1. Limitation of Actions — Demurrer — Bar of Limitations. The first paragraph of the syllabus in Fox v. Ziehme et al., 30 Okla. 673, 120 P. 285, adopted herein. 2.

The following cases are cited. Pruitt v. State, 62 Okla. Cr. 38, 70 P.2d 129; Fisk v. Venable, 61 Okla. Cr. 360, 68 P.2d 425; Castleberry v. Jones, 68 Okla. Cr. 414, 99 P.2d 174; Lee v. State, 66 Okla. Cr. 351, 92 P.2d 591; Ingles v. McMillan, 5 Okla. Cr. 130, 113 P. 998, 45 L.R.A., N.S., 511; Ex parte Hudson, 3 Okla. Cr. 393, 106 P. 540, 107 P. 735; Lewis v. Russell, 4 Okla. Cr. 129, 111 P. 818; Yeargain v. Venable, 65 Okla. Cr. 225, 84 P.2d 812; Johnson v. Wells, 5 Okla. Cr. 599, 115 P. 375; Saddler v. Crump, 30 Okla. Cr. 157, 235 P. 263. In civil cases: Holloway v. Hall, 79 Okla. 163, 192 P. 219; Prowant v. Sealy, 77 Okla. 244, 187 P. 235; Fox v. Ziehme, 30 Okla. 673, 120 P. 285; Myers v. Bailey, 26 Okla. 133, 109 P. 820. These cases give fully the history of this statute, the rule that was in force in this state prior to its passage, and the rule to be followed since its adoption.

June 10, 1909) and subsequently codified at: Comp. Laws 1909, § 2016; Rev. Laws 1910 § 5816; C.O.S. 1921 § 2633; 1931 O.S. § 2915[31-2915]; 22 O.S. 1941 (1951 1961) § 575; and renumbered in 1969 to 20 O.S.Supp. 1969 § 1403[ 20-1403].See also, Myers v. Bailey, 1910 OK 106, 109 P. 820, 821, (a party must file a proper application for disqualification in the trial court prior to raising the issue by either appeal or petition for extraordinary relief); Fox v. Ziehme, 1911 OK 501, 120 P. 285, 288, (same); Prowant v. Sealy, 1919 OK 304, 187 P. 235, 242, (statutory procedure is an adequate trial court remedy and a disqualification complaint upon appeal will not be heard if the judge was not requested to disqualify). The term "may" is usually construed to imply permissive or discretionary conduct, as opposed to creating a mandatory requirement.

Where such fact does not affirmatively appear the statute must be pled. Territory v. Woolsey, 35 Okla. 545, 130 P. 934 (1913). Fox v. Ziehme, 30 Okla. 673, 120 P. 285 (1911). Thus, it appears that the trial court correctly overruled the demurrer inasmuch as the amended petition does not incorporate the initial petition and contains no dates at all on its face. Filing of an amended petition complete in itself, not referring to original petition or prior amendments, is an abandonment of all prior averments not contained in the amended petition. Scott v. Price, 123 Okla. 172, 247 P. 103 (1926).

The return challenged the sufficiency of the allegations contained in the alternative writ issued below, and it effectively raised the issue of laches. Reaves v. Turner, 20 Okla. 492, 94 P. 543; Tiger v. Brown et al., 130 Okla. 83, 165 P. 124; Fox v. Ziehme et al., 30 Okla. 673, 120 P. 285; Missouri, K. T. Ry. Co. v. Wilcox, 32 Okla. 51, 121 P. 656; Ostran v. Bond et al., 69 Okla. 310, 172 P. 447; Delzell v. Couch, 70 Okla. 124, 173 P. 361. Duke v. Turner, 204 U.S. 623, 51 L.Ed. 652, 27 S.Ct. 316.

Under section 5812 of our statutes, a disqualified judge may sit by consent of the parties. Since the adoption of sections 5812 and 5816, Rev. Laws 1910, it has been consistently held by this court that where parties seeking to disqualify a trial judge had knowledge of the grounds of the disqualification for more than three days prior to the trial and did not avail themselves of the procedure prescribed by section 5816, supra, they cannot urge the disqualification on appeal. Prowant v. Sealy, 77 Okla. 244, 187 P. 235; Fox v. Ziehme et al., 30 Okla. 673, 120 P. 285; Myers v. Bailey, 26 Okla. 133, 109 P. 820; Ingles v. McMillan, 5 Okla. Cr. 130, 113 P. 998, 45 L. R. A. (N. S.) 511; Ex parte Hudson, supra. It logically follows that if, under such circumstances, the question of disqualification cannot be urged on appeal, the judgment is not void and, therefore, is not subject to collateral attack on the ground of the disqualification of the judge.

The record further shows that all the facts now alleged for disqualification were known to the defendants before the trial and although a proper and effective remedy at law was available for the disqualification of a trial judge where such disqualification exists, they made no effort to avail themselves of such remedy. Sections 5812, 5816, Rev. Laws 1910; Fox v. Ziehme et al., 30 Okla. 673, 120 P. 285; Myers v. Bailey, 26 Okla. 133, 109 P. 820; Ingeles v. McMillan, 5 Okla. Cr. 430, 113 P. 998; Ex parte Hudson, 3 Okla. Cr. 393, 106 P. 640. The equities in these cases, we think, are with the plaintiffs, and the finding of the trial court, which we hold is supported by the evidence, being that the contract, construed as a whole in the light of the intention of the parties who made it, gave the plaintiffs the right to commence drilling any time prior to the expiration of the three-year period, provided the drilling operations were diligently pursued in good faith, and since it has been shown that drilling operations were pursued and consummated in good faith from the time they were begun in January, 1917, and that oil was produced and is being produced in paying quantities on the tracts described by the leases in controversy, we hold that the plaintiffs should prevail, and that the injunction heretofore granted by the trial court should be made permanent.

Where the exhibits attached to plaintiff's petition show upon their face that the cause of action set out therein is barred by the statute of limitations and there are no allegations in the petition to show that the cause of action is not barred, a demurrer to the petition should be sustained. Fox v. Ziehme, 30 Okla. 673, 120 P. 285; Grimes v. Cullison, 3 Okla. 268, 41 P. 355; Whit-acre v. Nichols, 17 Okla. 387, 87 P. 865; Territory v. Woolsey, 35 Okla. 545, 130 P. 934. The plaintiff, in answer to the cross-action of the interpleader, having set up as a part thereof his amended petition, and it appearing by said amended petition that "the deed the plaintiff had received from the defendant contained a provision for the payment of a $2.000 mortgage," and basing his defense alone upon the invalidity of said mortgage due to fraud practiced upon him in the deed executed to him said answer failed to set up a defense to the cross-action of the interpleader for the foreclosure of the mortgage, and the court did not err in sustaining a demurrer to that part of the answer.

Where a petition upon its face shows that the cause of action set out therein is barred by the statute of limitations, it is proper to sustain a demurrer thereto, urged specially on that ground. Fox v. Ziehme, 30 Okla. 673, 120 P. 285; Reeves v. Turner, 20 Okla. 492, 94 P. 543; Betz v. Wilson, 17 Okla. 383, 87 P. 844. But the second amended petition, to which the demurrer was directed and sustained, does not disclose upon its face that the action is barred.