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Opinions in p Volume 189

OPINION OP THE COURT. This is a suit to quiet title, brought ' by the Mabie-Lowrey Hardware Company against Tom Ross et al. From a judgment in defendant’s favor, the plaintiff appeals to this court. Both parties claim title to the property in question through conveyances from one Dock Townsend: Plaintiff received its paper title by warranty deed from one Toole, to whom Townsend had conveyed. The d...
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OPINION OP THE COURT. On the 16th day of January, 1918, appellee filed suit in the district court of Dona Ana county to foreclose a real estate mortgage securing two promissory notes each for $3,537.50, and interest. The complaint alleged that the notes were given in part payment of the real estate described in the mortgage sought to be foreclosed; that the notes and mortgage in question were exec...
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During the school year 1910-1911 Common School District No. 40 of Lincoln County issued certain orders for warrants for the payment of the services of teachers, janitors and school wagon drivers, which amounted to the sum of $2,773.58. These orders, by assignment, became the property of respondent. • Thereafter, the district became *28Common School District No. 40 of Gooding County. (1913 Sess. La...
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While traveling at night in an automobile along a public highway in a westerly direction appellants collided with an automobile belonging to respondent, in charge of one of its officers, traveling in an easterly direction. The middle portion of the highway, a space about 16 feet wide, was paved and there .was a graveled strip from two to four feet wide on each side of the pavement. Appellants test...
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This is an application for a writ of mandate directing the defendant, as said clerk, to transmit to the clerk of the superior court of the city and county of San Francisco the files in an action for divorce commenced by plaintiff against one C. L. Searcy, the material events of which occurred in the following order: 1. September 19, 1919, action commenced in the superior court of said city and cou...
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Action for án injunction against the treasurer and tax collector of Latah county, Idaho, and the commissioners of Good Road District No. 1 of said county, which will hereinafter be called the district, based upon the contention that C. S., sec. 1480, wherein it provides “only resident freeholders residing within the boundaries of such good road district shall be allowed to vote at any good road el...
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In October, 1913, the respondent entered into a contract to purchase a tract of land in Owyhee county from one Doyle at $120 per acre, the total purchase price being $14,400. The deal was consummated by and through appellants. This action was commenced by respondent April 15, 1914. The second amended complaint, on which the action was tried, set forth two causes of action based upon alleged fraudu...
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delivered the opinion of the court. On the twenty-fifth day of November, 1919, relator, with 584 other persons, filed with the respondent board two petitions, one from Cascade county and one from Fergus county, for the creation of a new county to be known as Judith Basin county/ These petitions contained a statement of all facts required by law and necessary to confer jurisdiction upon the board t...
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delivered the opinion of the court. Appellant was convicted in the district court of Silver Bow county of the crime of assault in the second degree, committed upon the person of one Mike Burzan. The trouble out of which the charge arose occurred at the Northern Pacific depot in Butte ■during the farewell demonstration for departing Servian volunteers. It appears from the evidence that there was co...
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By the Court, Elizabeth A. Rodgers brought this action in 1914 as executrix of the last will and testament :of Arthur Rodgers, deceased, in the district court of Humboldt County, to quiet title to the north half of the northwest quarter of section 11, township 26 north, range 31 east, M. D. B. & M. She alleges that her testator, Arthur Rodgers, in his lifetime and at the time of his death was the...
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This matter was. brought on for review before this court under the provisions of Comp. Laws Utah 1917, section 3148, as amended by chapter 63, Laws Utah 1919 (section 3148a, page 164), upon the application of plaintiffs for a writ of *81certiorari wherein it was alleged that the Industrial Commission of Utah had exceeded its jurisdiction by rendering a decision and in making an award to Annie C. B...
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The second amended complaint is, in substance, that plaintiffs are partners; that defendants are railroad corporations and common carriers engaged, among other things, in transporting freight from Provo, Utah, to Salt Lake City over the Los Angeles & Salt Lake Railroad Company’s line, thence to Ogden, Utah, by the Oregon Short Line Railroad Company, and from Ogden, through Wyoming, to Denver, Colo...
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Plaintiff’s complaint in substance alleges that she. is the owner of certain land in Salt Lake county, Utah, consisting of éight and sixty-nine hundredths acres; that a certain street of defendant city known as Wasatch street extends from State street on the east to the main street of said city on the west, a distance of approximately one mile; that said street passes the said land of plaintiff an...
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The complaint is to the effect that on July 30, 1918, plaintiff was lawfully and rightfully riding a bicycle- near the junction of the state highway and Gentile street, in Layton, Davis county, and that defendant negligently, carelessly, and recklessly operated an automobile over and along said highway so as to cause it to run with great force and violence upon, and knock down, the plaintiff. The ...
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The defendant was charged with the crime of grand larceny in the district court of Utah county, was convicted and sentenced to an indeterminate term, not exceeding ten years, in the Utah state prison, and in addition thereto to pay a fine of $1,000.00, from which he appeals. The information is in the usual form. The material and controlling facts dedueible from the statements of the witnesses who ...
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Plaintiff, a railroad corporation, commenced this action in the usual form under our statutes to condemn for railroad purposes certain real property situate in the city of Pays on, Utah county. The defendants answered, admitting the allegations of the complaint, except that a taking of the property was necessary for plaintiff’s use. It was alleged in the answer by way of a counterclaim against the...
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This was a suit by respondents, plaintiffs below, against appellant and defendants, to recover damages because of the destruction by fife of certain grain. The ease was tried to the court without a jury. There was a judgment in favor of the plaintiffs and against the defendants Whalen and Párchese. Whalen has appealed. It appears that, during the progress of the trial, the defendant Dittenthoeler ...
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The respondent is suing upon a fire insurance policy which was issued by the appellant on October 25, 1916, in the sum of $1,000, insuring a Winton automobile, owned by the respondent, which was burned December 15, 1916. The appellant, as a defense to the action, relied upon the fact that the respondent, at the time the insurance was obtained, represented that the automobile was manufactured in th...
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Plaintiff and appellant owned unfenced lands in Mendocino County. Plaintiff sought by this suit to obtain damages for trespass upon his land of animals owned by defendants, and also prayed for an injunction to *Page 723 prevent further incursions of defendants' cattle. A general demurrer to the complaint was sustained and the plaintiff appeals from the judgment which followed. Two questions are p...
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This is a contest of the will of Ysabel Boronda de Soberanes, within one year after probate, by Porfirio Soberanes, her son, upon the grounds that the will was not properly executed, that the testatrix was of unsound mind, and that the will was executed under undue influence. The first ground of contest was withdrawn, and a motion of nonsuit was sustained as to the others. The contestant appeals f...
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The complaint alleges that the plaintiff is the owner of certain land fronting on Hill Street, in the city of Los Angeles, upon which she was erecting an apartment house and had proceeded so far as to put in the *Page 517 foundations thereof; that the city of Los Angeles entered into a contract with the defendants Spicer Wattson for the construction of a tunnel beneath the street along the line ...
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This is an appeal by the defendants from a judgment for the plaintiff in an action to declare a forfeiture of the defendants’ interest in certain real property. Findings were waived and there is no dispute as to the facts. On February 1, 1910, the plaintiff corporation entered into an agreement with defendant Sallie Owens for the sale to her of lot 10 in block 4 in the town of Moron, Kern Count...
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This is an application for a writ of review. It is alleged in the petition that on the twenty-seventh day of December, 1918, one A. L. Gore recovered judgment *Page 207 in the superior court of Los Angeles County, in a civil action on a certain promissory note, against petitioner herein; that said judgment is legal and valid; that petitioner has not appealed therefrom or made any motion to set th...
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Defendant appeals from a judgment for $389.02, damages for wrongful conversion of personal property of the plaintiff. We have before us the judgment-roll, without any bill of exceptions. [1] No attempt is made by appellant to present any point on the merits of the case. He merely suggests that the findings of fact were served on his attorney on February 20, 1918, and were signed and filed on the 2...
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Plaintiff sued to recover the purchase price of a certain lot of glass bottles. Judgment was in its favor, and the defendant appeals from the judgment and also from an order made denying his motion for a different judgment upon the findings of fact. Plaintiff at the time material to this controversy was engaged in the manufacturing of glass articles in the state of West Virginia and was represe...
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The defendant appeals from a judgment rendered against it for balance of the purchase price owing to the plaintiff on a contract for potatoes sold a,nd delivered. The following facts were found by the court, all of which were established by the evidence: On June 6, 1917, defendant agreed to buy from plaintiff two carloads of potatoes of 270 sacks each, to be delivered f. o. b. ears at Anaheim, ...
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Appeal by plaintiff from a judgment entered in defendant's favor. This action, as formulated by the complaint, was one of claim and delivery, wherein it was alleged that the defendant "wrongfully" took from the possession of the plaintiff a certain automobile and continued to retain possession of the same after demand made. The usual judgment in the alternative was asked for. The defendant filed w...
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Action to recover on a subscription contract whereby the defendant agreed to take and pay for shares of stock of plaintiff corporation. The defendant claimed the right to rescind the contract upon the ground that the agents of the corporation in their negotiations with the defendant, which resulted in the contract, falsely and fraudulently represented to the defendant that the capital stock of the...
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Action to recover on a contract of subscription for stock of the plaintiff corporation. Judgment for the defendant, from which the plaintiff appeals. [1] The facts are closely like those shown by the record inMerchants Realty and Investment Co. v. Kelso, ante, p. 218, [189 P. 116]. On the authority of that decision, the judgment in this case is affirmed. *Page 1 ...
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This is an appeal by the defendant J. J. Rosenmayer from a judgment against him alone in the sum of $3,534.96 for commissions upon the sale of goods. The plaintiff is the assignee of Sutphen Company, a copartnership engaged in business as brokers and manufacturers' agents in the city of Chicago. The defendant was engaged in Los Angeles in the business of buying cauliflower from the farmers and pa...
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The plaintiff brought this action to quiet title to certain lots in the town of Monrovia, Los Angeles. The complaint is in the usual form, merely alleging the plaintiff's ownership and that defendant, without right, claims an interest in the property. The answer consists of a denial of the allegations of the complaint and of a claim of ownership in the defendant. The findings of the court were to ...
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Action by plaintiff to recover the sum of $590, balance due on a contract for oranges sold and delivered; also to recover the further sum of one thousand one hundred dollars damages for breach of the same contract by refusal of defendants to receive a part of the oranges sold and to pay for same. Judgment in favor of plaintiff on both demands, from which judgment defendants appeal. The terms of...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 263 By an information filed by the district attorney in the superior court of the county of Siskiyou, defendant was charged with having committed a lewd and lascivious act upon and with the body of one Gladys Jackson, a female child of the age of nine years. ...
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The defendants appealed from a judgment against them in a suit in replevin for certain bar fix *360 tures and furnishings installed in a saloon in Los Angeles under a contract between one Conroy and the Brunswiek-Balke-Collender Company, the plaintiff's assignor. The judgment was for the return of the property claimed-, except a small part concerning which there is no dispute and w...
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The defendant appeals from a judgment against it by which a contract for the sale of an organ with piano attachment was declared rescinded. The plaintiff was also given judgment for money he had paid on account of the stipulated purchase price of the instrument. [1] At the opening of the trial the defendant's request for leave to file an amendment to its answer was denied, and this is assigned as ...
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The plaintiff appeals from a judgment in its favor for the sum of $68.58 with interest, and which excluded an item of six hundred dollars and interest for money loaned by plaintiff to defendant and included in an open book account. The appellant contends that the evidence is insufficient to justify the court's finding to the effect that the cause of action on said item of six hundred dollars is ba...
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Action to recover upon an account for services rendered and materials furnished by the plaintiffs to the defendant at his special instance and request. There was a counterclaim by the defendant. Judgment was entered in favor of the plaintiffs for $490.44, balance found due to plaintiffs, with interest and costs. The counterclaim was in part on a demand for rent and in part for damages for breach ...
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The opinion of the court was delivered by This action was brought by the plaintiff under the intoxicating liquor law to enjoin the defendants from maintaining a nuisance. A temporary injunction was granted, and from the order granting that injunction the defendants appeal. Their contention is that the evidence showed that the place was closed at the time the action was commenced, and had been clos...
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The opinion of the court was delivered by The appeal was taken from an order offsetting judgments. The question is whether or not the amount in controversy is sufficient to give this court jurisdiction. On February 12 Denny obtained judgment against Russell for the sum of $94, with interest at six per cent, and for costs. On February 21 Carver, attorney for Denny, perfected an attorney’s lien on t...
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Mike Roselli was convicted of murder in the first degree, and appeals. The state moves to dismiss the appeal on the ground of a failure on the part of the defendant to comply with the provision of the statute that “the transcript must be filed within thirty days after the appeal is taken.” (Gen. Stat. 1915, § 8200.) The state interprets the word “transcript” as referring to the certified copies of...
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*570The opinion of the court was delivered by The plaintiffs, Walter L. Pennington and Florence Pennington, brought this action against the Little Pirate Oil and Gas Company, charging it with negligently causing the death of their son James, who was nine years old. The trial court sustained a demurrer to plaintiffs’ evidence and gave judgment for the defendant, and from this ruling'and judgment p...
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The opinion of the court was delivered by This is an action on a fire insurance policy. The payment of the insurance premium was in default at the time of the fire,'and the defendant denied liability. The plaintiff is a Scott county farmer. On May 5, 1916, he procured from defendant a three-year fire insurance policy, which insured his horses, cattle, farm machinery, grain and feed. In payment fo...
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The opinion of the court was delivered by The plaintiff was injured while in the service of the defendants, Wright Brothers, and they agreed with him that their liability therefor, if any, should be ascertained and determined on the basis prescribed by the workmen’s compensation act, and not under the common law. To that end, the plaintiff filed an action against the defendants, alleging that the...
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The opinion of the court was delivered by The plaintiff sued to recover an excess amount which he alleged he had paid on a promissory note covering a supposed indebtedness to a third party, and alleged that the defendant fraudulently represented that such indebtedness was larger than it was and that he permitted the defendant *667to examine and check up the accounts between them, but that he fals...
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The opinion of the court was delivered by The city of Great Bend brought action against the Great Bend Water and Electric Company for an injunction against a charge it was making for water service. Judgment was rendered for the plaintiff on the pleadings, and the defendant appeals. The controversy is over the interpretation of the ordinance *554fixing rates. After making provision for a scale of c...
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The opinion of the court was delivered by This action was brought by M. F. King, J. S. Nuckols, and W. M. Thompson, alleged members of the Wabash Baptist church of Wichita, against B. Alard Smith and his wife, who are respectively pastor and secretary of that church, to enjoin them from acting in the capacities named, also from withholding the keys of the church and interfering with meetings desir...
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The opinion of the court was delivered by The action was one by Pixley, a real-estate agent, to recover from Gonder, a landowner, commission for services rendered in selling the land to Strassburg. The plaintiff recovered, and the defendant appeals. Pixley’s employment was not in writing, and the land was not listed for sale on specified terms. Gonder hoped to sell it for $8,500, and Pixley was to...
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The opinion of the court was delivered by This was an action for the rent of a farm; the defense was a plea of payment by the performance of services. The plaintiif owned a farm in the lead and zinc district in Cherokee county. The defendant was his tenant for a number of years, from 1909 to 1917, inclusive. Plaintiff’s action was for the rent for the year 1917 and for a balance due as rent for th...
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The opinion of the court was delivered by James Langston was convicted of the crime of statutory rape committed upon his niece, Venice Shaw. He appeals, and complains principally of errors in the admission of testimony, and also as to instructions given and refused. *673The defendant was about fifty-eight years of age, and Venice, a small and somewhat delicate child, was only eleven years old. He...
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The opinion of the court was delivered by The plaintiff brought an action against the Farmers State Bank of Zenda to recover upon a check for $2,000 drawn upon the bank by F. M. Smith in favor of C. H. Cowles, plaintiff’s station agent at Zenda, and duly certified by the bank. In its answer,, the bank attempted to justify its refusal to pay by alleging that Smith directed it not to pay the check f...
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The opinion of the court was delivered by The action was one to recover damages resulting from the defendant’s refusal to accept and pay for a carload of flour. The defendant counterclaimed damages on account of the defective quality of a portion of another carload of flour. The court sustained the counterclaim, and rendered judgment accordingly. The plaintiff appeals. The defendant was a baker wi...
