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All Reporters → p → Volume 195

Opinions in p Volume 195

— As of the date of March 1, 1917, twenty-five thousand bushels of wheat were assessed in Lincoln county as the property of E. E. Mayer. The taxes levied thereon not having been paid, the county treasurer in due time selected certain land owned by Mayer and charged it therewith. Thereafter, claiming he was not the owner of the wheat on March 1, 1917, he brought this action to have the cloud on the...
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— Action for damages for breach of contract for failure to furnish pig iron of the specified quality. Appellant was the owner of about three hundred and fifty tons of “remelted pig iron made by electrical process from scrap steel,” which was sold to the respondents through one Dillon. Respondents bought the material for the purpose of re-sale in Portland, Oregon. Upon inspection by the ultimate pu...
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— The second amended complaint, on which this cause was tried, alleged that defendant F. B. Robinson made certain false and fraudulent representations on which plaintiff relied as to a motion-picture theater in Ellensburg, Washington, known as the Isis Theater, namely; that he, Robinson, had procured the consent of Millie B. Sayles to an assignment and lease of the theater, when, in fact, she had ...
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— Plaintiff sued to recover damages for injuries to his automobile truck resulting when it collided with one of defendant’s street cars. The jury returned a verdict for plaintiff. Defendant thereupon moved for judgment notwithstanding the verdict and for a new trial. The court denied the motion for judgment notwithstanding the verdict, and granted the motion for a new trial upon the stated ground ...
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— This is an action brought by the Hitt Fireworks Company, as plaintiff, against the Scandinavian American Bank of Tacoma, for damages. After the issues were framed, the cause in due time came on *168for trial before tbe court sitting without a jury. At the conclusion of the plaintiff’s evidence, a motion was made by the defendant to dismiss the action because it was claimed that a case had not be...
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— The defendant was charged, by a criminal complaint lodged in the justice of the peace court of Yakima county, with unlawfully killing and having in his possession and under his control an elk, including the hide, horns and hoofs. At the same time, another criminal complaint was filed against the defendant in the same court wherein an identical charge was made concerning another elk. The two case...
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— The opinion upon a former appeal in this case is reported in 110 Wash. 821, 188 Pac. 506. Plaintiffs leased to the defendant certain real property for a term of five years from February 2, 1914, with the right of the lessee to renew the lease for another five years at the same rental. Upon the expiration of the five years, this action was commenced to recover possession of the premises, upon the...
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— Respondent, having a judgment in the superior court of Spokane county for $420, with legal interest from date of judgment, February 19, 1919, sued out a writ of garnishment, on October 23, 1919, against, and had the same served upon, appellant, on the next day. Appellant answered in due time, denying any indebtedness to defendant, admitting that he had in his possession promissory notes signed b...
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— A proceeding was commenced in the Lewis county superior court on the 13th day of November, 1920, entitled, “In the Matter of the Welfare of Irwin Davis, Florence Davis, and Gwendolyn Davis, ’ ’ wherein it was alleged that the Davis children ' were in the custody and control of one Albert Davis, who was neglecting them and treating them in a cruel and inhuman manner, and that such children were d...
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— On February 2, 1918, respondent, who is a farmer and merchant doing business at Farmer, in Douglas county, in this state, purchased from one L. B. Simons the note involved in this action, which was dated January 19, 1918, due one year after date, for the sum of $1,500, with interest at the rate of eight per cent, payable at maturity, paying therefor $1,375. Respondent knew, or might have known, ...
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— The plaintiff, a stockholder in the Copeland Shirt Company, a corporation, brought this action on behalf of himself and other stockholders ■ alleged to be similarly situated. The individual defendants were officers and trustees of the corporation, and together owned a majority of the issued capital stock thereof. The corporation was also made a party defendant. The purpose of the action was to c...
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— The original action was brought by respondents, Fenton and wife, against defendants, Poston and Lamken and appellant, Mutual Union Insurance Company, to recover damages for injuries *218received by Mrs. Fenton upon being run down by defendants’ automobile in the city of Tacoma, on December 23, 1917. Plaintiffs alleged that defendants were operating this automobile for hire under a permit issued ...
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— The complaint, as aided by a bill of particulars, shows that the respondent is engaged in the fish canning business in Alaska, and in connection therewith operates fishing boats; that, annually before the fishing season opens, it collects at Seattle such men as it requires for fishermen, beachmen, trap-men and seamen, and ships them on the company’s vessels to Alaska, where they are used in conn...
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— A contract for tbe sale by tbe defendant to tbe plaintiff of certain peas, was embodied in tbe following communications: Seattle, April 19, 1918. L. Teweles Seed Co., Milwaukee. For immediate telegraphic acceptance offer sell two cars choice stock Canadian yellows five three quarters fob cars here certified weights immediate shipment. F. M. Fairbanks & Co. *322Milwaukee, 4-20-18. F. M. Fairbanks...
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This is an appeal by the defendant, John C. Cline, sheriff of Los Angeles County, from a judgment for $2,087 in favor of the plaintiff, Mrs. Pearline Davis, in an action to recover the possession of two motor sight-seeing trucks. On June 12, 1914, the Pacific Auto Tours Company, a corporation, was organized for the purpose of conducting sight-seeing *Page 549 trips in the city of Los Angeles. The...
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This is a creditor’s bill brought to subject the Hotel Istalia and the personal property therein, standing of record in the name of defendant John L. Collins, to plaintiff’s judgment for $4,927.50 against defendants Bertrand *649 Rhine and Leora B. Rhine. The property in question was purchased hy the payment of eleven thousand dollars and by the giving of a mortgage for eight thousand dollars e...
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The plaintiff, Frank Hickman, brought this action against the defendants, London Assurance Corporation, New Zealand Insurance Company, Limited, British Federal Fire Underwriters of Norwich, England, Law Union Rock Insurance Company, Limited, Yorkshire Insurance Company, Limited, Providence Washington Insurance Company, Sterling Fire Insurance Company, the Home Insurance Company of New York, and ...
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This action is brought by the plaintiff to recover, upon an insurance policy issued by defendant to plaintiff, for a fire loss which occurred July 14, 1917. The policy was issued June 26, 1917, insuring the premises owned by plaintiff Roy Lauman and mortgaged to plaintiff H.R. Dodd. Attached to the policy is a mortgage clause providing that the loss or damage hereunder should be payable to H.R. Do...
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In this action the plaintiff seeks to establish her title to forty thousand shares of the capital stock of the defendant corporation, evidenced by certificates Nos. 46 and 47. Her claim is based upon the transfer from her husband, Harry Jackins, as security for the repayment to her of a loan of three thousand five hundred dollars which was made March 26, 1918, but was never made on the books of t...
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This is an appeal by the Ehlen Land Company, a corporation, and P. W. Ehlen from a judgment foreclosing a mortgage executed by defendants Harry Blake and Lenore Blake to Francis A. Blake and by him assigned to the plaintiff. Harry and Lenore Blake executed two mortgages for four thousand dollars each to P. W. Ehlen. These two mortgages were both dated April 3, 1914, but in one of them it was reci...
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This is an action to enjoin the defendant, city of Los Angeles, from enforcing an ordinance of said city, adopted on June 2, 1911, fixing the water rates to be charged by the plaintiff, a public service water company, during the ensuing year, beginning July 1, 1911, and to have said ordinance declared void on the ground that the rates were so low as to constitute a confiscation of plaintiff's prop...
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Action for an injunction and restraining order pendente lite. It appears from the allegations of the complaint that the plaintiff is the owner of 120 acres of land situate in Placer County; that Bear River, a natural watercourse, flows through said land; that at the time of the commencement of this action the defendant was constructing a concrete settling reservoir in and near the channel of said ...
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This is an appeal from a judgment for recovery of money as damages. It is presented on the judgment-roll alone. The action grew out of a transaction had between plaintiff and defendant whereby the defendant contracted to purchase certain real property belonging to the plaintiff. An agreement to effect such sale was duly made, but defendant defaulted in the performance of the conditions required of...
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Defendants have appealed from a judgment entered in favor of plaintiff. The action was to recover the value of materials used and a profit which would have accrued to plaintiff had he been permitted to complete performance under a contract made with defendants where-under plaintiff was to construct and install certain windows and metal sash. The findings were in favor of plaintiff upon all issues...
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Defendants appeal from a judgment entered against them. The action was for damages alleged to have been suffered by the plaintiffs by reason of the killing of two cows. The cows were struck by an automobile stage driven by defendant Graham and owned by the United Stages. The defendant Western Indemnity Company is sued because of its alleged liability on an undertaking given. The undertaking mentio...
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Plaintiff and appellant commenced an action in the superior court to set aside a judgment of the justice's court and to restrain its enforcement. He named as defendants the justice of the peace who had tried the case in the justice's court and the plaintiff in that action. Their demurrers to plaintiff's complaint were sustained. Plaintiff was given ten days to amend and the defendants were given f...
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Action to recover the reasonable value of materials furnished and labor performed by plaintiff at the special instance and request of defendants in repairing a steam boiler. Judgment was rendered for plaintiff, from which defendants have appealed. It appears without contradiction that, the boiler being in bad condition, defendants, upon an express contract, employed plaintiff to repair the same, a...
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Action to recover on a policy insuring property against loss by fire. Judgment in favor of the defendant, from which judgment the plaintiff appeals. The policy insured plaintiff’s boat against loss by fire “while operated in the Pacific Ocean south of Monterey Bay on the north, east of 123 degrees west, and north of San Martin Island on the south. ’ ’ The fire and loss occurred at Hassler’s Cov...
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Plaintiff sought by this action to recover a sum slightly in excess of eighteen hundred dollars for professional services rendered by him as an alienist, to and for the defendant, and at her request. The trial judge found that on January 8, 1915, the plaintiff rendered medical services to the defendant of the reasonable value of forty-five dollars at a time when she was unconscious and in need of ...
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The action was for rescission on the ground of mistake and failure of consideration, and plaintiff prevailed in the court below. After alleging that plaintiff desired to purchase a tract of land for grazing purposes, and entered into negotiations with defendant to buy 160 acres, describing it, the complaint proceeds: "And thereupon at defendant's request plaintiff went to the vicinity of said land...
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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 384 This is an appeal from a judgment of conviction of murder in the first degree, for which the defendant was sentenced to imprisonment in the state prison for life. The first error assigned by the appellant is that the trial court erred in refusing to grant...
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Plaintiff appeals from an adverse judgment entered after a demurrer to his complaint had been sustained without leave to amend. The complaint alleges that plaintiff's assignors were employed by defendant to negotiate the sale of certain lands in San Diego County, and that as the result of their efforts the defendant executed certain escrow instructions to the Union Title Trust Company of San Dieg...
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Ruby Hunter, the petitioner herein, was adjudged a ward of the juvenile court in and for the county of Butte, in the month of December, 1919, and by such order her status as such ward was fixed until she should attain the age of twenty-one years, or until sooner discharged by the court. Thereafter, on February 7, 1920, the said court, exercising its jurisdiction over said ward, committed her to th...
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This action was brought upon a bond given for the faithful performance of the covenants of a charter-party of the steamer "F. A. Kilburn"; at the time the steamer was owned by plaintiff. He had judgment against both defendants and they appeal. The covenants, in particular, to which our attention is directed by appellants, are: "7th. The party of the second part shall pay all costs of operating and...
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At the time of the hearing of the above-entitled matter it was stipulated by counsel for the respective parties herein that the decision rendered in the proceeding entitled, "In theMatter of the Application of Ruby Hunter for a Writ of HabeasCorpus, Crim. No. 544," ante, p. 285, [195 P. 76], should be decisive of the application in the proceeding herein; and, inasmuch as we find that the applicati...
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This proceeding was brought to review the action of the Industrial Accident Commission of California in awarding compensation to one O. J. Burton for *Page 162 injuries sustained by him in the line of his employment under Walker D. Hines, director-general of railroads, operating the Los Angeles and Salt Lake railroad. On February 1, 1919, when he received the injury, Burton was engaged in repairi...
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The complaint in this action is brief and may be set out in full as follows: "1. That within two years last past the said plaintiff and D. B. Woods entered into a contract whereby the said D. B. Woods agreed to sell and deliver to the said plaintiff three hundred and sixty-five (365) head of cattle situated in Berryessa Valley, California. "2. That said plaintiff and defendant agreed that if plain...
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The trial court granted a new trial on its own motion, on the ground that there had been a plain disregard by the jury of the instructions of the court in such a way as to satisfy the court that the verdict was ren*388dered under a misapprehension of the instructions and under the influence of passion and prejudice. This was done under the following provision of C. S., sec. 6893: “The verdict of a...
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This is an original application to this court for a writ of mandate to require the defendant as mayor of the city of Coeur d’Alene to borrow and expend money for rebuilding a wharf owned by the city, -and situated at the south end of First Street. An alternative writ was issued and an answer filed thereto. The facts, which are stipulated, are briefly as follows: The wharf is used as a public landi...
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By the Court, This is an original proceeding in habeas corpus. Petitioner was convicted in the Second judicial district court in and for the county of Washoe, State of Nevada, of violating the prohibition law of this state. He was thereafter sentenced to serve a term of two months in the county jail of said county and remanded into the custody of the sheriff of the county for the serving of sente...
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MUNCIPAL FINANCES – PETITION FOR ADDITIONAL APPROPRIATION – FINDING OF COUNCIL – ORDINANCE – OBDINAKY AND NECESSARY EXPENSES. 1. Under the provisions of C. S., see. 4053, prescribing as a condition for an additional appropriation by a city council that it shall first be sanctioned by a majority of the legal voters of the city, cither by a petition signed by them or at a general election called for...
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By the Court, Lena Lombardi brought her action against Samuel A. Lombardi, her husband, for divorce, upon the ground of extreme cruelty. The court granted her a decree, together with alimony for the support and maintenance of their two children of the marriage, and adjudged and decreed the property occupied and used during the *316coverture as a home by the parties since the date of their marriage...
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delivered the opinion of the court. This action was brought by the plaintiff in the court below to recover of defendant Ziebarth, as clerk of the district court of Blaine county, and of the Massachusetts Bonding & Insurance Company, as surety, damages resulting from the entry of an unauthorized judgment, and for legal services performed by one R. E. O’Keefe, acting as attorney for the plaintiff in...
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delivered the opinion of the court. This action was instituted in May, 1915, a writ of attachment secured and property belonging to the defendant seized. Later a motion was made to dissolve the attachment, on the grounds that a sufficient affidavit had not been filed, and that a demurrer to the complaint had been sustained. The motion was overruled with leave to renew it after the amended complain...
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In this proceeding W. Y. Wright, C. E. Malary, J. T. Hodges, and Juan Wilson, being members of and doing business under the firm name and style of “Star Stage Line,” a copartnership, plaintiffs below’and appellees here, seek to enjoin the county attorney and sheriff of Yuma county, appellants herein, from interfering with appellees’ business of operating for hire automobile stages over certain roa...
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delivered the opinion of the court. This is an action against the principal and surety upon a bail bond. The condition of the bond was that the principal, a defendant in a criminal case, be and appear “at the District Court * * * on the 29th day of February, 1920, and from day to day and term to term thereafter, and remain at and abide the order of said court, and not depart the court without leav...
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delivered the opinion of the court. This action was by the defendants in error to compel the specific performance of an alleged contract for the sale of real estate. The defendants in error, plaintiffs below, lived in Larimer County, Colorado, and the plaintiff in error resided at Loup City, Nebraska. The land had been listed for sale by the defendant with Carl Anderson, a real estate agent at For...
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delivered the opinion of the court. Carruthers brought suit and recovered judgment below against Martin for negligence which resulted in an automobile collision on the road between Holyoke and Wray. Martin brings error and argues three points, First, that the amended complaint did not state a cause of action. Second, that the evidence is insufficient to sustain the verdict. Third, that Instruction...
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delivered the opinion of the court. This action is in the nature of a suit to quiet title, wherein Ida Churchill, formerly Ida Millage, sought to have construed a deed executed to her by Jacob Millage, she being then his wife. Shortly after the execution and delivery of the deed Jacob died. Later this action was brought to have it determined whether the deed conveyed to Ida a title in fee or only ...
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delivered the opinion of the court. This action is by the plaintiff in error to recover damages from the defendant in error by reason of alleged negligence in permitting portions of several carloads of potatoes to freeze while in transit. The complaint alleged the shipment of five carloads of potatoes from within the state of Colorado to points beyond the state delivered to the defendant as the in...
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delivered the opinion of the court. In June, 1920, Mattingley petitioned the Denver Juvenile Court that Hudson be deprived of the custody of his two children, Lola, then aged two years and Elsie, three months. The court ordered the children into the custody of Mattingley and his wife, with leave to the father to *529merely visit them. Hudson, the father, brings error and asks for a supersedeas. Th...
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delivered the opinion of the court. The finding of the commission is as follows: That the burden of proof is upon the claimant. That the claimant has not established' his said claim by a preponderance of the evidence submitted herein and that he has not shown that he sustained any accident arising out of and in the course of his employment while performing services for the above named employer; or...
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delivered the opinion of the court. In this case the Industrial Commission found that Sil*525vano Hernandez, an employe of the Colorado Fuel and Iron Company, was killed by an accident arising out of and in the course of his employment, on the 2nd day of November, 1918; that at the time of his death he left his widow, Maria Hernandez, a daughter, Josephino Hernandez, and a son, Manuel Hernandez, b...
