operation rule in Oklahoma

1954In the case of Dean v. State, 51 Okl.Cr. 138 , 300 P. 319 , it was held: “The exclusion of witnesses for the state, at defendant’s request, is not an absolute right in all cases, but rests in the sound discretion of the trial court, and this includes the power to except one or more witnesses from the operation of the rule.” We find no abuse of discretion in this instance.

1954In the case of Dean v. State, 51 Okl.Cr. 138 , 300 P. 319 , it was held: “The exclusion of witnesses for the state, at defendant’s request, is not an absolute right in all cases, but rests in the sound discretion of the trial court, and this includes the power to except one or more witnesses from the operation of the rule.” We find no abuse of discretion in this instance.

1972In dealing with a similar proposition in Baker v. State, Okl.Cr., 306 P.2d 344 , the Court stated: “This contention has been resolved against the defendant in Harrell v. State, 36 Okl.Cr. 225 , 253 P. 516 , wherein the rule was stated as follows: ‘The exclusion of witnesses for the state, at defendant’s request, is not an absolute right in all cases, but rests in the sound discretion of the trial court, and this includes the power to except one or more witnesses from the operation of the rule. ‘It is proper practice to permit the prosecuting witness, or some officer active in the prosecution o

1972In dealing with a similar proposition in Baker v. State, Okl.Cr., 306 P.2d 344 , the Court stated: “This contention has been resolved against the defendant in Harrell v. State, 36 Okl.Cr. 225 , 253 P. 516 , wherein the rule was stated as follows: ‘The exclusion of witnesses for the state, at defendant’s request, is not an absolute right in all cases, but rests in the sound discretion of the trial court, and this includes the power to except one or more witnesses from the operation of the rule. ‘It is proper practice to permit the prosecuting witness, or some officer active in the prosecution o

1921(Metcalf on Con *303 tracts, 246; Addison on Contracts,- 905; Chitty on Contracts, 730; 1 Parsons on Contracts, 456; 1 Parsons on Notes and Bills, 217; Story on Promissory Notes, 190; Byles on Bills, 111; Chitty on Bills, 94.) Whilst a partial want or failure of consideration avoids a bill or noté only pro tanto, illegality in respect to a part of the consideration avoids it in toto.’ “In the ease of McQuade v. Kosecrans, 36 Ohio St. 442 , the court used this language in approving the former decision: ‘Where a part of the consideration, whether large or small, is affected with the fraud, the c

1896Parsons on Contractss, 456; I Parsons on Notes and Bills, 217; Story on Promissory Notes, 190; Byles on Bills, 111; Chitty on Bills, 94.; Whilst a partial want or failure of consideration avoids a bill or note only pro tcmto, illegality in respect to a part of the consideration avoids it in toto.” In the case of McQuade v. Rosecrans, 36 Ohio st. 442, the court used this language in approving the former decision: “Where a part of the consideration, whether large or small, is affected with the fraud, the case falls within the operation of the principle stated and affirmed in Widoe v. Webb, 20 Oh

2012Upon the vacation of the street the land to the center thereof attaches to and becomes a part of the adjoining lots." Id. 110 .

2003Chastain v. Posey, 1988 OK 46 , 665 P.2d 1179 .

2003Chastain v. Posey, 1988 OK 46 , 665 P.2d 1179 .

1984It being proper to ascertain the testator’s intention by interpreting the language of the will in light of the circumstances under which the will was made, Dilks v. Carson, 197 Okl. 128 , 168 P.2d 1020 (1946), we hold that the no contest clause in the will should not be given effect under the circumstances presented, as the operation of the clause here would be against the intentions of the testator.

1984It being proper to ascertain the testator’s intention by interpreting the language of the will in light of the circumstances under which the will was made, Dilks v. Carson, 197 Okl. 128 , 168 P.2d 1020 (1946), we hold that the no contest clause in the will should not be given effect under the circumstances presented, as the operation of the clause here would be against the intentions of the testator.

1979Viewing the actions of the Bank in this respect, we hold that the issue of estoppel was properly submitted to the jury, as the elements of promissory estoppel were present, if Knittel’s evidence was believed by the jury. 2 In addressing a quite similar fact situation, the Utah Supreme Court, in Williamson v. Wanlass, Utah, 545 P.2d 1145 (1976), held that: “The clause which allows for acceleration in case of default, if strictly enforced, is a severe covenant, the invocation of which has similarity to other forfeitures.

