for review. But such exceptions must be taken and preserved by bill of exceptions at the time the decision is made, unless time be given to reduce the same to writing, which time, however, can in no event be extended beyond the term. If the exception is made to a decision made in vacation or at chambers, time, not to exceed 10 days, may be given to reduce the same, to writing. Section 5027, Rev. Laws 1910. In the case at bar, the exceptions were not taken, reduced to writing, and signed by the trial judge at the time the objections were made at the trial, nor was there any order made, allowing further time within the term to prepare, perfect, and file the same. In the case of Lampton v. Johnson, 40 Okl. 492, 139 Pac. 526, it is held: (1) An "exception" is an objection taken to a decision of the court or judge upon a matter of law. cept at the time the decision is made, and time (2) The party objecting to a decision must exmay be given to reduce the exception to writ ing, but not beyond the term. (3) Where no time is asked or granted for reducing excep tions to writing at the time the decision excepted to is made, there is no authority for signing and allowing a bill of exceptions and making it a part of the record proper after the expiration of the term.' The above case is identical in its facts to this one; and under the authority of that case, no errors of law occurring at the trial, and as shown in the purported bill of exceptions, can be considered here, for the reason that the said bill of exceptions was not made within the time and in the manner provided by law, and is therefore not a part of the record and cannot be brought here in a transcript of such. And inasmuch as no errors are pointed out as appearing on the record proper, there is nothing here for us to review." The bill of exceptions not having been presented to the trial judge and signed within the time provided by law, the trial court was without authority to make the same a part of the record proper, and we cannot consider it upon this appeal. There being no complaint of error appearing in the record proper, the judgment of the trial court should be affirmed. nated "plaintiff" and "defendant," respectively, as they appeared in the trial court. The plaintiff was employed by the defend. aut as a pumper at its pumphouse at Maud, in Pottawatomie county, at the time the injuries complained of occurred. He alleges found that a pinion of the engine had slipthat during the course of his employment he ped from its proper position at the bull wheel, and that, while in the act of turning around to get a hammer to drive the same into position, his foot slipped on the oily floor, and in falling his hand was caught in the unguarded cogs between the pinion and the bull wheel. The specific acts of negligence alleged are that the defendant did not use ordinary care to furnish the plaintiff a reasonably safe place to work, nor furnish reasonably safe appliances with which to work, in that it neglected to place a guard over said pinion and bull wheel, and failed to furnish sufficient space in the engine room to enable the plaintiff to keep the floor from becoming slippery with water, oil, and grease, thus rendering it dangerous in passing through the narrow space between the said machinery and the walls of said engine room; that the said defendant knew of and had its attention called to the absence of guards over the exposed parts of the machinery in March, 1914, and promised to remedy the same, but had negligently failed to do so. After the service of summons the defendant appeared specially, and moved the court to quash the alias summons served upon it for the following reasons, to wit: "(1) Because said summons was not issued, served, or return of service made in accordance with the provisions of the statutes in such cases made and provided. (2) Because George Twiss, the person upon whom pretended service of summons was had, was not at the date of the pretended service of said summons, or has he been since that time, an agent of the Missouri, Kansas & Texas Railway Company, or a representative or employé in any capacity of said railway company in any manner whatever, or otherwise connected with said railway company in any manner whatever, all of which will more fully appear from his affidavit hereto attached, marked Exhibit A' and made a part hereof." Upon this motion being overruled, the defendant filed its answer, containing a general denial, and allegations to the effect that the risk of plaintiff's employment, which he asinjuries complained of were the result of the sumed; and that, even if said defendant was injured at the time and place and in the manner alleged in his petition, he was guilty of negligence and carelessness which contributed to his said injuries. Plaintiff's reply was a general denial. Upon trial to a jury there was a verdict for the plaintiff, upon which judgment was duly rendered, to reverse which this proceeding in error was commenced. KANE, J. This was an action for damages for personal injuries, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. HereaftThe grounds for reversal of this judgment er, for convenience, the parties will be desig- are summarized by counsel for defendant in their brief under two subheads, as follows: | Simpson v. East Tennessee V. & G. Ry. Co., (1) The trial court erred in overruling de 89 Tenn. 304, 15 S. W. 735; Grady v. Rich fendant's motion to quash the alias