§ 1262. For defendant

"If a counterclaim or set-off, established at the trial, exceed the plaintiff's claim so established, judgment for the defendant must be

given for the excess; or if it appear that the defendant is entitled to any affirmative relief, judgment shall be given therefor." 73

§ 1263. Against infant

"It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age; but in any case in which, but for this section, such reservation. would have been proper, the infant, within one year after arriving at the age of twenty-one years, may show cause against such order or judgment." 74

§ 1264. On motion

Defendant, by filing answer to a motion for judgment in a stipulation, does not become entitled to three days' notice of the hearing.75 Where defendant, after plaintiff's motion for judgment has been sustained, is permitted to file an amended answer, such permission is an informal setting aside of an order sustaining the motion."

Where there is no jury, a court may, after taking the case under advisement, decide it upon any proposition within the pleadings and the evidence, whether insisted upon by counsel or not."

§ 1265. Judgment in foreclosure suit

"In actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment or judgments shall be rendered for the amount or amounts due as well to the plaintiff as other parties to the action having liens upon the mortgaged premises by mortgage or otherwise, with interest thereon, and for sale of the property charged and the application of the proceeds; or such application may be reversed (reserved) for the further order of the court, and the court shall tax the costs, attorney's fees and expenses which may accrue in the action, and apportion the same among the parties according to their respective interests, to be collected on the order of sale or sales issued thereon; when the same mortgage embraces separate tracts of land situated in two or more counties, the sheriff of each county shall make sale of the lands situated in

73 Rev. Laws 1910, § 5141.

74 Rev. Laws 1910, § 5142.

75 Berry v. Dewey, 102 Kan. 392, 170 P. 1000.

76 Fritts v. Reidel, 165 P. 671, 101 Kan. 68.

77 Johnson v. Myers, 122 P. 713, 32 Okl. 421.

the county of which he is sheriff. No real estate shall be sold for the payment of any money or the performance of any contract or agreement in writing, in security for which it may have been pledged or assigned, except in pursuance of a judgment of a court of competent jurisdiction ordering such sale. The court may, in the order confirming a sale of land under order of sale on foreclosure or upon execution, award or order the issuance of a writ of assistance by the clerk of the court to the sheriff of the county where the land is situated, to place the purchaser in full possession of such land, and any resistance of the service of such writ of assistance shall constitute an indirect contempt of the process of such court, and if any person who has been removed from any lands by process of law or writ of assistance or who has removed from any lands pursuant to law on adjudication or direction of any court, tribunal or officer, afterwards, without authority of law, returns to settle or reside upon such land, he shall be guilty of an indirect contempt of court, and may be proceeded against and punished for such contempt." 78

§ 1266. Appeal from county commissioners

"The district court may make a final judgment and cause the same to be executed, or may send the same back to the board with an order how to proceed, and require said board of county commissioners to comply therewith by a mandamus or attachment as for contempt." 79

§ 1267. Corporations-Involuntary dissolution

"If it shall be adjudged that a corporation against which an action shall have been brought" for involuntary dissolution, "has, by neglect, abuse or surrender, forfeited its corporate rights, privileges and franchises, judgment shall be rendered that the corporation be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved." 80

78 Sess. Laws 1915, p. 352, § 1, amending Rev. Laws 5128, effective March 22, 1915.

79 Rev. Laws 1910, § 1644.

80 Rev. Laws 1910, § 1274.

(1229)

§ 1268. Time

DIVISION II.-RENDITION

The trial judge after trying a case without a jury may take same under advisement for a reasonable time, though such time extend beyond the term,81 provided judgment is then rendered in open court.82

The rendition of a judgment final as to all parties, while the issues remain undisposed of, is error.

83

The courts cannot withhold relief from one entitled to it in order to enable his adversary to construct the defenses for a prospective attack when favorable conditions shall arise.8*

§ 1269. Ejectment

Where one brings an action to recover land, and the facts show that he is entitled to recover but a portion thereof, he may recover that part which the pleadings and the facts show him entitled to.85

81 Potts v. First State Bank of Talihina, 51 Okl. 162, 151 P. 859. Where a case is tried to the court, it may, after hearing of the evidence, take the matter under advisement until the next term, when it may in open court render judgment. Barnes v. Benham, 75 P. 1130, 13 Okl. 582.