1972In dealing with a similar proposition in Baker v. State, Okl.Cr., 306 P.2d 344 , the Court stated: “This contention has been resolved against the defendant in Harrell v. State, 36 Okl.Cr. 225 , 253 P. 516 , wherein the rule was stated as follows: ‘The exclusion of witnesses for the state, at defendant’s request, is not an absolute right in all cases, but rests in the sound discretion of the trial court, and this includes the power to except one or more witnesses from the operation of the rule. ‘It is proper practice to permit the prosecuting witness, or some officer active in the prosecution o

1964These reasons are urged by the defendants, as plaintiffs in error here, reliance being placed upon the Marlin Fire Arms Company v. Shields, 171 N.Y. 384 , 64 N.E. 163 , 59 L.R.A. 310 ; Singer v. Romerrick Realty Corp., 255 App.Div. 715 , 5 N.Y.S.2d 607 ; Dailey v. Superior Court of City and County of San Francisco et al., 112 Cal. 94 , 44 P. 458 , 32 L.R.A. 273 , and Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133 , 67 S.W. 391 , 56 L.R.A. 951 , as showing that the court may not or will not afford plaintiff injunctive relief under the circumstances.

1964These reasons are urged by the defendants, as plaintiffs in error here, reliance being placed upon the Marlin Fire Arms Company v. Shields, 171 N.Y. 384 , 64 N.E. 163 , 59 L.R.A. 310 ; Singer v. Romerrick Realty Corp., 255 App.Div. 715 , 5 N.Y.S.2d 607 ; Dailey v. Superior Court of City and County of San Francisco et al., 112 Cal. 94 , 44 P. 458 , 32 L.R.A. 273 , and Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133 , 67 S.W. 391 , 56 L.R.A. 951 , as showing that the court may not or will not afford plaintiff injunctive relief under the circumstances.

1964These reasons are urged by the defendants, as plaintiffs in error here, reliance being placed upon the Marlin Fire Arms Company v. Shields, 171 N.Y. 384 , 64 N.E. 163 , 59 L.R.A. 310 ; Singer v. Romerrick Realty Corp., 255 App.Div. 715 , 5 N.Y.S.2d 607 ; Dailey v. Superior Court of City and County of San Francisco et al., 112 Cal. 94 , 44 P. 458 , 32 L.R.A. 273 , and Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133 , 67 S.W. 391 , 56 L.R.A. 951 , as showing that the court may not or will not afford plaintiff injunctive relief under the circumstances.

1964These reasons are urged by the defendants, as plaintiffs in error here, reliance being placed upon the Marlin Fire Arms Company v. Shields, 171 N.Y. 384 , 64 N.E. 163 , 59 L.R.A. 310 ; Singer v. Romerrick Realty Corp., 255 App.Div. 715 , 5 N.Y.S.2d 607 ; Dailey v. Superior Court of City and County of San Francisco et al., 112 Cal. 94 , 44 P. 458 , 32 L.R.A. 273 , and Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133 , 67 S.W. 391 , 56 L.R.A. 951 , as showing that the court may not or will not afford plaintiff injunctive relief under the circumstances.

1964These reasons are urged by the defendants, as plaintiffs in error here, reliance being placed upon the Marlin Fire Arms Company v. Shields, 171 N.Y. 384 , 64 N.E. 163 , 59 L.R.A. 310 ; Singer v. Romerrick Realty Corp., 255 App.Div. 715 , 5 N.Y.S.2d 607 ; Dailey v. Superior Court of City and County of San Francisco et al., 112 Cal. 94 , 44 P. 458 , 32 L.R.A. 273 , and Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133 , 67 S.W. 391 , 56 L.R.A. 951 , as showing that the court may not or will not afford plaintiff injunctive relief under the circumstances.

1964These reasons are urged by the defendants, as plaintiffs in error here, reliance being placed upon the Marlin Fire Arms Company v. Shields, 171 N.Y. 384 , 64 N.E. 163 , 59 L.R.A. 310 ; Singer v. Romerrick Realty Corp., 255 App.Div. 715 , 5 N.Y.S.2d 607 ; Dailey v. Superior Court of City and County of San Francisco et al., 112 Cal. 94 , 44 P. 458 , 32 L.R.A. 273 , and Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133 , 67 S.W. 391 , 56 L.R.A. 951 , as showing that the court may not or will not afford plaintiff injunctive relief under the circumstances.