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One Rosa Fryrear, a member of the Choctaw Tribe of Indians of one-half Indian blood, was the allottee of the lands involved in this action. She died in the year 1903, leaving surviving her, her husband, S.B, Fryrear, who was a white man. The other heirs mentioned in the petition are the children of said Rosa Fryrear and S.B. Fryrear and are all of less than one-half Indian blood. After the death o...
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The plaintiffs in error, hereinafter called plaintiffs, commenced this action in the district court of Hughes county by filing a petition on the 29th day of January, 1917. This petition alleges, in substance, that Lelia Bruner, Ola Bruner, and McKinley Bruner are minors, and that W.E. Kirby is their duly appointed, qualified, and acting guardian; that on the 3rd day of March, 1911, Nick Bruner, th...
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Eliza Lauderdale commenced this action in the district court of Stephens county against Bird E. O'Neill, as administratrix of the estate of John O'Neill and Bird E. O'Neill, Elizabeth O'Neill, Annie Sparks, and T.M. Beckett and other defendants to recover an undivided one-half interest in the allotments of Julius Webster and Ella Webster, situated in said county, and to recover certain rents for t...
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Philip Payton was a full-blood Choctaw Indian, a mute, and at the time of death was under guardianship on the grounds of incompetency. He was the owner of an allotment of land, consisting of 320 acres, and money in the bank in the sum of $1,743.66, which was the proceeds of a sale of inherited lands by him under guardianship proceedings as an incompetent. On the 7th day of March, 1914, Payton devi...
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This is an appeal from the district court of Craig county, Hon. Preston S. Davis, Judge. On February 14, 1917, William M. Grimmett commenced this action in ejectment to recover the N. 1/2 of the N.W. 1/4 of section 22, township 28 N., range 21 east, in Craig county, Oklahoma, alleging that said land was allotted to Harry Grimmett, deceased, a Cherokee freedman citizen of the Cherokee Nation and du...
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The questions for determination here are presented in motion of defendants in error to dismiss the appeal. It appears that the case-made was not served, signed, and settled within the time, fixed by the trial judge for serving, signing, and settling same. It does appear, however, that the judge who tried the case made an order extending the time for service and settlement of case-made, but it appe...
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Motion for a new trial having been filed in due time, same was overruled on December 7, 1917, and the court made the following order in open court, to wit: "If the bond is furnished and approved in fifteen days that you have a further extension of sixty days to make and serve case-made, ten days in which to suggest amendments, and to be settled upon five days notice." The journal entry of judgment...
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Defendant contends that the plaintiff was either a bare licensee or trespasser; that he was of sufficient age to be charged, as a matter of law, with having assumed the risk incident to the dangerous position he occupied on the pilot step of the engine at the time the watchman moved the engine, and that, being a trespasser or licensee, it owed him no duty except that it should not wantonly or will...
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Opinion of the judges in the matter of the conviction of Robert W. Blakely for murder, rendered in response to the request of the Governor of the state. Hon. J.B.A. Robertson, Governor of the State of Oklahoma – Sir: In response to your official communication of January 29, 1921, addressed to the judges of this court for an opinion (as provided by section 5969, Rev. Laws) in the matter of the conv...
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This is an attempted appeal from the district court of Oklahoma county, wherein the defendant, Lela Gunter, was on the 14th day of December, 1918, adjudged guilty of the crime of forgery in the second degree, and sentenced to serve a term of imprisonment in the state penitentiary for a period of six months. The Attorney General has filed a motion to dismiss the appeal in this cause for the reasons...
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*367 Opinion of the’Judges, of the Criminal Court of Appeals in response to a request by Hon. J. B. A. Robertson, Governor, relative to the conviction of John G. Ledbetter of the crime of murder. Sir: In response to your official communication of January 26, 1921, addressed to this court, asking for an opinion, as provided in section 5969, Revised Laws of Oklahoma, 1910, in the matter of the ...
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This is an appeal from the' district court of Cotton county, wherein on the 10th day of July, 1918, the plaintiff in error, Henry Peyton, hereinafter designated defendant, was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of 18 years' imprisonment in the state penitentiary. From the judgment rendered against him, he has appealed to this court, and relie...
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1. The testimony of the parties is very conflicting, and the careful and experienced *136circuit judge had a much better opportunity to estimate its weight than we. The testimony was taken in open court, and the judge could observe the demeanor of the witnesses on the stand, the manner in which they testified, and those many little things that give weight to or detract from the value of words spok...
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The record shows that the plaintiff, F. E. Dayton, when upon the witness-stand, testified that he was the same Dayton- named as the grantee in a certain deed to real property marked for identification and later offered and admitted in evidence, bearing date the twenty-fourth day of December, 1917, executed by Gr. W. Horner and Carrie Horner, conveying to plaintiff the southwest quarter of the nort...
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The only points urged by the defendant in his printed brief are: (1) That there is insufficient evidence to show that plaintiff, either as guardian or as individual, is entitled to possession; and (2) that the complaint does not state sufficient facts to constitute a cause of action, because (a) the description of the property is insufficient for identification, and (b) it discloses upon its face ...
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1. It is the position of counsel for plaintiff that the syndicate offers to sell its own paper to finance itself, and comes within the purview of the “blue sky law” of this state, to wit, Title XXXIX, Chapter II, Or. L., and therefore under the supervision of the corporation commissioner, and that it is neither a bank nor a trust company within the meaning of our statute. Section 6838, Or. L., def...
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1. It is objected that the indictment is entitled “State of Oregon,” instead of “The State of Oregon,” as Section 1438, Or. L., provides. In such a matter it is better and safer pleading to technically follow the statute, but here the objection *576is one of form and not of substance. To the average person there is no difference in the meaning of the words “The State of Oregon” and “State of Orego...
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1. Were this case a suit in equity, we should be privileged to weigh the conflicting testimony. But as it is an action at law, we must treat the findings of the court as conclusive of every fact found, where there is any evidence to sustain them. Without encumbering this opinion with detail, we will say that there is evidence tending to show that the locomotives, up to a short time before-they wer...
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Plaintiff’s first assignment of error relates to the overruling of the motion to reject the evidence on account of the insufficiency of the plea in abatement. The facts set forth in the plea in. abatement are very general and might be termed a conclusion of fact. It is not indicated in any way what kind of business the plaintiff was transacting in the State of Oregon, so that plaintiff could prepa...
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*258The opinion of the court was delivered by The state brings this proceeding to require the superintendent of insurance to pay into the state treasury certain sums of money paid under protest to him on a disputed interpretation of certain provisions of statute governing the right of fire insurance companies chartered in other states and in foreign countries to transact business in Kansas. These ...
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The opinion of the court was delivered by These appeals pertain to distinct but related phases of an action to recover on a promissory note for $4,-500 given by Henry D. Jones to William Campbell, who sold and guaranteed the note to Richard Beachy. Campbell and Beachey are competing bankers in the little town of Esbon in Jewell county. Jones is a farmer residing in Smith county, 18 miles southwest...
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The plaintiff below, respondent here, instituted this action against the defendant, appellant here, to require the latter, as state engineer to allow plaintiff’s application filed in the office of defendant for an appropriation 'of certain alleged unappropriated waters of a stream known as Antelope creek, located in Duchesne county. Defendant interposed a general demurrer to the complaint, which w...
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Plaintiff brought this action against the defendants in the district court of Garfield county to have decreed to him the residue of the estate of Joseph McCullough, deceased, after payment of the debts of said deceased, costs and expenses of administration of the estate, and the payment of the sum of $500 to the defendant David McCullough. In substance it is alleged in the complaint that plaintiff...
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Plaintiff asks this court for a writ of mandate directing the *367district court of Utab county to vacate an order dismissing an appeal from the justice’s court of Provo City. The following facts appear from the affidavit for the writ: In June, 1918, the plaintiff filed a complaint against Robert Sidley and Mrs. Bertha Warburton Sidley in said justice’s court. The charging part of the complaint, a...
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This is an action brought by R. B. Wright, as guardian of the persons and estates of Joseph Albert, John William, Floyd Craig and Margaret Ruth Rankin, minors, and Florence Ethel Rankin, now Riley, against A. A. Atwood, as guardian of the estate of Donald Theodore Atwood, formerly James Edgar Rankin, a minor, and said Donald Theodore Atwood, a minor, to foreclose a mortgage given by respondent A. ...
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The plaintiffs, in the usual form, commenced this .action in the district court of Salt Lake county, December 21, 1905, against Spencer Clawson, as defendant, for the purpose of procuring a judgment against him on a promissory note for $5,610, alleged to have been" executed and delivered by him August 15, 1901, to Orson H. Pettit, payable two years after date with interest at 8 per cent, per annum...
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The plaintiff commenced this action against the defendant in the district court of Carbon county, Utah, to compel the specific performance of a contract for the sale of real property. It is alleged in substance by the complaint that on April 22, 1919, plaintiff and defendant entered into an agreement, duly signed and delivered on the behalf of the defendant by one Stylian Staes, whereby the plaint...
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The plaintiff applied to this court for a writ of mandate against Hon. P. C. Evans, as judge of the district court of Salt Lake county, to require said judge to reinstate, hear, and determine upon its merits an appeal to said court which was taken by the plaintiff in this proceeding from a judgment of the justice court of Murray precinct, Salt Lake county, in an action wherein the Miller-Cahoon Co...
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This is an original proceeding seeking the mandate of tbe court to compel the defendant, as State Auditor, to certify to certain bonds authorized and issued by plaintiff. The receipts from the sale of bonds were to be used in the construction of canals, pumping plant, etc., to furnish irrigating water to the owners of lands embraced within the district. The plaintiff Bonneville irrigation district...
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Tbe plaintiff, hereinafter called appellant, as administrator of tbe estate of one E. D. Plerman, commenced tbis action in replevin, or in claim and delivery, as it is designated in onr statute, against tbe defendants, Bailey and Edwards, to recover tbe possession of an automobile. The complaint is in tbe usual form in such actions, alleging ownership and .right of possession in appellant, and fur...
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— Appellant is the owner of a tract of real estate located at the southeast corner of Post street and Main avenue, in the city of Spokane, upon which there is a ground lease running for a long term, *457now held by respondent as assignees of the original lessees, which provides that the lessees shall pay as ground rent five per cent of the value of the land exclusive of improvements, such value to...
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— The defendant was charged by an amended information with what is generally called criminal syndicalism, though it is not so named in the statute defining the crime. A demurrer to the information was overruled, the trial resulted in a verdict of guilty, and the defendant appeals. The charging part of the information is as follows: “That he, the said Mike Hennessy, ‘on or about the 15th day of Nov...
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The defendant, by information, was charged with criminal syndicalism, tried and convicted, and prosecutes an appeal to this court. All the questions presented upon this appeal we think have been sufficiently covered in the recent case of State v. Hennessy, ante p. 351, 195 Pac. 211. Ail concur....
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— This action was brought to recover for personal injuries suffered by the plaintiff by reason of *434alleged negligence of the defendant. The action was tried to the court and a jury, and resulted in a verdict and judgment in favor of the plaintiff. The defendant has appealed. Appellant argues that the court erred in denying its motion for a directed verdict and also in denying the motion for a j...
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— This action was brought by E. M. Skoug against the Latour Creek Railroad Company, to recover for work and labor done in the partial construction of a logging railroad in the state of Idaho. Upon issues joined, the case was tried to the court without a jury, and resulted in findings and judgment in favor of the plaintiff for $1,873.42. The defendant has appealed from that judgment. The facts may ...
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— The appellant was convicted upon a charge of grand larceny. He has appealed from a judgment pronounced upon the verdict of the jury. Counsel for appellant insists that the court erred in not taking the case from the jury because the evidence is insufficient. It appears that Mr. Schmidt, the prosecuting witness, was the owner of two two-year-old heifers which he had raised. These heifers were mis...
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— This is an action to recover damages alleged to have been caused by the negligence of the defendant, the Arctic Company, a corporation, in allowing meat placed in its custody for cold storage to thaw out, become soiled, contaminated, infected and subjected to ammonia fumes, so as to spoil it and render it unmarketable. A trial resulted in a verdict and judgment for the plaintiffs, from which the...
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— The plaintiff, Morgan V. Cochran, commenced this action in the superior court for Benton county against the defendant Irwin E. Cochran, and others, seeking a decree quieting title in himself to a quarter section of land in that county. The record brought here from the superior court indicates that the trial upon the merits proceeded as though Irwin E. Cochran was the only defendant, and resulted...
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— This is a habeas corpus proceeding under Rem. Code, § 1061, commenced in the superior court for Stevens county, wherein the relator, Martha J. Deshler, seeks recovery from the defendant, E. H. Deshler, her husband, of the custody of their minor son, John Clark Deshler, who, at the time of the trial of the cause upon merits, was nearly eight *508years old. The trial resulted in findings and a jud...
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— Defendant was accused by information of the crime of seduction committed as follows: “The said William Parker on or about the 15th day of June, 1919, then and there being in the county of Walla Walla aforesaid did willfully, unlawfully and feloniously, by persuasion, promise of marriage and other false and fraudulent means seduce and have sexual intercourse with and debauch Frankie Hoy, an unmar...
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— This is an appeal from a judgment in favor of the respondent, entered in an action of replevin in which the appellants were plaintiffs and the respondent was defendant. In the year 1919, one J. B. Wood was engaged in the logging business at a place called Squamish Harbor, situated on Hoods Canal. A part of his output consisted of cedar logs. Two separate rafts of cedar logs, the appellant’s enti...
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— On November 19, 1918, the appellant, Alvion Ericson, was granted a decree of divorce from the respondent, Ella Ericson, in an action instituted by hiro for that purpose-in the superior court of King county. There were two children, the issue of the marriage, Dorothy, nine years of age, and Alvion, three years of age. In the decree, both of these children were awarded to the “temporary custody” o...
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— On October 14, 1919, W. F. Smith, while driving along a highway at the crossing of the defendant’s railway, was struck by one of the defendant’s trains and killed. His widow, as administratrix of his estate, brought this action to recover damages on account of his death. The complaint alleged negligence of the defendant in several particulars. These allegations of negligence were all denied by t...
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— The defendant has appealed from a judgment o.f sentence upon conviction for attempted robbery. The first ground mentioned for reversal is that the evidence was insufficient to justify the case going to the jury, or the verdict rendered by it. The appellant’s brief does not point out wherein the testimony is insufficient. We have, however, carefully read the statement of facts and find 'ample tes...
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— By this action the plaintiff sought to enjoin the defendant from interfering with his use in a certain manner of some of the streets of the city of Everett. The complaint alleged that that city is a municipal corporation of the first class, and that the defendant was its duly elected, qualified and acting commissioner of public safety; that plaintiff is engaged in the business of hauling saw log...
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— This is an action and cross-action for damages for injuries resulting from a collision of automobiles belonging to the respective parties. The jury found for plaintiffs in the sum of two thousand dollars, and, having unsuccessfully moved for a judgment non obstante veredicto and for a new trial, defendants prosecuted this appeal from the judgment rendered on the verdict of the jury. Between five...
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— This is an action brought by Frank A. Hill, as trustee in bankruptcy of the property of Charles S. Gilchrist, against the "Walville Lumber Company, a corporation, to recover upon two promissory notes, the one for fifteen hundred dollars, bearing date of September 8, 1914, and the other for six hundred and twenty-five dollars, bearing date of August 15, 3 915, executed and delivered to Gilchrist ...
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— In August, 1918, tbe respondent, W. H. Harkens, while driving an automobile on a street of tbe city of Seattle, ran into an automobile owned and driven by tbe appellant Helen Buckley, causing injuries to her person and to her automobile. Later on Mrs. Buckley, her husband joining, began an action against Harkens, bis wife, and tbe respondent Gar-ford Motor Truck Company, to recover in damages fo...
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— These three cases are closely related. They were tried separately in the court below, but, by stipulation of the parties, are consolidated for argument here and are presented in one set of briefs. They all arise out of facts which may be briefly summarized as follows: On June 24, 1918, L. S. Dart and others obtained a judgment against D. K. McDonald, Maude S. McDonald, his wife, and others. Mrs....
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This is an ordinary action of replevin by which plaintiff obtained judgment for the possession of certain cattle theretofore delivered to defendant under an agreement of purchase and sale. Defendant appeals. 1 By the terms of an agreement which bears date April 3, 1918, respondent agreed to sell, and appellant to buy, thirty-five dairy cows for $4,375. Upon the execution of the agreement $1,000...
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Appeal from a judgment awarding to the plaintiff the relief demanded in his complaint. Defendants are the heirs and distributees of the estate of Hattie McIntire, deceased. Hattie McIntire died intestate in September, 1917, leaving an estate consisting of real and personal property which was appraised at the sum of $4,043.77. The value of the property distributed after settlement of the estate acc...
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Action to recover damages for alleged fraudulent representations made by defendant to plaintiff, as a result of which the latter, in reliance thereon, was induced to purchase certain land. Judgment was rendered in favor of plaintiff for $450 and costs, from which the defendant has appealed. It appears that defendant was the owner of forty acres of unimproved land situated in Imperial Valley. The l...