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*632The opinion of the court was delivered by On March 28, 1917, the Globe Life Insurance Company issued to Bertha M. Cunningham a policy by which it agreed to pay $1,000 to her estate upon her death, in consideration of the payment of an annual premium of $27.20. She paid the first premium at the time of taking out the policy. The second premium was due March 28, 1918. On March 6 of that year sh...
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The opinion of the court was delivered by John W. Pearson, who died in 1911, left a will which was duly probated and the provisions of which his widow accepted, giving to her at least a life interest in all his property (consisting of an eighty-acre farm and the personal property thereon) coupled with a power of disposition, the extent of which is the question in controversy. On August 13, 1918, a...
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The opinion of the court was delivered by • This action was for an injunction to restrain unfair trade practices. The plaintiffs, who for some years past had respectively conducted morning and evening newspapers in Coffeyville, the “Sun” and the “Journal,” formed a partnership in January, 1919, consolidated their newspapers, suspended the publication of the “Sun,” and thereafter continued to serv...
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*602The opinion of the court was delivered by This appeal by the plaintiffs and defendant Benham C. Nelson is from an order dismissing the action for want of prosecution. The cause has been in this court before. (Nelson v. Hoskinson, 103 Kan. 46, 172 Pac. 993.) Two propositions are argued. One is that the court erred in refusing to grant a change of venue on the application of Winfield S. Nelson; ...
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The opinion of the court was delivered by The plaintiff commenced this action before a justice of the peace against E. C. Adams to recover $193.08, and garnisheed Will Weaverling, who answered that he had no funds or property belonging to the defendant. The plaintiff gave notice, under section 44 of the justice’s civil code (Gen. Stat. 1915, § 7739), that the answer was unsatisfactory, and demand...
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This action was brought by the plaintiffs to recover against the defendants upon an appeal bond. The plaintiffs' petition alleged as follows: "Comes now the plaintiffs and, for cause of action against the defendants, allege and state: (1) That plaintiffs are residents of Pittsburg county, state of Oklahoma, and reside at Blanco, Oklahoma, and are a partnership composed of W.H. Savage, M.T. Savage,...
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This case was tried, without objection, to a jury and seven interrogatories submitted, two of which were not answered. The reasons urged for reversal are: (1) Errors in instructions to the jury; (2) failure of the jury to answer two of the interrogatories; (3) judgment is not supported by the evidence. While questions of fact may be submitted to a jury, in cases of equitable cognizance, its verdic...
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This action was instituted in the superior court of Pottawatomie county by Letha Owens against the Chicago, Rock Island Pacific Railway Co., a corporation and H.U. Mudge and Jacob M. Dickinson, receivers of said railway company, to recover damages for the death of her husband, Jesse Owens, alleged to have been killed by one of defendant's passenger trains on July 5, 1915, near Okarche, Oklahoma. ...
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This action was commenced by defendant in error, plaintiff below, against the plaintiff in error, defendant below, in August, 1914. The parties will be referred to defendant in error as plaintiff, and plaintiff in error as defendant, the same position they occupied in the court below. The defendant's father and mother were both made parties to said cause of action, but the court found in favor of ...
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The plaintiff, R.C. Manley, commenced this action in the district court of Bryan county against the defendant, St. Louis San Francisco Railroad Company, for personal injuries alleged to have been inflicted by the defendant on the 11th day of January, 1917. Defendant at *Page 60 the time of the alleged injury was in charge of a household shipment, which originated at Sulphur, Okla., destination at...
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The plaintiff, Earl Wooley, brought this action against the Atchison, Topeka, and Santa Fe Railroad Company, in the district court of Oklahoma county, to recover damages to a certain horse for injuries received on the railroad track of said defendant, from which injuries the said horse died. From a judgment in favor of the plaintiff, the defendant has appealed. For reversal of said judgment, the p...
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Anderson Runels filed suit in the district court of Mayes county against. J.P. Allen et al. to recover possession and quiet title to his allotment which he had received as a member of the Cherokee tribe or nation of Indians, which had theretofore been conveyed in contravention of the restrictions placed thereon by Congress. Nelson Gaston, Virl Gaston, Virgil Gaston et al., filed answer to plaintif...
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This action was commenced in the district court of Kay county on the 13th day of August, 1917, by the defendant in error, as plaintiff, against the plaintiff in error as defendant, resulting in judgment for the plaintiff in the sum of $1,250. The parties will be referred to as they appeared in the trial court. Plaintiff claimed damages against the defendant for personal injuries alleged to have be...
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This is an appeal from the district court of Creek county. *Page 199 The Williamson-Halsell-Frazier Company, a corporation, commenced its action in the court below against C.F. Self and J. Shawver, a co-partnership doing business under the trade name of Kentucky Mer. Co., a co-partnership composed, of C.F. Self and J. Shawver, as defendants, to recover the sum of $245.41 upon a verified account f...
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It appears on motion to dismiss this appeal that judgment was rendered for restitution of the premises described in the petition, and from a judgment overruling motion for new trial this appeal was prose cuted by transcript, without bill of exceptions or case-made. Motions presented to the trial court, and the rulings thereon, are not properly part of the record, and can only be preserved and pres...
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In this case Patterson sues Treese upon two promissory notes upon which there is a balance of $375 claimed to be due, and seeks judgment thereon. Treese in his answer admits the execution of the notes, but states that they were given in payment for some lots and asks for specific performance against Patterson, requiring him to furnish a warranty deed to these lots. In the trial of the case the cou...
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This was an action, commenced by the plaintiff in error, Investors Mortgage Security Company, a corporation, as plaintiff, against the defendants in error, as defendants, upon a promissory note and to foreclose a mortgage given to secure the payment thereof. In the court below the plaintiff in error Willard P. Holmes was made a party defendant, whereupon he filed an answer and cross-petition where...
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Tena Henson, as plaintiff, recovered a judgment against James W. Lusk, W. C. Nixon, and W. B. Biddle, receivers for the St. Louis & San Francisco Railway Company, in the superior court of Tulsa county in the sum of $2,500 for personal injuries suffered by her on account of the negligence of certain of the defendant’s employes, from which judgment the defendants have appealed. In the brief ...
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Although this proceeding was somewhat unusual, it was, in effect, an action for the recovery of money, commenced by the plaintiffs in error, plaintiffs below, against the defendant in error, defendant below. It seems that the main action was upon a promissory note and to foreclose a second mortgage upon certain real estate, the defendant in error being plaintiff and plaintiffs in error being de...
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This is a suit by T.A. Rambo, hereinafter called plaintiff, against the Gypsy Oil Company, hereinafter called defendant, to cancel an oil and gas lease as a cloud upon his title. Plaintiff purchased lands covered by this lease, previously executed by his grantor to *Page 141 the defendant herein. By the terms of the lease, the lessee, the defendant herein, agreed to complete a well in a stipulate...
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It appears on motion to dismiss that at the time of overruling the motion for new trial an order was entered by the special judge, before whom the case was tried, extending the time in which to prepare and serve case-made, and thereafter orders were entered by the special judge granting additional extensions. It has been repeatedly held that a special judge, after he has ceased to sit in the trial...
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Plaintiff brought this action on a promissory note and to foreclose mortgage executed to secure payment of the note. Defendants denied execution of the note. To sustain his cause of action, plaintiff offered evidence to the effect that he was the purchaser of the note, in due course; that the signatures on the note were those of the defendants, and one of the defendants had recognized the note and...
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Plaintiff and defendant formed a partnership in 1912, by oral agreement, for the purpose of farming and raising live stock. There was no definite term fixed, the relation continuing until August 9, 1915, when this action was instituted by plaintiff for dissolution and for an accounting of all the transactions of the partnership from its inception. The case was heard before a referee, and, over the...
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The plaintiff in error, R.B. Emert, hereinafter called defendant, was informed against for the murder of Walter Allison, convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary at McAlester for a term of 35 years. To reverse the judgment rendered on the verdict, he prosecutes this appeal. The defendant filed an application for a change of venue. The court o...
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The plaintiff in error, W. E. Shipley, was convicted on an information charging the unlawful conveyance of 108 quarts of whisky from one certain point to another in Rogers county, and was sentenced to be confined in the county jail for 60 days and pay a fine of $100 and the costs. From the judgment an appeal by case-made was perfected by filing in this court August 31, 1918, petition in error wit...
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Hon. J.B.A. Robertson, Governor of the State of Oklahoma: The judges of the Criminal Court of Appeals, responding to your official communication of the 6th inst., addressed to this court, which presents for the consideration of the judges of the court a duly certified copy of the record of the conviction of Levi Young, who was on the 28th day of February, 1920, by the judgment of the district cour...
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Wiley Gunter was convicted, at the October, 1917, term of the district court of Washita county, on a charge of receiving stolen property, and his punishment fixed at imprisonment in the state penitentiary for a term of two years. Counsel for plaintiff in error urge only one proposition as ground for reversal, to wit, that the verdict of the jury and judgment of the court are not sustained by su...
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Logan Cole was placed on trial at the February, 1918, term of the district court of McCurtain county upon a charge of murder and convicted by the jury of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of four years. Judgment was rendered by the trial court in February, 1918, and an appeal was lodged in this court August 22, 1918. ...
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Section 4 of Article IX of the Constitution provides: “No money shall be drawn from the treasury but in pursuance of appropriations made by law.” Section 7 of the same article is as follows: “Laws making appropriations for the salaries of public officers and other current expenses of the state shall contain provisions upon no other subject.” *37The decision of this case depends upon the constructi...
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It is the contention of the plaintiff that food used in a necessary boarding-house for laborers employed in the prosecution of public work provided for in a contract secured by a bond given pursuant to Section 6266, L. O. L., as amended, is included within the terms “labor and materials,” and protected by the statutory bond. It appears that upon the trial of the case the theory of the respondents ...
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The defendants base their right to a reversal of the judgment upon two propositions: First, that the complaint does not state facts sufficient to constitute a cause of action; and, second, that the trial court erred in denying their motion for a judgment of nonsuit. 1. The sufficiency of the complaint is challenged upon two grounds. The first is, that food for horses is neither labor nor materials...
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1-3. As recited by the complaint, the plain effect of the legislation of Congress as construed by the federal courts was to vest in the railroad companies a title to the land to the extent of $2.50 per acre, and no more, and the balance of the estate remained in the United States government. At the utmost, therefore, the only taxable interest in the realty was that of the Railroad Company at the v...
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1. Where the damages are certain, or can be made so, as a rule a stipulation as to the amount thereof will be held to provide for a penalty, and therefore will not be enforceable ás a stipulation, but— “On the other hand, if the subject matter of the contract is of uncertain value, or if the damages arising from a breach are uncertain or difficult to ascertain with any degree of accuracy, the unce...
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1, 2. It is assigned that the court erred in entering judgment for plaintiff, in that the complaint is insufficient and does not allege that the defendant “detains” the personal property described in the complaint. The language of the pleading is that the defendant “retains” possession of the personal property, which means the same thing. Error is also predicated upon the insufficiency of the desc...
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Substantially, the contention of the plaintiffs is that the condition in the will to the effect that, if Frank Ingram should die without issue, then the land bequeathed to him should be equally divided between the daughters of the testatrix, Anna and Mary Jane Ingram, and their heirs forever, refers to the death of Frank Ingram occurring prior to the death of the testatrix. The. defendant maintain...
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delivered the opinion of the court. The complaint in this ease alleges that on the twenty-seventh day of June, 1917, the plaintiff, being indebted to defendant [1] Granite-Alaska Company, for the purpose of securing said indebtedness executed and delivered to said defendant a certain mortgage, and thereafter and on August 31, 1917, for the purpose of further securing said indebtedness, delivered t...
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delivered the opinion of the court. Plaintiff alleges the delivery to defendant railway company on November 18, 1915, of five cars of lambs at Harlowton, Montana, for transportation to Chicago, Illinois, “with stopover at Stoekdale, Illinois, for feeding purposes,” and that defendant for a valuable consideration contracted to make such transportation and to deliver the lambs at their destination o...
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delivered the opinion of the court. Relator brought action in the district court of Silver Bow county for the annulment of his marriage under section 3636, Revised Codes, on the grounds that: (a) His consent was obtained by the fraud of the defendant; and (b) that the defendant was physically incapable of entering into the marriage relation. Having denied generally the allegations of fraud and inc...
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OPINION OP THE COURT. This case arose out of the following facts: On October 8, 1918, plaintiff below, appellee here, filed suit against one Cleve George and B. F. Bennett on a joint and several promissory note for $1,158. At the same time, plaintiff filed an affidavit in attachment, alleging as a ground that the defendant Cleve George was a nonresident of New Mexico and was a resident of Texas. O...
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Appellant was convicted of having herded, grazed and pastured sheep on a cattle range in violation of C. S., sec. 8333. He questions the sufficiency of the complaint to charge the commission of a crime, and points out that it is not alleged therein that the acts complained of were committed wrongfully, unlawfully, intentionally or knowingly. Bespondent’s brief dismisses this contention with the fo...
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This appeal must be dismissed for two reasons: ■ First. It is from an order sustaining a general and special demurrer to the complaint. It is not from a final judgment or any order under the statute (paragraph 1227, Civ. Code) made appealable. It has several times been decided by this court that an appeal from an order sustaining a demurrer will not lie. Aiton v. Board, 13 Ariz. 74, 108 Pac. 221; ...
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This is an action of replevin brought by the administrator of the estate of George W. Kaiser, deceased, to recover from defendant an automobile (or its value) claimed to be the property of the estate. The defendant claimed in her answer that Kaiser in his lifetime gave the automobile to her. The case was tried before the court with a jury. The jury found the issues in favor of the defendant. A mot...
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Appellee, as plaintiff, brought this action against appellant, claiming a balance due him of $526.40 on a running account. Attached to the com*406plaint was an itemized statement of tlie account verified by plaintiff. The answer of appellant was an unverified general denial, plea of overpayment to appellee, and a counterclaim for damages. Appellee had judgment for the full amount of his claim. The...
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By the Court, On the 18th day of May, 1918, plaintiffs commenced an action in the district court in Churchill County against the Nevada Colony Corporation, a corporation. The complaint was twice amended, and on the 3d day of April, 1919, the court made and entered an order overruling a demurrer in the second amended complaint and gave the corporation fifteen days in which to answer. On the 18th d...
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The relator, by mandamus proceedings in the superior court for Pierce county, commenced an action against the treasurer of that county to have a portion of the tax levied and assessed against *102relator’s property in Tacoma declared illegal because in excess of the amount permitted to be levied by the provisions of the charter of the city, and to require the treasurer to accept and receipt for th...
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In this action the respondent, Diamond Ice and Storage Company, sued to recover from the appellant, Klock Produce Company, the sum of $402.63, alleged to be due for the storage of certain cheese, butter, and eggs. The case has heretofore been before us on a question of pleading, and will be found reported in 103 Wash. 369, 174 Pac. 435. After the remand of the cause at the conclusion of that heari...
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A writ of mandate was granted by the superior court of Spokane county, commanding the treasurer of that county to issue and deliver to plaintiff a redemption certificate upon the payment of delinquent taxes and interest upon certain described real estate. The only question involved on this appeal is the construction of ch. 142, Laws of 1917, p. 582, in respect to its effect upon the rate of intere...
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For many years prior to 1918, the appellant and the respondent Falk, as copartners, had been engaged in the junk business in the city of Spokane, Washington, and for a somewhat similar period, the respondent Schwartz had been engaged in a like business in the city of Seattle. In June, 1918, the agreed value of the assets of the firm of Kahan and Falk was $116,000, and the agreed value of the asset...
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Plaintiffs appeal from a judgment in favor of defendant. The action was for damages on account of the alleged failure of the defendant to perform a contract for the drilling of a water well. On the eighteenth day of August, 1914, plaintiffs were the owners of certain land which they desired to bring under cultivation for horticultural purposes by the development of water wells. ' At that time t...
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This is an appeal from the order granting the petition of the public administrator of Santa Clara County for letters of administration with the will annexed in the estate of Maria C. Wyman, deceased, and is taken by one Nettie Neff, claiming to be entitled to have issued to her such letters of administration and whose petition in that behalf was denied. Maria C. Wyman died on the fifth day of Janu...
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This is an appeal from a judgment in favor of the plaintiff in an action for the partition of certain personal property consisting of sixty-five head of cows and other livestock, hay, wagons, plows, a tank, a separator, a gas engine, and a cultivator, of which, plaintiff alleged in his complaint, he and defendant Rogers were joint owners, each having an undivided one-half interest in such property...