1964These reasons are urged by the defendants, as plaintiffs in error here, reliance being placed upon the Marlin Fire Arms Company v. Shields, 171 N.Y. 384 , 64 N.E. 163 , 59 L.R.A. 310 ; Singer v. Romerrick Realty Corp., 255 App.Div. 715 , 5 N.Y.S.2d 607 ; Dailey v. Superior Court of City and County of San Francisco et al., 112 Cal. 94 , 44 P. 458 , 32 L.R.A. 273 , and Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133 , 67 S.W. 391 , 56 L.R.A. 951 , as showing that the court may not or will not afford plaintiff injunctive relief under the circumstances.

1964These reasons are urged by the defendants, as plaintiffs in error here, reliance being placed upon the Marlin Fire Arms Company v. Shields, 171 N.Y. 384 , 64 N.E. 163 , 59 L.R.A. 310 ; Singer v. Romerrick Realty Corp., 255 App.Div. 715 , 5 N.Y.S.2d 607 ; Dailey v. Superior Court of City and County of San Francisco et al., 112 Cal. 94 , 44 P. 458 , 32 L.R.A. 273 , and Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133 , 67 S.W. 391 , 56 L.R.A. 951 , as showing that the court may not or will not afford plaintiff injunctive relief under the circumstances.

1962This does not prevent the full operation of the principle of equitable estoppel, where under the circumstances the acts or omissions of the complaining party are sufficient to estop him from claiming a right to have something done under the contract which he in effect prevented being done. *551 Walker Valley Oil & Gas Co. v. Parks & Palmer, 128 Okl. 286 , 262 P. 672 .

1962This does not prevent the full operation of the principle of equitable estoppel, where under the circumstances the acts or omissions of the complaining party are sufficient to estop him from claiming a right to have something done under the contract which he in effect prevented being done. *551 Walker Valley Oil & Gas Co. v. Parks & Palmer, 128 Okl. 286 , 262 P. 672 .

1960While plaintiff boldly asserts that there doubtless exists some association between the management, or ownership, of the Cab Company and the owner of some of the cars used in its service, she admits she “has not been able to define such relationship * * Plaintiff can obtain no support for her position in cases like Oklahoma City Const. Co. v. Peppard, 43 Old. 121, 140 P. 1084 , following the rule that persons found performing the work of another are presumed to be in his employment, because here there is no evidence tending to show that, in driving the Ford involved, Fowler was performing any

1958In view of the aforementioned findings, it contained, with reference to W’s non-abandonment and defendants’ negligence, the journal entry of judgment in the present case appears to be a studied effort to bring it within the operation of the rule of client responsibility followed in such cases as Gavin v. Heath, supra, and to prevent application of Grayson v. Stith, supra. Faced with these formidable obstacles to reversal, defendants urge that, instead of following the line of cases advanced by plaintiff and exemplified by Gavin v. Heath, supra, we apply herein the principles applied in Latson

1958In view of the aforementioned findings, it contained, with reference to W's non-abandonment and defendants' negligence, *1091 the journal entry of judgment in the present case appears to be a studied effort to bring it within the operation of the rule of client responsibility followed in such cases as Gavin v. Health, supra, and to prevent application of Grayson v. Stith, supra. Faced with these formidable obstacles to reversal, defendants urge that, instead of following the line of cases advanced by plaintiff and exemplified by Gavin v. Heath, supra, we apply herein the principles applied in

1958Co. v. Kellum, Okl., 261 P. 2d 610 .