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The plaintiff appeals from a judgment of the superior court in Alameda County refusing to prohibit the respondents from proceeding with an action originally commenced in the justice court. In the justice court suit Engelken, the appellant, sued Manuel Faira in claim and delivery on an assigned claim from one Sanderlock for a nine year old Indian pony. The value of the pony was alleged to be $100. ...
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This is a petition by P. R. Kennedy for the review of an amended award made against him by the Industrial Accident Commission. Petitioner was the employer of Byron J. Millard, deceased, who was killed on October 9, 1918, while in petitioner's employ. The commission awarded a death benefit to the applicants therefor, the parents of young Millard. The sole question presented is this: The applicants ...
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Upon complaint before the board of medical examiners against Thomas F. Glass, and after answer filed by him and a hearing before the board, an order was made revoking the certificate of said Glass licensing him to practice medicine and surgery in the state of California. On petition by him, the superior court of the county of Los Angeles issued a writ of review of said proceedings and order. A ful...
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This action was brought in part to compel specific performance of a contract made by defendant Brent *Page 293 Investment Company, whereby said Investment Company agreed, in consideration of certain payments to be made to it, to convey to the plaintiff a certain parcel of real estate. Judgment was in favor of all of the defendants except the Brent Investment Company, and plaintiff has appealed th...
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This is an appeal by the defendant from a judgment of divorce in plaintiff’s behalf on the ground of desertion. The sole contention of the appellant herein is that the evidence in the ease shows that the separation *375 between the parties, upon which the plaintiff’s claim of desertion on the part of the defendant is based, was a voluntary separation occurring as the result of an agreement in w...
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Plaintiff, as administratrix of the estate of Thomas Dunne, deceased, brought this action against Walker D. Hines, as Director-general of Railroads of the United States Railroad Administration, to recover for the death of the decedent, alleged to have been killed through the negligent operation of cars belonging to the Southern Pacific Company, at a time while said Dunne was engaged in the perform...
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This is an appeal by the defendants Lorenzo F. Miller, Hattie E. Miller, A. G. Wilde, and Mark Wilde from a judgment for plaintiff. The action was brought to have ascertained the amount of the purchase price due to plaintiff from defendants J. Conklin, Jr., and Sara Conklin for certain real property in San Diego, and to have said amount declared a lien upon the said premises; also to have whatever...
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This is an appeal from an order of the superior court of Tulare County denying appellant's motion for a change of the place of trial from the county of Tulare, California, to the city and county of San Francisco, California. On July 26, 1919, plaintiffs commenced an action in the superior court of the county of Tulare, in which they demanded judgment against the defendant in the sum of $9,054.23, ...
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Plaintiff below, appellant here, instituted this action against the executor of the last will and testament of her deceased husband for the sum of two thousand *Page 744 four hundred dollars, claimed as a balance due to her for moneys alleged to have been loaned and advanced by her to her husband during his lifetime. The proved facts of plaintiff's case are these: Upon five different occasions be...
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The defendant appeals from a judgment for five thousand dollars entered on the verdict of a jury as damages for the death of Mrs. Ione Smith, aged twenty-three years, as the result of injuries sustained by her while a passenger on an automobile stage, negligently operated by an employee of the appellant in its business as a common carrier of passengers. The action was prosecuted under the provisio...
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This is an appeal on the judgment-roll alone from a judgment entered after the sustaining of a demurrer to plaintiff's complaint without leave to amend. We regret that there is no appearance in this court by respondents. By the complaint it is alleged that this plaintiff is the successor in interest of one Maria Espiritu Chijulla de Leonis and her son, Juan J. Menendez; that plaintiff's "grantors ...
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An appeal on the judgment-roll from a judgment entered after the sustaining of a demurrer to plaintiff's complaint without leave to amend. The action appears to be one wherein plaintiff seeks the ejectment of defendants from certain premises, with damages. The complaint shows that on June 3, 1901, judgment was entered in the superior court of Los Angeles County decreeing that a certain purported d...
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This appeal is from a judgment in the defendants' favor upon their answer and cross-complaint in an action brought by the plaintiff to enjoin the defendants from demolishing or otherwise interfering with a certain dam and ditches, which the plaintiff claimed the right to maintain as a means for the diversion of the waters of a stream for use upon his own land. The defendants in their answer denied...
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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 716 The defendant appeals from a judgment entered upon the verdict of the jury in the sum of $5,652.17 as damages for the destruction by fire, resulting from the defendant's negligence, of a lot of beans which were stored in the warehouse of the defendant at ...
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This is an appeal from the judgment of the district court of Creek county, in which judgment was rendered for the defendant. The cause was by an agreement tried to the court without jury. The plaintiff contracted with the defendant to do certain work and labor in the construction of certain miles or road in Creek county. The material portion of the contract is as follows: "First. The party of the ...
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On March 18, 1918, appellant filed her complaint against respondent to recover on a policy of insurance the sum of $2,336.90 and accrued interest. Summons was served on respondent the twenty-second day of March; 1918. A demurrer was interposed to the complaint and on the twenty-sixth day of April, 1918, was sustained and the complaint was amended and respondent given twenty days to answer. On the ...
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Plaintiff brought this action in the district court of Carbon county, Utah, to recover the possession of certain real property, and for damages, etc. / In view that there is considerable controversy concerning the legal effect of the pleadings, and further for the reason that the court sustained -a general demurrer to defendant’s answer, it becomes necessary to set forth the allegations of the com...
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The plaintiff, a nonresident corporation, commenced this action in the district court of Weber county, Utah, against Ed. Love and Otto Meek as principals and H. W. Dunn and M. L. Harbison as sureties on a certain undertaking in attachment. The object of the action was to recover damages for an alleged wrongful suing out of an attachment against the plaintiff and for wrongfully attaching certain of...
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As stipulated by the parties hereto, the facts are: “Prior to July 8» 1917, Roy M. Bennett was regularly employed under contract of hire by the American Express Company at’ Salt Lake City as a driver of an express wagon. His general duties were to deliver express matter in and about Salt Lake City from said wagon and to assist in loading and unloading express matter on and from railroad cars at th...
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This is an action to recover tbe amount of a bank check executed by the defendant Archie McFarland directing the Utah State National Bank of Salt Lake City to pay the defendant Western Live Stock Commission Company (hereinafter called company), or order, the snm of $4,300. The check purports to have been issued April 20, 1917. The complaint alleges that the defendants indorsed the cheek and delive...
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This proceeding involves a controversy between the estate of Henry Reiser, deceased (hereinafter called respondent or respondent estate), and the estate of Albert S. Reiser, deceased (hereinafter called appellant or appellant estate). Respondent seeks to withhold from appellant a distributive share of respondent estate on the alleged ground that appellant is indebted to it for money wrongfully con...
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delivered the opinion of the court. Plaintiff in error brought suit against defendants in error to enjoin them from foreclosing a mortgage upon her interest in certain mining claims. On the trial of the cause the court found for the defendants, and entered judgment accordingly. Plaintiff in error now asks that the judgment be superseded and that a temporary injunction, which was vacated by said ju...
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By the Court, This proceeding was instituted in the district court of Lyon County under sections 19 and 20 of the Nevada irrigation district act (Stats. 1919, c. 64), to secure a confirmation of the organization of the Walker River irrigation district, and the proceedings had in connection therewith for the issuance of $918,500 of its bonds. The board of directors of the district filed with the *...
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By the Court, Upon receipt of notice of the decision of this court in the case of Dixon v. City of Reno, 43 Nev. 413, 187 Pac. 308, the appellant therein, J. B. Dixon, within the time prescribed in subdivision 2 of rule 6 of this court, filed his cost bill as required by said rule, amounting to the sum of $66.25. Thereupon the respondents, as provided by subdivision 3 of said rule, filed and serve...
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By the Court, This is an action of claim and delivery under the statute, brought to recover the possession of a certain automobile with equipment and accessories. The prayer of the complaint is as follows: “Wherefore, plaintiff demands judgment against the defendants for the recovery of the possession of said property, goods and chattels, or for the sum of $600, the value thereof, in case a deliv...
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By the Court, This is an appeal from an order of the court below sustaining respondent’s objection to the hearing of appellant’s motion for a new trial, which said objection *429is based solely upon the ground that the notice of intention to move for a new trial was not filed within the time prescribed by section 5323 of the Revised Laws. Appellant contends that the notice of intention to move for...
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concurring: I concur in the order of reversal, but upon a somewhat different theory from that of my esteemed associate. Brushing aside superfluities, the facts are that the plaintiff obtained from defendant an option upon a group of mining claims, with the privilege of purchasing them for $75,000, to be paid out of the net proceeds of the ore shipped from the development. At the same time, he obta...
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1. The plaintiff is alone in his testimony about the terms of the alleged escrow agreement. It is not pretended that this was in writing. He is opposed by the testimony of Cooper and Brown, who flatly deny that the Kangus place was included in the arrangement. They contend that the escrow agreement was to the effect that the plaintiff should have in exchange for the property described in the compl...
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1. The bill of exceptions was stricken from the record in this case, for the reason that the same was not settled and determined in the. manner provided by law: State v. London, 97 Or. 423 (192 Pac. 489). There being no bill of exceptions, the only assignment of error remaining to be considered is the defendant’s contention that the complaint does not state facts sufficient to constitute a crime. ...
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1. The redemption sought is not from the mortgage, but from the sale: Higgs v. McDuffie, 81 Or. 256 (157 Pac. 794, 158 Pac. 953). When the mortgage was due, there arose a cause of suit in favor of the mortgagor to redeem the property, on paying the debt. An example of such a suit is Swegle v. Belle, 20 Or. 323 (25 Pac. 633), cited in the plaintiff’s brief. A counterpart of the mortgagor’s right wa...
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1. We have carefully read the record, from which it appears that there is a sharp conflict between the evidence of the plaintiff and that of the de*212fendant. If plaintiff’s testimony be true, she should have a divorce. If defendant’s evidence be true, he is entitled to a decree. Plaintiff is corroborated by certain witnesses, and defendant is corroborated by about the same number of witnesses. A...
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1. The trial court dismissed the suit for the reason that, in its judgment, the evidence failed to establish statutory desertion. The evidence discloses the following facts: The defendant left the plaintiff on June 5, 1919, without *214making’ any statement as to his reasons for abandoning her. He took their son with him. He retürned some time in the autumn of the same year, at which time the plai...
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1. There are many assignments of error, bnt with only two exceptions, they center around the proposition that the court blundered in allowing oral testimony to show that the plaintiff contracted with the defendant instead of the Hillsboro Mercantile Company. The situation is thus explained: The president of the plaintiff as a witness gave oral testimony of a transaction for the purchase of a tract...
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Upon the trial Mrs. Etta C. Parrish, a witness for the state, testified on direct examination that she saw a man, who in height, build, and movement, resembled the defendant, shoot the deceased and then run around the corner. She did not positively identify the defendant. She did not see the face of the man who did the shooting. On cross-examination she was asked numerous questions tending to elic...
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The principal ground of defendants’ contention is that the agreement to pay the men for cutting and transporting the logs and manufacturing the same is within the statute of frauds, and required to be in writing. It is apparent from the record that a three-cornered deal was made between Allen & Wickstrom and defendants, Tripp & Powell, and the men who performed the labor and furnished the stumpage...
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The principal assignments of error are that the court was wrong in overruling the defendant’s motion for a nonsuit and her further motion to direct the jury to return a verdict for the defendant. As to the first charge, it appears by the plaintiff’s statement as witness in his own behalf that substantially the words set out in the complaint were uttered by the defendant in the room designated as t...
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1. On October 10, 1919, at the trial of the above-entitled divorce case in the Circuit Court, wherein both parties were represented by *226counsel, a decree was rendered in favor of the plaintiff coupled with a monthly allowance of alimony to be paid by the defendant. On October 4, 1920, the defendant filed a motion to vacate the decree, and particularly that part of it allowing alimony. Both part...
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1. Defendant asserts that the trial court erred in holding that a lien existed in favor of plaintiff for hauling cordwood, and that such lien is not granted under the provisions of Section 10236, Or. L., which reads: ££ Every person performing labor upon or who shall assist in obtaining or securing sawlogs, spars, piles, cordwood, or other timbers, has a lien upon the same for the work or labor do...
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The affray resulting in the death of the deceased was part of a tong war between rival Chinese factions and was staged in the streets surrounding a city block in Portland bounded on the south by Flanders Street, on the east by Sixth, on the north ,by Glisan, and on the west by Broadway. According to the story of the defendant, he and one of his codefendants known as Shee Fong were walking west on ...
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1. This case and the case of State v. Yee Guck were heard together in this court: ante, p. 231 (195 Pac. 363). What has been said in the opinion this day rendered in the Yee Guck case is applicable to the issues in this case. As to re*250quests of the defendant to charge the jury, they were identical with those in the other case and need not be noticed here. Yee Guck was tried first. No effort was...
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It is contended by appellant that Section 1192, Or. L., provides for a tax computed upon the whole estate, with but one ten thousand dollar exemption, while the respondent insists that the tax is laid upon the specific legacies and devises, and that the order made by the lower court is in harmony with a correct interpretation of the statute. A statute levying inheritance taxes was first enacted in...
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1, 2. The defendants insist that their demurrer should have been sustained, first, on the *255ground that “several causes of action have been improperly united.” This contention is without merit. The purpose of the suit is to remove a cloud from plaintiff’s title. The different reasons alleged in the complaint concerning the cloud on plaintiff’s title do not constitute separate causes of suit: Day...
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About May 21, 1918, Hattie, L., W. C. and Pearl Campbell executed to the defendant a warranty deed to the lands described in the complaint, which recites that it was for ‘Hen dollars and other valuable considerations.” The actual consideration was $7,000, $1,000 of which was paid in cash and the other $6,000 evidenced by the defendant’s promissory note and secured by a first mortgage on the lands....
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1. The findings, so far as they deal with facts, are conclusive upon this court. The only question open with respect to them is whether or not the findings of fact justify the conclusions of law embodied in the judgment. The facts relating to the contract are disclosed by the correspondence, and it is a statement of fact when it is said that the entire negotiations are contained in that correspond...
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The question presented upon this appeal for which the plaintiff contends, and upon which the case turns, is that there was no substantial evidence to support the verdict. Defendant maintains there was competent evidence supporting the verdict, and that the trial court erred in granting a new trial. Epitomizing the testimony, it will be seen that according to the plaintiff’s version, on December 15...
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The plaintiff and defendant were wife and husband respectively. The plaintiff obtained an interlocutory decree of divorce on the ground of the defendant's adultery. As an incident of the divorce, the decree awarded the plaintiff eighteen thousand dollars as her share of the community property. The defendant appeals. The defendant's first contention is that the evidence is not sufficient to sustain...
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In this case the plaintiff, Mary I. Adams, obtained judgment against the defendant White Bus Line, a corporation, and defendant George P. Stiles, jointly, for injuries inflicted by the concurrent negligence of defendants. The defendant White Bus Line carried indemnity insurance with the Western Indemnity Company, an insurance corporation. This company paid the amount, of the judgment to plaintiff,...
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This cause was begun in the district court of appeal of the first district, and after decision by the second division of that court its judgment was vacated and the cause transferred to this court for rehearing. *Page 692 The proceeding is for prohibition to prevent the superior court from further proceeding in an action before it, wherein Angie M. Davis and others were plaintiffs and the petitio...
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This action was begun by the plaintiff to recover upon a bond given by the defendant, Chicago Bonding Surety Company, for the payment of laborers and materialmen upon a contract for the building of Garfield school, executed by the board of education of the San Diego school district as owner with the defendants Harry D. Trounce and William Stoecker, copartners. The defendant Bonding Company having...
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The pleaded facts of the plaintiff's case, briefly stated, are these: The defendant, A.D. Holee, on June 20, 1912, executed a note, secured by a mortgage on real property, in favor of one M.M. Artburs, in the sum of two thousand five hundred dollars. The mortgage note by its terms was due and payable "on or before three years after date," and the interest thereon, at the rate of six per cent per a...
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Although they are three separate and independent suits, the three above-mentioned cases are identical in their facts with the facts of the case of Runkle v. Southern Pacific MillingCo., ante, p. 714, [195 P. 398]. The points urged for a reversal in these cases by appellant, Southern Pacific Milling Company, are the same as those which were presented in said case of Runkle v. Southern Pacific Milli...
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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 703 Petitioner was arrested for the commission of an alleged misdemeanor, namely, the violation of an ordinance of the city of Los Angeles, No. 39,600 (new series). This ordinance is a rather complex piece of municipal legislation, the numerous sections or su...
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Petitioner was arrested and held in custody under the charge of carrying on the profession of attorney at *Page 698 law in the city of Los Angeles without paying the license tax imposed upon persons engaged in that profession by section 152 of the ordinance of the said city of Los Angeles, designated as No. 39,600 (new series). In the present proceeding petitioner questions the validity of the ta...
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This is an appeal from a judgment in favor of the plaintiffs, heirs of Thomas Henry Wallis, in an action to recover damages for the latter's death, caused from his being run into by an engine of one of defendant's trains. *Page 663 The accident occurred on the evening of October 16, 1909, at the intersection of Oak Street and First Street, in the city of Oakland. The deceased was driving a lumber...