sum- mond & D. R. Co., 116 N. C. 952, 21 S. E. 301; mons, the service thereof, and return of serv- Farris v. Rec. of Richmond & D. R. Co., 115 ice thereon. (2) There was no actionable neg- N. C. 600, 20 S. E. 167; Central Trust of N. ligence of the defendant shown, the plaintiff Y. v. St. Louis, A. & T. Ry. Co. (C. C.) 40 Fed. assumed the risks of his employment, and the 426. Whilst all of these authorities may trial court should have sustained defendant's not be precisely in point, they are sufficientdemurrer to plaintiff's evidence, and should ly so by analogy to justify their citation in have granted defendant's request for an in- support of the principle announced. structed verdict. From the briefs and argument of counsel upon the first question presented for review, the following facts seem to be conceded: The injury occurred before, and the action was commenced after, the appointment of the receiver. The railway company had not designated an agent in the county upon whom process could be served, as required by section 4717, Revised Laws 1910. and it therefore became necessary to serve the summons pursuant to section 4719, Revised Laws 1910, which provides for service upon any freight agent, agent to sell tickets, or station keeper of the company, in case it failed to designate an agent pursuant to section 4717, supra. Mr. Twiss, to whom the summons was delivered, was the agent to sell tickets and station keeper of said defendant immediately prior to the order appointing the receiver for the company; that after the order of appointment Mr. Twiss continued to act for the receiver in a like capacity, and was so employed at the time the summons herein was delivered to him. The contention of counsel for the defendant is that, in view of all this, it appears that the summons herein was not served upon the freight agent, agent to sell tickets, or station keeper of the company, but that it was served upon the agent of the receiver, and is therefore insufficient to confer jurisdiction upon the court over the person of the defendant. We are unable to agree with this contention, although there seems to be some respectable authorities sustaining it. Chilletti v. M., K. & T. Ry. Co., 102 Kan. 297, 171 Pac. 14, L. R. A. 1918C, 1147, relied upon by counsel for defendant, is directly in point to this effect. [1, 2] Whilst we have no doubt of the soundness of the part of the opinion which holds that "the railway corporation was not dissolved by the appointment of a receiver," we are unable to agree with the Supreme Court of Kansas that the discharge of the former employés and agents of the company automatically resulted immediately on the making of the order. The relation of principal and agent is created by contract, and it can only be severed by the action of the parties to the agreement themselves or by operation of law. The weight of authority, it seems to us, sustains the view that the mere ap pointment of a receiver for the principal does not ipso facto revoke the agency. 2 C. J. 546; The order appointing the receiver in the case at bar does not in terms purport to discharge any of the agents of the company. On the contrary, it assumes the continuance of that relationship after the appointment, as it merely enjoins the company, its officers, directors, agents, attorneys, and employés, from interfering in any manner to prevent the receiver from discharging his duties in the premises under the order of the court. The order also requires the receiver to "manage and operate said railroad and property according to the laws of the United States and the valid laws of the various states in which the same are situated, and in the same manner that the defendant railway company would be bound to do if in possession thereof." In these circumstances, the interest of the company and of the receiver being in no sense adverse, we are unable to perceive why Mr. Twiss may not still represent the company as station keeper for the purpose of service of summons upon the corporation in accordance with the laws of the state, while acting for the receiver in a like capacity for all other purposes. This was the identical question passed upon in Simpson v. East Tennessee, V. & G. Ry. Co., supra, wherein the court said: "It will be remembered that this is no effort, son of a right to intervene, and compel a dison the part of the receiver, to abate suits by reacontinuance of actions, except in court, where the receivership, with litigation involving it, is pending, but an effort by the company to deny its agent because its road had been placed in the hands of a receiver. In such case, no reason appears to us why he does not still, in a proper sense, represent the company, which, in another, is represented by the receiver." In the case at bar there is no evidence directly tending to show that it was ever the intention of either the railway company or Mr. Twiss to sever the relation of principal and agent existing between them. It is true that the affidavit of Mr. Twiss states that he is the station agent of the receiver and not the station agent of the railway company. This, however, is but a mere conclusion of the affiant, which was probably influenced by the erroneous view of counsel for the railway company that the order appointing the receiver ipso facto terminated the agency between Twiss and the railway company as a matter of law. We do not deem this affidavit sufficient to overcome the return of the sheriff