1958In view of the aforementioned findings, it contained, with reference to W’s non-abandonment and defendants’ negligence, the journal entry of judgment in the present case appears to be a studied effort to bring it within the operation of the rule of client responsibility followed in such cases as Gavin v. Heath, supra, and to prevent application of Grayson v. Stith, supra. Faced with these formidable obstacles to reversal, defendants urge that, instead of following the line of cases advanced by plaintiff and exemplified by Gavin v. Heath, supra, we apply herein the principles applied in Latson

1958In view of the aforementioned findings, it contained, with reference to W's non-abandonment and defendants' negligence, *1091 the journal entry of judgment in the present case appears to be a studied effort to bring it within the operation of the rule of client responsibility followed in such cases as Gavin v. Health, supra, and to prevent application of Grayson v. Stith, supra. Faced with these formidable obstacles to reversal, defendants urge that, instead of following the line of cases advanced by plaintiff and exemplified by Gavin v. Heath, supra, we apply herein the principles applied in

1958It is doubtful that the “injustice” referred to in the rule relates any more to the collectibility of the judgment (after it Í9 obtained) than it does to the attorney’s insolvency in the operation of the rule followed in Gavin v. Heath, supra. In this connection, see Welch v. Challen, supra, but also notice Waterson v. Seat, 10 Fla. 326 , discussed in the note beginning at 27 L.R.A.,N.S., 858.

1958It is doubtful that the "injustice" referred to in the rule relates any more to the collectibility of the judgment (after it is obtained) than it does to the attorney's insolvency in the operation of the rule followed in Gavin v. Heath, supra. In this connection, see Welch v. Challen, supra, but also notice Waterson v. Seat, 10 Fla. 326 , discussed in the note beginning at 27 L.R.A., N.S., 858.

1957“It is proper practice to permit the prosecuting witness, or some officer active in the prosecution of the case, to remain in the courtroom to advise the prosecuting attorney as to the facts, interest, and character of witnesses, etc., though the state’s witnesses generally are excluded.” To the same effect are McKinnon v. State, Okl.Cr., 299 P.2d 535 ; Hatfield v. State, 49 Okl.Cr. 41 , 292 P. 1058 ; Barnett v. State, 41 Okl.Cr. 153 , 271 P. 956 .

1957“It is proper practice to permit the prosecuting witness, or some officer active in the prosecution of the case, to remain in the courtroom to advise the prosecuting attorney as to the facts, interest, and character of witnesses, etc., though the state’s witnesses generally are excluded.” To the same effect are McKinnon v. State, Okl.Cr., 299 P.2d 535 ; Hatfield v. State, 49 Okl.Cr. 41 , 292 P. 1058 ; Barnett v. State, 41 Okl.Cr. 153 , 271 P. 956 .

1957“It is proper practice to permit the prosecuting witness, or some officer active in the prosecution of the case, to remain in the courtroom to advise the prosecuting attorney as to the facts, interest, and character of witnesses, etc., though the state’s witnesses generally are excluded.” To the same effect are McKinnon v. State, Okl.Cr., 299 P.2d 535 ; Hatfield v. State, 49 Okl.Cr. 41 , 292 P. 1058 ; Barnett v. State, 41 Okl.Cr. 153 , 271 P. 956 .

1957“It is proper practice to permit the prosecuting witness, or some officer active in the prosecution of the case, to remain in the courtroom to advise the prosecuting attorney as to the facts, interest, and character of witnesses, etc., though the state’s witnesses generally are excluded.” To the same effect are McKinnon v. State, Okl.Cr., 299 P.2d 535 ; Hatfield v. State, 49 Okl.Cr. 41 , 292 P. 1058 ; Barnett v. State, 41 Okl.Cr. 153 , 271 P. 956 .

1957“It is proper practice to permit the prosecuting witness, or some officer active in the prosecution of the case, to remain in the courtroom to advise the prosecuting attorney as to the facts, interest, and character of witnesses, etc., though the state’s witnesses generally are excluded.” To the same effect are McKinnon v. State, Okl.Cr., 299 P.2d 535 ; Hatfield v. State, 49 Okl.Cr. 41 , 292 P. 1058 ; Barnett v. State, 41 Okl.Cr. 153 , 271 P. 956 .

1953It has been applied in numerous cases, most predominant, of which is that of Bereman v. Grant, 195 Okl. 330 , 157 P.2d 743 .

1953It has been applied in numerous cases, most predominant, of which is that of Bereman v. Grant, 195 Okl. 330 , 157 P.2d 743 .

1949It does not follow however, that the sale is absolutely void in the sense that the purchaser takes no title, which he can convey to a third person — a bona fide purchaser without notice; nor that the cestui que trust may not, upon notice of all the facts, ratify and affirm the sale by his acquiescence or silent approval.’ ” Therein there is quoted from Marsh v. Whitmore, 21 Wall. 178 , 88 U. S. 178 , 22 L.