82 A district court is without authority in vacation to render judgment in a case tried in term time and taken under advisement. Nason v. Patten, 129 P. 138, 88 Kan. 472.

On October 26th a cause in the district court of B. county, G., judge, presiding, was submitted for judgment. The next day the court adjourned until November 19th, on which day it failed to meet and was adjourned by operation of law without fixing any time to reconvene. November 20th, in the same district, the district court of G. county convened, D., judge presiding, and continued until December 20th, when it adjourned until December 26th. On December 21st G., as presiding judge of B. county, without an order from the Supreme Court so to do, convened said court and rendered judg ment in said cause. Held, that the term in which the cause was submitted expired by operation of law by commencement of the term of the district court of G. county, and said judgment was void. Lookabaugh v. Okeene Hardware & Implement Co., 106 P. 844, 25 Okl. 474.

83 General Electric Co. v. Sapulpa & I. Ry. Co., 49 Okl. 376, 153 P. 189. Rendition of a judgment final as to all parties, while issues remain undisposed of, held error. United States Fidelity & Guaranty Co. v. Fidelity Trust Co., 49 Okl. 398, 153 P. 195.

Under Comp. Laws 1909, § 5794, the court properly entered judgment for defendant after sustaining a demurrer to plaintiff's evidence. Oklahoma Moline Plow Co. v. Smith, 139 P. 285, 41 Okl. 498.

84 McQuiston v. Walton, 69 P. 1048, 12 Okl. 130; Cunningham v. Morris, 69 P. 1133, 12 Okl. 132.

85 Edwards v. Brusha, 90 P. 727, 18 Okl. 234.

In an action for the recovery of land, the plaintiff may recover such par

Where persons in possession of separate parts of tracts without common interest are joined in ejectment for whole tract and file separate answers and consent to consolidation of actions, judgment may be rendered against all for possession of entire premises.

86

A judgment in ejectment, rendered prior to issuance of patent for the Indian lands in controversy, cannot affect the rights of the patentee while the patent is outstanding.87

§ 1270. Interplea

Where, on trial of an interplea in attachment, the jury found for interpleader that the property attached was covered by his chattel mortgage and that neither plaintiffs nor the sheriff, before levying the writ had paid or tendered to him the amount of the debt and interest thereby secured, as required by law, the court should, of its own motion, dissolve the attachment, order the property returned, and tax plaintiff with the cost of the attachment and of the interplea.88

When, in an action by the owner of attached wheat for damages from the sale thereof pending the litigation, the evidence showed that plaintiff acquiesced in such sale and payment of expenses, and there was no evidence of any unreasonable expense connected therewith, defendants were liable only for the net amount received for the wheat and costs of suit and plaintiff could not recover the costs of harvesting.89

Where, in an action of attachment, parties interplead, claiming the right to the property levied upon by writ of attachment, and where the property has been sold and converted into money by the order of the court, and the money brought into court, then a verdict of the jury in the alternative, for the possession of the property, or

of the land to which he shows title and right of possession, notwithstanding he is not entitled to recover all of the land sued for. Jameson v. Goodwin (Okl.) 170 P. 241.

In an action for the possession of a tract of land, where the plaintiff in his petition claims ownership and possession of only a three-fourths interest. and the evidence at the trial shows no greater claim, ownership, or right of possession, judgment for plaintiff for the possession of the entire tract is erroneous. Holmden v. Janes, 21 P. 591, 42 Kan. 758.

86 Mullen v. Carter (Okl.) 173 P. 512.

87 Reynolds v. Brooks, 49 Okl. 188, 152 P. 411.

88 Rev. Laws 1910, § 4041; Dodder v. Moberly, 114 Pac. 714, 28 Okl. 334. 89 Tuttle v. Bell, 142 P. 940, 92 Kan. 725, rehearing denied 144 P. 217, 93 Kan. 234.