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This is an appeal by the state and the state controller, in whose charge is the matter of collecting inheritance taxes, from a portion of a common order and judgment, entered in three different proceedings, determining and fixing the inheritance taxes payable upon the death of one Henry Miller. Miller was a resident of California and died, testate, October 14, 1916. On April 17, 1913, he had execu...
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This is an appeal by the defendant from a judgment in favor of the plaintiffs for the sum of six thousand dollars. The action was instituted by the plaintiffs, as father and mother and heirs at law of one Jay Parsons, to recover damages *Page 766 from the defendant on account of the death of said Jay Parsons, which, it is alleged, was the result of defendant's negligence. The defendant assigns er...
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The questions in this case are before this court as the result of an order to show cause in response to a petition for a writ directing a review of an order of the *Page 739 Railroad Commission alleged to be violative of certain constitutional rights of petitioner. In May, 1910, the petitioner and one Frederick G. Cartwright entered into a written contract, for a period of twenty years, whereby s...
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Plaintiff brought this action to recover on a promissory note purporting to have been executed by the defendants. The question here presented is whether the respondent, Emilio Olcese, signed the note as a maker, or merely as a witness to the signature of his codefendant, G.B. Oleese. The trial court found that respondent signed the instrument only as a witness. *Page 776 The appeal is from the ju...
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Peter McGuirk died on the third day of August, 1919, leaving a holographic will, dated June 7, 1918. Upon the presentation of the will for probate by Josephine H. Gunston, the sole legatee named therein, a contest thereof, upon the ground that at the time of the execution of the will the deceased was not of sound or disposing mind or memory and was incompetent to make a will, was filed by Mrs. Liz...
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This is an action to recover an alleged balance of $5,190.55 upon a mutual, open, and current account for pasturage furnished by plaintiff between October 1, 1915, and April 1, 1918. The credit allowed to defendant is $200.45 for moneys paid by him for taxes upon land, which was in the possession of plaintiff under a contract to purchase the same from defendant. There was a verdict for plaintiff f...
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Plaintiff had judgment against the defendant for a large sum of money claimed as damages. Defendant has appealed, and presents the judgment-roll and a bill of exceptions. The cause went to trial upon an amended and supplemental complaint and the answer made thereto. Issue was raised as to matters hereinafter discussed. The answer further pleaded in defense laches on the part of plaintiff and the i...
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The defendant appeals from an order denying his motion, made under the provisions of section 473 of the Code of Civil Procedure, to vacate a prior order denying a motion to have certified a transcript for use on appeal from a judgment dated May 15, 1917. The appellant, as trustee for the creditors of the lessee of property of the plaintiff corporation, was sued for rent *Page 421 of the premises ...
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Plaintiffs, suing as special administrators of the estate of Fong Ben Yuen, deceased, brought this action, alleging negligence on the part of defendant in the operation of an automobile owned by him resulting in injuries causing Yuen's death. The complaint charged that deceased, at the time of the accident, was married and that he left surviving him a wife and two minor children, who are his heirs...
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In each of these cases the complaint alleged that Thomas W. Prior, Thornton Kinney, Chauncey Pettis, J. R. Fones, F. A. Church, W. A. Rennie, Byron Palmer, and Charles W. Shaw did associate themselves under the fictitious name of Venice Road Race Association, for the purpose of promoting and conducting an automobile road race over the highways in the city of Venice; and that in preparing the highw...
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The plaintiff, as administratrix, brought this action to recover from the defendants, who are husband and wife, the sum of $1,000, claimed to be the property of the estate of Reuben D. Norton, deceased. The defendants alleged, and the court found, that the defendant Ellen Norton took said sum pursuant to the terms of a trust to care for Reuben D. Norton until his death, make certain expenditures i...
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The defendant brings this appeal from a judgment rendered against him for the purchase price of personal property at a price in excess of two hundred dollars. The contract was in writing and the actual purchase was effected through the medium of an agent. The authority of this agent was wholly oral. The defendant did not accept any part of the purchased property nor pay any part of the purchase pr...
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This action was brought by plaintiffs to quiet title to the land described in the complaint. Defendants in their amended answer allege that the parties entered into an agreement, by the terms of which plaintiffs agreed to sell and defendants to purchase the property here involved for the sum of $2,400, payable as follows: One hundred and twenty-five dollars upon the execution *Page 394 of the agr...
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Appellant was tried before a jury and convicted of a misdemeanor upon an information charging him with the violation of section 21 of the juvenile court law (Stats. 1915, p. 1225), in that on a certain day in the city and county of San Francisco he did willfully and unlawfully "commit an act which did then and there tend to cause and encourage one __________, a male person under the age of twenty-...
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The defendant, E. B. Lettunich, appealed from an order denying a motion for change of venue. Upon his death, Stella E. Lettunich, as executrix of his will, was substituted in his place. The action, which is personal in its nature, having been commenced in the city and county of San Francisco, summons was regularly served on June 16, 1919, in the county of Santa Cruz. The defendant appeared by fili...
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This is an appeal from a judgment in favor of the defendant after an order sustaining his demurrer to the plaintiff's complaint. The action was one brought to recover the sum of two thousand five hundred dollars alleged to be due from the defendant to the plaintiff for certain services rendered in representing the defendant before the California State Highway Commission in relation to the location...
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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 429 The defendant was found guilty of embezzlement upon an indictment; was adjudged thereon to be imprisoned in the state prison, and appeals from this judgment and from an order denying his motion for a new trial. The indictment charges that the defendant Ri...
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This is an action in unlawful detainer to recover possession of the ground floor of a four-story building on Van Ness Avenue, in San Francisco. There was a directed verdict for possession of the premises, but the court submitted the question of damages to the jury. The defendant appeals from that portion of the judgment that awards such possession to plaintiff. The lease under which appellant Arno...
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This is a suit to quiet title to property in Los Angeles, described as the west fourteen feet of lot 42 and all of lot 44 of the Ellis Tract, as per map recorded in book 10, page 91, miscellaneous records of said county. Plaintiffs also asked that the trial court decree that they had an easement of right of way over a certain private alley east of their east line, which alley is owned by defendant...
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This is an appeal from a judgment of imprisonment upon a conviction of the crime of bribery, and from an order denying defendant's motion for a new trial. The information charged defendant with being, at all times therein mentioned, a duly appointed, commissioned and acting police officer of the city of Long Beach, i. e., an "executive officer," and was in two counts, the first count, by proper an...
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Action in condemnation. This action was brought by the appellant, a public service corporation, against defendants and some 200 other persons to condemn certain real property situated on the shores of Clear Lake, in Lake County, in this state. The action was dismissed as to all save the above-named defendants, respondents herein. After a trial by jury a judgment was rendered by the superior court ...
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This is an appeal from an order by the superior court of the county of Kern in the action of Mercantile Trust Co. of SanFrancisco v. Sunset Road Oil Co., vacating, annulling, and setting aside an execution sale of certain real property at which R. H. Cross, the appellant, was the purchaser; and permanently enjoining him from selling, mortgaging, pledging, hypothecating, or in any other way disposi...
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On the ninth day of April, 1914, plaintiff commenced an action against Sarah A. Bryan to recover the sum of $2,500 on an account stated; on the fourteenth day of May, 1917, judgment was rendered in favor of plaintiff and against the said Sarah A. Bryan for the sum prayed for; on the eleventh day of July of the same year the defendant Sarah A. Bryan served and filed her notice of appeal from said j...
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The Home Savings Loan Association, with its principal place of business at Bartlesville, Okla., loaned to J.W. Kennedy $1,200. In order to borrow this sum, Kennedy subscribed for and purchased 12 shares of the capital stock of the association. A certificate was issued to him evidencing said shares. On the 15th day of May, 1914, there was executed by Kennedy a note for said sum, and to secure paym...
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Billy Molone, B.B. Haikey, and B.B. Haikey, guardian of Sessie Haikey, a minor, filed this action in the district court of Tulsa county, on the 30th day of August, 1916, praying the judgment of the court decreeing them to be the paternal heirs of Josephine Coachman, deceased, and decreeing them to be the owners of the undivided one-half interest in the lands described in the petition, and for join...
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On December 14, 1920, an opinion was rendered by this court in the above case in favor of the defendant in error (80 Okla. 58, 193 P. 998), bu tit did not expressly give judgment against sureties on supersedeas bond. Motion is now made by defendant in error for judgment against such sureties. Under chapter 249, Session Laws 1915, p. 606, as construed by this court in Long v. O. R. Lang Co., 49 Ok...
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This controversy arose over the publication of an article in the Muskogee Daily Phoenix, a daily paper published by the Phoenix Printing Company in the City of Muskogee, on May 24, 1914. The publication complained of is as follows: "Man's Tango Talk Proved Provoking – This Way Out, Sir. Charley Robertson, a Chauffeur, Didn't Make a Hit With His Opinion. "Just what Charley Robertson, a chauffeur th...
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This is an appeal from the district court of Creek county, Hon Ernest B. Hughes, Judge. On the 14th day of March, 1917, Richard M. Jones, by Mrs. Florence Mathews, his mother and next friend, commenced this action in the district court against the defendant, Charles Conley, to recover compensation for personal injuries, which cause was tried to the court and jury and resulted in a verdict and judg...
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This action was commenced in the district court of Haskell county by Jane Nero against Joe Nero and others to be decreed to be the owner of certain lands and for an accounting for rents of the lands occupied by Joe Nero for 13 years. Jane Nero was a member of the Choctaw Tribe of Indians and was allotted 160 acres of land. Prior to the time of receiving said allotment she was married to Joe Nero, ...
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This action was brought by plaintiff in error for reimbursement of money which it had paid as surety under a bond executed by the Ingram Oil company. Recovery by the plaintiff in error against the defendants in error was sought under a bond executed by the defendants in error, indemnifying the plaintiff in error against loss incurred by it as surety for the Ingram Oil company. Both bonds bear the ...
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This case involves the right of an owner or mortgagee of a vehicle to intervene and claim his property where *Page 225 same has been used by another, but without the owner's knowledge or consent, in transporting liquors in violation of law. The county court rendered judgment in favor of the state and ordered the property to be sold, consisting of one wagon and two mules. The record is clear that ...
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This is an original proceeding commenced in this court by Oklahoma City and other cities to prohibit the Corporation Commission from putting in force and effect order No. 1829, dated December 20, 1920. The applicants for the writ contend that the order is void, and unless the commission is enjoined from putting same into force the applicants and the inhabitants of the cities will suffer irreparabl...
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Plaintiff in error, hereafter referred to as defendant, was on the 21st day of October, 1918, in the district court of Pittsburg county, convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years’ imprisonment in the state penitentiary. An appeal was taken from the judgment, and it is sought to reverse the same on the s,ole ground that the evidence i...
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On May 22, 1916, the plaintiff in error, Frank Halbert, hereinafter called defendant, was informed against in the district court of Canadian county for an attempt made on May 12, 1916, to ravish Flora Griffin, a female under the age of 14 years. This information was later amended, and upon trial, November 29, 1918, the defendant was convicted of an assault to commit rape in the *Page 380 second d...
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Plaintiffs in error, hereinafter designated defendants, were convicted in the county court of Greer county of the offense of unlawfully conveying intoxicating *Page 416 liquor, and sentenced to pay a fine of $500 and to serve a term of six months each in the county jail. From the judgment rendered against them, they have appealed to this court. The prosecution is based on section 3605, Revised La...
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This is an appeal from the district court of Kay county, wherein plaintiff in error, hereafter referred to as defendant, was convicted of the crime of grand larceny, and sentenced to serve a term of four years' imprisonment in the state penitentiary. Several alleged errors are assigned as grounds for a reversal of this judgment. There being, in the opinion of the court, no substantial merit in any...
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It is a deplorable thing that a human life should be taken for no other apparent reason than the possession of an old flour sack to be carried on a hunting trip. The evidence discloses that defendant left home on the occasion of this hunting trip before deceased left the same premises. If defendant was so greatly concerned as to who should carry his hunting sack, it seems reasonable to believe he ...
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OPINION OF THE COURT. The decision of this court in the case of Dugan v. Montoya, 24 N. M. 102,173 Pac. 118, is controlling in this case, and requires the affirmance of the judgment of the lower court. The law and facts- are the same in both cases. Appellants argue that the cour.t in that case did not consider and decide the question as to whether the grantees of the quarter section of land involv...
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OPINION OF THE COURT. The above cases can both be disposed of in one opinion. They are both appeals prosecuted from separate judgments of the district court of Berna-lillo county. In the first numbered cause the appellee brought suit against appellants to recover on a promissory note executed to the appellee by Staley, secured by a thousand dollar registered Liberty Bond as collateral. The bond st...
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— The plaintiff was the owner of some lands located in section 5, township 9, N., R. 24 E. W. M., in Benton county, Washington. A part of these lands were high and of comparatively little farming value; other portions were low and were good for farming purposes. Plaintiff’s chief crop was alfalfa. Immediately to the north of the lands owned by him, was a county road. At a place a little to the wes...
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— In April, 1910, the appellant, Calhoun, Denny & Ewing, a corporation, and Lee French, of Everett, Washington (for the benefit of himself and his wife), entered into a written agreement whereby the corporation undertook to sell, and the individual to purchase, a certain tract of land and certain water *418rights, which lands are located in Benton county, Washington, and are within the Government ...
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delivered the opinion of the court. The plaintiff in error, defendant below, was convicted of larceny. He has sued out a writ of error, and the cause is before us upon his application for a supersedeas. The information to which the defendant pleaded and upon which the trial was begun, charged the defendant with the larceny of “the personal goods and chattels of Mrs. C. C. Hamlin, to-wit, three sad...
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delivered the opinion of the court. Plaintiff in error (hereinafter referred to as defendant) , a married man of the age of 44 years, was tried in the lower court on an information of three counts, each of which charged a statutory rape on a twelve year old girl. He was convicted on each count and sentenced. From that judgment he brings error. It is said that a new trial must be ordered for two re...
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Plaintiff) Bissinger & Co., a corporation, was engaged in -the hide, pelt and wool business in Salt Lake City, Utah, and defendants, Max Weiss and Morris Weiss, co-partners, were .engaged in a smaller way in a similar business at Rock ¡Springs, Wyoming. Between November 1,1917 and August 1, 1918, the plaintiff advanced to defendants various sums .of money and the defendants delivered to plaintiff ...
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(After Stating the Facts as Above.)— The denial in the answer that “there was 45,155 pounds of baled hay sold and delivered to the defendant” is an admission that a lesser number of pounds of hay were sold and delivered to the defendant. The denial “that the said hay was originally worth the sum of $677.32” is an admission that the hay delivered was worth any sum less than $677.32. Each one of the...
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Appellee, alleging ownership by purchase from the locator of fourteen lode -mining claims situate in Dragoon mining district, Cochise county, Arizona, set out in his complaint that appellants had entered into possession thereof, and were extracting therefrom valuable minerals, with the intent to remove said minerals from the mines and ship and dispose of them; that appellants were insolvent, and, ...
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Clarence Sage, Fred Woods, R. P. Giles, and George Floyd were jointly informed against for the crime of rape, alleged to have been committed upon Alverda Florence Schendel, a female, under the age of eighteen years. The defendant Sage was granted a separate trial and was convicted of the crime. From the judgment of conviction and the order denying his motion for a new trial, he appeals to this cou...
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(After Stating the Facts as Above.)— At the close of plaintiff’s case the defendant moved the court for a directed verdict “for the reason that the evidence wholly failed to show that the death of plaintiff’s intestate occurred through any negligence on the part of appellant.” The refusal to grant this motion is assigned as error. A motion of this kind is regarded as admitting the truth of whateve...
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In 1909 the appellant Alvin M. Harris was the owner of 540 acres of land in Owyhee county, on which *403there were two mortgages aggregating $7,496. In addition to this, he owed the Idaho Trust & Savings Bank of Boise, $11,000 on loans. Being unable to pay, he authorized the bank to make sale of this property for $22,000 and out of the proceeds to pay the aforesaid’ mortgages and the amount due sa...
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Guaranty – Statute of Limitations. 1. Where one executes an absolute contract of guaranty for the payment of an obligation, a right of action accrues against him immediately upon the breach of the obligation guaranteed. 2. The statute of limitations begins to run in favor of a defendant at the time the cause of action accrues against him. This is an action upon a contract of guaranty for the hones...
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In the fall of 1914, respondent, who was the owner of certain timber land on Big Creek, Shoshone county, Idaho, entered into an oral agreement with appellant Bran-son, under which the latter was to log all of the timber except white fir and hemlock from respondent’s claim. Pursuant thereto, logging operations were conducted at two periods, first in the fall of 1914, and the second in the spring of...
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This is an application for a writ of mandate to the defendant Hon. W. H. Wilkins, as judge of the city court of Salt Lake City, Utah. The complaint contains many allegations not necessary to be considered. A hearing was had before the court and the writ denied. The only purpose of this opinion is to announce the rule that should be observed by the court in future, cases. The material facts, briefl...
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delivered the opinion of the court. On application for writ of supervisory control. In June, 1920, there was pending in the district court of Lewis and Clark county an action for divorce, instituted by William A. Cash, and in which issue had been joined, each party, plaintiff and defendant, praying for the custody and control of their three minor children. The court had theretofore awarded the cus...