1949It does not follow however, that the sale is absolutely void in the sense that the purchaser takes no title, which he can convey to a third person — a bona fide purchaser without notice; nor that the cestui que trust may not, upon notice of all the facts, ratify and affirm the sale by his acquiescence or silent approval.’ ” Therein there is quoted from Marsh v. Whitmore, 21 Wall. 178 , 88 U. S. 178 , 22 L.

1947Therein the New York court said: “It would work an entire abrogation of the rule to hold the principal subject to the operation of the rule, and exempt the clerks and agents from its effects.” Mechem on Agency (2d Ed.) sec. 1202; Iroquois Iron Co. v. Kruse, 241 Fed. 433 .

1939However, the city’s liability does not extend to defects or obstructions rendering its streets unsafe unless it can be said to have had notice of same, or as stated in Armstrong v. City of Tulsa, 102 Okla. 49 , 226 P. 560 , “unless the facts and circumstances are *209 such as to warrant an inference of notice or knowledge. * * *” Counsel for the defendant contend that this condition to the operation of the rule exists to defeat liability in the present case because it was not shown that the defendant had notice that the W.

1939However, the city’s liability does not extend to defects or obstructions rendering its streets unsafe unless it can be said to have had notice of same, or as stated in Armstrong v. City of Tulsa, 102 Okla. 49 , 226 P. 560 , “unless the facts and circumstances are *209 such as to warrant an inference of notice or knowledge. * * *” Counsel for the defendant contend that this condition to the operation of the rule exists to defeat liability in the present case because it was not shown that the defendant had notice that the W.

1938The error, if any, was invited by defendant and he may not now complain, for, as held in Allen v. Oklahoma State Bank, 133 Okla. 14 , 270 P. 838 , ‘.‘a party, on an appeal to the Supreme Court, will not be permitted to secure a reversal of a judgment upon error which he has invited and acquiesced in.” See, also, Skaggs v. Gypsy Oil Co., 169 Okla. 209 , 36 P. (2d) 865 .

1938The error, if any, was invited by defendant and he may not now complain, for, as held in Allen v. Oklahoma State Bank, 133 Okla. 14 , 270 P. 838 , ‘.‘a party, on an appeal to the Supreme Court, will not be permitted to secure a reversal of a judgment upon error which he has invited and acquiesced in.” See, also, Skaggs v. Gypsy Oil Co., 169 Okla. 209 , 36 P. (2d) 865 .

1938The error, if any, was invited by defendant and he may not now complain, for, as held in Allen v. Oklahoma State Bank, 133 Okla. 14 , 270 P. 838 , ‘.‘a party, on an appeal to the Supreme Court, will not be permitted to secure a reversal of a judgment upon error which he has invited and acquiesced in.” See, also, Skaggs v. Gypsy Oil Co., 169 Okla. 209 , 36 P. (2d) 865 .

1938The error, if any, was invited by defendant and he may not now complain, for, as held in Allen v. Oklahoma State Bank, 133 Okla. 14 , 270 P. 838 , ‘.‘a party, on an appeal to the Supreme Court, will not be permitted to secure a reversal of a judgment upon error which he has invited and acquiesced in.” See, also, Skaggs v. Gypsy Oil Co., 169 Okla. 209 , 36 P. (2d) 865 .

1936“The authority invested in courts to disturb the verdict of the jury on the ground of executive damages, is one that should be exercised with great caution and discretion, and ordinarily the court will refuse to set aside a judgment on the ground that the award is excessive. * * * So it has been held that a verdict will not be disturbed on the ground that it is excessive where there is some evidence ■ to support it; where the evidence would have authorized a larger amount of damages than that allowed; where the evidence is conflicting.” In the above case this court cited with approval the case

1936“The authority invested in courts to disturb the verdict of the jury on the ground of executive damages, is one that should be exercised with great caution and discretion, and ordinarily the court will refuse to set aside a judgment on the ground that the award is excessive. * * * So it has been held that a verdict will not be disturbed on the ground that it is excessive where there is some evidence ■ to support it; where the evidence would have authorized a larger amount of damages than that allowed; where the evidence is conflicting.” In the above case this court cited with approval the case