to the effect that the summons was served upon the station agent of are not prepared to say, as a matter of law, that the defects complained of were so patent and obvious that the plaintiff must have seen them or that he appreciated the danger arising therefrom. erance of the relation of principal and agent and it does not appear that in the meantime which admittedly formerly existed. he had acquired more than the most elemenMoreover, in view of the failure of the com- tary knowledge of the machinery he was hirpany to designate a person in the county up-ed to operate. In these circumstances we on whom service could he had as required by the state statutes, it will not be presumed, in the absence of clear evidence to the contrary, that it intended to discharge its only remaining agents upon whom service could be made, after the appointment of the receiver, thus rendering it impossible for persons having claims against it to have them adjudicated in the local forums in accordance with the laws of the state.. As counsel for defendant finds no fault with the instructions given by the trial court, we will assume that these as well as all other questions of fact were submitted to the jury under proper instructions. As the evidence reasonably tends to support the verdict, the judgment of the court below rendered thereon will not be disturbed. For the reason stated, the judgment of the trial court is affirmed. All the Justices concur. HOFFMAN et al. v. PETTAWAY. (No. 8876.) (Supreme Court of Oklahoma. Oct. 22, 1918.) RULING ON (Syllabus by the Court.) APPEAL AND ERROR 154(2) DEMURRER-ANSWER OVER-EFFECT. the petition, the defendant files an answer, he If, after an adverse ruling on demurrer to cannot be permitted to file a petition in error in this court to review the adverse ruling; he must await the result of a final trial. Commissioners' Opinion, Division No. 3. Error from District Court, Muskogee County; R. P. De Graffenreid, Judge. [3, 4] In presenting the next ground for reversal counsel for the defendant concede that there was sufficient evidence adduced at the trin to take the case to the jury on the question as to whether or not the defendant exercised ordinary care and prudence to provide the plaintiff with reasonably safe machinery, tools, and appliances with which to do his work, and a reasonably safe place in which to work. They insist, however, that, even if primary negligence in these respects was shown on the part of the master in the performance or nonperformance of these nondelegable duties, still the defects in the machinery and place of employment which rendered them unsafe were so patent and obvious that the plaintiff must be held to have assumed the risk arising from them as a matter of law. It is true that the rule is well settled that the servant assumes the risks of his employment caused by the master's negligence which are obvious or fully known and appreciated by him. C., R. I. & P. Ry. Co. v. Hughes, 166 Pac. 411; Boldt v. Penn. Ry. Co., 245 U. S. 441, 38 Sup. Ct. 139, 62 L. Ed. 385. But it is also well settled that whether such negligence and risk are so patent and obvious that an ordinarily careEd Hirsh and Myron White, both of Muskoful person would see the one and appreciate gee, for plaintiff in error J. H. Hoffman. the other is a question of fact to be submit-Joseph C. Stone, Chas. A. Moon, and Francis ted to the jury under proper instructions. C., Stewart, all of Muskogee, for defendant in R. I. & P. Ry. Co. v. Ward, 173 Pac. 212. error. In the case at bar the evidence shows that when the engine was set up by the manufac turer the cogs between the pinion and bull wheel were protected by a covering which was afterwards removed by the company. The contention of the company on this point is that after the engine was thus altered it operated in such a safe manner that the necessity for protecting the cogs no longer existed. Whether this change justified the removal of the guards over the cogs was also a question of fact for the jury. The evidence further shows that the plaintiff was not an experienced mechanic or .stationary engineer, and that he was placed in charge of this pumping station by a superior officer with practically no preliminary training except as to the mere matter of starting and stopping the engine. The plaintiff had been working a little less than six months at the time the accident occurred, Suit by L. E. Pettaway, a minor, by his next friend, James Bell, against J. H. Hoffman and others. From an order overruling a demurrer to the amended petition, defendants bring error on the transcript. Dismissed. HOOKER, J. This suit was filed by the defendant in error against the plaintiffs in error to recover a judgment for damages alleged to have been caused to the defendant in error by the negligent operation of one automobile by Irving Cole; he being then and there the servant and in the employ of his codefendants, J. H. Hoffman and W. T. Cole. A demurrer was filed to the amended petition, and overruled, and leave granted to the defendants below to file an answer within five days. From this order of the court overruling said demurrer, the defendants below have appealed here by transcript. A motion to dismiss said appeal has been filed by defendant in error, for the reason that said defendants below did within the time allowed by the court file an answer to said petition, and, having answered, they cannot now appeal from the order of the |