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Plaintiff claims title to 160 acres of land across which the defendant was constructing a railroad and telephone line at the time of the commencement of the action, under a claim of ownership of a strip forty feet wide. The action was to enjoin the further construction of the railroad. The trial court granted the relief prayed for and adjudged that the plaintiff was at the time of the commencement...
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This is an action for money claimed to be due under a reinsurance contract. The general demurrer to the amended complaint was sustained without leave to amend and plaintiff appeals from said judgment. Plaintiff and defendant entered into a reinsurance contract whereby defendant reinsured the "second excess" of five thousand dollars on accident insurance policies written by the plaintiff where the ...
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The appeal is from the judgment entered in favor of the plaintiff in the sum of three thousand dollars found by the court to be due the plaintiff from the defendant in an action on an open book account for cement furnished. The complaint, after alleging the corporate existence of the defendant, merely alleges: “That said defendant is indebted to plaintiff on an open book, account for cement fur...
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Plaintiff brought two actions to foreclose liens to secure promissory notes, made in payment for *Page 550 water, given it by the defendant corporation, which will be hereafter referred to as the defendant, the other defendants being joined solely because of their interest in the land upon which plaintiff claims a lien. The defendant filed counterclaims for damages alleged to have been suffered b...
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This is an appeal from an order appointing one Mary T. Hiatt as the administratrix with the will annexed of the estate of the decedent. The appeal is taken by the surviving husband of the decedent, who himself had petitioned for letters and whose petition was denied. [1] As the surviving husband of the decedent he was entitled to letters in preference to anyone else, unless he were incompetent on ...
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This is an appeal from a judgment for the plaintiff for thirteen thousand dollars for personal injuries found to have been suffered by the plaintiff because of the negligence of the appealing defendants. The sole point qrged for reversal is that the verdict and consequent judg- , ment for the plaintiff are not supported by the evidence. There are a number of contentions made by the respondent to ...
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This is a proceeding in mandamus, the object being to procure a writ requiring respondent to file in his office for examination and transmission to the Secretary of State a referendum petition for the submission to the electors of the state, for their approval or rejection, of the joint resolution of the senate and assembly ratifying for the state of California what is known as the eighteenth amen...
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Following an order which sustained the demurrer of defendants to the second amended complaint without leave to amend, the court entered judgment dismissing the action, from which judgment the plaintiff has appealed. On the fourth day of February, 1914, the plaintiff Summers, as owner, and the defendant L. F. S. Syndicate, as contractor, entered into a contract for the construction of a two-story r...
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The complaint is in four counts. In the first count, after stating the corporate capacity of the defendant, it is alleged: "That the defendant employed the plaintiff to superintend and take charge of the management of the irrigation plant of the defendant at a salary of five dollars per day, and the plaintiff began under said employment on February 23, 1914, and continued to work for the defendant...
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Respondent objects to the consideration of plaintiff's appeal from the judgment herein, and suggests that the appeal should be dismissed upon the ground that no notice of appeal was ever served or filed. The judgment was entered on the fourth day of February, 1918. On the seventh day of March, 1918, the plaintiff filed in the office of the clerk of the court below a document addressed to H. J. Lel...
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The plaintiff has appealed from a judgment in its own favor, seeking a review of an order of the lower court striking its amended complaint from the files, and directing the entry of judgment as prayed for in the original complaint. [1] The plaintiff first filed a complaint in claim and delivery and the defendants answered separately. Thereafter the plaintiff gave notice of motion for permission t...
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This is an appeal by the defendant from a judgment against him for $2,334.75. The judgment *Page 375 was upon a written guaranty of the indebtedness of the Gate City Oil Company (a corporation in which defendant was a large stockholder) to the plaintiff, which indebtedness arose from the purchase of goods, wares, and merchandise used by the oil company in its business. The guaranty signed by Flac...
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Defendant appeals from a judgment rendered against her in an action to quiet title, tried upon an agreed statement of facts. The sole question to be determined in this action is the validity of a homestead declared upon property held in joint tenancy. At the time of the declaration of homestead plaintiff and his wife, Minnie Johnson, were the owners of the property in controversy in this action, h...
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This is an appeal by the defendant from an interlocutory decree of divorce granted to the plaintiff in this action. The plaintiff sought by his complaint herein, filed on the fourteenth day of November, 1916, to obtain a divorce from the defendant upon the ground of desertion. The defendant in her answer denied that she had deserted the plaintiff, but set up in a cross-complaint that the plaintiff...
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[1] This is an application for a writ ofsupersedeas to restrain the respondent from proceeding further with a motion (dated February 5, 1920) to dismiss an appeal which has been taken to this court. Said motion *Page 513 made in the trial court was based upon the ground that the undertaking which was filed by appellant was not properly filed. [2] It is not necessary at this time to pass upon the ...
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This is an appeal from a judgment in favor of defendant in an action to quiet title to certain real property situate in the county of Orange in this state. The facts material to the opinion are that defendant and one J. W. Hoffman intermarried in February, 1909, and that soon thereafter Hoffman purchased the property in controversy, taking the deed thereto in the name of W. S. Jones. In June, 1911...
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This is an action for money had and received based upon the failure of title to an undivided three-fourths interest in and to a parcel of land sold and conveyed by the defendant to the plaintiff. We take the following from the defendant's brief as giving a general impression of the case: "In April, 1910, one H. H. McCord owned an undivided one-fourth interest in the land, J. A. Crandall owned an u...
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This is an action to quiet title. The complaint is in the usual form. The answer denies all the material allegations of the complaint, except that it is asserted that defendant Julia P. Warden "claims and asserts some right, title or interest in and to said property adverse to plaintiff, and denies that the same are without any right, and alleges that the defendant Julia P. Warden acquired said pr...
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Plaintiff has appealed from an order of court in divorce proceedings taking from her the custody of her four year old daughter and giving it to the defendant, her husband. [1] Plaintiff was granted an interlocutory decree of divorce upon default of the defendant, and the order giving her the custody of the child was made in such interlocutory decree. Subsequently, on application by the defend...
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Action to establish a parol trust in real estate and, in connection therewith, to compel an accounting by the alleged trustee. Judgment went for defendant,' from which plaintiffs appeal. As appears from the complaint, the action is founded upon the alleged fact that plaintiffs, relying upon defendant’s promises, did, by unconditional grant deed, convey the land to defendant upon his oral agreem...
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This is an appeal from a judgment in favor of defendant after an order of the trial court sustaining its demurrer to plaintiff's complaint without leave to amend. The allegations of the complaint are that on the twelfth day of May, 1914, plaintiff's husband, during the course of his employment as a stevedore for the Matson Navigation Company, was killed while loading a vessel of that company in th...
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The defendants appeal from a decree quieting the plaintiff's title to a lot of land in the principal business block in the town of Ojai, formerly known as Nordhoff, in Ventura County. The decree also required the removal of a wall built within the exterior boundaries of the plaintiff's lot. The dispute concerned a strip of land 1.67 feet wide along the division line between the lots of the plainti...
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On June 16 and 17, 1915, the defendant United Firemen's Insurance Company of Philadelphia issued to plaintiff two policies of fire insurance, one in the sum of $350 upon his dwelling-house, and one for one thousand dollars on the furniture therein. Thereafter, by a contract of reinsurance, the defendant British America Assurance Company entered into a contract whereby it assumed the obligations of...
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This appeal is upon a judgment for damages from assault and battery. The court on the trial found that the assault and battery had been committed by defendant upon the plaintiff, that the acts complained of were without cause or provocation, and that they were done maliciously and with intent to humiliate, vex, annoy, and injure the plaintiff. Judgment was for $815 actual damages, and five hundre...
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Appeal by defendants from a judgment in plaintiff's favor. The action was submitted to the trial court and to this court upon agreed and stipulated facts as follows: On the twentieth day of March, 1913, the defendant, Nathan Wise, was the entryman upon a homestead of the United States government consisting of 160 acres, located in the county of Los Angeles, state of California, and particularly de...
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Prior to June 27, 1917, Xenophon Bouris was, and is, the "registered owner" of a lot in Los Angeles County, registered under the land title law, an initiative measure adopted by the people at the election of *Page 364 November 3, 1915 (Stats. 1915, p. 1932), whereby a system for the registration of land titles is provided. This law is of the class commonly known as Torrens laws, the designation b...
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On the eighteenth day of December, 1915, the plaintiffs and the defendant entered into a written contract in writing by which it was agreed that the defendant would sell, and the plaintiffs would buy all the gas engine fuel oil of a gravity of forty to forty-four degrees, which plaintiffs might require in their business or pumping plant in Riverside County, California, for a period of two years, c...
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This is an action by the judgment creditor of a corporation to recover from the defendants, as stockholders therein, the amount of the plaintiff's judgment out of the unpaid subscriptions of said stockholders. Upon the trial of the cause the action was dismissed as to the defendants other than those who are the respondents herein, but as to these the court made its findings and conclusions of law,...
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This is an application by the county of Modoc for a writ of mandate to compel the respondent, as auditor of said county, to attest certain bonds of the county amounting to four hundred thousand dollars. His refusal to attest the bonds is for the alleged reason that the election, at which the issue of the bonds were authorized, was not called in conformity to the provisions of section 7 of the act...
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This is an appeal from a judgment in favor of defendants in an action brought to compel specific performance of an agreement for the exchange of real properties between plaintiffs and the defendant Fowler. The following are, in substance, the facts of the case: On February 16, 1917, plaintiffs were the owners of two parcels of real property situate in San Diego County, one parcel being subject to ...
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Respondents have made a fair statement of the case which we substantially adopt. From the complaint it appears that certain oil companies were operating in Kern County, and that waste oil escaped from their works and flowed down a watercourse adjoining their lands. This oil was carried by the water beyond the lands operated by *Page 307 said companies, across lands claimed and occupied by defenda...
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This action arose out of the following facts: C. H. Forsland and Nance B. Forsland were, on the twenty-fifth day of September, 1917, husband and wife. Trouble and differences arose between them which subsequently resulted in their separation by a decree of divorce. Before the divorce was had and as a settlement of certain property rights they entered into the following written agreement: "This agr...
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This is an appeal from a judgment of dismissal after demurrer sustained to complaint without leave to amend. Plaintiff brought the action as a member of the defendant lodge to enjoin it from serving beer to the members at luncheons and banquets in violation of an ordinance of the city of Glendale prohibiting the serving or distribution of malt or spirituous liquors by any person, club, corporation...
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From a decree of foreclosure of a mortgage on real property in the county of Los Angeles, defendant, Florence A. Barr, prosecutes this appeal. On the first day of April, 1914, Walter G. McCarty Company, a corporation, executed to plaintiff a promissory note in the sum of four thousand dollars, payable three years after date, with interest at eight per cent per annum, payable quarterly. Said note c...
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Defendant was charged with the murder of Albert Reidinger. He was tried, convicted of murder in the first degree, with the punishment fixed at life imprisonment. This appeal is from said judgment of conviction and the order denying defendant's motion for a new trial. On the 29th of May, 1919, the defendant approached George Baldwin, and offered to sell him a Ford automobile, which, he said, "was c...
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On February 24, 1916, plaintiff as a stockholder in the United Properties Company, commenced this action on behalf of the company and its stockholders to recover from certain defendants property alleged to belong to the corporation, to set aside alleged fraudulent conveyances of said properties, for the cancellation of securities alleged to have been fraudulently issued, for damages, and other inc...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 289 This action, like that of Beal v. Smith et al., ante, p. 271, [189 P. 341], involves the transactions growing out of the organization of the United Properties Company in December, 1910. The demurrers of the several defendants to the amended complaint were...
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Suit was brought by S.W. Hogan and Calvin B. Moody against Thomas B. Grimes and Daisy F. Grimes et al. to set aside a deed made by Thomas B. Grimes to Daisy F. Grimes for an undivided one-sixth interest in a certain tract of land in Kingfisher county which had been willed to defendant Thomas B. Grimes by his father, and to establish a lien on said land in favor of plaintiffs. The findings of the t...
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On the night of October 16, 1914, T. P. Mobley’s store, containing a stock of goods, in Bengal, Oklahoma, was burned. The stock was insured in the Northern Assurance Company. The insurance company paid $2,250 on the policy. After-wards the parties concluded that the fire bad been caused by a spark from a passing engine, and the insurance company, having subrogated itself to the rights of Mobley, ...
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This action was commenced in the district court of Kingfisher county by the Hennessey State Bank, defendant in error, as plaintiff, against W.C. Brown, county treasurer of Kingfisher county, plaintiff in error, as defendant. The parties will be referred to in the same position they occupied in the court below. The purpose of the action was to enjoin the collection of certain taxes assessed for the...
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The Aetna Building Loan Association, a corporation, herein referred to as plaintiff, filed suit in the district court of Cotton county against C.E. McCarty, Bonnie Lee McCarty, B.F. McCarty, Marshall A. Tucker, Amelia A. Tucker, W.T. Adams, and E.M. Bynum, to recover on a promissory note and to foreclose a real estate mortgage upon a certain lot in the town of Temple, Cotton county. All of the de...
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The object of this suit was to recover damages alleged to have been caused by the breach of a contract to deliver 5,000 bushels of wheat, sold by W. B. Johnston, defendant below, to the Lonsdale Grain Company, plaintiff below. The Lonsdale Grain Company is a corporation, of Kansas City, Missouri; W. B. Johnston is a grain dealer, of Enid, Oklahoma. On July 24, 1917, J. R. Bailey, the Lonsdale Gra...
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This action was commenced by W.G. Kimberlin, Mrs. Ella Burch, M.C. Quinnell, R.L. Spradling, and W.G. Paris against the board of county commissioners of Garvin county, defendant in error, to enjoin the county commissioners from issuing and selling certain bonds and to declare illegal and void a certain election wherein White-bead township had voted in favor of issuing certain road bonds. The petit...
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In the lower court the parties occupied the same relative position as in this court, and will be so referred to in this opinion. Robert Ellis contracted with plaintiff to build for it a depot, to hold it harmless from all damages to any one arising out of the execution of the contract, and made to it a bond to that effect. During the erection of the building one Clay Wheeler, a passenger on the pl...
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The plaintiff in error was convicted in the county court of Okmulgee county on an information charging that she did have possession of two quarts of whisky with intent to sell the same, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. She has appealed from the judgment rendered upon such conviction. No brief has...
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The opinion of the court was delivered by The action was one for damages resulting from death by wrongful act. A demurrer to the plaintiff’s petition was overruled, and the defendant appeals. The deceased left neither widow nor children, and the action was prosecuted by an administrator appointed by a probate court of this state. The cause of action arose in the state of Missouri, and the compens...
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*622The opinion of the court was delivered by In this action the plaintiff seeks to foreclose a mortgage on account of the nonpayment of a coupon note for $270. The defendant pleaded payment of the note. Judgment was rendered in his favor, and the plaintiff appeals. The assignments of error are as follows: “1. The court erred vu refusing to sustain the motion to set aside the verdict and render ju...
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The opinion of the court was delivered by In a taxpayers’ suit to enjoin proceedings for the establishment of a road benefit district and for the improvement of a road, the trial court sustained a demurrer to the petition, and the plaintiffs appeal. The Atchison, Topeka & Santa Fe Railway runs from the east line of Barton county to the east line of the city of Great Bend through the entire length...
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The opinion of the court was delivered by This was an action to recover for the alleged conversion of a crop of wheat, in which judgment was given for defendants, and from which plaintiffs appeal. A tract of land was sold by W. B. Angle to Henry Aurand in October, 1917, through the agency of the plaintiffs, Dannefer and Stofer. . The tract was then occupied by a tenant, who had already planted a c...
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*637The opinion of the court was delivered by The city of Wichita appeals from a judgment in favor of the plaintiff on account of damages inflicted by an alleged mob. The amended petition alleged in substance that four men assembled themselves together for the purpose of defying the law and committing violence against the plaintiff and his family, and did, at or about the hour of eleven o’clock, p...
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The opinion of the court was delivered by The plaintiffs, Samuel Turner and Birdie Turner, recovered a judgment for $2,000 for the alleged negligent killing of their daughter, Geraldine. The defendant appeals, and *592assigns as error the overruling of an objection to the introduction of evidence under the petition, admitting incompetent evidence, overruling a demurrer to the plaintiffs’ evidence...
