See, also, Smith v. State, 47 Okl. 682, 149 | petition stated a cause of action by reason Pac. 884. The rule is stated in 32 Cyc. of the other allegations contained in said 1415, as follows: petition. The only evidence introduced was upon the question of irregularities of the proceedings in organizing said consolidated school district.

"In the absence of statutory provision to the contrary, quo warranto proceedings are held to be the only proper remedy in cases in which they are available. Thus they are held to be the exclusive method of questioning the legality of the organization or a change in the territory of the quasi public corporation, such as a school district, or a drainage district, or of

determining the right to hold and exercise a judicial or other public office, or to enforce the forfeiture of a corporate franchise, to attack the validity of the organization of a corporation or to try title to an office therein, and when the remedy by quo warranto is available, it is held that there is no concurrent remedy in equity unless by virtue of statutory provision."

32 Cyc. 1424, states as follows: "Quo warranto is the proper, and in the absence of statute the exclusive, proceeding to determine the question of the legal existence or validity of the organization of a municipal corporation, such as a city or village, a township or a school district, and in such proceedings it may be shown that the incorporation is void because of fraud in securing the charter or in the organization of the municipality."

The defendant in error relies upon the cases of Board of Education of City of Pond Creek v. Boyer, 5 Okl. 225, 47 Pac. 1090, School District No. 44, Caddo County, v.

Turner, 13 Okl. 71, 73 Pac. 952, and Cleveland v. School District No. 71, Grady County, 51 Okl. 69, 151 Pac. 577, but these cases are not in point. An examination of each of those cases discloses that the proceedings were to enjoin the officials from doing a particular act, and it was not the purpose of those cases to test the validity or regularity of the organization of the municipal organization. The only purpose of the proceeding in this case was to determine the question of the legal existence of the consolidated school district, and the proper proceeding to determine this question is by quo warranto, and such a proceeding cannot be maintained on behalf of a private individual by injunction.

For the reasons stated, the judgment of the court is reversed and remanded, with instructions to dismiss the plaintiffs' petition.

RAINEY, C. J., and HARRISON, KANE, PITCHFORD, and JOHNSON, JJ., concur.

The only relief sought by the amended and supplemental petition was to test and determine the validity of the organization of the consolidated school district. Following the cases heretofore cited, the petition failed to state facts sufficient to constitute a cause of action in favor of the plaintiffs, and the demurrer to the amended and supplemental petition should have been sustained, unless it can be said that by reason of the allegations in the petition that the superintendent COLLINS et al. v. INDUSTRIAL SAV. SOC. of public instruction executed the order con

et al. (No. 9149.)

(78 Okl. 319)

solidating the new school district and dis- (Supreme Court of Oklahoma. May 25, 1920.

solving the old district, when he was enjoined from so doing by a restraining order, and said orders were made in violation of said injunction and by reason of said allegation, the same stated a cause of action.

Counsel for defendants in error do not brief the case upon this theory. These allegations might be sufficient to state a cause of action in favor of the plaintiffs. Conceding the same does, still the judgment would have to be reversed for the reason there was no evidence to support this allegation in the petition. The order of the county court, dated June 12th, which enjoined the superintendent of public instruction from organizing the

consolidated school district and from disorganizing the old school district was made effective until the 17th day of June. The record does not disclose that this order was ever extended in force and effect after the 17th day of June, and no contention is made in the brief that the same was ever so extended. The case is tried on the theory the

Jury

Rehearing Denied June 29, 1920.)

(Syllabus by the Court.)

14(4)-Where, in foreclosure, personal judgment is sought, defendant entitled to jury.

Under section 4993, Rev. Laws 1910, in a ment for money is sought by plaintiff against foreclosure proceeding, where a personal judgdefendant, the defendant is entitled to a jury trial, unless a jury is waived or a reference ordered.

Error from District Court, Canadian County; Edward Dewes Oldfield, Judge.

Suit by the Industrial Savings Society against Estella Collins, and others. Judgment was rendered against defendants Collins, in favor of plaintiff and certain codefendants, and defendants Collins bring error, in so far as relief was awarded to plaintiff. Reversed and remanded.

(190 P.)