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delivered the opinion of the court. This is an action to recover damages for personal injuries sustained by the plaintiff while traveling as a passenger on a freight train of the defendant between the stations of Ingomar and Bozeman, in this state. On July 27, 1916, at Ingomar, the plaintiff loaded a horse into a box-car for shipment to Bozeman. The car was placed in one of the regular freight tra...
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delivered the opinion of the court. The defendant was convicted of violating the provisions of section 8, Chapter 1, Laws of 1911, and has appealed from an order denying his motion for a new trial. When this cause was called for trial it appeared that there [1] were not enough names of qualified jurors in jury-box No. 1, and, in the opinion of the court, expressed in a minute entry, a sufficient n...
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delivered the opinion of the court. On March 16, 1916, the parties hereto entered into a contract in writing by the terms of which plaintiff was employed for six months, at a salary of $300 per month, as captain, manager and first baseman of defendant’s baseball club. The contract provided that within thirty days from its date plaintiff should purchase and pay for 100 shares of the capital stock o...
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The action of the lower court in overruling the demurrer and denying the motion to vacate the injunction are the errors assigned: The grounds of demurrer are specified as follows: “First: That against this defendant the court, has no jurisdiction of the subject matter of this suit. “Second: That there is a defect, or misjoinder, of parties defendant in that this defendant is not a proper party to ...
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Much of plaintiff’s brief is taken up with an argument attempting to show that the judge who tried this case had no right to pass upon *355the sufficiency of the complaint after the presiding judge had overruled a demurrer based upon the ground of insufficiency; and the confusion which might arise from the action of the judge of one department in overruling the decision of another department upon ...
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1. At the trial the defendant objected to receiving any evidence respecting the items of damages claimed, on account of not receiving a detailed statement of the items, sued upon, but his objection was overruled. Section 84, Or. L., reads thus: “A party may set forth in a pleading the items of an account therein alleged, or file a copy thereof, With the pleading verified by his own oath or that of...
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1. It will be noted that in the inception the record title to the property was in the name of Margaret J. Rumsey, and the first conveyance from her was made by her husband as her attorney in fact. At the time plaintiff received his deed, he legally knew from the county records that the property was deeded’ to Margaret J. Rumsey on May 20, 1908, and that she held the record title until April 1, 191...
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The trial court entered a judgment of nonsuit in favor of defendant and against plaintiffs because of the provision of Section 9, Chapter 399, Laws of Oregon, 1919, which provides that: “Upon the purchase of a motor vehicle registered in accordance with this act, the title of the number plates shall vest in the vendee, and said vendee shall within five days after the date of purchase notify the Se...
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The evidence shows that the earnings of the traction company were deposited in the Jack*658son County Bank. Barnum contends that there is evidence showing that the Bullis Company advanced and loaned moneys to the traction company, thus enabling the traction company to operate its railroad, and that the moneys so loaned were also deposited in the Jackson County Bank and commingled with the current ...
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The appeal presents two questions for decision. It is contended: (1) That the.testimony of the accomplice, Moore, who appeared as a witness for the state, was not sufficiently corroborated; and (2) that reversible error resulted. from the refusal of the trial court to compel the district attorney to deliver to the defendant a “confession” made by Moore. 1, 2. The contention that the corroboration ...
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The opinion of the court was delivered by The plaintiff in an action for damages for malicious prosecution recovered judgment for $2,612, and the defendant appeals. The plaintiff was arrested and placed in jail on the complaint of Minor Shaw, special agent of the defendant, charged with having stolen brass of the value of $25, the property of the defendant. A preliminary examination was held, but...
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*312The opinion of the court was delivered by On August 20, 1912, Peter Gillespie and his sister, Nellie Rodgers, entered into a written contract with Dr. L. R. King, by which they agreed to pay him $350, Nellie Rodgers also agreeing that in case Peter Gillespie died without having, paid it she would pay it from the proceeds of a certificate in a fraternal order of which she was the beneficiary. P...
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The opinion of the court was delivered by This is an appeal from a judgment cancelling an oil and gas lease. Earl W. Skidmore filed a disclaimer. The other defendants resisted and appeal. The action was tried on the following agreed statement of facts: “It is agreed that the West Half (W %) of the Southeast Quarter (S. E. %) of Section Two (2), Township Twenty-two (22), Range Four (4), East of th...
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The opinion of the court was delivered by The action was to recover damages for the breach of a contract to deliver a harvesting machine. In the early spring of 1919 the plaintiff, a farmer in Meade county, *358had a growing crop of 400 acres of wheat. He purchased from the defendant, an implement dealer in the town of Meade, a harvesting machine which the defendant agreed to deliver on June 24. D...
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The opinion of the court was delivered by David Smith died intestate October 2, 1918, while holding the record title to a residence property which was occupied by Charles Y. Daniels and his wife. Daniels brought an action against the heirs for the specific performance of a contract he alleged to have been made by Smith by which the plaintiff was to have the property in consideration of his caring ...
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*412The opinion of the court was delivered by This was a suit to cancel a written contract granting an exclusive agency to sell a hotel at a net price to the owner, and included therewith was a grant of an option to purchase the property. The plaintiffs owned a hotel property in Hutchinson. It was covered by two mortgages, one for $16,000 and a second mortgage for $4,000. The defendant was the tr...
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The opinion of the court was delivered by The plaintiffs brought an action against the defendants asking for the cancellation of an oil and gas lease and a judgment that the defendants had no right, title or interest in the leased premises. Judgment was given for plaintiffs and defendants have taken an appeal. On September 3, 1918, plaintiffs executed an ordinary oil and gas lease to Dan W. Clawso...
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The opinion of the court was delivered by This action was brought by J. F. Romine against E. F. Foley, upon a promissory note executed by the defendant to the Star Land Company, which the latter transferred to the plaintiff before maturity. The defendant claimed that the note was obtained through the fraud of the Star Land Company, of which the plaintiff had notice. Verdict and judgment were given...
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The opinion of the court was delivered by This is an action for damages caused by the defendant’s failure to deliver money transmitted by telegram. The plaintiff, a farmer, bought two teams of horses in Kansas City, Mo., and to obtain money to pay for them, telegraphed his bank at Lawrence, Neb., as follows: “Wire me six hundred dollars at once in care of the Western Union.” In response thereto, t...
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(dissenting) : I dissent from the opinion written by Mr. Justice Porter and concurred in by the majority of the court. In my judgment, the parties were entitled to a jury as a matter of right under Gordon v. Munn, 83 Kan. 242, and kindred cases. The plaintiffs claimed to own one-half of the real property; the defendants claimed to own all of it. The controversy revolves around the ownership of the...
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*426The opinion of the court was delivered by The action was for specific performance of a contract for the sale of land. Plaintiff recovered and the defendant appeals. The defendant, a resident of Montgomery county, owned a quarter section of land in Decatur county. The plaintiff is a real-estate agent engaged in business at Oberlin, in Decatur county, and on April 14,1919, wrote the defendant th...
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The opinion of the court was delivered by The action was one to recover on a beneficiary certificate issued by the defendant to Harry Jenner, and made payable to his two sons, the minors represented by the plain*420tiff. The court directed a verdict for the plaintiff, and the defendant appeals. The certificate provided that it should be void if death of the certificate holder should occur as a con...
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The opinion of the court was delivered by, M. A. Wilson appeals from a conviction of two attempts to commit rape upon June Morley, a girl of the age of about twelve years. f He assigns a number of procedural errors, the first of which is the denial of an application for a continuance. It was asked in order that he might .obtain the testimony of a witness to the effect that she had heard another wi...
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The opinion of the court was delivered by The action was under the workmen’s compensation law. From a judgment in plaintiff’s favor the employer appeals and claims that the court erred in refusing to grant a new trial on the ground that the verdict of the jury was for an excessive» amount and in conflict with the special findings and with the undisputed evidence. On January 21, 1919, the plaintif...
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The opinion of the court was delivered by The plaintiff, an employee of the defendant railway company, was injured while at work at a place where some new and additional car sheds were being constructed for the railway company by a firm of independent contractors. Plaintiff brought this action against the railway company, alleging the circumstances, the negligence, the extent of his injuries, his...
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February 20, 1902, A. M. Holter filed his amended complaint in an action for partition of real estate. July 9, 1903, defendant American Mining Company, Ltd., a Montana corporation, filed its answer and two cross-complaints against plaintiff Holter and defendants S. T. Hauser and Massena Bullard, trustees. June 22, 1904, the attorneys for the American Mining Company, Ltd., and W. E. Borah, attorney...
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The defendant was tried in the district- court of Ada county on the charge of unlawfully allowing cattle owned by him- to run at large within a lawfully created herd district in said county. He was convicted and judgment entered requiring him to pay a fine of $100, with costs of prosecution. From this judgment the defendant has appealed. Appellant has specified numerous errors, but the examination...
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This action was commenced by respondent upon a promissory note to recover the sum of $3,899.80, with interest, attorneys’ fees, and costs. The note was executed for the sum of $5,000, secured by chattel mortgage which had been reduced to the above amount by a summary foreclosure of said mortgage, by notice and sale. Appellants’ answer contained a further and separate answer and a cross-complaint. ...
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Respondent, the Allen-Wright Furniture Company, a corporation, brought this action to • recover upon *413two promissory notes executed by appellant, Jacob Spoor, to the Empire Home Company, a corporation. Respondent claimed to have acquired title to these notes from the payee, by indorsement and delivery; that it was a holder for value in due course, and that no part of said notes had been paid. A...
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Plaintiff brought suit against the defendants in the district court of Carbon county to recover a balance alleged to be due and owing it under the terms of a contract of guaranty. It is alleged in the complaint that— “On the 18th day of November, 1918, at Price, Carbon county, Utah, in consideration that the plaintiff, at the request of the defendant, would sell to the New Life Stores Company, a c...
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Plaintiff commenced this action against the defendant in the district court of Weber county to recover the amount alleged to be due and owing on certain interest coupon notes. It appears that on the 2d day of July, 1918, the defendant, a railroad corporation, was known and designated by name as the Ogden, Logan & Idaho Railway Company, and on said date in its then name made, executed and delivered...
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On October 24, 1918, the plaintiff, George Doscolos, sustained an injury in a mine explosion while an employé of and working in the coal mine of the defendant Standard Coal Company, at Standardville, Utah. On February 4, 1919, the Industrial Commission of Utah, upon an application made and claim filed before it by the plaintiff against the coal company and its insurance carrier, the defendant Stat...
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This is a proceeding in equity to perpetually enjoin the defendant Eich county, its officers and agents, from exercising, or attempting to exercise, jurisdiction" over certain territory alleged to be a part of Summit county, and for other relief. The question presented arises upon defendant’s demurrer to the complaint. It therefore becomes necessary to set out the substance of the complaint with r...
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delivered the opinion of the court. This is an action brought by a beneficiary under a contract of a fraternal and benevolent society to recover a death benefit alleged to be due as the result of the accidental death of a member of the society. The defendant alleges, as its only defense, that the death was not accidental but was caused by suicide. The allegation is denied by the replication. The j...
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delivered the opinion of the court. Plaintiffs brought suit to recover damages from the defendant corporation, The Colorado Postal Telegraph Cable Company, for its negligent failure to deliver a telegram. The facts are undisputed. Plaintiffs gave the message to the superintendent of the company at Denver for transmission to New York City. It was wired to Chicago, and there lost. The message was lo...
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delivered the opinion of the court. The Industrial Commission of Colorado, under the provisions of the Workmen’s Compensation Act, found plaintiff in error totally and permanently disabled and allowed him the maximum, $8.00 per week for life, therefor. He petitioned for a lump sum settlement in lieu of this allowance. A hearing was had on that petition, testimony taken and the commission found tha...
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delivered the opinion of the court. Neta Lawrence brought suit against John Wertz with one count for slander, ¡, charging her with insanity, and a second for malicious prosecution, the institution of lunacy proceedings against her. Upon the first trial the second count was abandoned and the plaintiff had verdict and judgment for $1100 upon the first count. That judgment was reversed in this court....
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delivered the opinion of the court. Plaintiff in error filed a petition in the County Court of El Paso County, alleging that defendant’s intestate was indebted to it in a considerable sum for insurance premiums collected by him as agent of the claimant, and praying that the claim be allowed as of the first class. Defendant in error filed a general demurrer to the petition, which was sustained. The...
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delivered the opinion of the court. Plaintiff in error was found guilty of first degree murder upon an information charging him with the murder of his wife, on or about the 5th of April, 1920. The principal grounds of reversal argued are that the court abused its discretion in permitting evidence as to a wound received by the deceased about February 13, 1920, before evidence was offered to establi...
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Petitioners pray for writ of mandate directed to the state treasurer requiring him to cancel certain bonds of the state of California prepared by him pursuant to the provisions of section 2 of article XVI of the constitution of the state of California, which authorized the issuance and sale of forty thousand bonds of one thousand dollars each. Petitioners' prayer is based upon the amendment to the...
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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 750 This is an action by the plaintiff corporation to recover from the defendants, its former directors, the amount of its entire capital alleged to have been illegally divided among the stockholders. Plaintiff recovered judgment for the full amount claimed, ...
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This is an appeal from a judgment against the defendant, Los Angeles Gas and Electric Company, in the sum of four thousand dollars, as damages for personal injuries alleged to have been suffered by the plaintiff because of the negligence of the defendant. It seems that the plaintiff was a passenger in a so-called jitney motor bus on East Seventh Street, in Los Angeles, when the bus collided with a...
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This is an action for unlawful detainer of land after default of defendant in payment of rent. Defendant at the time the action was brought was in possession of the land in question consisting of 640 acres of farm land in the county of Imperial, under a three years' lease, which by its terms had yet over two years to run. Two installments of rent aggregating the sum of five thousand five hundred d...
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The only question on this appeal is in fixing the liability for damages to plaintiff for injuries suffered in an automobile accident. The plaintiff was run over and seriously injured by the reckless negligence of the driver of an automobile owned by *798 the defendant, C. W. Pendleton, Jr., and in which C. W. Pendleton, Sr., was a passenger. It is alleged that the driver at the time of the ...
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Application for a writ of mandate to compel judge to settle bill of exceptions. It appears from the letter of the trial judge set forth in the petition that he is willing and ready to settle the bill *27 if there be eliminated therefrom all matter appertaining to the notice of intention to move for a new trial and all matter appertaining to a motion for new trial. This, so far as appears, is ...
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This is an appeal by plaintiff, from a judgment in favor of the defendant in an action for libel, given on sustaining a demurrer to his complaint without leave to amend. The action was founded on a publication in the "Los Angeles Times." The demurrer was both general and special. Counsel have devoted themselves almost exclusively to the general demurrer for want of facts sufficient to constitute a...
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This is an action to quiet title to certain real estate against the claims of the defendant growing out of a contract to purchase wherein the plaintiff was vendor and the defendant, Katie A. Azvedo, vendee, who, by cross-complaint, seeks to recover two hundred dollars, the initial payment upon the purchase price. Plaintiff recovered judgment quieting his title and the defendant, having been defeat...
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The plaintiff brought this action to foreclose a mortgage securing a note for six thousand dollars, which note and mortgage were assigned to him as collateral security for a cash loan of $1,250 made by him to the mortgagee. There was no defense by the mortgagors, but the defendants, respondents here, interposed the claim of a trust deed on the same property which was alleged to create a lien super...
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The city of Los Angeles has appealed from a judgment of the superior court of the county of Los Angeles enjoining the mayor, chief of police, and members of the council of said city from enforcing section 54, and the penalties pertaining thereto, of an ordinance of the city providing for licensing and regulating certain trades, professions, and occupations. The section in question imposes a licens...
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This is an appeal by a large number of claimants from an order and decree of final distribution. *Page 10 The petition of these claimants, who alleged a right of inheritance under subdivision 8 of section 1386 of the Civil Code, was stricken from the files by the superior court, and whether or not the court erred in doing this is the only question necessary to be considered on this appeal. The ma...
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Plaintiff brought this action against Alice A. Easton, and several others under fictitious names, to quiet title to lot 22 in block 3 of the subdivision of the south half of lot 5 in block F of Hancock's survey in the city of Los Angeles. It was alleged that for five years immediately preceding the commencement of this action plaintiff has been the owner, in possession, and has paid the taxes on t...
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Plaintiff brought this action to obtain the specific performance of a contract for the sale of 160 acres of land, 80 acres of which stands of record in the name of Edwin Yawger and 80 acres in the name of Altie S. Yawger, the defendants and appellants, and to compel the delivery of deeds, mortgages, and stock certificates held in escrow by the defendant Southern Trust and Savings Bank of San Diego...
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From a single judgment and on a single transcript the administrator of the estate of John W. Kenton *Page 478 appeals in these consolidated cases. The record shows that the respondent Dunn sued the respondent bank, claiming that Kenton in his lifetime had made an equitable assignment of the entire balance to his credit with the bank and had given her a check for the entire balance, payment of whi...
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This is an appeal by the defendant from a judgment in favor of the plaintiffs for the sum of $3,008.15. The controversy between the parties grows out of a contract entered into by them on September 21, 1917, by which the plaintiffs agreed to sell to the defendant a large quantity of personal property constituting a teaming and grading outfit, and including approximately 200 head of horses and m...