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The opinion of the court was delivered by On September 30, 1912, the plaintiffs brought this action to recover upon a promissory note and attached certain real estate belonging to the defendants, who were nonresidents of the state. Service was by publication only, and judgment was taken by default and the property sold to satisfy the judgment.» The sheriff’s deed was not issued until September 9, ...
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The opinion of the court was delivered by The plaintiff applied to the judge of the district court for the appointment of a receiver, alleging that the defendants were occupying the improvements on his farm and claiming the right to harvest the crop of wheat growing thereon, and were unlawfully keeping him out of possession to which he was immediately entitled; that the defendants were without mea...
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The opinion of the court was delivered by The appellant complains because the trial court overruled his “plea in abatement.” The action, which was for forcible detainer, originated in the justice court and was appealed to the district court. Two juries in that court failed to agree, and the cause was continued to a later term, by which time the defendant had vacated the premises. The plea in abate...
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The opinion of the court was delivered by The plaintiff brought suit against Delaware township in Wyandotte county to recover damages for injuries caused by a defective highway. There- was a verdict and judgment in her favor, from which the township appeals. The. plaintiff, a widow 45 years of age, had been for several years conducting an auto livery business at Bonner Springs. The evidence showed...
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The opinion of the court was delivered by The plaintiffs and the defendant entered into a contract by which the plaintiffs agreed to drill an oil well to the top of the sand, or to the depth of 2,600 feet, for $2.25 a foot. The well was drilled to a depth of 2,210 feet, and then abandoned. The plaintiffs commenced this action to recover the $2.25 a foot for the depth to which the well was drilled...
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1. As the case was tried by the court without a jury, its findings of fact are as binding and conclusive upon this court as a verdict, and must be sustained if they are within the issues and there is any evidence to support them: Wheelock v. Richardson, 91 Or. 87 (178 Pac. 377); Puffer v. Badley, 92 Or. 360 (181 Pac. 1, 4 A. L. R. 1561). There is no dispute as to the first cause of action. 2. The ...
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In the consideration of the questions involved herein, certain undisputed facts should be kept in mind. W. H. Abrams and the defendant, Alice S. Foskett, were married in 1878, and at the time of his death had been husband and wife for a period of about thirty-seven years. When the wedding occurred, the husband had three small children by a former wife. These children grew to maturity in their fath...
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1. The printed abstract, filed by the defendants, contains a transcript of an affidavit made by the attorney for the defendants. This affidavit recites, among other things, that the judgment “given by the court” was based upon the pleadings and “the stipulation that Kiril Barmatow was the owner of the property, now belonging to plaintiffs on August 14th, 1914, * * and that plaintiffs were now the ...
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The only question presented in this cáse is whether or not, under the provisions of the charter of the City of Roseburg, the property to be assessed for a proposed sewer — where it does not abut upon the sewer, as in this case — must be described in the initiatory proceedings, and the property owners notified then, that their property would be assessed for its construction. The provisions of the c...
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The defendant has filed a motion to dismiss the proceeding as not being a proper one for this court to consider in the exercise of its original jurisdiction. The application for the writ not having been served upon the defendant before being filed in compliance with Eule 33, we will consider the matter as though the alternative writ had not been issued. The proceeding is brought in reliance upon A...
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This proceeding was commenced in the district court of Weber county, Utah, on behalf of the state to subject the one-third interest of the real estate owned by one A. L. Kohn, deceased, at his death to the payment of the inheritance or transfer tax imposed by the laws of this state. A. L. Kohn died testate on February 13, 1917, leaving an estate of the value of $62,795.50, of which amount $43,850 ...
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Plaintiffs petitioned this court for a writ of prohibition, forbidding the defendant, Hon. Alfred W. Agee, as judge of the district court of Weber county, from proceeding to exercise jurisdiction and to determine upon the merits, under the provisions of chapter 100, Laws 1917, section 87 (section *643148, Comp. Laws of Utah, 1917), as amended by chapter 63, Laws of Utah 1919 (section 3148a, page 1...
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It is the contention of plaintiff that George Rilea having made a homestead entry for the land in question and on November 4, 1901, made final proof therefor and received a final certificate, and Rilea having on July 22, 1902, executed a deed of conveyance of the land to plaintiff Kola Neis, which was filed for record on July 25, 1902, in Lincoln County, Oregon, and also that no protest or contest...
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1. Reversing the order in which defendant’s objections are stated in the brief,* we will' first consider the question raised as to the constitutionality of the act. There are upon the statute books two laws applicable to this opinion. The first of these is Section 5257, L. O. L., as amended by Chap. 49, Gen. Laws 1915, which amended section reads as follows: “Sec. 5257. It shall be unlawful for an...
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We do not think that the service of summons in this case was sufficient to give the court jurisdiction in a personal action of this kind. At the time of the execution of the contract, both the plaintiff and defendant were residents of the State of Wisconsin, and the contract was executed there. There is nothing to show- that the contract was to be fulfilled in the State of Oregon, unless that can ...
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The information charged appellant, under paragraph 532, Penal Code, with the crime of obtaining merchandise of the value of $30 and $12.50 in cash from Hyder Brothers by the means and use of a false and bogus check passed and uttered to “one Boyd O’Daniel, then and there an employee of Hyder Brothers,” with the intent to cheat and defraud said Hyder Brothers. The evidence on the trial showed that ...
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This is an action in the nature of quo warranto instituted by the state on the relation of the Attorney General, npon information from and at the instance of one Charles W. Harris, and involves the title to the office of adjutant-general of the state of Arizona. Briefly, the complaint alleges the appointment, on August 17, 1912, of Harris to such office by Governor George W. P. Hunt, “acting in th...
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The defendant was convicted of the crime of receiving stolen goods, knowing them to have been stolen. Penal Code, par. 493. The specific charge in the information was the felonious receiving of $3,200, the same being the property of one Dolores De Valenzuela. It appears, from the evidence adduced at the trial on the part of the prosecution, that on or about March 17, 1919, the defendant moved into...
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This is an unverified application under section 652, of the Code of Civil Procedure, the object being to obtain the insertion in a bill of exceptions to be used on an appeal from a judgment of a statement going to show that the trial judge, in the matter of signing the findings of fact and conclusions of law constituting the written decision required by law, left the matter of the contents of such...
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Defendant was convicted of the violation of section 476a of the Penal Code, which makes it a felony, willfully with intent to defraud, to draw a check upon a bank, knowing at the time that there are not sufficient funds in or that there is not credit with such bank to meet such check upon presentation. On September 24, 1917, the defendant deposited with the Security Bank of Oakland a check for one...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 540 Action for damages for fraudulent representations whereby defendant procured an exchange of property between himself and plaintiff. Defendant appeals from a judgment in favor of plaintiff. On May 22, 1913, plaintiff and defendant entered into an agreement...
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This is an appeal from a judgment in favor of defendants after an order sustaining demurrers to plaintiffs' amended complaint without leave to amend. The contract sued upon was entered into by plaintiffs and defendants for the alleged mutual protection and advancement of the business interests and conditions of plaintiffs and defendants, some of whom were incorporated and others of whom were copar...
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These actions were brought by the city of Los Angeles to quiet title to certain tide-lands at San Pedro. The state of California, by an act of the state legislature in 1911, ceded to the city of Los Angeles certain lands held by the state by virtue of its sovereignty in and around the bay of San Pedro. Defendant predicates its right to the lands involved herein upon a United States patent of the S...
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This is an appeal from a judgment based on a verdict of conviction of the defendant upon the charge of forgery. The appellant's first contention is that the verdict of the jury was insufficient in form to support the judgment appealed from. The information charged the defendant with the commission of "the crime of felony, to wit, forgery committed as follows": it then proceeded to set forth in det...
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Plaintiff sued defendant for four thousand dollars real estate commission for procuring one Ralph Granger to assent to the terms of an agreement for exchange of real estate, which was drawn by defendant's attorney. The cause was tried before a jury, which rendered a verdict for four thousand dollars in favor of the plaintiff. The trial court granted defendant's motion for a new trial, and from thi...
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This is an appeal from a judgment in favor of the plaintiffs in an action to quiet title. The complaint is in two counts, in the first of which the plaintiffs, after alleging themselves to be the owners in fee simple and possessed of the tract of land involved in the action, allege that the defendant, George A. Black, claims some interest in said parcel of land adverse to the ownership of plaintif...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 150 The plaintiffs brought this action to recover damages for the death of one George Ira Ham, whose death was caused by his being driven off a bridge partly washed out by flood waters, while riding in an automobile with a companion, who was driving. The brid...
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This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff while riding on a motorcycle, driven by his son, on Citrus Avenue, near the town of Covina, in Los Angeles County. Plaintiff recovered judgment. Defendant appeals, contending that plaintiff's version of the accident, as described by himself and his witnesses, is so irreconcilable with the a...
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The defendant appeals from a judgment for $824 and costs in a suit for damages for personal injuries sustained by the plaintiff. There is only one question to be determined. It was raised by the defendant’s motion for nonsuit, which was denied. It is as to whether or not the trial court should have determined, or this court can determine, as a matter of law that the plaintiff was guilty of cont...
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This is an appeal from a judgment of dismissal of the action as to Charlotte M. Price, one of the defendants. The order of dismissal was made upon plaintiffs' refusal to amend after demurrer sustained to plaintiffs' second amended complaint. The facts set out in the second amended complaint are substantially as follows: That the defendant Indio Levee District, a regularly organized levee district ...
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The appeal is on the judgment-roll. The only matter to be determined is whether or not the *Page 457 plaintiff's cause of action was barred as to appealing stockholders of the defendant corporation under facts appearing in the complaint and findings. The plaintiffs sued the corporation and the two principal stockholders. It was alleged that in 1911 the corporation entered into a contract, set for...
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This is an original application for a writ of mandate to compel the respondent as state controller to draw his warrant in favor of the petitioner for the sum of one hundred dollars, payable out of the appropriation of ten thousand dollars made by the act of the legislature, approved May 27, 1919. (Stats. 1919, p. 1209.) This act was passed, as expressed in section 1 thereof, for the purpose of co-...
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Ralph Charles Hennigan and H. M. Patterson filed separate petitions asking for letters of administration *Page 416 upon the estate of Mildred L. Patterson, deceased. After a hearing the petition of the former was granted and that of the latter denied. The appeal is by said H. M. Patterson from the order granting letters of administration to said Hennigan and from the order denying letters to hims...
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From the findings of fact made in this case it appears that at various times between the first day of January, 1911, and the tenth day of July, 1911, the defendants represented to the plaintiff that they were the duly authorized agents of the owner of a certain tract of land in Modoc County, California, which land had been subdivided under the name of Willow Ranch Orchard Plomestead Tract, and th...
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This is an appeal from a judgment in plaintiff's favor for the sum of five hundred dollars in an action brought by her to recover from the defendants said sum for their alleged failure to perform the terms and conditions of a contract for the sale to said plaintiff of certain real estate. The cause was tried before a jury, and the facts of the case upon which the jury rendered their verdict in the...
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This is an action upon a promissory note executed by defendants. Plaintiffs are the payees named in the note. [1] Upon the trial, when plaintiffs sought to introduce their evidence, defendants objected upon the ground that the complaint does not state a cause of action. It is claimed that there is no sufficient allegation of nonpayment. The complaint alleges that "ninety-one dollars and eighty-sev...
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This is an appeal from a judgment in favor of the plaintiff in an action brought by him to recover possession of an automobile. As to the facts of the case there is very little, if any, dispute, and they may be briefly summarized as follows: The defendant Lee wished to buy an automobile, and went to one Nelson, a dealer in automobiles, for that purpose. Nelson had such a machine as he wished to bu...
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The controversy is over the satisfaction of a claim of plaintiff for the sum of $2,332. On December 29, 1915, one James L. Frazer entered into a contract with the county of Los Angeles for the construction of a highway known and designated as "Road Improvement District No. 39." For the work to be done by said Frazer the said county of Los Angeles promised to issue its bonds in the amount of $19,49...
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On the twenty-ninth day of July, 1918, on the application of respondent Hoffman, the superior court of the county of Los Angeles made the following order: "The motion of Fred Hoffman, by his attorney, John B. Haas, for the release of certain bonds now in the custody of the Clerk of this Court, having come on regularly to be heard on the 27th day of July, 1918, and it satisfactorily appearing to th...
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Appellant was accused of having wilfully and' unlawfully permitted and suffered to- be herded, grazed and pastured about 4,000 sheep controlled by him and in his charge on a cattle range, described in the complaint as sections 14, 15, 22 and 23, in township 1 north, range 21 *66east, Boise Meridian, in violation of C. S., see. 8333. He was found guilty as charged and a judgment of conviction was e...
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This is an action for a mandamus against the county treasurer of Muskogee county. Taxes for the year 1913 were assessed and levied against the two lots involved; the same became delinquent. At the regular tax sale of property for delinquent taxes held in Muskogee county on November 10, 1915, the lots were offered for sale and were bought by the county treasurer for the county, for the amount of th...
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In the court below defendants in error were plaintiffs; plaintiff in error was defendant. For convenience, the parties will be designated as they appeared in the trial court. This is an action by the plaintiffs to cancel an oil and gas lease given by the plaintiffs George Beggs and Abbie N. Beggs to the Chanute Refining Co. on the 23d day of February, 1916, which lease was assigned by the Chanute ...
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George Schneider brought suit in the district court of Woodward county against I-I. F. Decker and Ollie M. Calhoun for specific performance of a written contract, to require the defendants to execute a deed for 320 acres of land in Woodward county, Okla. The petition sets out the written contract executed by II. F. Decker to the plaintiff, dated the 13th day of February, 1915, wherein the defenda...
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In this opinion the plaintiffs in error will be referred to as defendants, and the defendant in error will be referred to as plaintiff; they so appearing in the trial court. This suit was instituted by plaintiff in an individual capacity against the defendants for the negligent death of W.E. Jones, deceased, who on April 15, 1916, was killed at Hoffman, Oklahoma, by an explosion of a locomotive bo...
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A.Z. English, deceased, as administrator of the estate of Annie Severs, executed and delivered an oil and gas mining lease to L.R. Van Houton. This action was brought by B.W. Ludeman against Bessie E. English, executrix of A.Z. English, to recover a real estate broker's commission on the sale of said lease. The case was tried to a jury. After the evidence of plaintiff had been offered and argument...
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This was an action begun in the district court of Creek county, by plaintiff in error, a resident citizen and taxpayer of the city of Sapulpa, Creek county, Oklahoma, on behalf of himself and other taxpaying citizens, seeking to enjoin the officers of the city of Sapulpa from issuing, disposing of, and delivering certain negotiable coupon bonds of the city of Sapulpa, which bonds had been regularl...
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This was an action begun in a justice of the peace court within and for Oklahoma City district, Oklahoma county, on the 23rd day of April, 1919, to recover possession of certain premises described as follows: A two-story and basement building located on lots 21 to 24, block 30, Military addition to Oklahoma City, Oklahoma county, Oklahoma, commonly known as No. 19 to No. 25, East Grand avenue, Okl...
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The defendant in error, the plaintiff below, commenced this action in the district court of Craig county against the plaintiff in error, the defendant below, to recover on a certain promissory note. The parties will be referred to in the same position they occupied in the court below, the plaintiff in error as defendant, and the defendant in error as plaintiff. The note sued upon is as follows: "$...
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August Deer, a freedman citizen of the Creek Nation, died in August, 1901, leaving as his sole and only heirs at law Sophia Deer, Elizabeth Deer, now Elizabeth Deer Smith, and Charles Deer, each of whom inherited an undivided one-third interest in his allotment. Thereafter Charles Deer, who was a minor, died intestate, leaving as his sole heirs Elizabeth Deer Smith and Miley Johnson, who jointly i...
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This is an appeal from the district court of Okmulgee county. On the 19th day of September, 1918, the defendants in error, Charles Cover and George James, as plaintiffs, commenced an action in the district court of Okmulgee county against the plaintiff in error, the Gypsy Oil Company, a corporation, as defendant, to quiet title to certain real estate situated in said county. For convenience, the p...
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The appellant, Holly-Mason Hardware Company, holding a mortgage upon certain real property executed by the respondents Schnatterly and wife, brought suit to foreclose the same, and obtained a decree of foreclosure on November 25, 1918. An order of sale was issued on the decree and the property was sold to the appellant on March 1, 1919, which sale was confirmed by the court ordering the sale, on M...