W. M. Wallace, of El Reno, for plaintiffs | fendants, answering, alleged certain rights, in error. title, and interest in and to the land and Fogg & Bennett, of El Reno, for defend-premises upon which foreclosure was sought ants in error.

to be had, but admitted that such interest was inferior to the claims of said Industrial BAILEY, J. On the 25th day of July, Savings Society. The defendants Estella 1916, suit was commenced in the district Collins and George E. Collins answered, and, court of Canadian county by the Industrial after a general denial, admitted the execuSavings Society as plaintiff against Estellation of the bond and mortgage sued on, but Collins, George E. Collins, El Reno State Bank, El Reno Mill & Elevator Company, and Ella K. Holt, as defendants. The material allegations of plaintiff's petition are:

alleged that the said Industrial Savings Society is a building and loan association, and that at the time said loan was had and secured said society did not comply with the That on or about the 27th day of May, laws of the state of Oklahoma relative to 1911, the defendant Estella Collins purchas- competitive bidding, and that at the time ed of plaintiff 20 shares of its class D capi- such loan was made that the agent of said tal stock, of the matured value of $50 per Industrial Savings Society required, receivshare; that thereafter the said Estella Col-ed, and collected an additional sum as comlins and her husband, George E. Collins, bor- mission for making and securing said loan, rowed from said plaintiff the sum of $1,000, and that such loan was illegal and usuriand that said defendants Estella Collins and ous. The borrowing defendants further alGeorge E. Collins executed and delivered to leged that they had made 50 monthly payplaintiff a certain bond, conditioned that the ments, of the total sum of $765, together with said defendants would do and perform all a further sum of $17.45, wrongfully charged things required of them to be done under and received by defendant in error, at the the terms and conditions of said bond; and time said loan was made, and by cross-petithat such defendants would make payments tion defendants Estella Collins and George required under the terms of said bond until E. Collins charged defendants in error with the shares of stock matured or reached the unlawfully and willfully taking, receiving, par value of $50 per share, or until the said reserving, and charging interest in excess of Estella Collins had made 94 monthly pay- that allowed by law, and praying judgment ments in the sum of $15.30 each. To secure against said defendants in error in the sum the payment of said sums, and as a part of of $830, together with attorney's fees thereon. the same transaction, the said Estella Collins and George E. Collins executed their certain mortgage, dated June 1, 1911, mortgaging to the said Industrial Savings Society certain real estate located in the city of El Reno.

At the trial of the cause, after the introduction of the evidence ssubmitted, the court discharged the jury and rendered judgment against the defendants Estella Collins and George E. Collins, and also rendered judgIt is further alleged that the defendants ment in favor of the El Reno State Bank, El Estella Collins and George E. Collins had de- Reno Mill & Elevator Company, and Ella K. faulted in the payment provided for in said Holt as against the said Estella Collins and bond, and that the entire sum to be paid, George E. Collins. To the rendition of judgunder the terms and condition of said bond, ment in favor of the El Reno State Bank, El was due, it is alleged that said Industrial Reno Mill & Elevator Company, and Ella K. Savings Society had paid the sum of $18 for Holt against the said Estella Collins and insurance upon the property mortgaged by George E. Collins, no exceptions were taken said defendants Estella Collins and George or reserved, and no appeal has been proseE. Collins, and that the said defendant in er-cuted to this court from such judgment of the ror was entitled to recover of said plaintiffs trial court; the appeal here being only from in error the sum of $651.48, together with the sum of $65.14 as attorney's fees. The El Reno State Bank, El Reno Mill & Elevator Company, and Ella K. Holt are alleged to claim some right, title, and interest in and to the property mortgaged to the said Indus- Under our view of this case, the only astrial Savings Society, and judgment is pray-signment of error necessary to be considered ed against plaintiffs in error in the amount is plaintiffs in error's fourth assignment and sums above alleged, and for judgment which is as follows: against the defendants El Reno State Bank, El Reno Mill & Elevator Company, and Ella K. Holt, adjudging that the claims of the said El Reno State Bank, El Reno Mill & Elevator Company, and Ella K. Holt are subordinate and inferior to the rights, claims, and interest of said defendant in error.

The El Reno State Bank, El Reno Mill & Elevator Company, and Ella K. Holt, the de

the judgment of the court as it relates and effects the judgment rendered on behalf of the Industrial Savings Society, and against plaintiffs in error, Estella Collins and George E. Collins.

"The court erred in discharging the jury and refusing to submit the issues to the consideration of the jury."

