tion would be almost useless in the trial of

a cause.

It is also recognized as an important factor in the trial of an action to have the witnesses where they can be viewed by the jury and court and their demeanor observed, as this is an important element in determining the weight to be given their testimony. If any other rule should obtain, the effect would be to deter witnesses from foreign jurisdictions coming into the courts of our state for the purpose of giving their testimony in an action pending therein. When they do come and voluntarily offer themselves as witnesses for the purpose of assisting our courts in the ascertainment of truth and in the administration of law, there should be an implied understanding that they shall come free from any possibility of becoming involved in litigation in a foreign jurisdiction. The rule granting a nonresident witness this immunity commends itself to us as being sound and founded upon valid considerations of public policy.

We are therefore of the opinion that the trial court was in error in overruling the motion of defendant to quash the summons issued and served in this cause, and we therefore recommend that said judgment be reversed and the cause remanded to the district court of Garfield county, with instructions to proceed in accordance with the views herein expressed.

PER CURIAM. Adopted in whole.

PATTERSON v. BONNER. (No. 9339.) (Supreme Court of Oklahoma. Oct. 22, 1918.)

(Syllabus by the Court.)

1. LIMITATION OF ACTIONS 27-ESTAB-
LISHMENT OF PARTNERSHIP AGREEMENT
"CONTRACT NOT IN WRITING."

In an action to recover a proportionate share of the losses of a partnership enterprise, the partnership agreement being alleged to have been oral, and not in writing, and the existence of the partnership being denied, the primary object of the action is to establish the partnership agreement, and the action is based upon "a contract not in writing," and the limitation prescribed in subdivision 2 of section 4657, Rev. Laws 1910, applies, and an action based there on cannot be maintained after the lapse of three years from the date the cause of action accrued.

Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by L. E. Patterson against W. M. Bonner. Judgment for defendant and plaintiff brings error. Affirmed.

GALBRAITH, C.

Everest, Vaught & Brewer, of Oklahoma City, for plaintiff in error. Ledbetter, Stuart & Bell and Wilson, Tomerlin & Buckholts, all of Oklahoma City, for defendant in error. The plaintiff in error, who was plaintiff in the trial court, on the 22d day of June, 1915, commenced this action against the defendant in error as defendant, to recover the sum of $4,139.94 and interest at 6 per cent. from the 8th day of July, 1912, as his proportionate share of the losses of a partnership enterprise alleged to have been entered into by the plaintiff and the defendant and another. It was charged in the petition that on or about the 1st day of July 1909, the plaintiff and the defendant and another made and entered into an oral contract of partnership, the terms and conditions of which were in substance:

"That the plaintiff and the said W. M. Bonner and said were to unite and form a partnership for the purchase of certain lands near Oklahoma City, said lands to be suitable for the purpose of the partnership, which was to obtain lands as a prospective location for the capitol of the state of Oklahoma"

--and further alleged that under the terms of said partnership agreement the plaintiff was to purchase the lands in his own name, or to take options thereon for the benefit of the partnership, and was to advance the money necessary for said partnership, and that the profits and losses of the enterprise were to be shared equally by said partners; that in pursuance of said contract the plaintiff purchased two tracts of land, which had been examined and approved by all the partners, and made the necessary cash payments out of his own funds, and executed notes and mortgages to secure the deferred payments in his own name; that on the 8th day of July, 1912, said partnership was dissolved and an accounting had between the plaintiff and the third member of the partnership, the defendant having been invited to participate in the accounting but refused to do so; that it was ascertained, after the accounting was had, that the losses sustained by the enterprise amounted to $12,419.82; that thereupon the third member of the partnership paid to the plaintiff his one-third of the amount of said losses; that the plaintiff and the third member entered into an agreement of dissolution of the partnership in writing, a copy of which is attached to the petition and marked "Exhibit B"; that a true and corIn action to establish a partnership agree-rect statement of the account of the partnerment, a written contract of dissolution between ship made between the plaintiff and the third plaintiff and a third partner, entered into in the absence of defendant, could not bind defend- member thereof is attached to the petition as "Exhibit A"; that the said enterprise

2. LIMITATION OF ACTIONS 43-ACCRUAL OF CAUSE OF ACTION.

Whenever one party to a contract may rightfully sue another thereon, a cause of ac tion has accrued, and the statute of limitations begins to run.

(Additional Syllabus by Editorial Staff.) 3. PARTNERSHIP mm 262 DISSOLUTION AGREEMENT EFFECT.

ant.