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This is an appeal by Frances E. Slasor from judgments entered in favor of the respondents in three separate actions consolidated for trial in the lower court, and consolidated for hearing on appeal in this court. There are certain undisputed facts in the record necessary to be mentioned which are common to all of the actions. Kate Slasor was formerly the wife of Joseph M. Slasor, having intermarri...
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The respondent, Segrid Henrickson, brought this action against the appellants, O. J. Smith and Hilda M. Smith, to recover the sum of $870 which she claims the appellant O. J. Smith, in his capacity as her attorney, collected for her use and did not account. In her complaint she alleged, in substance, that the appellants are husband and wife and as such form a marital community under the laws of th...
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1 Reported in 189 Pac. 553. In this action the plaintiffs, Bebb Gould, sued to recover from the defendant, Jordan, some $10,058.16, for services rendered as architects in designing and drawing plans and specifications for an apartment building which the defendant contemplated constructing. After issue joined, the action was tried by the court sitting without a jury, and a judgment was awarded the...
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This is an original proceeding in this court wherein the relator seeks a writ of prohibition to prevent the superior court for King county from issuing a commission to take the depositions of certain witnesses residing in the state of New York, to be read in evidence upon the hearing of relator’s motion to quash a service of summons purported to have been made upon it personally in King county, wh...
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The plaintiff was injured while acting in the capacity of a stevedore in loading the steamship ‘ ‘ Sono Maru, ’ ’ which vessel was owned by the Transoceanic Company and lay alongside of the Arlington dock, at Seattle. The complaint charged the defendant Arlington Dock Company with negligence in employing an incompetent man to operate the electric winch located on its wharf. The negligence charged ...
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The plaintiff, Pratt, a resident and taxpayer of the city of Seattle, commenced this action in the superior court for King county, seeking a judgment enjoining the city and its officers from consummating two proposed bond issues evidencing a general indebtedness of the city; one for $270,000 and one for $110,000, the former to pay judgments awarding compensation for the taking and damaging of priv...
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The plaintiff, hereinafter called appellant, brought this action against the defendants, hereinafter styled respondents, to quiet title to certain water hereinafter more particularly referred to and to enjoin them from interfering with his use thereof for irrigation purposes. Appellant’s claims to the water in question are fully and explicitly stated in the complaint. After alleging that he is the...
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Harry S. Harkness, a resident of New York City, died there January 23, 1919. According to the complaint herein a portion of the personal property of the deceased consisted of 2,000 shares of common stock of the Union Pacific Railroad Company, a Utah corporation, the market value of which on the date of decedent’s death was $254,250. It is to collect the amount plaintiff claims to be due to the sta...
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Defendant was convicted of violating a city ordinance of Salt Lake City, and from that conviction appeals. Under the ordinance in question, it is made the duty of every owner, lessee, or occupant of any building or place of business to provide and keep at all times, at such places *161as the health commissioner may direct, suitable and sufficiept metallic receptacles for receiving and holding garb...
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This case is here on second appeal. See 49 Utah, 569, 164 Pac. 856. The first appeal was taken by Vincent and Mary Shurtliff, hereinafter called respondents, alone, while the plaintiff corporation and other defendants in the action, hereinafter styled appellants, now appeal. On the first appeal the findings of fact, conclusions of law, and the decree made and entered by the district court were aff...
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This is an application for a writ of prohibition prohibiting and restraining the Public Utilities Commission of Utah (hereinafter called the commission) from assuming or ex-*177erasing jurisdiction to pass upon the reasonableness or unreasonableness of a certain contract described in the com-paint. The complaint shows that, plaintiff is, and at all times referred to has been, a corporation engaged...
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This ease was filed, argued, and submitted at tbe same time as was tbe case of Union Portland Cement Co. v. Public Utilities Commission of Utah, 56 Utah 175, 189 Pac. 593, recently decided by this court. Tbe cases are identical in principle, the parties were represented by tbe same attorneys, and it was stipulated that tbe decision in one case should be controlling as to tbe other. Upon tbe author...
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The plaintiff recovered judgment in the district court of Salt Lake county against the defendant for damages for personal injury which she alleged was received through the negligence of the defendant in operating one of its suburban passenger trains at a street crossing in the town of Salem, Utah, which train collided with an automobile in which the plaintiff was riding at the time of the accident...
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The opinion of the court was delivered by This lawsuit is a consolidation of two actions, one originating' in Crawford county to set aside a will, and one in Ellis county to set. aside certain deeds. The litigants are the heirs of the late Henry Hoff, senior, who settled in Ellis county and who lived and thrived there as a farmer for many years, and who in his last years resided in Crawford count...
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delivered the opinion of the court. By an Act approved March 10, 1919 (Chap. 184, Laws 1919), a state efficiency and trade commission was created, its powers and duties defined, and an appropriation made to defray its expenses. The commission was charged with the duty of making a comprehensive investigation of the financial and business policies of the state, its various offices, bureaus, boards a...
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delivered the opinion of the court. The state efficiency and trade commission employed William T. Pigott to prepare the proposed legislative bills deemed necessary to carry out the recommendations of the commission. In all other respects the facts involved herein are identical with the facts presented in State ex rel. Pew v. Porter, ante, p. 535, 189 Pac. 618. Upon the authority of that case the m...
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By the Court, Petitioner has applied for á writ of habeas corpus, to be discharged from the custody of the sheriff of Humboldt County under a commitment issued out of the district court upon a conviction and sentence to the county jail for violating the prohibition statute (Stats. 1919, p. 1). By the act in question it is provided that a person shall be deemed guilty of a misdemeanor for a first ...
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By the Court, This is an application for a writ of prohibition to prevent the destruction of certain liquors, pursuant to an order made by the respondent court in a criminal action pending therein, wherein petitioner was convicted *39of violating the prohibition statute. Upon arraignment petitioner demurred to the indictment upon the ground that it is duplicitous. The court overruled the demurrer;...
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By the Court, This is a proceeding in habeas corpus. A complaint was filed in the justice court at Battle Mountain, charging petitioner with having in her possession intoxicating liquor, in violation of our prohibition statute (Stats. 1919, p. 1). Pursuant to the provision of the statute, the district attorney elected to have the justice of the peace hold a preliminary examination, to determine if...
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By the Court, This is an application for a writ of prohibition to restrain the justice of the peace of New River township, Churchill County, Nevada, from proceeding to try the petitioner upon a misdemeanor charge for violating the prohibition statute. As we interpret the brief filed in behalf of petitioner, it is conceded that a justice of the peace has jurisdiction to hold a preliminary hearing w...
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(After Stating the Facts as Above.)— The appeal in this case presents a contest over the application of the parol evidence rule. During the course of the trial the court, over the objections of the defendant, admitted testimony on the part of the plaintiff to the effect that plaintiff met Mr. O. W, Kress, a member of the defendant company, in his room at the Adams Hotel in the month of February, 1...
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(After Stating the Facts as Above.) — The issues are reduced by the pleadings to the inquiry whether the plaintiff lessor violated his promises contained in the lease, whereby he agreed to pay all the water charges to be assessed “on said premises during said term” of lease; and the further promise that lessor “agrees to put all ditches and laterals and fences in good condition, ...” and, if plain...
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The plaintiff, Claude Sharp, by his guardian ad litem, W. L. Sharp, brings this action against the defendant, the state of Arizona, to recover damages for personal injuries. It is substantially alleged in the complaint that in the month of March, 1919, the state of Arizona, by and through its agents, servants and employees, including the plaintiff, was engaged in the construction of an addition to...
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This suit was brought iu the district court of Fremont county by the plaintiff in error against the defendants in error upon an alleged judgment of the supreme court of New York county, state of New York, in favor of William R. Eidson and against Wyopo Company; said judgment having been assigned to the plaintiff. The cause was tried to the court without a jury. The court found generally in favor o...
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Plaintiffs contend: “First, there was evidence before the jury of joint or community ownership by_ the plaintiffs; second,that the evidence before the jury showed that either plaintiff had sufficient interest to maintain an action for the conversion of the property; and, third, in any event, a conversion of the property by the defendants was established at a time when it was in the possession and ...
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The authority for a suit of this nature is found in Section 6910, L. O. L., reading thus: “Any railroad or other person, persons or corporation interested in or affected by any order of the commission fixing any rate or rates, fares, charges, *598classifications, joint rate or rates, or any order fixing any regulations, practices or service, being dissatisfied therewith, may commence a suit in the...
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1. These are not taxes levied as an aggregate by the same taxing power. They are composed of different items authorized and levied by separate taxing jurisdictions, either one of which the taxpayer is entitled to contest. The defendant was authorized to collect, not one, but several different taxes each independent of. the others and emanating from a separate source. It is plain that an illegal or...
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1. The Code, Section 808, snbd. 2, L. O. L., provides that an agreement to answer for the debt, default or miscarriage of another is void, unless the same or some note or memorandum thereof, expressing the consideration, be in writing. The trial court ruled that the instrument signed by the defendants did not express the consideration as required by the statute, and the only question for decision ...
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Plaintiffs’ numerous assignments of error are founded upon the theory that the lease was not assignable, and that they were entitled to introduce evidence to show that the contract was based *120upon the special skill and reliability of the lessees, in support of their contention that the sublease was a violation thereof. It is also urged that evidence tending to establish the breach of other cond...
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The opinion of the court was delivered by On June 20, 1918, Frank Shearer brought an action in the district court of Wyandotte county against the Farmers Life Insurance Company, a Colorado corporation, for a balance of $2,500 due under a written contract on account of his services in assisting it .to acquire the stock of the 'Anchor Life Insurance Company, of Kansas. He recovered judgment, and th...
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OPINION OP THE COURT. A decree was rendered on March 21, 1911, for the sum of $437.40 and $50 attorney’s fees and costs, against appellee upon a promissory note and for the foreclosure of a mortgage given to secure the same. The special master appointed in the decree to make sale of the property having removed from the state, another person was substituted by a subsequent order entered March 16, ...
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OPINION OF THE COURT. Tbe appellant on September 20, 1917, was a public service corporation engaged in supplying the inhabitants of Deming and the surrounding country with electric energy for lighting and power. On the date mentioned a part of its equipment consisted of a line of poles and wires running east and west on Birch street. This line consisted of two wires carrying a voltage of approxim...
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An information was filed against the defendant in the superior court of the county of Humboldt, state of California, wherein he was accused of the crime of selling alcoholic liquors in no-license territory, the particular allegation being “that heretofore, to-wit, on the 29th day of July, A. D. 1919, the said J. A. Bickerstaff within the boundary of said ‘no-license’ territory, in supervisorial di...
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OPINION .OP THE COURT. [1] This is a motion to strike from the files all of the assignments of error of appellant. Assignments 1 to 12 relate to tbe alleged erroneous admission of evidence, of which No. 2 is an example as follows: "(2) The district court erred in admitting, over the objection of plaintiff, Defendant’s Exhibits A and B, as shown on pages 54 and 55 of transcript.” Assignments 13 t...
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Plaintiff commenced this action in the district court for Salt Lake county to recover damages alleged to have been occasioned to him by reason of the defendant’s careless and negligent operation of an automobile upon State street, Salt Lake City. The negligence charged in the complaint against the defendant is as follows: Driving the automobile at a greater speed than was reasonable and safe — thi...
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The respondents, as the legal representatives of A. B. Eoekhill, deceased, brought this action in the district court of Utah county to recover a judgment against the appellant on a promissory note for $1,875 dated January 27, 1912, payable to said A. B. Eoekhill or order on or before November 27, 1913, with seven per cent, interest. The complaint was in the usual form. The appellant answered, admi...
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By the Court, This is an action for divorce on the ground of adultery, brought by Phoebe Boswell Clark against Allen L. Clark in the district court of Washoe County, commenced on the 26th day of December, 1917, and ending in a decree in her favor on the 30th day of September, 1919. The cause was tried before the court without a jury. The defendant appeals to this court from an order denying his mo...
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By the Court, This appeal is taken by Phcebe Boswell Clark from a decree of divorce in her favor on the ground of adultery committed by her husband, Allen L. Clark. The appellant does not wish to have the decree of the court reversed so far as it dissolves the marriage contract between the parties, but asks this court to vacate that part of the decree of divorce that purports to award appellant $1...
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By the Court, This action was originally brought in the court below to recover the sum of $2,000 as damages for the breach of a written contract. The complaint was amended prior to the trial, and during the progress of the trial, and before the conclusion of his case, respondent, by leave of the court, again amended his complaint by including a count on quantum meruit. The trial of the *76cause b...
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The plaintiff in this action sued to establish an equitable lien on certain personal property, alleged to have been created pursuant to the provisions of a parol agreement of the parties thereto, and to have the same declared to be prior and paramount to other liens which had been imposed upon the same personal property. Briefly *Page 532 stated, the undisputed facts of the case as revealed by th...
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The defendant was convicted of murder of the first degree for the killing of one Wong Kim *Page 699 Chong, and appeals from the judgment and from an order denying his motion for a new trial. The deceased, who was a Chinese, was at work in his place of business, a small clothes dyeing and cleaning establishment on Clay Street near Stockton Street, San Francisco, between 5 and 6 o'clock P. M. on Ja...
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The disbarment of the attorney is sought in this matter upon production of a certified copy of the record of conviction of the attorney in the superior court of the city and county of San Francisco of a felony involving moral turpitude. (Code Civ. Proc., secs. 287-289.) It is conceded in the learned and exhaustive brief filed by the president of the San Francisco Bar Association that an appeal fro...
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Appeal by the plaintiff from an adverse judgment. Section 324 of the Civil Code provides that upon the refusal of any officer of a corporation to transfer shares of stock when required, such officer "shall be subject to a penalty of four hundred dollars, to be recovered as liquidated damages, in an action brought against him by the person aggrieved." Defendant herein was at the time material to th...
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This action grows out of the following facts: Guy H. Campbell, as the owner of an automobile, left it with A. M. MacKusick, a dealer in used motor cars, with instructions to sell same for five hundred dollars. MacKusick entered into a contract with Reese Brothers for a *522 lease and conditional sale of the car, subject to payments therefor, the former retaining title and possession thereof. A ...
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The petitioner is the assessor of Tehama County and makes this application for a writ of mandate to compel the respondent, as auditor of said county, to draw his warrant in his favor for the sum of three hundred dollars, which amount is claimed by the petitioner as his salary as such assessor for the month of December, 1919. The petitioner contends that his salary is three thousand six hundred dol...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 708 This is an appeal by the defendant from a conviction of murder in the second degree. A great number of alleged errors are urged by the attorneys for the appellant upon a record which leaves no doubt of the guilt of the defendant.[1] The first contention i...
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The facts in this case are in all material respects the same as those in the Matter of Riccardi, ante, p. 675, [189 P. 694]. The conviction of the accused was in the United States district court of the northern district of California, and was for conspiring to violate the acts of Congress of May 18, 1917, and June 15, 1917, and the case is pending on writ of error in the United States supreme cour...
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This appeal was taken from a judgment awarding damages to the plaintiff. It was alleged in the complaint that a collision which occurred between an automobile driven by the plaintiff and one driven by appellant Dukelow, was the result of the negligent acts of Dukelow, who was employed as a driver by his codefendant. In their answer defendants denied the charge of negligence, and affirmatively alle...
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This is an action in interpleader, brought by plaintiff to determine the title to the sum of $2,080, which plaintiff claims to hold in escrow. Judgment was rendered in favor of defendant and cross-complainant W. A. Reed. Defendant Corporate Finance Company, a corporation, appeals, and the appeal is presented on the judgment-roll. The action was originally commenced against the defendants E. P. Sto...
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Defendant has appealed from a judgment in favor of plaintiff for the principal sum of $650. [1] It is alleged in the complaint of the plaintiff that Morganstern, McGee, Henning, Hendee, and Casebeer, prior to the first day of February, 1915, as attorneys and counselors at law, were engaged in the practice of their profession as copartners in the city of San Diego; that appellant Clark had been a c...
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The action was brought under the "Red-light Abatement Law," the property affected being a one-story brick building known as No. 119 K Street, in the city of Sacramento. The property was owned by the estate of Mary Sweeney, deceased, and Charles T. Burch was the owner of the personal property situated in the premises, which were known as the Casino Theater and Dance Hall. The judgment enjoined the ...