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This is an action at law to recover damages for injuries to plaintiff's orange orchard, caused by the deposit on the trees of cement dust from defendant's cement-mill. Plaintiff recovered judgment for a total of $6,300, of which $3,500 was for loss and injury to the crops for the years 1910, 1911, and 1912; $300 was for the increased labor and cost in the care of the trees, and the balance, $2,500...
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The plaintiff obtained a judgment against the defendants for $15,195.51 and interest thereon, and they have appealed upon the judgment-roll. The court found that the contract between the parties was made in two letters, marked respectively "A" and *Page 638 "B"; that "A" was written by Mr. Ford, the president of the plaintiff company following a discussion of the terms of the proposed contract he...
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This is an appeal from an order refusing plaintiff's motion to change the place of trial in an action wherein the plaintiff seeks to recover, in payment of professional services rendered as an attorney at law, a specified interest in certain real property to which he alleges he is entitled under the terms of a contract between him and the defendant. Plaintiff demanded that the place of trial of th...
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It has been stipulated by the parties to this appeal that the facts are identical with those of the case entitled "Z. B. Stuart v. Rose Everly," ante, p. 551, [195 P. 701], and in which the order appealed from was affirmed. For the reasons given at length in that opinion the same result must follow in this case. The order is affirmed....
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It is stipulated by the parties to this appeal that the facts are identical with those of the case entitled"Z. B. Stuart v. Rose Everly," ante, p. 551, [195 P. 701], and in which the order appealed from was affirmed. For the reasons given at length in that opinion the same result must follow in this case. The order is affirmed....
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This is an appeal by defendant R. H. Herron Company from a judgment in favor of plaintiff in an action to recover damages for personal injuries. The plaintiff was injured while operating a lathe in a machine-shop owned by the appellant. While operating the lathe the plaintiff, in order to make it run faster, attempted to shift the belt by which the lathe was turned, and in doing so his left hand a...
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This is an action instituted by the plaintiff to recover commissions as a broker for services rendered in the sale of the interest of the defendant, Mrs. Maria E. de Settle, in a certain tract of land consisting of 886 acres. The plaintiff had judgment for the sum of $12,581.20, and the defendant appeals, the ground for reversal urged being that the trial court, by its instructions to the jury, ba...
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Plaintiff appeals from a judgment rendered in favor of defendant. D. Willard Beam, a resident of New York, and C. E. Shattuck, a resident of California, were joint indorsers of certain notes issued by a New York corporation designated the Hemlock Lake Canning Company. Both parties died, leaving these notes unpaid. Proceedings were had in the courts of the state of New York, wherein Otis A. Beam wa...
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In this action plaintiffs seek to recover damages for personal injuries suffered by the plaintiff Howard by reason of alleged negligence in the operation of an automobile of the defendant. Additional damages are claimed for injuries to the plaintiff Howard's automobile. The injuries complained of were the result of a collision between the automobile of the plaintiff Howard and the automobile of th...
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This is a petition in mandamus to require respondents to dismiss an appeal from a judgment rendered by the justice's court. On the twenty-first day of June, 1920, petitioner herein, as plaintiff, recovered a judgment against Belle Bennett and John C. Orcutt in the justice's court in the city and county of San Francisco on an assigned claim for taxi hire in the sum of $187.75. On the twenty-fifth d...
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Plaintiff instituted suit in the superior court of Riverside County seeking to have it decreed that certain lands in that county which had been patented to the defendant by the United States were held in trust for plaintiff, by reason of irregularities in the actions of government officials through which the patents were issued. Chronologically, the events which enter into the history of the land ...
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The facts in this proceeding are in all material respects the same as in Stevens v. Southern PacificLand Co., ante, p. 596, [195 P. 712]. For the reasons there given, the judgment is affirmed. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 21, 1921. All the Justices concurred. *Page 1 ...
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The facts in this proceeding are in all material respects the same as in Stevens v. Southern *Page 806 Pacific Land Co., ante, p. 596, [195 P. 712]. For the reasons there given, the judgment is affirmed. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 21, 1921. All the Justices concurred....
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The facts in this proceeding are in all material respects the same as in Stevens v. Southern Pacific Land Co., ante, p. 596, [195 Pac. 712], For the reasons there given, the judgment is affirmed. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 21, 1921. All the Justices concurred....
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This is an appeal by the plaintiff from a judgment in the defendant's favor in an action for divorce, dismissing said action, the defendant's special plea of res adjudicata being sustained by the trial court. The facts of the case are undisputed and are briefly these: The parties to this action intermarried on April 26, 1898. On September 26, 1917, the plaintiff's wife, who is the defendant in the...
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This is an appeal from a judgment in favor of the plaintiff in an action brought by the plaintiff on his own behalf and also as the assignee of certain other parties to recover certain sums of money alleged to be due for services rendered and advances made. The facts were substantially these: The defendants, who were copartners in a real estate business, which included, among other activities, ...
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The petition for a writ of certiorari is denied. It appears that the order releasing and discharging the insurance carrier from further payments to petitioner, which is sought to be reviewed here, was made upon a finding that the injury forming the basis of this proceeding had resulted in a permanent disability, consisting of the loss of the fourth toe of the right foot at the proximal joint, w...
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This is an action to enjoin a sale under a trust deed made by Rice-Landswick Company to the defendant. Judgment went in favor of the defendant and the plaintiffs have appealed. The plaintiffs are the trustees of Rice-Landswick Company, a defunct corporation. On May 2, 1914, said company, at that time in active existence, borrowed $2,000 from Joseph W. Thomas, executing and delivering to him its...
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Plaintiff brought this action to secure judgment of ejectment against the defendants; to recover certain specified rents, and to recover damages for the alleged *Page 720 unlawful withholding of the real property. The court made findings awarding plaintiff a money judgment, declined to make a judgment for the possession of the premises because at the time of the trial it appeared that such posses...
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On December 31, 1915, at Los Angeles, California, this defendant, together with two others – Charles W. Fox and F. H. Evans – made, executed, and delivered a certain promissory note by the terms of which each promised to pay to the Halberg-Mier Automatic Press Company, or order, the sum of $18,000, the note being set out in haec verba in the complaint. On the same day this note was transferred, by...
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The county of Sacramento, in 1916, elected to bring itself within the benefits conferred by the provisions of an act entitled, "An act providing for the laying out, constructing, straightening, improvement and repair of main public highways in any county, providing for the voting, issuing and selling of county bonds and the acceptance of donations to pay for such work and improvements, providing f...
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This appeal is from a judgment in favor of the plaintiff in an action brought to recover the sum of $3,028, claimed to be a balance due from the defendant to the plaintiff under a certain agreement in writing which, as set forth in the complaint, reads as follows: “A. H. Koebig, Sr., “Los Angeles, California. “Dear Sir: “In consideration of your assigning the agreement which you hold with...
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As claimed by appellants, this action is brought to establish and foreclose a lien, and for the recovery of the sum of $241.19. The defendant drainage district, a public corporation, entered into a contract with one J. W. McAllister, Sr., for the construction of a drainage ditch, the construction work being thereafter sublet by McAllister to A. H. Hobart, one of the defendants here. Plaintiff, bet...
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Respondent moves to dismiss the appeal, stating as ground for the motion that judgment against the defendants was entered by confession, and that appeal does not lie from such a judgment. The transcript shows that the complaint was filed May 29, 1917, to recover judgment on a promissory note executed by the Mechanical Development Company, an unincorporated association doing business under a declar...
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The petitioner, who is the father of Gertrude Lamson, a ward of the juvenile court of the county of Butte, filed his application in this court for a writ of habeas corpus for the purpose of examining into the legality of the confinement of said ward and obtaining her discharge from custody. The grounds of the petition are that said ward is illegally held in custody because at the time of the or...
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This is an appeal by plaintiff as administrator of the estate of Wilbur F. Earl, deceased, who died intestate on December 29, 1915. Plaintiff's intestate was the grandfather and adoptive father of the defendant, Ethel Stella May Buster. Wilbur F. Earl, something more than a year before his death, namely, on September 11, 1914, signed and acknowledged and left with his attorney, Henry M. Hurd, Esq....
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Appellant applies for a supersedeas during the pendency of the appeal from a judgment of the superior court of Los Angeles County denying a writ of prohibition against the board of fire commissioners of the city of Los Angeles. In an original proceeding instituted in this court for the same purpose before the appeal was taken, it was considered that sufficient cause was shown by the petition, and ...
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This is an original proceeding for a writ of prohibition against the board of fire commissioners of the city of Los Angeles. On the filing of the petition an alternative writ issued. [1] It is alleged in the application that a similar application was made to the superior court and denied, on the nineteenth day of August, 1920, the judgment not having become final at the time of instituting the pro...
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From the petition it appears that Richard Higgins was arrested and, until his release on bail when the writ ofhabeas corpus was issued, was imprisoned, on a complaint charging him with the violation of section 18 of Ordinance No. 5132, New Series, of the city and county of San Francisco. The ordinance is the general license ordinance, and section 18 is as follows: "Every person, firm or corporatio...
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This action was brought to quiet title in the plaintiff to a certain parcel of real estate. Judgment was entered agreeable to the prayer of the complaint. Defendants have appealed. On the twenty-seventh day of February, 1912, plaintiff and Jacob C. Miller, her husband, executed a deed conveying the title to the property in controversy to Mervin Miller. The deed was made upon the consideration that...
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Respondents, as assignees of one Peter Karales, brought this action to have it decreed that the plaintiffs are the owners of a certain lease of 320 acres of land, which was executed by Artesian Land Company to O. B. Fuller and thereafter assigned by him to C. H. & O. B. Fuller Company, hereinafter called the Fuller Company; and for an accounting of the rents, issues, and profits thereof. An int...
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This action was brought to have a trust declared in certain property. The substance of the facts as disclosed by the findings shows that on the eighteenth day of April, 1914, L. L. Bateman was the owner and in possession of certain personal property described as all the stock in trade, including groceries and general merchandise, in a certain store located in Kern County, the value of which was ap...
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Plaintiff, averring that he is the owner of a certain lot in the city of Los Angeles, alleged that the defendant Julia P. Warden claims title under a deed executed to her by the board of public works of that city on July 11, 1916, after a sale of the lot following a delinquent assessment to pay the expenses of acquiring land for a public library under the act of April 22, 1909 (Stats. 1909, p. 106...
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This action was brought in the district court of Caddo county, by the plaintiffs in error, as plaintiffs, against the defendants in error, as defendants, to cancel a certain oil and gas lease and remove the cloud upon the title of plaintiffs caused by the record thereof. The lease involved is the ordinary "form eighty-eight" with the added provision that: "Unless active operations for drilling are...
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The motion to dismiss, to which there has been no response, urges that the case-made was not served within the time allowed by law or within any legal extension thereof. The record in the case discloses that the last valid extension of the time within which to serve the case-made expired August 27, 1920; the case-made was not served on defendants in error until the 22nd day of September, 1920; on ...
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This action was brought in the district court of Stephens county by the defendant in error, as plaintiff below, against the plaintiff in error, defendant below, to recover the sum of $200, alleged to be due as rentals under a certain oil an I gas lease. The cause was tried on an agreed statement of facts and judgment rendered for the plaintiff below for the sum of $200. The lease made the basis of...
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This cause comes here upon transcript. The plaintiff below, Bartlett Bros. Land Loan Company, brought suit against Ed L. Rees et al., to foreclose a mortgage for $2,000 on a tract of land situated in Wagoner county. The trial court sustained a demurrer to the petition for failure to state a cause of action, and plaintiff below elected to stand upon its petition and brings the case to this court. ...
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This suit was filed in the district court of Tulsa county, Oklahoma, on October 8, 1915, by Turner Starr, plaintiff below and plaintiff in error herein, against W.P. Thompson and Albert B. Marks, defendants in error herein. Turner Starr was a Cherokee freedman, and received as his allotment the lands involved in this litigation and which lands are described in his petition filed in the court below...
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This is an action brought by the Oklahoma Petroleum Gasoline Company, a corporation, against the Minnehoma Oil Company, a corporation, in the district court of Pawnee county. Plaintiff below is the plaintiff in error in this court and the defendant below is the defendant in error herein. The plaintiff brought an action for injunction to restrain the defendant from carrying out a threat to interfe...
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This is an appeal from the action of the State Industrial Commission in refusing to allow the petitioner compensation for personal injuries incurred while in the employ of the Rock Island Coal Mining Company as a miner. There is no controversy between the parties concerning the facts disclosed by the evidence, which may be briefly summarized as follows: At the time of the injury, and for some time...
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This action was commenced in the district court of Oklahoma county by Samuel A. Stemen and William A. Hanshew against H.M. Wampler and 15 or 20 other defendants, to quiet title to certain real estate in Oklahoma county. The petition alleged plaintiffs were the owners and in possession of said premises and the defendants claimed some right, title, and interest therein. It was further alleged that i...
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The defendant in error instituted this action in the district court of Payne county against the plaintiff in error seeking to recover the sum of $320 by virtue of a contract whereby the plaintiff in error agreed to pay him that sum for procuring an oil and gas lease from one J.W. Sims. The parties hereafter will be referred to as they appeared in the trial court. The answer filed by the defendant ...
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This action originated in the justice of peace court, between the two banks over clearing certain checks. The total amount in dispute was $35. The defendant, Oklahoma State Bank, admitted liability in the amount of $10 and tendered the same to plaintiff before the commencement of the action and thereafter tendered that amount into court, leaving the amount in dispute only $25. From a judgment in f...
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This action was commenced in the district court of Grady county by L.C. Linn against the Chickasha Gas Electric Company to recover damages caused by the company maintaining a dam across the Washita river which obstructed the natural flow of the river, causing the same to overflow and damage growing crops of plaintiff upon his land. The jury returned a verdict in favor of plaintiff in the sum of $...
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This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, for the recovery of money alleged to be due the plaintiff for services rendered as a practical nurse to the family of Fred G. Zeigler under a contract, either express or implied, entered into with Mr. Zeigler during his lifetime. Upon trial to a jury there was a verdict for the...
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This action was commenced in the district court of Creek county by G.J. Smith and Wallace Doolin, as plaintiffs, against the Eastern Oil Company, as defendant. *Page 208 For convenience, the parties will be referred to herein in the same relative position they occupied in the court below. Smith and Doolin are the owners of 60 acres of land in the west half of the southeast quarter of section two ...
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This is an appeal from the district court of Hughes county, Hon. Geo. C. Crump, Judge. This action was commenced by John A. Jacobs, plaintiff, against Nicholas V. Bilby, defendant, in ejectment, October 18, 1916, to recover the possession of the N.W. 1/4 of sec. 20, Tp. 6 N., R. 9 E., and for rents and profits. A jury was waived and the cause tried to the court on October 5, 1917, and the court gr...
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This action was instituted in the district court of Garfield county by the defendants in error, King Slike, to whom we will hereafter refer as plaintiffs, against the Rush Creek Oil Gas Company, hereinafter referred to as the company, and the First National Bank of Enid, to recover from the company the sum of $3,136, alleged to be due plaintiffs for drilling a certain oil well and for certain del...
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Plaintiff in error, Harry Murnand, hereafter designated defendant, and Johnson and Hudie Philpot were jointly charged by information in the district court of Cleveland county with assaulting one E.B. Cornelius with a dangerous weapon on December 17, 1917. A severance was granted this defendant, and on the 26th day of March, 1918, he was convicted of said crime, and sentenced to serve a term of one...
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Has the plaintiff fulfilled the valid requirements of the provisions of Section 129 of the municipal charter of the defendant by filing with the city a sufficient notice of her accident? The answer to that inquiry is decisive of this appeal. A well-known authority on the law relating to municipal corporations has written that: *303“When applicable, notice to the municipality in substantial complia...
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The plaintiff in error, hereinafter referred to as the defendant, was on the 31st day of January, 1917, informed against in the district court of Greer county for the murder of John W. Stinson on the 18th *Page 390 day of January, 1917. Upon trial in said court the defendant was, on the 21st day of September, 1917, convicted of manslaughter in the first degree, and his punishment fixed at impriso...
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OPINION OP THE COURT. On Noyember 4,1918, an alternative writ of mandamus was issued, setting out that a certain tract of 360 acres in Roosevelt county had been conveyed by deed of trust to James A. Hall, to secure the payment to Max Buchman of certain promissory note, the note remaining unpaid at the date of the issuance of the writ. It further appeared from the,writ: That the said 360 acres had ...
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OPINION OP THE COURT. District Judge. This is a suit brought by the appellees (plaintiff below) against the appellants (defendants below) on a promissory note made by defendants, Charles Mapel and wife, and transferred to plaintiff Kaseman by J. A. Miller, the original payee, secured by a deed of trust on certain property in McKinley county; and to foreclose such deed of trust, in which the plaint...
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OPINION OF THE COURT. District Judge. Appellee instituted this suit to recover personal judgment against the appellants William J. Rain and wife, Catherine Rain, upon four promissory notes executed by them in the sum of $60 each, payable to the order of appellee, and to foreclose a mortgage deed executed by them securing said notes, covering certain described lands; such foreclosure being-sought ...