Two errors are assigned here for a reversal of the order of the trial court:

[3] First. Error of the court in striking Exhibit B from the petition, that being the

resulted in a loss in the sum above set out; that the plaintiff had often demanded an accounting and statement with the defendant, which he persistently refused to make. The prayer was for judgment in the sum of one-written contract of dissolution of the partnerthird of the amount of the losses of said enterprise, with interest from July 8, 1912, at 6 per cent. per annum.

On October 4, 1915, the defendant answered by way of a general denial, and a specific denial of the allegations of partnership and a special plea of the statute of limitation. On April 26, 1917, the defendant was grant

ship. It is argued that this exhibit was an essential part of the petition, in order to show why this third member of the partnership was not made a party to the present action. This contention cannot be sustained, first, because the petition, after this exhibit I had been stricken, still contained the allegation of the dissolution and accounting alleged to have taken place between the plaintiff and the third member of the alleged partnership, and that would be a sufficient reason why he had not been made a party to this action; again, this written contract between the plaintiff and the third member was enter

he was not a party thereto, and could not the motion to strike was rightly sustained. be bound thereby. It therefore appears that

statute of limitation, and not the three-year [1] Second. It is argued that the five-year statute, applies in this case, and therefore the action was not barred on the 22d day of June, 1915, when the instant action was instituted. The following excerpt from the brief of the plaintiff in error shows his position upon this point, as follows:

"The second proposition is the serious one in the case. If this is a suit on an account only, then it will be freely confessed that the threeyear statute was set in motion at the time of the filing of the answer and cross-petition in the original case, and that more than three years elapsed before this action was brought. It is our contention that this is a suit to establish the partnership, to declare it dissolved, and to recover the moneys due Patterson, and therefore that it is governed by the sixth subdivision of section 4657, found at page 4685 of the 1910 tion for relief not heretofore provided for can Statutes, and which reads as follows: 'An aconly be brought within five years after the cause of action should have accrued.' If this was a law. The primary matter in dispute here is not suit on account alone, it would be an action at the amount due from Bonner to Patterson on the account, but whether there is any account at all; that is, whether any partnership ever existed between Patterson, Ledbetter and Bonner."

ed leave to withdraw the answer and file a motion to strike Exhibit B, being the contract of dissolution of partnership entered into by the plaintiff and the third member of the partnership on July 8, 1912. This motion was by the court sustained. The defendant, by leave of court, filed an amended into in the absence of the defendant and ment to his answer, wherein he set out more definitely his plea of the statute of limitation, wherein it was alleged that prior to the commencement of this action there was pending in the district court of Oklahoma county a civil action, being No. 11742, in which the plaintiff herein was defendant; that on the 22d day of April, 1912, upon the motion of this plaintiff, the defendant in that action, an order was made making the defendant herein a party defendant in that action; that on the 7th day of May, 1912, this plaintiff filed an answer and cross-petition, wherein this defendant was sued on the identical cause of action set out in the plaintiff's petition in the present action; that this plaintiff subsequently filed in that action his first and second amended answer and cross-petition, and caused the same to be served on this defendant, setting out copies of these pleadings; that thereafter, on the 24th day of December, 1913, this plaintiff caused an order to be entered in that action, dismissing the cross-petition therein without prejudice, for a separate suit; that the cause of action herein relied upon is the identical cause of action set out in the answer and cross-petition filed in the prior suit, and the same arose and was asserted by the plaintiff more than three years previous to the filing of the petition herein; that said dismissal was at a time more than one year following the filing of the petition herein; that in the prior action this defendant filed an answer to the amended answer and cross-petition of the plaintiff, in which he denied all the allegations contained in the plaintiff's answer and cross-petition as to the existence of the partnership. To this amendment, being paragraph 3 of the answer, the plaintiff filed a general demurrer, which was by the court overruled. Thereupon the plaintiff excepted to the ruling, and elected to stand upon the demurrer, and refused to plead further. Thereupon judgment was entered for the de

We agree with the counsel that this is the crucial point in the case, “whether any partnership ever existed;" that is, whether or not an oral contract of partnership, as alleged in the petition, was in fact entered into. That being true, the primary object of the action was to establish the existence of such oral contract of partnership, thereby clearly subdivision 2 of section 4657, Rev. Laws bringing the action within the terms of

1910, which provides:

real property, can only be brought within the "Civil actions, other than for the recovery of following periods, after the cause of action_shall have accrued, and not afterwards: First.

