This case was filed in this court July 17, 1909. Plaintiff in error filed its brief on the 12th day of August, 1909. More than two years have elapsed since said date, and the defendant in error has filed no brief in support of the judgment, nor has any reason or excuse been assigned for not doing so. Under the authority of the rule announced in Butler v. McSpadden,25 Okla. 465, 107 P. 170; Ellis v. Outler, 25 Okla. 469,106 P. 957; Buckner v. Bank, 25 Okla. 472, 106 P. 959; Reeves Co. v. Brennan, 25 Okla. 544, 106 P. 959; Sharpleigh Hwd.Co. v. Pritchard, 25 Okla. 808, 108 P. 360, and SchoolDistrict No. 39 v. Shelton, 26 Okla. 229, 109 P. 67, 138 Am. St. Rep. 962, we are warranted in reversing this case. However, in addition to the above reason, we have carefully examined the entire record, and find that the assignments of error raised in the brief of plaintiff in error require a reversal of the case on other grounds.
The note sued on was executed prior to statehood, to wit, on April 28, 1903. Action thereon was instituted subsequent to the adoption of the Constitution, to wit, June 1, 1908. At the date of the execution of the note the subject of usury in the Indian Territory was controlled by chapter 109, Mansf. Dig. (Ind. Ter. Ann. St. 1899, secs. 3041-3052)), which has been extended over the Indian Territory by Act Cong. May 2, 1890, c. 182, sec. 31, 26 Stat. 94, and by the proviso to section 8, Act Cong. Feb. 18, 1901, c. 379, 31 Stat. 795, entitled:
"An act to put in force in the Indian Territory certain provisions of the laws of Arkansas relating to corporations and to make certain provisions applicable to said territory"; both statutes being in force and effect.
See Brewer et al. v. Rust, 20 Okla. 776, 95 P. 233.
Whether plaintiff in error is a corporation organized and existing under and by virtue of the former act which permitted the taking and reserving of interest at 10 per cent. per annum, or whether it is a corporation organized and existing *Page 73 under the latter act which prohibited the taking of interest in the excess of 8 per cent. per annum, we are unable to determine from the record before us. The only allegation of the corporate capacity of plaintiff in error, as shown by the record, is:
"Plaintiff is a corporation organized under the laws of the state of Oklahoma and having its office and principal place of business in Grove, Delaware county, state of Oklahoma."
And the only proof in the record as to its corporate existence is a stipulation of the parties found on page 15 of the case-made, as follows: "It is admitted plaintiff is a corporation as alleged."
If the plaintiff in error was a corporation organized under Act Cong. Feb. 18, 1901, c. 379, 31 Stat. 795, the rate of interest charged in the note would be in excess of the maximum rate permitted by law, but we cannot determine from the record that it was organized under such act. On the other hand, if it was organized under chapter 109, Mansf. Dig., it will be warranted in charging 10 per cent., and the note would not be usurious. Being unable therefore to ascertain from the record whether the instrument sued on was or was not an usurious contract, and that being the controlling question in the case, the judgment of the county court of Delaware county should be reversed, with instructions to grant a new trial.
By the Court: It is so ordered.
All the Justices concur. *Page 74