As set forth in the statement of facts, defendant in error prayed in his petition for judgment against plaintiffs in error in the sum of $651.48, and for attorney's fees, and for certain sums paid for insurance, together

with a foreclosure of the mortgage sued on. I court. See, also, Brewer v. Martin, 40 Okl. In their answer plaintiffs in error, after a 350, 138 Pac. 166; Avery v. Hays, 160 Pac. general denial, admitted a balance due to the 712. And it may be observed that we are defendant in error on the bond in the sum not concerned here with cases where the of $219.55, and by way of cross-petition pleadings admit or the evidence establishes sought to recover of defendant in error usuri- the right to recover the amount claimed to ous interest alleged to amount to the sum of be due, and nothing is left in controversy, $830, together with attorney's fees. but the right to foreclose the mortgage and to subject the property mortgaged to the payment of the amount admitted to be due; and likewise we may suggest that the answer or cross-petition did not present equita

As noted above, the jury was duly and regularly impaneled, but after the introduction of evidence in the case the court discharged the jury from the further consideration of the case, and proceeded to render judgment | ble issues for determination. in favor of the defendant in error, and Plaintius in error, having demanded a jury against the plaintiffs in error in the principal and properly, saved their exceptions to the sum of $616.09, and for judgment foreclos- action of the trial court in excusing and dising the mortgage held by defendants in error, | charging the jury, and having the right, unand directing the sale of the property in the der the authorities cited, to have the issues manner prescribed by law. This, then, was properly submitted to the jury, this court is an action instituted by the defendant in er- of the opinion that the trial court commitror for the recovery of money and for the ted reversible error, and the cause is thereforeclosure of his mortgage. The pleadings fore reversed and remanded for a new trial. in the case are sufficient to admit the rendition of a personal judgment against plaintiffs in error (Foote v. Sprague, 13 Kan. 155; Lichty v. McMartin, 11 Kan. 565; 2 Jones on Mortgages [7th Ed.] par. 1336), and the judgment rendered is a personal judgment for the debt. Section 4993, Rev. Laws 1910, is as follows:

"Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided."

This section of the statute has been repeatedly construed by this court. In Maas V. Dunmyer, 21 Okl. 434, 96 Pac. 591, this court, after referring to the Kansas cases construing this identical statute, says:

"The effect of the rule established in all of those cases is that in a foreclosure proceeding, where personal judgment for money is sought by plaintiff against defendant, the defendant is entitled to a jury trial, and that the equitable action of foreclosure is in such case converted into a legal action."

And in the case of McCoy v. McCoy, 30 Okl. 379, 121 Pac. 176, Ann. Cas. 1913C, 146, the court, in considering the statute above quoted, and speaking through Harrison, C., says:

"These statutes, viewed in the light of the authorities above cited, are susceptible of but one logical construction, viz. that all issues of fact, arising in actions for the recovery of money or for the recovery of specific real or personal property, shall be tried by a jury, unless a jury is waived or a reference ordered. They are mandatory both in meaning and language, and to refuse a jury in such cases would constitute reversible error."

The cases above cited have been followed and approved by numerous cases from this

RAINEY, C. J., and HARRISON, McNEILL, JOHNSON, and RAMSEY, JJ., con

cur.

(78 Okl. 313)

SOUTHWESTERN SURETY INS. Co. v.
MARLOW et al. (No. 9532.)
(Supreme Court of Oklahoma. June 8, 1920.)

(Syllabus by the Court.)

1. Principal and agent 99-Principal is bound by the apparent authority of his agent.

A principal is bound by the apparent, as well as by the actual or express, authority given its general agent, where third persons have in good faith acted and relied thereon. 2. Principal and surety 55-Provision in power of attorney authorizing agent to execute bonds held not a restriction.

The Southwestern Surety Insurance Company appointed Schuyler as its agent of Stephens county to execute guardian and administrator bonds in a sum not in excess of $10,000. The power of attorney appointing said agent contained the provision that the bond should be accompanied with a joint control agreement. Held, that such provision in the power of attorney requiring the bond to be accompanied with a joint control agreement cannot be construed to limit the authority of the agent or make said agent a special agent, but must be construed as being a condition subsequent, and simply defining the duties of the agent.

(190 P.)

4. Banks and banking 154(6)-Burden of proving that bank which paid out funds on orders of guardian was guilty of misappropriations held upon surety company.