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OPINION OP THE COURT. This is an appeal by the Guadalupe County Board of Education, a corporation, from adjudgment rendered in the district court for Guadalupe county, dismissing its complaint against the appellee. A proper understanding of the case makes it necessary to set forth in detail portions of the pleadings. The complaint, after alleging the character of the appellant and the residence o...
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OPINION OP THE COURT. The appellant had a claim against the estate of Mathilde Julia Bouvard Cardoner, deceased. This claim was not filed within one year from the date of the appointment of the executor of the last will and testament of the deceased. The last day of the year following the appointment of the executor by the court expired on Sunday, and the following Monday the claim was filed and t...
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OPINION OP THE COURT. On August 4, 1920, the state department of health presented a claim to the board of county commissioners of San Miguel county against said county in the amount of $364.59, for services rendered and materials furnished by said department of health to said county in the performance of health work, the enforcement of the health laws of the state of New Mexico, and the rules and ...
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By the Court, The appellant was convicted of murder of the first degree and sentenced to life in the state prison. This appeal is taken from the order denying a motion for a new trial. The sole question presented by appellant for determination is that the indictment upon which he was convicted does not charge murder of the first degree, but only murder of the second degree. The charging-part of th...
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Petitioners having been charged by information in the district court of Nye County with a gross misdemeanor,- in that they did, on or about January 14, 1921, unlawfully manufacture and keep for sale in said county certain intoxicating liquors, applied to that court to be released on bail pending trial. The court fixed the bond of each at $3,000. They contend that the bail is excessive, allege that...
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By the Court, This is an action to recover upon an insurance policy the sum of $1,000, damages sustained by fire. Judgment was in favor of plaintiff, from' which, and from an order denying a motion for a new trial, an appeal has been taken. The policy,sued upon is what is known as a “New York standard policy.” It contains a provision to the-effect that in case of loss the insured shall render to ...
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1. An examination of the record discloses that there was no error in refusing to grant the motion of plaintiff for a directed verdict. The real question at issue was whether the land in dispute was a part of lot 5 or a part of lot 6. The plaintiff claims that the field-notes and official plat of plaintiff’s land indicate that the boundary line between the land of plaintiff and defendant runs due e...
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1. The assignments of error challenge the sufficiency of the findings of fact and suggest, also, *408that such findings are contrary to the weight of the evidence. As to the latter, it is enough to say that this court cannot concern itself with the weight of the evidence, for if there is any substantial evidence to support a finding, we are bound thereby. 2, 3. The serious contention of the plaint...
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1. The granting or refusing a motion to set aside a default is a matter resting in the sound discretion of the court and should not be disturbed, unless that discretion has been abused: Lovejoy v. Willamette Locks Co., 24 Or. 569 (34 Pac. 660); Horn v. United Securities Co., 47 Or. 35 (81 Pac. 1009). 2. There was no such abuse of discretion here. The affidavit of defendant was contradicted by the ...
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1. The plaintiff assigns as error, first, that the court was wrong in permitting the defendant to testify that he had given mortgages on the stock, and that some of it was subject to mortgage at the time of the trial. It is presumed “that a person is the owner of the property from exercising acts of ownership over it”: Or. L., § 799, subd. 12. Mortgaging property is an act of ownership by the mort...
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There are but two assignments of error, which challenge the action of the trial court in refusing to give the jury the following requested instructions “(1) The first instruction we request is that the court instruct the jury to bring in a verdict in favor of the plaintiffs and against the defendant. “(2) If the jury find that the contract entered into between plaintiffs and defendant to be a vali...
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This lawsuit is a result of the perfidy of one Holton and of the negligence of one William Yaetz, the defendant and cross-complainant. Yaetz bargained with Holton for the sale and transfer of the mortgage mentioned in our statement of the case. Holton executed an assignment purporting to transfer the mortgage, describing the same as bearing date June 17, 1911, instead of December 30, 1909, the dat...
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1. A petition for a writ of review is presented to the Circuit Court or judge thereof, and the writ is allowed thereon ex parte. The only answer to the writ is a return. No demurrer will lie on account of any defect in the petition. If that document is insufficient, the only remedy for the defendant in the writ in that respect is to move to quash the writ: McCabe-Duprey Tanning Co. v. Eubanks, 57 ...
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delivered the opinion of the court. On October 30, 1917, this action was commenced by the plaintiff in the justice’s court of Choteau township, Teton county, against the eight defendants named therein, to recover damages for injuries inflicted upon a mare by a stallion while attempting to breed her. Two of the defendants only were served with summons. None of the other defendants ever appeared in ...
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delivered the opinion of the court. The complaint in this case consists of two counts. The first count alleges that about the month of March, 1916, plaintiff *35and defendant entered into a copartnership for the purpose of carrying on the business of handling sheep and other livestock in Powell county, Montana, and that in fulfillment of such partnership agreement they purchased together about 1,1...
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delivered the opinion of the court. This action is brought for reformation of an insurance policy issued by appellant to respondent, and for recovery upon the policy as reformed. The policy, by its terms, covered personal property therein described “all while contained in the two-story frame building and its addition, while occupied as a boarding and rooming house, between ten and fifteen rooms, s...
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delivered the opinion of the court. This is an original application for an injunction to enjoin the issuance and sale of bonds of the state of Montana proposed to be issued by the defendants under authority contained in Initiative Measure No. 19, passed by the people at the general election held on November 2, 1920, “for the construction, repair and equipment of buildings at the State University, ...
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delivered the opinion of the court. These two appeals were taken from the order of the district court denying appellant’s motion for a new trial and were, by order of the court, consolidated, as exactly the same issues are involved in each appeal. Prior to the commencement of the trial in the lower court, the appellant dismissed as to the respondents Merchants’ Bank of Winona, Mary A. Cox, and the...
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delivered the opinion of the court. This is an action brought by respondent against appellants to recover damages upon a bond executed by the appellants George H. Pew, as principal, and Fidelity & Deposit Company of Maryland, as surety, it being alleged that Pew entered into an agreement to build for respondent a water-tight basement or cellar under a certain bank building by him to be constructed...
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The opinion of the court was delivered by The action was one for damages for personal injuries, sustained in a collision between plaintiff’s motorcycle and defendants’ automobile. A verdict was returned in favor of the plaintiff. Judgment was rendered against him, however, on his own testimony and on special findings returned by the jury, and he appeals. The plaintiff testified he was riding a Har...
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The opinion of the court was delivered by The action was one to recover the value of two trunks and their contents, delivered to the defendant for transportation by express from Chicago, Ill., to Jewell, N. Y. The plaintiff recovered, and the defendant appeals. The trunks were received by the defendant on August 4, 1915, and should have been delivered at destination on August 6, but were not deliv...
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*311The opinion of the court was delivered by The defendant was convicted of statutory rape, and appeals. Two questions are presented: First, that no more than an attempt was proved, and second, that no instruction relating to attempt was given the jury. The evidence need not be stated. It was abundantly sufficient to establish the completed crime. No instruction relating to attempt was requested,...
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The opinion of the court was delivered by The custody of two little girls and the fitness of their mother, Mabel Jendell, to rear them are the questions involved in this litigation. The girls are respectively nine and seven years of age, and upon the testimony the district court held that the mother was not an unfit person to have the care of her children and awarded their custody to her. The resp...
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The opinion of the court was delivered by This was an action for compensation for an injury sustained by plaintiff while in the defendant’s employment. Judgment was entered for plaintiff, and the principal contention in this appeal is whether the injury sustained by plaintiff was a “personal injury by accident arising out of and in the course of employment,” within the terms of the workmen’s comp...
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The opinion of the court was delivered by This was an action on certain promissory notes given by a Lincoln county farmer in payment for a tractor engine. In the transaction there was a written order signed by defendant in which it was provided that the tractor engine was purchased for $700, the plaintiff to take an older engine at $150 as part payment, and defendant to give the notes sued on for ...
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The opinion of the court was delivered by John Rowland as a taxpayer of Reno county brought an action against the board of county commissioners, joining other parties in interest as defendants, seeking to enjoin the delivery to the Brown-Crummer Company of a quan*442tity of bonds, in pursuance of a contract between that company and the county, the validity of which is attacked by the plaintiff. A...
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The opinion of the court was delivered by The action was one for an accounting between partners, after dissolution. The plaintiff recovered, and the defendant appeals. The district court made findings of fact, and the chief assignments of error are that controlling findings are not sustained by sufficient competent evidence and are contrary to law. The partnership was formed to deal in hardware, i...
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The opinion of the court was delivered by Hattie Gooch brought this action against the defendants to recover damages for alienation of the affections of her husband, J. F. Gooch. An objection to the introduction of evidence under plaintiff’s petition was sustained, but the court on motion of the plaintiff granted her a new trial and from that order defendants appeal. The defendants are the childr...
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The opinion of the court was delivered by This action was brought by the plaintiffs to recover from the defendant, Jackman, and the State‘Bank of Rantoul, the balance of the purchase price of a tract of land. Judgment was given for plaintiffs, and Jackman appeals. *404On March 29,1918, the plaintiffs sold and conveyed 578 acres of land to Jackman by a warranty deed for $6,500, clear of all encumb...
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The opinion of the court was delivered by The plaintiffs brought this action to recover damages for the failure of the defendants to drill an oil and gas well on certain property. A motion to strike out certain parts of the petition was allowed, and after those parts were stricken out, a demurrer to the petition was sustained. The plaintiffs appeal and complain of each order. The petition alleged...
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The opinion of the court was delivered by On January 24, 1916, William Parris (his wife joining) executed an oil and gas lease one of the provisions of which was to the effect that if a well should not be commenced on the premises within one year the rights of the lessee should cease unless he should pay an annual rental of $1 an acre to the lessor or deposit that amount to his credit in the Citiz...
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The opinion of the court was delivered by The Atchison Savings Bank sued J. A. Wright upon a note given by him to it. He defended upon the ground that the note was a renewal of one executed in payment for stock in the Russell Springs State Bank, the sale of which to him had been induced by fraudulent representations as to its value. He recovered damages to the extent of the payments he had made an...
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The opinion of the court was delivered by The plaintiff commenced this action against E. V. Lanyon and J. J. Campbell, executors and trustees of the estate of J. N. Hodges, deceased, to procure the construction of his will and to recover certain amounts claimed to be due the plaintiff under the will. The action was dismissed as to J. J. Campbell ;■ the will was construed, and judgment was rendered...
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The opinion of the court was delivered by This is an action to construe certain provisions of a will. Another phase of this will was before this court in Dreisbach v. Spring, 93 Kan. 240, 144 Pac. 195. Our consideration is now directed to the paragraph of Abraham Blauer’s will which reads: “Third: It is my will and I desire and I hereby expressly direct that all the real property that I may own a...
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The opinion of the court was delivered by The defendant, an aged attorney Of Wa Keeney, was convicted under section 191 of the crimes act (Gen. Stat. 1915, § 3518) of the offense of destroying, a deed to a half section of land which the grantor had delivered to him and *457which was to be surrendered by the defendant to the grantee after the death of the grantor. It was alleged that such destruct...
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*286The opinion of the court was delivered by The plaintiff sued for specific performance and for damages, and the court found in its favor on the first cause of action, the only one involved herein. The defendant appeals, and contends that the contract sued on was void for want of consideration, that it was not assignable, and that it was not approved by the utilities commission. The petition al...
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This action was originally instituted in the justice of the peace court of Houston township, Le Flore county, Okla., on December 19, 1916, by J.S. Hill and C.E. Forrester against H.M. Montgomery, as defendant, for forcible entry and detainer. Judgment was rendered in favor of plaintiffs in the justice court. An appeal was prosecuted by the defendant to the district court. A trial was had, and a di...
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This action was instituted in the district court of Oklahoma county by the defendants in error, against the plaintiff in error, to recover the sum of $910.36, alleged to be twice the amount of usurious interest paid the plaintiff in error by defendants in error. The parties will be hereinafter referred to as they appeared in the trial court. The cause was tried to a jury, and a verdict returned in...
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This is an appeal from the county court of Pushmataha county, in which court defendant, Peter *Page 432 Cole, was convicted of pointing a Winchester rifle at one S.L. Capps, and sentenced to pay a fine of $250 and to serve three months' imprisonment in the county jail. The offense was committed at the home of the prosecuting witness, Capps, on the 1st day of May, 1918, late in the afternoon of th...
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OPINION OP THE COURT. This is an appeal from the judgment of the district court of the Fourth judicial district, sitting in and for the county of Guadalupe, against Fred J. Bush, administrator of the estate of James M. Rodgers, deceased and the American Surety Company, the surety on said administrator’s bond. Early in. 1915 the appellant, Fred J. Bush, was appointed administrator of the estate of ...
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OPINION OP THE COURT. This is a suit in equity begun May 1, ■1909, by the plaintiff, Pankey, to quiet title and to obtain an injunction against the defendants restraining them from trespassing on a tract of land known as the Cadillal, alleged to be within the Baton or San Cristo-bal grant, of which plaintiff claims to be the owner. The complaint sets up that the defendants during the year 1908 er...
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Petitioner seeks a writ of prohibition enjoining the superior court of Los Angeles County from proceeding with the trial of an action instituted against him therein for the recovery of money alleged to be due from him and others to a corporation by one who sues as the receiver of the property of the corporation appointed by the superior court in another action, in which such corporation was the d...
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This is an appeal from an order admitting a will of Delia M. Sweetman, deceased, to probate, as a lost or destroyed will. The main question at issue in the case is whether or not the will was in existence at the time of the death of the testatrix. The will was last seen in the possession of the testatrix in November, 1916, two and a half months previous to her death. The proponent of the will reli...
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This is an appeal by the defendant, F.R. Cyriacks, from a judgment in favor of plaintiff, Mary E. Mooney, in an action for the rescission of a written agreement of sale, on the ground of fraud, for the purchase and sale of an automobile, and to recover the sum of $532.15, alleged to have been paid out by plaintiff on account of said agreement of sale. The case was tried by the court sitting withou...
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This is an appeal by plaintiff from a judgment in favor of the defendant in an action for damages for personal injuries received by plaintiff in a collision with an automobile owned and driven by the defendant. The questions to be determined relate to the refusal of the trial court to give certain requested instructions to the jury. A brief outline of the facts of the case will be of advantage in ...
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This is an appeal from an order made by Honorable R. Y. Williams, judge of the superior court of the county of Orange, denying the application of plaintiffs for a change of the place of trial of said action from the superior court of said Orange County to the superior court of the county of Los Angeles. The application was made on the ground that said judge, before whom the said cause was pending ...
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Plaintiffs commenced this action in equity against the defendant as administratrix of the estate of her deceased husband to procure a judgment establishing their claim against said estate, based upon two promissory notes not then due and to impound and sequester sufficient funds of said estate in order that said claim might be paid in due course of administration when due. The amended complaint al...
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Under an information charging him with the crime of murder, the defendant was convicted of the crime of manslaughter, in the superior court in and for *43 the county of Stanislaus, and he appeals from the judgment and the order denying his motion for a new trial. [1] The single ground upon which the defendant attempts to sustain his appeal is that the evidence does not support the verdict. ...
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This is an appeal from a judgment of nonsuit. The action was brought to set aside, as a fraud upon creditors, a trust executed voluntarily by the decedent, Mary Potts, in her lifetime, to the defendant Oakland Bank of Savings. By the terms of the writing she transferred to the bank the sum of $3,245, and made provision therein for medical attention and medicines during her life, for the payment of...
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Plaintiffs appeal from a judgment entered after a demurrer to the second amended complaint was sustained without leave to amend. By their suit plaintiffs seek to terminate a trust created by the will of their deceased mother, Henrietta C. Woestman, in which the defendant is named as trustee. The relief is sought on two grounds: (1) That the trust was void in its inception because attempted to be c...
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This is an appeal from a judgment in favor of the plaintiff, taken on the judgment-roll alone. The action was instituted to recover the sum of five thousand dollars with interest, and attorneys’ fees, and was founded upon the alleged liability of the defendant upon a written instrument whereby the defendant, a corporation engaged in a general surety business, undertook to guarantee to plaintiff t...
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This is an original proceeding in mandamus to require the respondent, as judge of the superior court, to direct Carrie E. Bridge to answer questions propounded to *Page 736 her in the taking of her deposition in a proceeding pending in that court. The sole question at issue is whether the said witness, being jointly sued with her husband as a party defendant in said action, may be interrogated wi...
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The plaintiff appeals from an adverse judgment awarding him $236.91 in a suit on a promissory note of the defendant for $2,500. He makes the single contention that under the evidence, the trial court should not have allowed a certain credit of $2,000 which was claimed by the defendant as attorney’s fees, 'among other credits, some of which were allowed and one of which was rejected by the court. ...
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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 611 The facts upon which this appeal is based are stated in our former opinion herein. The conclusions there reached as to items one and three of the policy in question are not questioned on this rehearing. We therefore adopt that opinion in part as follows: ...
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In this action the plaintiff filed his complaint praying for judgment against the defendants in the sum of $1,000 as money had and received by them to and for the use of the plaintiff. The defendants admitted receipt of the sum stated but denied any liability to plaintiff upon the ground that this sum represented the amount of a deposit paid upon a certain contract of sale of real property belongi...