Second. Within three years: An action ing; an action upon a liability created by statupon a contract express or implied, not in writ

This being an action upon a "contract ex-| both of Ardmore, and Geo. B. Rittenhouse, pressed" and "not in writing," the three-year of Oklahoma City, for defendant in error. statute would govern, and an action could not

be maintained thereon after three years had HARDY, J. This proceeding was institutexpired from the time when the cause of ac-ed for the purpose of recovering moneys paid tion accrued. The cause of action against the defendant in the instant case accrued when the plaintiff in the prior action, No. 11742, filed his answer and cross-petition against the defendant, praying for judgment

on the cause of action herein set out.

[2] In United States Fidelity & G. Co. V. Fidelity Trust Co., 49 Okl. 398, at page 408, 153 Pac. 195, at page 198, the court said: "Whenever one person may sue another, a cause of action has accrued, and the statute begins to run. In the law of contracts, the statute of limitations begins to run against a party to the contract, himself not in default, when the contract is broken by the other party, but not before that time."

This action not having been commenced within a year after the order of dismissal in the prior case in December, 1913, as might have been done under section 4662, Rev. Laws 1910, and more than three years having elapsed from the commencement of the running of the statute, the action was barred by limitation, and the demurrer to the answer was properly overruled.

It therefore appears that the judgment appealed from should be affirmed.

PER CURIAM. Adopted in whole.

and Chickasaw Tribes of Indians on lands as taxes by certain members of the Choctaw allotted to them under the laws regulating such matters. The various Indian citizens who paid such taxes assigned their claims to plaintiff in error, and one proceeding is prosecuted to recover the amounts paid by some 650 allottees. A petition setting up the prin cipal facts was filed with the board of county commissioners, where the claim was denied. An appeal was taken to the district court, where the petition was amended, and defendant county filed a demurrer thereto, which was sustained. Plaintiff, being aggrieved, excepted to the ruling and brings the case here. The petition sets out the history of the legislation which resulted in the allotment of the lands of the Choctaw and Chickasaw Tribes in severalty, and asserts that under such laws and treaties the lands allotted were exempt from taxation at the time said sums were paid; and further alleges that the officials of Carter county, in violation of the rights of the allottees, assessed for taxation and levied taxes against said lands; whereupon certain citizens of the Choctaw and Chickasaw Nations instituted suit in the superior court, of Logan county to enjoin the collection of taxes upon exempted lands, which litigation was prose

BROADWELL v. BOARD OF COM'RS OF cuted to a final determination in favor of the

CARTER COUNTY. (No. 7692.) (Supreme Court of Oklahoma. Oct. 8, 1918. Rehearing Denied Nov. 14, 1918.)

(Syllabus by the Court.)

TAXATION 538

VOLUNTARY PAYMENT OF

TAXES-RECOVERY. Where certain citizens of the Choctaw and Chickasaw Nations paid certain taxes assessed against their respective allotments, which were nontaxable, in order to avoid a threatened sale of their lands, and in order to avoid the imposition of penalties thereon for failure to pay said taxes, and where at the time of said payment there was pending litigation seeking to enjoin the collection of said taxes, and where at the time said parties were fully informed as to the law which made said taxes illegal, and there was no immediate necessity for the payment of said taxes to prevent a seizure of the person or property of said persons, held, that said payment was voluntary, and, in the absence of statutory authority therefor, cannot be recovered back.

plaintiffs therein. Choate v. Trapp et al., 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941; that the superior court of Logan county and the Supreme Court of the state decided the liti gation adversely to the plaintiffs therein, holding said lands to be taxable; and that, pending a final determination of said litigation in the Supreme Court of the United States, said Indian citizens, fearing that said lands would be sold for the payment of taxes assessed and levied thereon, and fearing that large penalties would be imposed for failure to pay said taxes, paid the amounts claimed, but at the time protested that said sums were legally assessed and levied against their said lands. Upon the matter first being presented in this court this proceeding was dismissed upon the ground that the board of county commissioners had no jurisdiction to allow or disallow the claim,

Error from District Court, Carter Coun- and that the district court was also without ty; W. F. Freeman, Judge.

Proceeding by George R. Broadwell against the Board of County Commissioners of Carter County. Petition denied by board of county commissioners, and, on appeal to district

court, defendant's demurrer thereto was sustained and plaintiff brings error. Affirmed.

Geo. P. Glaze, of Oklahoma City, for plaintiff in error. A. J. Hardy and J. A. Bass,

jurisdiction on appeal. On petition for rehearing we are convinced that the previous opinion should be withdrawn, and the case reinstated and disposed of upon its merits. By section 2, c. 180, Session Laws 1913, the board of county commissioners of each county is authorized to examine into each claim filed for allowance, and, if the sale or any part thereof is found to be correct and a proper

charge against the county, the same may be allowed for payment.