Where a surety company which is liable for defalcation of a guardian by reason of being a surety on the guardian's bond brings an action against a bank where the guardian had deposited the funds of his wards, upon the theory that the bank had wrongfully paid out the funds deposited therein, and upon the trial the court found upon sufficient evidence that the funds were paid out according to written instructions from the guardian, and there is no evidence that the bank received any benefit from any of the funds withdrawn, held, the bank having paid out said funds according to the orders of the guardian, in order for the surety company to be prejudiced by reason of such payments it was incumbent upon the surety company to prove that the payments complained of amounted to a misappropriation of the funds, and were not used for the benefit of the minors and were not legal charges against said estate. 5. Appeal and error 1010(1)-Verdict supported by any evidence will not be disturbed. Where there is any evidence reasonably tending to support the verdict of the jury or the judgment of the court in an action of purely legal cognizance, the same will not be set aside on appeal on the ground that it is contrary to the evidence.

and paid out wrongfully and fraudulently by said bank, which, in collusion with George W. Marlow, permitted Marlow to check out said funds. A jury was waived and the case was tried to the court.

[1, 2] There was a judgment in favor of the plaintiffs and against the surety company in the sum of $1,000, and upon the cross-petition of the surety company against the First National Bank of Duncan the court found the issues in favor of the bank and dismissed the cross-petition of the Southwestern Surety Insurance Company. From said judgments the surety company has apFor reversal of the pealed to this court. judgment of the minors against the surety company, it is contended by the plaintiff in error that the bond was executed by P. H. Schuyler, purporting to be the agent of the plaintiff in error; being the contention of the plaintiff in error that Schuyler was only a special agent with limited authority and authorized to execute bonds only in cases where same were accompanied with a "joint control agreement"; being contended that this authority or power was delegated him by written authority. To support this contention the plaintiff in error introduced a copy of the power of attorney of the SouthWestern Surety Insurance Company, which

Appeal from District Court, Stephens read as follows: County; Cham Jones, Judge.

"Does hereby nominate, constitute, and ap. point P. H. Schuyler, of Duncan, Okla., its true and lawful agent and attorney in fact, to make, execute, seal, and deliver for and on its and all bonds to be filed in the county court of behalf as surety and as its act and deed any Stephens county, state of Oklahoma, for guardians, administrators, executors, or curator, said bond not to exceed the sum of $10,000, and where accompanied by joint control agreeAf-ment, and the execution and acknowledgment of said bond by the said P. H. Schuyler, Duncan, Okla."

Action by Ether Muncus Marlow and others by their legal guardian, T. B. Reeder, against the Southwestern Surety Insurance Company and another. The insurance company caused the First National Bank of Duncan to be made a party defendant and filed a cross-petition against it. There was a judgment for plaintiffs and in favor of the bank, and the insurance company appeals. firmed.

Bond & Kolb and J. M. Sandlin, both of Duncan, for plaintiff in error.

Womack & Brown, of Duncan, for First Nat. Bank of Duncan.

T. B. Reeder, of Duncan, for Ether Mun

cus Marlow and others.

The original power of attorney was not introduced in evidence, but it is contended that this was a copy of the power of attorney appointing Schuyler, although the power of attorney was not filed in the county court of Stephens county nor filed any place for record.

On the trial of the case the plaintiff in error produced Mr. Billingsley, the agent of

the company, to explain what was meant by "joint control agreement," who testified as follows:

MCNEILL, J. This action was instituted to collect upon a guardianship bond executed by Lillie M. Muncus, née Marlow, as guardian of her minor children, principal, and the Southwestern Surety Insurance Company as surety. The surety company by motion obtained an order from the district court making the First National Bank of Duncan a "A. It is an agreement executed by the prinparty defendant, and then filed a cross-peti- cipal, in this case it would be the guardian or tion against the bank, asking judgment the principal, the guardian together with the against the bank for whatever sum, if any, will be paid out of said bank except upon bank designated by the guardian, that no funds might be recovered by the plaintiffs against the check of the guardian properly counterthe surety company on the guardianship signed by the agent of the company, that to be bond, for the reason that certain trust funds accepted and agreed to by the bank who is were deposited by the guardian in said bank | designated as the depository."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
190 P.-43

Nor can we agree with the contention of counsel for plaintiff in error that the court, in accepting the bond, was obliged to ascertain whether the agent and the guardian and some bank had entered into a joint control agreement. Section 1344, Revised Laws 1910, provides for surety companies execut-the evidence." ing bonds in judicial proceedings and provides for the court approving the same when executed by said companies. Section 1346, Revised Laws 1910, provides how such contracts shall be construed. Section 1350, Revised Laws 1910, provides when the company shall be estopped of denying liability. The joint control agreement was not a condition precedent to the execution of a bond, but was only a condition subsequent that the company required of the agent-that after he executed a bond he make a contract and agreement with the surety company and with some bank or third party. The court in approving the bond was not obliged to ascertain whether said joint control agreement had been made, nor would the court be required to pass upon the legality of said agreement,