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This is an action to foreclose a mortgage on real property in Inyo County. Defendant Connor appeals from the decree of foreclosure, given and made after the entry of his default. Plaintiff, the holder of the mortgage and the promissory notes secured thereby, filed an amended complaint, making parties defendant, besides the mortgagor and maker of the notes, the defendant Connor and others, who, the...
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This is an appeal by the defendant from a judgment against him for $682.75, recovered by the plaintiff as damages for personal injuries, alleged to have been caused by the negligent driving of defendant's automobile, which resulted in a collision between it and the plaintiff, causing her injury. The appellant assigns as error the ruling of the trial court in denying his motion for nonsuit, made at...
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[1] This is an application for a writ ofmandamus. The application is based upon private rights only. The matters to be litigated are not publici juris. Nor does it appear that some peculiar emergency or exigency exists such as would justify the issuance of the writ by this court in the first instance. The petition shows no sufficient reason why the application should not have been made to the supe...
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This is an action for divorce brought by the plaintiff upon grounds of desertion and extreme cruelty. Defendant denied the allegation of the complaint, and by way of recrimination charged the plaintiff with many acts of alleged cruelty, inflicted upon her by the plaintiff, and with failing to properly support defendant and the two minor children of the marriage. She prayed for the custody of the c...
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This action was brought upon a promissory note and chattel mortgage securing the same. The note and security had been given in satisfaction of a judgment against defendant on a store account. The defense was that the note and mortgage had been obtained by duress and menace, by means of a threat to levy execution under the former judgment upon defendant's exempt household furniture, and to set the ...
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This is an action for personal injuries. The case was tried by the court, sitting without a jury, and judgment was awarded the plaintiff for the sum of $439.25 against the defendants, the Union Label Lithograph Company and R. W. Hornbeck. The defendant, Traung Label Lithograph Company, was acquitted by the court of any culpability in connection with the cause of the injuries complained of by pla...
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This is an appeal from a judgment in favor of plaintiff following the verdict of a jury in an action brought to recover damages for breach of contract. Generally, *Page 689 ally, the facts material to the opinion are: That plaintiff and defendant entered into a written contract whereby plaintiff agreed to grade certain streets in the city of Los Angeles in accordance with plans and specifications...
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Plaintiff was nonsuited in this action, the trial court holding that the evidence introduced in support of the cause of action set out in the complaint was insufficient. The appeal is from the judgment which followed. The action was upon a promissory note given incidental to and as a part of a further agreement made between the parties respecting the sale of a certain lot of prune trees. The no...
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This is an appeal from the district court of Blaine county. On the 19th of July, 1916, J.J. Morrison, administrator of the estate of J.O. Warrington, deceased, commenced an action against the defendant, town of Watonga, to recover the sum of $50,000 as damages for the wrongful death of said J.O. Warrington on account of the negligence of the defendant. The allegations of the plaintiff's petition t...
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This proceeding in error was filed in this court on January 14, 1918, and was duly assigned for submission on February 17, 1920, on which day it was dismissed for want of prosecution. On February 24, 1920, upon application of plaintiff in error, the cause was reinstated and plaintiff in error given 20 days within which to file brief, and the cause was duly submitted on April 13, 1920. No briefs ha...
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The defendants in error, J.M. Marler and Dave Willis, sued the plaintiff in error, W.H. Peaden, to recover the sum of $600, alleging that the said Peaden had agreed to pay them and one J.F. Pickle the sum of $1,000 as commission for the sale or exchange of certain lands of the said Peaden situated in Texas for property in Chickasha, Okla., owned by one E.T. Thompson; that Pickle was to receive $40...
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The plaintiff in error, Ellen Barnett, sued the defendants in error in the district court of Okmulgee county in ejectment, the land involved being the allotment of Tom Barnett, a three-fourths blood citizen of the Creek Nation, enrolled on the Creek roll opposite No. 4502, and alleged that said allottee died intestate in March, 1909, leaving her as one of his heirs, a daughter. The trial was had t...
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This action was instituted in the district court of Ottawa county by T.L. Robinson, W.P. McCullough, E.M. Landrum, and E. Stuckey, plaintiffs, against J.E. Potterff, J.S. Mabon, L.C. Church, and Wesley M. Smith, as defendants, alleging that plaintiffs owned an interest in a certain mining lease; that said lease was being operated by the defendants Church and Mabon, and that Smith and Potterff were...
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This proceeding was filed by C. C. Suman, county attorney of Payne county, on June 3, 1920, seeking from this court a writ of prohibition, commanding Duden B. Wright, judge of the 22nd judicial district, to take no further proceeding in a certain cause then pending before him. On presentation of the petition to this court on the same day an alternative writ was issued, returnable on the 8 th clay...
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This is an appeal by the United States Fidelity Guaranty Company and Kelly F. Gibson, obligors, from a judgment against them in favor of the board of county commissioners of Okfuskee county. The suit was instituted by the county commissioners in their official capacity against defendants below for failure on the part of said Gibson to maintain, according to the provisions of his contract, a certa...
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In this proceeding petitioner. W. II. Parr'ick. filed in this court on August 18, 1919. his duly verified petition alleging that, he is unlawfully imprisoned and restraine I of his liberty in the county jail of Craig county, by Lee Webb, sheriff of said county; that petitioner was committed to sa'id jail by an examining magistrate upon a preliminary examination held on the 14th day of August. 191...
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In the above entitled and numbered cause a petition was filed with the clerk of this court on August 18, 1919, for writ of habeas corpus, and upon the same day, on motion of L. L. Roberts, counsel for petitioner, the cause was dismissed and leave granted to withdraw the petition. ...
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The petitioners. Charley Roach, F. H. Anthony and James J. Kelly, filed their application for a writ of habeas corpus in this court on August 18. 1919. alleging that they were unlawfully imprisoned and restrained of their liberty by Lee Webb, sheriff of Craig county: ihaf ■tin* cause of said restraint is that petitioners were jointly charged with the larceny of a Ford automobile, and upon their...
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Plaintiff in error, A. L. .Jones, was convicted on a charge that he did unlawfully transport intoxicating liquor in Love county, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 30 days and to pay a fine of .$50. Erom the judgment he apjieals. His counsel of record has this day filed a motion to dismiss said appeal. The motion is sustained and t...
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The plaintiff in error, W. E. (Dutch) Weber, was convicted in the district court of Oklahoma county of the theft of one Eord live-passenger automobile, the property of C. E. Smith, and his punishment assessed at three years’ imprisonment in the state pentitentiary. From the judgment rendered, nuiemuer 30, 1918, in pursuance ol' the verdict, he appealed by filing in this court on May 28, 1919,...
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In the above entitled numbered cause a petition was filed with the clerk of this court on August 18, 1919, for writ of habeas corpus, and upon the same day, on motion of L. L. Roberts, counsel for petitioner, the cause was dismissed and leave granted to withdraw the petition. ...
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This is an appeal by the petitioners, Choctaw Portland Cement Company and Commercial Underwriters Exchange, from an order of the State Industrial Commission in reopening and making a new award to one Short Lamb, who was injured while in the employ of the first-named petitioner. It appears from the record that there have been three awards in this case; the first having been made on October 8, 1917,...
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E.D. Kesselring, defendant in error, subleased to Mrs. Mary L. Willett, plaintiff in error, the house and premises in question, and they entered into a written agreement by which Mrs. Willett agreed to pay a stipulated rental and, furthermore, "that she will pay all taxes and assessments that shall be levied upon said premises during the term", and should she default in the payment of the rent or ...
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This action was commenced in the district court of Washington county, Okla., by Frank Stanton to recover damages on account of the death of his two sons, who were killed by being struck by one of the trains of the railway company on a country highway crossing in Osage county, Okla. The suit is also for on account of the killing of two mules and the destruction of a wagon and harness. The boys were...
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Lindsey Coleman was convicted in the district court of Tulsa county under the enhanced penalty act of the prohibitory liquor law, and sentenced to serve a term of five years' imprisonment in the state penitentiary and to pay a fine of $50. From this judgment of conviction, an appeal has been properly perfected to this court, and several errors are alleged as grounds for reversal. The Attorney Gene...
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This is a companion case to the cast of Lindsey Coleman v. State (No. A-3422) 17 Okla. Crim. 716, 189 P. 759, this day decided. The questions involved in this appeal are identical with those involved in the appeal in the Coleman Case, and the Attorney General had also filed in this case a brief in the nature of a confession of error upon the same ground as in the Coleman Case. For the reasons stat...
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(after stating the facts as above). The plaintiff in error, Monroe Betterton, herein referred to as the defendant, was convicted, awarded the death penalty, and was sentenced to be electrocuted for the murder oí his wife, Elzadah Betterton. The homicide was committed on the 9th day of July, 1919. The information was filed in the district court of Craig county on the 3d day of November, and on the...
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This is an attempted appeal from the district court of Washita county, wherein the defendant, Oliver Robinson, was convicted of the crime of receiving stolen property, and sentenced to serve a term of 18 months' imprisonment in the State Reformatory at Granite, Okla. A petition in error, with case-made attached, was filed in this court on the 13th day of August, 1918. On the 13th of October, 1919,...
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delivered the opinion of the Appellant was convicted, in Fallon county, of the crime of murder in the second degree. He appeals from the judgment *541imposed and from the court’s order denying his motion for a new trial. In the year 1917 appellant was jointly interested with his [1] brother, Worden Yandervoort, in ranching operations near Westmore; he contracted with one George Davis to put up cer...
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delivered the opinion of the court. By his complaint in the court below the appellant sought to restrain the city of Billings, its mayor and other officers, from levying the cost of the improvements constructed in Improvement District 168 in excess of $1.50 per lineal foot, plus the cost of curb and gutters against his property situated within that district. He alleges that all the steps required ...
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Opinion In November, 1919, John F. Sullivan made application to take the bar examination. Due notice was given of the application as required by the rules of this court, and, no objections; having been made, he was permitted to take the examination, and having passed the same satisfactorily, an order was entered that he be admitted, and a certificate was issued. Almost immediately thereafter objec...
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delivered the opinion of the court. This action was brought to recover damages for an alleged breach of contract. The defendant prevailed in the lower court, and plaintiff appealed from the judgment dismissing his complaint. The facts of the case are not in dispute. On August 4, 1916, plaintiff and defendant entered into a contract by the terms of which plaintiff agreed to purchase from defendant,...
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delivered the opinion of the court. The complaint in this action alleges that the plaintiff and [1] defendant entered into a contract in writing for the sale *598by defendant to plaintiff of certain alfalfa hay of a certain specified quality to be delivered on board cars in the state of Washington, to be shipped to plaintiff in Montana at an agreed price, payable as deliveries were made, by drafts...
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The insurance company appeals from a judgment for $7,440, with interest, amounting in all to $8,020, against it under an accident insurance policy providing for death benefits in favor of the widow of Luke Kelly, the assured. The form of the policy is unusual. It is described as a "Five Year Term" policy. It was accompanied by a collateral agreement, in effect a non-negotiable note, by which the a...
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Action to recover on a contract to pay a commission of one thousand dollars for services rendered in procuring an exchange of real property of defendants for other real property. Judgment for the defendants, from which the plaintiff appeals. *Page 638 Appellant contends that the findings "are not supported or justified by the evidence." The record being presented by means of a reporter's typewrit...
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Plaintiff for herself, and on behalf of her assignors, brought this action against the defendants, copartners conducting the St. Catherine's Hospital, in the city of Santa Monica. The action is one for damages, the amount of which is alleged to be the value of services during the time plaintiff and her assignors were employed at said hospital, at the rate of fifteen dollars per week. The trial was...
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The respondent, Universal Lumber Mill Company, was a party to and a cross-complainant in a consolidated action to enforce the payment of certain mechanics' liens. Defendant Frey was the owner, defendant Campbell was the original contractor and cross-defendant, and the cross-defendant and appellant Pacific Surety Company was the surety upon the contractor's undertaking, conditioned on the faithful...
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This is an appeal from a judgment in favor of defendants following an order granting their motion for nonsuit. Plaintiff sued as surety in subrogation under the provisions of the "Workmen's Compensation, Insurance and Safety Act" [Stats. 1917, p. 831], to recover damages for negligence on the part of the defendants resulting in the death of one Eugene P. Nolan. The decedent was an employee of the ...
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This is an appeal from a judgment in favor of the plaintiff and against the defendant for the sum of one thousand five hundred dollars, damages for injuries received by the plaintiff, a minor child of the age of nine years at the time of his said injuries, in consequence of an attack made upon him by a chimpanzee which was owned by the defendant and which was negligently allowed to go at large, an...
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The defendants appeal from a judgment for personal injuries sustained by the plaintiff while riding on a motorcycle which, while being driven by one Reed, came into collision with an automobile driven by the defendant, Maude A. Bidwell. The plaintiff alleged that at the time of the accident he was riding along a public highway "in a westerly direction and was on the extreme northerly side of said ...
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is an appeal from a judgment in favor of plaintiff awarding him damages for breach of an agreement dated October 15, 1918, to sell personal property. The agreement, which was in writing, read as follows: “Beceived of E. A. Webb, the sum of $50.00, as first payment on the purchase price of all fixtures, furnishings, safe, show cases, stationery, merchandise and other articles in or belonging to ...
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Plaintiff corporation instituted this action to foreclose a mortgage on real estate of the defendants. The complaint contained the usual allegations in a suit of this nature, including the mortgage in full, wherein it was provided that in the event of foreclosure a reasonable attorney's fee, to be fixed by the court, was to be paid by the mortgagor. The essential allegations of the complaint were ...
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By his petition for a writ of habeas corpus, the petitioner, Henry Tahbel, father of Bodo Tahbel, a boy fifteen years of age, seeks his son's release from "Juvenile Hall," a detention home, in the city of Los Angeles, established under the juvenile court law as a place for the confinement of delinquent minors, and to which the boy was committed for refusing to answer certain questions when a witne...
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This is an appeal by the defendant Maryland Casualty Company, a corporation, from a judgment against it as surety upon, and in the full amount of, the official bond of C. B. Davis, a notary public. E. P. Hunziker and E. C. A. Berger, as contractors, were about to erect a seven-story reinforced concrete hotel building for C. W. Howard, the ostensible owner. Before the contract for the work had been...
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Action to recover upon a policy of fire insurance which covered plaintiff's building and contents consisting, among other things, of a stock of merchandise, and all of which is alleged to have been totally destroyed by fire. Judgment went for plaintiff as prayed for, and defendant appeals. [1] The policy contained a clause that "this company will not be liable for loss (unless fire ensues, and in ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 614 On the twenty-first day of May, 1917, the will of Robert Campbell, deceased, was admitted to probate in the superior court of Butte County and letters testamentary were issued to Robert W. Campbell, as executor. On the 30th of May, following, the above-na...
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The appeal in this case is taken from a judgment entered in favor of the defendant. Frank E. Clark and Margaret T. Clark were husband and wife. The husband died in June, 1911, and the wife three years later. Upon the death of the wife certain securities were found in a safe-deposit box containing effects of the latter. The securities were contained in envelopes which bore indorsements thereon sign...
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This is a proceeding in which the admission to probate of the holographic will of George A. Little, deceased, is contested by Clara M. Sparling, a sister of the decedent. At the close of contestant's case, the court granted a motion for nonsuit, made by the proponents of the will, and admitted the will to probate. The appeal is by contestant from said order granting a nonsuit and from said judgmen...
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The plaintiff is now and for more than forty-six years has been the owner of certain real estate in Ventura County. She had created on her land an avenue for her convenience and pleasure, and planted thereon as early as 1880 some fifty-five walnut trees of the variety known as black walnuts in parallel rows, the rows being some twenty feet apart. They have grown to be large trees, some of them thi...
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The plaintiffs filed mechanics' liens on the property at issue herein amounting to the sum of $1,850 for materials and labor actually used and furnished in the construction of a four-flat building, and they brought suit against A. F. Whittington, J. T. Brown, and others for a personal judgment and also to foreclose said liens. The court found all the liens valid and gave judgment accordingly as ag...
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[1] Petitioner, in open court, concedes that if the return which the sheriff proposes making were filed it would show, in accordance with the facts, that petitioner *Page 637 is lawfully in the custody of the sheriff of Los Angeles County under a bench warrant issued on an indictment heretofore filed by the grand jury. The writ, therefore, is discharged, and petitioner remanded....