In Board of County Commissioners of Love County v. Ward et al., 173 Pac. 1050 (not officially reported), it was assumed that section 1, c. 186, Session Laws 1913, conferred jurisdiction upon the board of county commissioners to consider a claim of the character here involved. However, the judgment must be affirmed because section 14, c. 152,

Session Laws of 1911, which conferred upon boards of county commissioners authority to refund taxes erroneously assessed against property and paid, has been declared unconstitutional. Johnson v. Grady County, 50 Okl. 188, 150 Pac. 497; Atoka County v. Oklahoma State Bank, 161 Pac. 1087; In re Hickman, 162 Pac. 176; Smith v. Board Commissioners Garvin County, 162 Pac. 463; In re Assessment of First National Bank of El Reno, 166 Pac. 883. Since which there is no statute in force imposing liability upon a county for taxes wrongfully collected by its county treasurer, and by him paid over to the state or a municipal subdivision of the state other than the county, against which liability is sought to be imposed. Board of County Commissioners v. Ward, supra. judgment is sought against Carter county for all the taxes collected by the county treasurer and paid over by him to the state and its various municipal subdivisions, and the petition does not separate the amount of taxes paid so that it could be determined what portion was received by the county for which it might possibly be liable. The judgment was right for this additional reason. The facts alleged show that the taxes were paid under such circumstances as would prevent a recovery, for there was no such duress, coercion, or compulsion as would give the allottees paying such taxes a right of action to recover such sums. A similar state

Error from District Court, Tulsa County. Action on notes and to foreclose a mortgage by Samuel M. Kennard and others, trustees of Barnes Hospital, against Charles F. Reeder and Jessica Reeder, in which parties claiming an interest in mortgaged property were made defendants. Joint judgment for plaintiffs, and the named defendants bring error. Dismissed.

tiffs in error.
Woodson E. Norvell, of Tulsa, for plain-
Dillard, Allen & Dillard, of
Tulsa, for defendants in error.

PER CURIAM. This action was brought

by defendants in error on certain promissory notes and foreclosure of a mortgage to secure the payment of same. Various persons claiming an interest in the property covered by the mortgage were joined as defendants. A joint judgment was rendered in favor of plaintiffs below, from which plaintiffs in error, Charles F. Reeder and Jessica Reeder, appealed.

Motion to dismiss the appeal has been filed upon the ground that one of the defendants below whose interests will be affected by a A reversal or modification of the judgment was not made party to this appeal, and no casemade was served upon him or his attorney. Under the settled rule in this jurisdiction, all parties to a joint judgment whose interests will be affected by reversal or modification of the judgment appealed from must be made parties to the appeal. Where such has not been done, the appeal will be dismissed.

Motion to dismiss will be sustained and the appeal dismissed.

WILSON v. STATE. (No. 9250.)

(Syllabus by the Court.)

1. BASTARDS

ON APPEAL.

92-JURISDICTION-QUESTION

of facts was presented in Johnson v. Grady (Supreme Court of Oklahoma. Oct. 22, 1918.) County, 50 Okl. 188, 150 Pac. 497, and again in Board of County Commissioners v. Ward et al., supra, and in each of which cases it was held upon the facts alleged that the payment was voluntary, and, in the absence of statutory authority therefor, could not be recovered back. The decisions in those cases are controlling here, and the judgment is affirmed.

Where the necessary jurisdictional facts appear in the record, and the complaint could have been cured by amendment, failure to allege such necessary jurisdictional facts cannot be presented for the first time on appeal. 2. BASTARDS 19, 92-APPEAL-NATURE OF PROCEEDING-PLEADINGS.

A bastardy proceeding in this state being a special proceeding which the rules of pleading and practice applicable to civil actions govern, where the complaint fails to allege necessary jurisdictional facts, and no demurrer is filed to the complaint, and no objection is made to the introduction of evidence, and without objection on the part of the defendant evidence is offered at the trial showing the necessary jurisdictional facts, the failure to allege such facts in the complaint cannot be taken advantage of upon appeal.

3. BASTARDS 71-JURISDICTIONAL FACTS

ISSUE-CONSTRUCTION.

Where the essential fact necessary to give the court jurisdiction is shown in evidence, and is not contested by the defendant, no issue as to such fact arises, and the giving of an instruc

tion which fails to require the jury to find the [1, 2] The first assignment of error is basnecessary jurisdictional fact does not constitute ed upon the failure of the complaint to state reversible error, no instruction having been requested upon that issue. 4. BASTARDS 35 JURISDICTION-STATUTE. The Legislature, by the adoption of the Revised Laws of 1910, vested in the county court exclusive jurisdiction of bastardy cases under authority of section 10, art. 7, of the Constitu