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This is an action brought by the plaintiff, a beneficiary, to recover for death under an accident insurance certificate issued July 27, 1908, to Nathan Olinsky, by the defendant, a fraternal beneficial order. In 1913 certain by-laws were enacted by the association which were in force at the time of the death of the insured, which plaintiff claims modified the certificate. On June 19, 1915, while a...
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—The petitioner’s claim that he is illegally held in custody by the sheriff of Los Angeles County is based entirely, in so far as this particular habeas corpus proceeding is concerned, upon the legal insufficiency of process issued in a contempt proceeding to afford justification for his further confinement thereunder. He does not assert that such process issued in said contempt proceeding cons...
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This is an appeal from a judgment denying an application for a writ of mandate to require the respondent auditor to draw a warrant upon a claim for cement furnished by the petitioner to the county of Sacramento, which claim has been duly approved by the board of supervisors. The cement was purchased by the purchasing agent of the county without advertising for bids, for the purpose of constructing...
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Charles F. Glaeser filed a complaint against respondent in the district court in Lincoln county, October 24, 1913, and on the same day filed an affidavit for attachment and undertaking, with appellant as surety, conditioned as provided by the statute. Both Glaeser and Moseley, the respondent, were residents of Chicago, Illinois, at the time the attachment was brought. The grounds for attachment, a...
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The will in question was executed by Son-se-gra, a full-blood Osage Indian, and filed for probate in the county court of Osage county. Cap Strike-Axe, her husband, filed a contest against the admission of the will to probate, and, upon judgment being rendered in favor of the proponents, contestant appealed to the district court, where judgment was rendered admitting the will to probate, from which...
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The will of Me-hun-kah, a full-blood Osage Indian, was presented for probate in the county court of Osage county, probation contested, and from a judgment of the county court contestants appealed to the district court. From the judgment of the district court admitting the will to probate, this appeal is prosecuted. To reverse the judgment of the trial court it is urged: (1) Lack of testamentary ca...
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This is an appeal from the county court of Beckham county, wherein the Western Lumber Company, a corporation, was convicted of the offense of unfair competition and discrimination, as defined by section 1 of chapter 114, Session Laws 1913, and punishment fixed at a fine of $400.00. From the judgment rendered, an appeal *Page 428 has been properly perfected to this court, and several alleged groun...
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Opinion In this proceeding, which was commenced originally in this court, the relator asks for an injunction against the board of county commissioners and the county clerk of Sheridan county, Montana, restraining them from further proceedings in connection with an election held in that county under the provisions of Chapter 8 passed by the Extraordinary Session of the Sixteenth Legislative Assemb...
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In Ms complaint respondent, who -was tbe plaintiff in the trial court, alleges, inter alia, that on September 8, 1918, at Helper, Carbon county, Utah, he was and is the owner and entitled to the possession of a certain automobile of the *188value of $1,700, and that on said day, without plaintiff's consent, and wrongfully, defendant came into possession of said automobile, and still'“retains and u...
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. Before the Industrial Commission the parties stipulated the facts in the present case to be: On July 16, 1919, Alex A. Hunt, of Roosevelt, Utah, was fatally injured by reason of an accident arising out of and in the course of his employment while regularly employed at Roosevelt by the Uintah Power & Light Company, an employer subject to the provisions of the Workmen’s Compensation Act (Laws 1917...
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By the Court, This is an original proceeding to obtain a writ of mandate, directing the state controller to issue his warrant in payment for certain services rendered in pursuance of an act of the legislature . (chapter 213, Stats. 1919, p. 387) to provide for cooperative agricultural and home economics extension work in accordance with the terms of the act of Congress known as the Smith-Lever ac...
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OPINION OP THE COURT. This action was instituted in tlie court below by appellee, a resident taxpayer of the city of Socorro,, against said city for the appointment of a receiver to take charge of, manage, and operate the waterworks owned by the said city. The suit was based on chapter 47, Laws 1919. The first section of said act provides that the revenue derived from the operation of a public ut...
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OPINION OF THE COURT. District Judge (after stating tbe facts as above). Many errors are assigned by appellant; but, as this ease must be reversed for tbe reason that no legal tender was ever made by tbe appellee, it will be unnecessary to consider tbe other assignments of error. [1] On the 3rd day of December, 1917, and within nine months of tbe time of tbe sale of tbe property, appellee attempt...
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The assignments of error challenge the accuracy of the findings of fact, and the conclusions deduced therefrom. Unfortunately for the appellants, there is no bill of exceptions in the record. 'There is what purports to be a transcript of the testimony taken upon the trial, but the only certification thereof is that of the official stenographer who reported the same. In the recent case of Thomsen v...
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1. The plaintiffs, it will be recalled, paid $5,000 for the option, and the purchase price was fixed at $295,000, making a total of $300,000. The plaintiffs transferred their beneficial interest in the land for an expressed consideration of $330,000. However, the plaintiffs did not actually receive $330,000 from the Parkrose Association; but they were reimbursed the amount paid for the option and ...
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Considering the proceeding in equity first, we find the substance of the testimony to be that the engineer of the Lumber Company at the instance of its officers went with its vice-president and manager upon the premises, surveyed out a road across the O’Connell property, and made a map thereof, which the vice-president, as manager of the Lumber Company, submitted to O’Connell, reaching a result by...
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The realty involved in this litigation is sometimes referred to as the sawmill property. Confusion may be avoided, if at the outset we call attention to the fact that since a time prior to September 17, 1895, the sawmill has been owned by one person or corporation and operated by other persons or another corporation. In the beginning Elihu was the owner of the sawmill property. On August 12, 1892,...
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1. At the beginning of the trial, the defendant objected to the admission of any evidence in support of plaintiff’s case upon the ground that in this state no right of action exists upon a state of facts such as are set out in the complaint. Defendant argues that no action can be maintained against a county under such circumstances, unless expressly permitted by statute; a doctrine which is' justi...
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The opinion of the court was delivered by Fred C. William was convicted under section 35 of the .Crimes Act (Gen. Stat. 1915, § 3396) for taking away from her parents Mattie Buck, a female person under the age of eighteen years, without her parents’ consent, for the purpose of prostitution. William appeals, and his principal contention is that there was no evidence to sustain the conviction. The i...
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The plaintiff sued the defendants for the price of a silage cutter. The answer stated no defense, and the plaintiff moved for judgment on the pleadings. This motion was denied by the trial court, and the plaintiff appealed. This court held that the plaintiff’s motion should have been sustained, and our mandate to that effect was sent to the district court. (Thresher Co. v. Nelson, 105 Kan. 517, 18...
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The opinion of the court was delivered by The Ismert-Hincke Milling Company is a corporation operating a flour mill in the city of Topeka. It is under the provisions of the compensation law. On the 17th of October, 1918, Almon Slater, a boy 16 years of age, was in the employ of the milling company and was killed in an accident while in the course of his employment. His father and mother brought th...
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The opinion of the court was delivered by The plaintiff’s barn and contents were destroyed by fire claimed to have originated from sparks from one of defendant’s trains. The property was insured, and the company settled and joined the plaintiff in suing the defendant for the full amount of damages. On the same day a fire occurred a mile southwest, caused by burning shingles from the Hammon barn, b...
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The opinion of the court was delivered by This is an appeal from a judgment granting to the plaintiff a divorce from the defendant.. 1. The principal question argued is that the evidence did not justify the court in granting a divorce to the plaintiff. One of the grounds alleged for divorce was extreme cruelty. The evidence tended to show that the defendant cursed the plaintiff and called her vil...
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The opinion of the court was delivered by Action upon a judgment rendered by the United States district court for the state of Nebraska in favor of the plaintiff, Frank P. Dickson, against Richard C. Patterson, upon which a new judgment was rendered in favor of plaintiff, from which defendant appeals. In his petition the plaintiff set forth that on December 6, 1916, a judgment was rendered in the ...
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The opinion of the court was delivered by This was an action to recover on a fire insurance policy. The late Henry Cooley, of Rooks county, purchased a policy of fire insurance upon his farmhouse and bam, and also upon his household goods. The farm was subject to a first mortgage in favor of J. R. Loomis, and with the insurance company’s consent the insurance on the farmhouse was to be payable to ...
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*864The opinion of the court was delivered by The state brings this original proceeding, seeking by mandamus to require the board of education of the city of Council Grove, five members of which are made defendants, to recognize M. F. Amrine as a member of that body. The case is submitted upon a motion of the plaintiff for judgment upon the pleadings, on the ground that the allegations of the answ...
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The opinion of the court was delivered by In this action defendant sought a recovery for the death of her husband, Joseph Mazeffe, under the workmen’s compensation law. He was an employee of the Kansas City Terminal Railway Company and was killed on his way to the place of work, and before he had reached the premises of the defendant. The court held that the accident which resulted in the death o...
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The opinion of the court was delivered by Plaintiff brought this action to recover a balance claimed to be due for salary as cashier of the defendant bank for-the year 1917. There was a judgment in his favor, from which the bank appeals. Plaintiff’s evidence showed that he was one of the organizers of the bank, which opened for business June 15, 1915; that he was selected as cashier and performed ...
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The opinion of the court was delivered by The plaintiffs commenced this action to cancel oil and gas leases given by them to W. S. Thomson, on certain property in Greenwood county. Judgment was rendered in favor of the plaintiffs on their motion for judgment on the pleadings, and the defendants appeal. *849The questions argued are that the court committed error in sustaining the plaintiffs’ motion...
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The opinion of the court was delivered by The plaintiff appeals from an order sustaining a demurrer to his petition. This pleading alleged in substance that the defendant orally promised and agreed to sell and deliver to the plaintiff a Delco lighting plant worth $525 for $400, and that the plaintiff agreed to accept and pay for it on delivery. Whereupon, he prepared the foundation for the plant a...
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The opinion of the court was delivered by Cresencia Romerez brought this action to recover for the death of her son, Juan Romerez, at the defendant’s packing house, and recovered. The defendant appeals. Juan Romerez and Jose Lopez were meat truckers, as was also a fellow worker, Basil Sims. The duty of Juan and Jose was to truck beef livers and hang them on racks. A quarrel arose between Sims, a ...
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The opinion of the court was delivered by This appeal is from a judgment denying an injunction against the closing of a roadway. The plaintiff and the principal defendant derived their adjacent and neighboring properties from a common ancestor, Mason Ferguson, who died in 1910. At the time of his death Mason Ferguson owned certain lands in section 33, township 34, range 21 east, in Labette county...
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The opinion of the court was delivered by On September 2, 1911, Charles Miles and Anna Miles executed to a bank a note and real-estate mortgage for $2,250, due in two years. Shortly afterwards they conveyed, the land to a grantee who assumed the payment of the note and mortgage and later conveyed to J. A. Hamilton, who made a like assumption. Charles Miles and Anna Miles purchased the note and mor...
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The plaintiff in error was convicted in the county court of Jefferson county upon an information filed in said court on May 4, 1915, which charges the unlawful conveyance of intoxicating liquors. On the 12th day of February, 1918, in accordance with the verdict of the jury, he was sentenced to be confined for 30 days in the county jail and to pay a fine of $100. From the judgment he appeals. The u...
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The opinion of the court was delivered by The defendant appeals from a judgment against him on a promissory note. The action was commenced before a justice of the peace. Judgment was there rendered in favor of the plaintiff, and the defendant appealed to the district court. The bill of particulars alleged “that the consideration for the note was procured by fraud.” A motion was filed in the distr...
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*801The opinion of the court was delivered by The action was one for compensation for injuries received by a workman while cleaning a casing machine in the defendant’s packing house. The defense was that the plaintiff willfully failed to use a guard, provided by the employer, which would have prevented the accident. The plaintiff recovered, and the defendant appeals. .A witness for the defendant d...
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The opinion of the court was delivered by This was an action brought by Edwin Clapp & Son, a corporation, against W. A. Knorr, to recover an unpaid balance due for goods sold by the plaintiff to the C. E. Reinhart Store, and for other claims for merchandise and labor assigned to plaintiff. Judgment was given in favor of the defendant, from which plaintiff appeals. It appears that in May, 1911, Kn...
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The opinion of the court was delivered by T. J. Beall brought replevin against James Spear, Mattie Spear, and Phil Wah-Wa-Sic, all the defendants beings Indians, basing his claim upon two chattel mortgages. The trial court held that as a matter of law the plaintiff was entitled to the possession of the property, submitting to the jury only the question of the value of his interest, and that merel...
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The opinion of the court was delivered by This was an action by the Kansas Flour Mills Company to recover from R. W; Moll $270 as damages resulting from the alleged violation of a contract for the sale of flour. The defendant prevailed, and plaintiff appeals. The contract was for the sale of three shipments of a brand designated as “Fanehon flour,” which is a high-patent hard-wheat flour. The fir...
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The opinion of the court was delivered by The controversy is over the interpretation of a will, the question at issue being whether in the event of the remarriage of his widow the testator intended that she should thereupon cease to have any interest whatever in his property, or (as found by the trial court) she should then take a half interest, the other half being shared equally among their chil...
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The opinion of the court was delivered by In a workmen’s compensation case the plaintiffs recovered a judgment for $2,964 for the death of John Vassar. The defendant appeals. The deceased, who was 53 years of age at the time of his death, had been in the employ of Swift & Company for eleven years; his work was loading refrigerator cars. It is claimed that his duties required him to lift heavy pie...
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The opinion of the court was delivered by The action is one of mandamus, to compel the national officers and national executive committee of the Security Benefit Association to restore the charter of Capital Council No. 1, a subordinate body of the association. The plaintiffs are members of Capital Council No. 1, and are-holders of beneficiary certificates issued by the association. They claim the...
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The opinion of the court was delivered by The defendants failed in their attempted defenses to a promissory note and appeal from an adverse judgment. They had furnished crushed rock to their codefendant, Mc-Quary, to be used in building sidewalks on several pieces of his property in an addition to the city of Lawrence. He owed them $280, as they claim, and when a purpose was expressed to file a li...
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The opinion of the court was delivered by Counsel for the defendants naturally complain of our entertaining a second motion for rehearing and the necessity of reading volumes of literature added to the printed matter already presented in this case, but, although out of the ordinary, we have felt that we ought to examine with thoroughness and reconsider the points relied on by the plaintiff and co...
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The opinion of the court was delivered by E. K. Clark was convicted of the offense of drawing the casing from an abandoned oil well without plugging it as the statute prescribes. In his appeal he contends that he is not within the application of the statute under which he was prosecuted. It appears that H. V. Foster was the owner of the well, and that defendant was the operator who had charge of t...
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The opinion of the court was delivered by The action was upon a promissory note. There was a verdict and judgment for the plaintiff', from which the defendant appeals. On July 6, 1914, the plaintiff, Fred Shrader, was president, and the defendant, B. J. McDaniel, had been for a number of years cashier, of the Farmers and Merchants State Bank of Dexter. McDaniel, who had sold his stock to Shrader a...
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*783The opinion of the court was delivered by The appeal is from an order overruling plaintiff’s motion for judgment on the pleadings. The action was brought to recover the sum of $155 alleged to be due plaintiff as the premium on a guardian’s surety bond. The petition alleged that Bertha W. Cole was appointed by the probate court of Mitchell county guardian for four minor children of Frank A. Co...
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The opinion of the court was delivered by The action was one by the plaintiffs to recover from the defendant sums of money claimed to be due on account of a real-estate transaction in which the parties had been interested. Judgment was rendered for the defendant, and the plaintiffs appeal. The plaintiffs were real-estate agents who had Ohmart’s land for sale for $17,600. The plaintiffs were able t...
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The opinion of the court was delivered by The plaintiff, under two chattel mortgages given to it by F. P. Wilson, recovered a judgment in replevin against the defendant for two mares. The defendant appeals. The mares had been sold to him by F. P. Wilson. But one question is presented, and that is: Were the mortgages recorded in the proper county at the time the defendant purchased the mares? To an...
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The opinion of the court was delivered by The defendant appeals from a judgment in an action to recover the value of certain personal property alleged to have been converted. The petition set up a contract between the parties by which the defendant leased the building to the plaintiff to be remodeled by the former and used by the latter for a picture show for a period of ten years at $200 a month ...
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The opinion of the court was delivered by -, This appeal presents a question touching the authority of a district court to set aside a sheriff’s sale of land which had been subjected to foreclosure. The plaintiff was the mortgagee in possession of a quarter section of Hodgeman county land. The appellant, Parvin, was a tenant holding under the plaintiff. The mortgagor is not before this court. When...
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The opinion of the court was delivered by The action was one by the purchaser of oil and gas leases, wells, pumping plants, tanks, and other equipment and supplies, to cancel the contract of purchase on the ground of fraud. The sellers prayed for specific performance. Specific performance was decreed, and the plaintiff appeals. The contract embraced four groups of leases, severally owned by the N...
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The opinion of the court was delivered by The petitioner operates a taxicab for hire upon the public streets of the city of Topeka, and seeks his release from imprisonment upon a conviction for the violation of a city ordinance, claiming that the ordinance is unconstitutional. The ordinance, No. 4951, enacted by the Board of Commissioners of- the City of Topeka, was published on March 17, 1920. T...
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The opinion of the court was delivered by This appeal questions the correctness of a judgment overruling a motion to set aside a money judgment in a bastardy case which had been rendered against a minor for whom no guardian ad litem had been appointed. In a bastardy proceeding, Paul Lyons, a lad of seventeen-years, had been adjudged to pay the sum of $1,200 towards the support of an illegitimate ...
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The opinion of the court was delivered by The action was one by brothers, sisters, nephews, and nieces of Sarah E. Wilkins, deceased, to recover property belonging to her estate, from her adopted daughter, Dollie E. Woods, and from grantees of Dollie E. Woods and others. The plaintiffs were defeated, and, together with certain defendants interested with them, appeal. Sarah E. Wilkins, a widow and ...
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The opinion of the court was delivered by This appeal has been docketed two times. The notice of appeal has been filed two times, and was docketed each time.' There is but one action and but one appeal. The plaintiff commenced this action, one in replevin, to recover a tractor engine from the defendant. The cause was tried by a jury, and at the close of the evidence the jury was directed to- retu...
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The objection that the complaint does not state facts sufficient to constitute a cause of action is untenable. The facts are set forth even to the extent of prolixity, and, taking them as true, it necessarily follows that the accident was the sole result of defendant’s negligent driving. 1. The testimony was conflicting, each party laying the blame of the collision upon the other, and, unless the ...
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1. When the appealing defendant entered the Circuit Court, the Constitution guaranteed him the right of trial by jury; and that right was nowise impaired, weakened or diminished by the fact that the controversy involved only $37.50. Article I, Section 17, and Article VII, Section 3, Constitution of Oregon: Puffer v. American Ins. Co., 48 Or. 475, 478 (87 Pac. 523). 2, 3. The exercise of the right ...
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—An action upon two promissory notes of the defendants to Mrs. Emily Marx, deceased, payable two years after date with interest at eight per cent, the first dated August 11, 1918, for two thousand dollars; the second dated October 1, 1918, for one thousand dollars. These notes, given in renewal of two notes of the same amounts and tenor executed in 1909, and a third note of five thousand five h...
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The allegations quoted from the complaint constitute all of the matter upon which the plaintiff in that pleading predicates his right to the water in question. 1. We will first determine the validity of the general demurrer to the complaint. The contention of the defendant is that the plaintiff must show in his complaint not only that he took the water and applied it to a useful purpose, but also ...
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1. There is but little conflict in the testimony. What there is pertains to dates and conclusions. The testimony shows almost conclusively that it was agreed between the parties to the lease that, in the event the same was terminated or broken .by the lessee the $2,000 should be the property of the plaintiff. This'being the case, it determines the controversy, and also the law action, and the Circ...
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1. The lease now before this court is the identical instrument upon which the action was brought in the case of Gearin v. Rothchild, 88 Or. 403 (170 Pac. 923), is between the same parties and concerns the same property. Both, cases are for arrears of rent prior to forfeiture, and the causes of action are identical in form, differing only as to the months’ rental for which recovery is sought. The e...
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Appellant sued to enjoin the commissioners of Kitsap county from issuing and selling $100,000 in bonds for the purpose of constructing, repairing and improving roads and for other general county purposes. The question of issuing bonds was not submitted to a vote of the people and comes within the one and one-half constitutional debt limit. The lower court sustained a demurrer to the complaint and,...
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This appeal is from a decree of the lower court foreclosing a real estate mortgage. There is no substantial conflict upon the facts, and they may be briefly stated as follows: On October 15, *1661917, A. Simonsen and wife executed and delivered to Frank E. White their promissory note for $2,000. This note was made payable “five years after date,” with interest at the rate of seven per cent per ann...
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This appeal is from a judgment of the lower court in favor of the plaintiff for $550, upon two causes of action separately stated in the complaint. The first cause of action is for alleged damages to the person of the plaintiff; the second is for damages to her property. The principal contention of the appellants is that the trial court erred in refusing to direct a verdict in their favor. The fac...
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This action was brought by the plaintiff to.rescind a contract of exchange of real estate and to recover from the defendant the value of land deeded by the plaintiff to the defendant. A number of persons were made parties defendant, but upon the trial of the case, all of these parties except Aron H. Hover *177were dismissed because there was no evidence that they had any interest in the transactio...
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The relator seeks a writ of mandate to compel the commissioner of agriculture to pay into the state treasury the balance of funds in his possession arising from entrance fees, concessions, advertising space, and other income of the state fair of Washington for the years 1918 and 1919. In 1893, the legislature created the state fair of Washington and declared its object and purpose to be to promote...
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This action was brought for an accounting against the defendant. Trial to the court without a jury resulted in a judgment in favor of the plaintiff for the return of certain property and for a money judgment on account of real estate sold by the defendant. Both parties have appealed from the judgment. We shall therefore designate them as “plaintiff” and “defendant.” It appears that, prior to the y...
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In this action the respondent, Pearl Parkhurst Jones, recovered against the appellants, Elliott, Collyer-Vilas-Elliott Incorporated, Alfred E. Hart and Katherine S. Hart, in damages for false representation made in an exchange of properties between the respondent and the appellants Hart. The action was tried by the court sitting with a, jury, and the appeal is from the judgment entered upon the ju...
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(dissenting)—We dissent. The effect of this decision is to render the rules and operations of the Seattle Clearing House Association superior to the provisions of section 2, chapter 98, page 280, Laws of 1915 (Rem. Code, §3303-2), and virtually to nullify that statute. It would appear to have been the manifest intent of the legislature to comprehend just such a situation as this. If not, there was...
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On February 1, 1918, a complaint was filed in the superior court of King county, seeking damages against the relator here for personal injuries alleged to have been suffered by the plaintiff. *188At that time, and at all times thereafter, the relator was not a resident of the state of Washington, but was and is a resident of the state of Nevada. On March 27, 1919, the action was brought on for tri...
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On the twenty-second day of January, 1917, defendant Laura E. Borton was building a house upon a described lot in the city of Los Angeles. At the same time the plaintiff was the manufacturer for sale of various kinds and classes of wall beds. The defendant Laura E, Borton, being desirous of having installed in the house that she was building, certain wall beds that were being manufactured and sold...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 709 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 710 The action was brought to recover damages for personal injuries sustained by plaintiff Tillie Barton in an aut...
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Action in claim and delivery for the recovery of possession of a certain automobile or its value, which latter was alleged in the complaint to be the sum of $850, together with damages. Defendants had judgment, from which plaintiff has appealed. In addition to determining that the plaintiff was neither the owner nor entitled to the possession of the automobile in question, the trial court found th...
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This is an action brought to quiet title, and for an injunction to restrain defendants from interfering with plaintiff's possession of the property in question, and the defendant Carrie F. Holder Smith from conveying or encumbrancing the title thereto, with a further prayer "that it be adjudged and decreed that if said defendant Carrie F. Holder Smith has any title in said property, the said title...
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This is an appeal from a judgment of nonsuit in an action for the rescission of three separate executory contracts for the sale of real property from the respondent to the appellant. Each contract is the subject of a separate count in the amended complaint. A fourth count was added, being a common count for money had and received. The plaintiff sought to have said contracts rescinded because of so...
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Plaintiff appeals from a judgment rendered against her in an action to quiet title to real property in Kern County. The defenses relied upon by defendants were that title had been acquired, first, by tax deed to L. Cohn in August, 1904; and, second, by adverse possession under color of title. On the trial it was stipulated that plaintiff was the owner and in possession of the property at the time ...
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This is an appeal by defendants from a judgment rendered in plaintiff's favor for the sum of $892.01, in an action instituted by plaintiff against the representatives of the estate of James W. Minturn, deceased, for the purpose of establishing the validity of a rejected claim presented against said estate by plaintiff for a balance claimed to be due upon a mutual, open, and current account. *Page ...
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This is an appeal by defendants from a judgment quieting title in plaintiff in and to certain tracts of land situate in Riverside County. The complaint alleges ownership in plaintiff, and further alleges that the *Page 17 defendant Frank P. Wilson, as sheriff of Riverside County, levied an execution on said property, issued in an action wherein Alvina Valencia, one of the defendants herein, obtai...
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The petitioner was arrested for violation of section 58 of Ordinance No. 3361, New Series, of the city and county of San Francisco, which is designated as "Imposing License Taxes on certain Businesses, Callings, Trades or Employments," etc. Section 58 is as follows: "It shall be unlawful for any person to sell in the City and County of San Francisco any theater ticket or opera ticket, or ticket of...
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This is an appeal by plaintiff from a judgment entered in favor of defendants in an action brought by plaintiff as special administrator of the estate of William A. Smith, deceased, to set aside two deeds, executed by deceased to defendants, upon the grounds of undue influence and mental incompetency. The defendants, besides denying the two principal charges, pleaded in bar of plaintiff's recovery...
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The plaintiff, having furnished certain supplies to a contractor, brought this action to recover on his own and certain similar assigned claims. M.F. O'Dea appeals from that portion of the judgment giving to respondent a lien upon two bonds, Nos. 9 and 10, of improvement district No. 5 of the county of Los Angeles, which bonds are now in the custody of John N. Hunt, treasurer of the county of Los ...
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This is an appeal upon the judgment-roll alone from a judgment against the defendant. The action was upon a promissory note, payable sixty days after date, executed by the defendant and another as joint makers in favor of the plaintiff. The trial court specifically found that the defendant was not a surety. The note was secured *Page 708 by the pledge of certain shares of stock under a pledge agr...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 618 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 619 This is an action to recover the mesne profits of certain real property in the possession of the defendant, a ...
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This is a companion case to Dobbins v. Economic Gas Co.,ante, p. 616, [189 P. 1073]. The proceedings here involved are proceedings for a writ of assistance under the foreclosure decree and sale discussed at length in that case. For the purposes of this appeal it is sufficient to say that the respondent, Mrs. Dobbins, was the purchaser of certain property sold upon the foreclosure of a mortgage, th...
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This is an appeal from the county court of Ottawa county, wherein the defendant was convicted of unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $500 and imprisonment in the county jail for a period of 30 days. From this judgment he has taken an appeal to this court, and asks a reversal upon the sole ground that the evidence is insufficient to sustain the convicti...
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The plaintiff in error, William Crisp, hereinafter called defendant, was informed against for the murder of Wilkie Gains, convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary at McAlester for a term of ten years. To reverse the judgment rendered, he prosecutes this appeal. The evidence shows that the deceased came to his death from gunshot wounds inflict...
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The plaintiff in error, Harry Moore, hereinafter referred to as defendant, was informed against for the offense of assault with intent to rape, convicted and sentenced to imprisonment in the state penitentiary for a term of five years and adjudged to pay the costs of this prosecution. To reverse the judgment rendered he prosecutes this appeal. The information in this case was not demurred to. It c...
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W. M. Thompson was convicted in the county court of Oklahoma county of the crime of unlawful possession of intoxicating liquors, and punishment fixed at a fine of $150 and six months’ imprisonment in the county jail. From this judgment he has appealed to this court, and assigns, two grounds for reversal of the judgment: (1) That tlie court erred in refusing to sustain the motion of the defendant t...
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The defendant, Martin M. Fulkerson, who was treasurer of the board of education of the city of Alva, Okla., was convicted of the crime of embezzling the funds of said school district, and sentenced to serve a term of seven years' imprisonment in the state penitentiary and to pay a fine of $5,531.42. The prosecution is based on section 7437, Revised Laws 1910, which provides: "If any county treasur...
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Plaintiff in error, D. O. Nichols, was convicted in ihe count.v court of Cosier county 'on a charge that' lie did willfully and unlawfully abandon his .wife and child, and in *716 accordance with the verdict’ of the jury he was sentenced to pay a fine of $500 and the costs. From the judgment, he appealed by filing in this-court on March 25, 1919, a petition in error with case-made. Ills counsel...
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The plaintiff in error, Eli Reed, was convicted in the superior court of Okmulgee county on an information charging that he did keep a place on lot 4, block 43, city of Okmulgee, with *Page 715 the intent and purpose of selling intoxicating liquors. Upon his trial the jury returned a verdict, finding him guilty and assessing his punishment at 5 years' imprisonment in the state penitentiary, and a...
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Plaintiff in error, Harry Northrup, was convicted on an information charging the unlawful conveyance of 5 half pints of whisky from a point unknown to the northwest corner of First and Main streets, Tulsa, December 7, 1918. The court rendered judgment, and sentenced him to be confined in the county jail for 60 -days and to pay a fine of $50. The' evidence shows that plaintiff in error was arreste...
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Plaintiffs in error, Joe Jackson and Joe Thomas, were jointly tried and convicted in the superior court of Okmulgee county of maintaining and keeping a place in the city of Okmulgee, in said county, with the feloneous intent and purpose of selling intoxicating liquors, and their punishments fixed at confinement in the penitentiary for a period of 2 years each, *Page 719 and to pay a fine of $100 ...
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This is an appeal from a judgment based on a verdict awarding damages because of trespass by appellant’s sheep on inclosed land of respondent and the destruction by them of wild vegetation growing thereon which was valuable for pasturage purposes. *70Appellant assigns as error the action of the court overruling his objection to a question propounded to a witness for respondent as to the use to whi...
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This action was brought by respondent as a. creditor of the Boise Natural Hot Water Heating Company, Ltd., a corporation, to recover an amount owed him by the corporation from appellant, a stockholder therein, upon the theory that the stock was issued in exchange for fraudulently overvalued property, and that the stockholder is liable for the balance actually unpaid upon the par or face value of t...
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On September 16, 1915, an order was made by the district judge sustaining respondent’s demurrer *85to appellants’ complaint. On October 16, 1915, appellants having refused to further plead, an order, in effect a judgment dismissing the action, was signed by the judge and filed by the clerk of the district'court, and on January 13, 1916, appellants filed their notice of and undertaking on appeal. T...
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OPINION OP THE COURT. On February 28, 1916, tlie Navajo Live Stock & Trading Company, appellant herein, exe-ented and delivered to Emma Franklin its two demand notes for $17,500, which notes were secured by a chattel mortgage on all the live stock owned by said corporation. Emma Franklin owned practically all of the capital stock of the corporation. Thereafter the corporation borrowed $20,000 fro...
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OPINION OF THE COURT. This is an 'appeal from a conviction of murder in the second degree. Three grounds of error are relied upon for a reversal. The first is in the ad- ■ mission of certain evidence in rebuttal. The deceased, Chester Bartell, was killed by the appellants along a trail through the forests of Grant county. The killing was admitted, and self-defense was interposed as justification. ...
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The plaintiff owned the property in question, and while under arrest on a felony charge and in the custody of the appellant, John B. Hoffman, constable of the Morenci precinct, plaintiff signed and delivered a deed conveying said property to defendant Rodriguez in settlement of said felony charge. The deed was drawn by and delivered in the office of the justice of the peace, J. M. Lally, at the ti...
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Appellant, as plaintiff, administrator of the estate of George H. Neale, deceased, insti*453tuted this suit against appellee, as defendant administrator of the estate of Eugene S. Ives, deceased, upon a written contract to recover the sum of $9,000. Both decedents were lawyers and as such were employed by the Cunningham heirs to represent them in litigation against the Costello estate. The history...
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delivered the opinion of the court. This proceeding in mamdarrms was instituted by Emery D. Hamden to compel the sheriff of Chouteau county to issue to him a deed for certain real property sold under a decree of foreclosure and purchased by Harnden. It is alleged in the [1] application that, after the expiration of one year from the date of sale, relator made demand upon the sheriff for a' deed, b...
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