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This is an appeal from a judgment in the plaintiff's favor in an action for damages for an alleged assault and false imprisonment. The cause was tried before a jury, which awarded the plaintiff the sum of two thousand dollars as compensatory damages and five hundred dollars as exemplary damages. There were four defendants other than the appellant herein who were at the time of the plaintiff's alle...
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Plaintiff seeks by this suit to subject alleged unpaid subscriptions of the defendants, as stockholders, to the payment of the corporation's indebtedness. The Panama Oil Company was organized under the laws of California in May, 1912, with an authorized capital stock of 2,000,000 shares, of the par value of one dollar each. On May 24, 1912, one J. B. Hedrick offered to transfer to the corporation,...
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Petitioner, a ward of the juvenile court for Los Angeles County, complains that she is unlawfully restrained of her liberty, in that she is denied the right of private consultation with her attorney to enable her to prepare for her defense on a criminal charge. She therefore seeks by habeascorpus an order that will effectually safeguard such right. The allegations of her petition, the truth of whi...
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This is an appeal from a judgment foreclosing a lien for an assessment levied for certain street work in the city of St. Helena under the provisions of the Improvement Act of 1911. The complaint alleges, in due form, the performance of all things required by the Improvement Act to be done up to the signing of the contract on the seventh day of November, 1912. It alleges the execution of the contra...
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Neither party to this appeal has given us any statement of the case. We have, therefore, been put to the labor of going through the pleadings, findings, etc., to get as best we could an understanding as to what the controversy is about. As near as we have been able to ascertain from the record before us, the action is brought by plaintiff to recover on a certain contract, alleged to have been ente...
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Petitioner is imprisoned under a warrant of arrest issued out of the police court of the city of Pasadena upon a complaint charging him with a violation of an ordinance entitled "An ordinance of the city of Pasadena regulating the hours during which dancing may be conducted and dance-music performed in certain places." So far as material, the ordinance reads: "Between the hours of 10 o'clock P. M....
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The opinion of the court was delivered by The Mitchell Grain & Supply Company, a corporation dealing in grain, live stock and coal, employed F. H. Biesemeyer as its manager, the Maryland Casualty Company executing a bond for him. He served in that capacity for about four years. His employer brought an action against the surety company alleging that he was short in his accounts. The plaintiff reco...
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The opinion of the court was delivered by The petitioner asks to be released from the custody of the sheriff who holds him on a commitment of an examining magistrate of Rice county. Bail was fixed by the magistrate at $500 which the petitioner declined to give, but since the institution of this proceeding he has been released from custody on an order of a justice of this court. He was *452arrested...
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*315The'opinion of the court was delivered by Originally this was an action in mandamus brought by the drainage district to compel the Missouri Pacific Railroad Company and the Union Pacific Railroad Company to ■ raise the grade of certain railway tracks for a distance of 700 feet in order to close a gap between the high bluff on the Kansas river in Kansas City, and the end of a dike constructed b...
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Suit by plaintiff against defendant for false imprisonment. Defendant in bis answer denied that tbe imprisonment was unlawful, and set out therein that be was acting as a peace officer (chief of police of the town of Jerome), and, as such, arrested and imprisoned plaintiff in the town jail for vagrancy, as defined in *181Ordinance No. 88 of the town of Jerome, and that plaintiff was found guilty t...
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At a former hearing of this case upon the motion of defendants in error to dismiss the cause and “dismiss and expunge ’ ’ the petition in error, the motion to dismiss the proceedings in error was sustained and an order of dismissal entered. (26 Wyo. 327, 184 Pac. 226.) At the same term that said motion was disposed of by that order, and within the time prescribed by the rules for an application fo...
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— The appellant, on February 19, 1920, was charged by information with the crime of assault in the first degree. On April 3, he filed a plea of not *587guilty and an affirmative defense of insanity. On May 18, he was brought into court, informed that his attorneys had withdrawn from the case, and that the trial thereof would be set for May 24. He then got into communication with his present attorn...
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— This is a will contest. Christine Clinton, sister of Samuel Anderson, deceased, has appealed to this court from a decree of the superior court for Kitsap county, admitting to probate and establishing, as his last will and testament, a writing signed and executed by him on January 1, 1919. At the time of making the will in question and at the time of his death, Anderson was a bachelor, about sixt...
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— This action was brought by appellants, as plaintiffs, against the respondents, as defendants, to partition lands acquired by appellants and respondent Carrie R. Boucher by inheritance, and bringing in the other defendants as parties who claimed and as> serted adverse interests. The land originally was the property of one John W. Roberts, who died intestate in Pierce county, Washington, on May 12...
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— The plaintiffs in intervention, being judgment creditors of a bankrupt corporation, brought this action for the purpose of recovering from the defendants, who are alleged to be stockholders of the corporation, upon their unpaid stock subscription. The defendants denied liability and plead that, in another action brought by the trustee in bankruptcy, their liability as. stock subscribers was sett...
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— The defendant was convicted of a certain crime which the state charged he had committed. From judgment of sentence, he has appealed. By independent testimony, he sought to impeach the testimony of the complaining witness for the state by showing that he had been guilty of immoral acts and conduct, and the court sustained the state’s objections to that character of testimony. In its ruling it sai...
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— The respondent, Levine, brought this action against the appellants to recover for legal services performed by him for the appellants at their special instance and request. The respondent in his complaint demanded the sum of five hundred dollars. The appellants, answering the complaint^. admitted that the respondent had performed legal services in their behalf, hut denied that the services render...
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— By this action the respondents, as co-partners, sought to recover of the appellant judgment in the sum of $37,504.08. Their right of recovery is based upon an alleged oral contract made by James F. Twohy, on behalf of the appellant, to the effect that the respondents were to take over the superintendence of the construction and completion of appellant’s shipyard in the city of Seattle, Washingto...
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— By a written indenture of lease, the respondents Boyd leased to the appellant North certain real property situated in the city of Seattle on which there was an apartment building, for a term of years commencing on September 1,1919, and terminating on October 31, 1924. The lease contained a covenant against assignment and covenants against subletting the premises in whole or in part, and provided...
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— Respondents as plaintiffs brought this action against appellant as defendant, to restrain the operation of an irrigation canal and to recover damages to growing crops, alleged to have been suffered during the year 1918, by reason of the negligent and improper construction and operation of the canal. At the trial below, no evidence of improper or negligent construction or operation was offered, r...
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— The respondent Seattle Lighting Company is a corporation engaged in the manufacture, distribution and sale of gas in the city of Seattle under a franchise granted by that city. On the 26th day of November, 1919, the company filed with the state public service commission a schedule of rates to be charged. This tariff was to be effective as of February 1, 1920, but *647was suspended by the commiss...
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— On October 4, 1920, the appellant, being the owner of a lot in the city of Seattle, agreed *589to sell it to the respondent, and the respondent agreed to purchase. At that time, an earnest money receipt was signed by both of the parties which, among other things, provided: “Taxes, rents, insurance and interest on mortgage, if any, to be apportioned from date of deed. . . . ” It was stipulated by...
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— Plaintiff, one of the judges of the superior court of the state of Washington for King county, on behalf of himself and the other judges of the same court for the same county, by an original action brought here, seeks a writ of mandate directed to the state auditor requiring him to issue to them warrants upon the state' treasurer on the basis of five thousand dollars annual salary to each, alleg...
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— This action was brought by Anua. L. Hutchins as guardian ad litem for Dan W. Hutchins, a minor, as plaintiff, against School District No. 81 of Spokane county, Washington, as defendant, to recover damages for personal injuries tp the minor alleged to have been caused by the negligence of the defendant. The defendant denied negligence on its part and further alleged contributory negligence on the...
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— The appellant appeals from a conviction and sentence to life imprisonment upon a charge of being an habitual criminal. Ten assignments of error are made which, con*602densed, are substantially as follows: (1) that, appellant should have been sentenced after being convicted of grand larceny, and before the second information, charging him with being an habitual criminal, was filed; (2) that the c...
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— This appeal is from an order of the lower court denying the appellant the right to administer the partnership property belonging to appellant and his deceased brother. There are but two questions in the case: (1) Whether there was a partnership existing between the appellant and his deceased brother; (2) was the appellant disqualified by reason of nonresidence? The facts are briefly as follows: ...
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— Prior to January 23, 1919, the appellants had maintained and operated a reservoir near the ranch owned by the respondents, and according to the allegations of the complaint, on that day, by reason of the fact that the appellants had negligently and carelessly failed to keep the reservoir in repair, the water escaped therefrom and flooded the respondents’ property and damaged it by leaving deposi...
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delivered the opinion of the court. A decree of divorce was awarded to the plaintiff in the court below upon allegations of extreme cruelty. Upon the trial it was agreed that the value of the entire real and personal prop*erty involved was then $35,486.23, including $8,200 inherited by the defendant from his mother’s estate. Upon that basis, the district court awarded to plaintiff personal propert...
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delivered the opinion of the court. This is an appeal from decree allowing final account of Nellie Eisenhauer, executrix of the estate of John B. Sattes, deceased. Objections to the final account were filed, which objections were directed to an item of $358.52, paid to the state of Montana for inheritance tax. It is the contention of appellant that the tax was less than should have been assessed a...
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delivered the opinion of the court. Upon the third trial of this case, Knorr, the plaintiff below, had judgment against Wagman for assault and battery. The plaintiff in error, Wagman, makes three points as ground for reversal, first, that before the completion of the second trial the court erroneously declared a mistrial and discharged the jury; second, that the evidence was not sufficient to supp...
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delivered the opinion of the court. The judgment sought to be reviewed in this case was entered in the district court of Pueblo County, May 13, 1916. A writ of error to review the same was sued out May 12, 1919. At the time the judgment was entered, the rules of 1914 were in force, under which, by Rule 14, the time for suing out a writ of error was limited to one year. Rule No. 16 of the rules in ...
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*399By the Court, A suit was brought in the district court of Lyon County to recover damages alleged to have been sustained by Almeda E. Matt for breach of contract of lease. The complaint alleged that on or about March 1, 1918, the defendants verbally leased to Almeda E. Matt 80 acres of land in-Lyon County, Nevada, together with wagon, harness, team, horses, farming implements, tackling and rig...
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1. It will be observed that the complaint was laid on the theory that the plaintiff has performed his contract in full and has earned his commission. The action is not one to recover damages resulting from a breach of the contract. It will be noted, also, that no waiver on the part of the defendant of any of the terms of the contract is pleaded. The plaintiff was appointed “to make sale” of the pr...
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The defendant was convicted of the crime of sodomy and has appealed to this court. Immediately upon the jury being sworn to try the case and before the taking of any testimony, the jury was permitted to separate during a recess without the consent of the appellant. The record shows the members of the jury were allowed to commingle with the audience and that they retired from the court room. Prior ...
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This action was brought to recover damages on account of a collision between two automobiles. The case was tried to the court without a jury, and resulted in a judgment in favor of the plaintiff for $426.65 and costs. The defendants have appealed. The appeal presents only questions of fact. It appears that, on December 5, 1919, at about ten o’clock that night, the respondent’s automobile was being...
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This action was brought by the plaintiffs, George W. Tyler and wife, against A. P. Casey, W. L. Bullis and a number of others, to quiet title in the plaintiffs to certain real estate in Thurston county. All the defendants except Casey and Bullis defaulted. Upon issues joined, the case was tried to the court without a jury, and resulted in findings in favor of the plaintiffs and a judgment quieting...
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— The defendant in this case was charged under an ordinance of the city of Spokane with criminal syndicalism. The superior court sustained a demurrer to the complaint upon the ground that it charged more than one crime, and the city has appealed. The question of duplicity which is presented upon this appeal is substantially the same as that which was discussed in the recent case of State v. Hennes...
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— The respondent’s action is one for the breach of the appellant’s promise to marry. The only question raised on the appeal from the judgment based on the verdict of the jury in favor of the respondent is that the evidence was insufficient to justify such verdict. Upon this pure question of fact, a reading of the entire testimony in the case does not permit us to say there was not evidence from wh...
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This action was brought to recover on account of damages to an automobile and on account of *23personal injuries to the plaintiff resulting from a collision between an automobile driven by the plaintiff and a street car operated by the defendant. The trial to the court and a jury, resulted in a verdict and judgment for the plaintiff for one thousand dollars. The defendant has appealed. The appella...
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— The appellant John T. Gonlette, then a married man, arrived in Seattle in 1876, and soon thereafter acquired four lots in that city. Some time later Mrs. Goulette died, leaving surviving her the appellant and six children. She made no will and her estate was never probated. In 1905, the appellant, Goulette, married the respondent, who, in 1915, began an action of divorce against him, which actio...
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— On April 27, 1918, appellant as lessor entered into a written lease with respondent as lessee by which he demised a certain store building in the city of Centralia, for the term of one year, at a monthly rental of fifteen dollars. The lease contained the following provisions: “It is understood and agreed by the parties to this lease that the lessee is granted the right and privilege at the end o...
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— The defendant appeals from a conviction of rape. The first error assigned is that the court should have granted his motion for a change of venue on the ground of local prejudice. This is a matter which the court determined upon a showing both in support of the change and in opposition thereto, and we find nothing in the record to justify a conclusion other than that arrived at by the trial court...
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— From a conviction for forgery, Marie McDonald appeals, claiming, first, that the information upon which she was tried charged more than one crime.' This contention seems to be answered by the cases of State v. Newton, 29 Wash. 373, 70 Pac. 31; State v. McBride, 72 Wash. 390, 130 Pac. 486, where it was held that an information for forgery was not bad for duplicity, where the acts charged were of ...
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— On January 5, 1920, the superior court of Spokane county, in an action against several defendants, the appellant here not being one of them, made a decree enjoining the defendants “and all others not now known whose names and identity may hereafter be disclosed from associating, confederating, affiliating and acting in concert with said named defendants”, from continuing as members of the I. W. ...
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— Relators are applying for a writ of review of an order of necessity made in a condemnation proceeding. They are the owners of lands in Kittitas county, irrigated by a ditch some 3,678 feet in length, known as the Lund ditch, which crosses relators’ land. Richards owns lands adjoining the relators’ land, some of which is irrigated by a ditch known as the Richards’ ditch, which starts at a common ...
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— This is an action to recover damages for an alleged breach of a written contract for the purchase and sale of lath. From a judgment denying recovery, the plaintiff appeals. The principal controversy is over the construction to be placed upon the contract, which reads as follows: Purchase Order NORTHUP-HAGE LUMBER COMPANY Pacific Coast Timbers, Lumber, Lath and Shingles 525-526 Henry Building Sea...
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This is a proceeding in certiorari instituted in the district court of appeal of the first appellate district, division two. The writ was there issued, and after hearing judgment was given vacating an order of the superior court which affirmed a judgment of the police court. On application of the respondents the judgment of the district court of appeal was vacated by this court and a hearing order...
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This is a proceeding in certiorari, and it is sought therein to annul the order of the superior court affirming on appeal thereto a judgment of a justice's court. *Page 145 In so far as the superior court is concerned, the material questions herein involved are the same in all respects as those involved in Roberts v. Police Court and Superior Court, ante, p. 65, [195 P. 1053]. (See in addition to...
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This appeal is from a judgment of the superior court of Fresno County which revoked, vacated, and set aside letters of guardianship upon the person of Clarence Santos, a minor. The said minor, an infant about three years of age, is the youngest of six children – brothers and sisters – orphaned by the death of their mother and father in the month of December, 1918. By the terms of the last will and...
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This is an action to foreclose an assessment for the improvement of a street in Oakland. The only defense interposed is that the work was not completed within the time limited in the contract. The court found that the work had not been completed within such time and therefore held the assessment void. The case was appealed to this court and transferred to the district court of appeal (first distri...
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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 135 This is an application for a writ of mandate and prohibition against the judge of the superior court, county clerk, and sheriff of the county of Mendocino to secure the petitioner in the execution of a writ of assistance to place him in possession of cert...
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This is an appeal from a judgment in favor of the plaintiffs in actions brought by them to recover damages for injuries which they each received in a collision between the automobile of which they were occupants and a motor-bus operated by one of the defendant's employees. Each of said plaintiffs commenced a separate action against the defendant, but by agreement and order of the court the two act...
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The action was brought to quiet title to an irregular piece of land containing about twenty acres. It is described in the complaint and findings by metes and bounds, the southern boundary of which as "the quarter-section line running easterly and westerly through the center of sections 13 and 14, township 5 north, range 5 *Page 777 east, M. D. M." The strip in question is represented by the color...
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This action was brought by A.D. and K.J. Kersey, grantees of lessor, against the Southwestern Oil Company, assignee of lessee, to cancel oil and gas lease. As grounds for cancellation plaintiffs pleaded failure on the part of defendant to properly develop the premises for oil and gas purposes in accordance with the provisions of the lease. Defendant answered that the terms of the lease had been co...
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At the close of plaintiff's evidence, defendant's motion for a nonsuit was granted, and from the judgment entered thereon plaintiffs have appealed. Plaintiffs are heirs of C. M. Carpenter, deceased, who died from injuries alleged to have been sustained as a result of defendant's negligent operation of a railway passenger train which collided with an automobile in which deceased was at the time tra...
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This action was brought by plaintiff to recover the sum of $175,000 for false imprisonment. Demurrers by the various defendants were interposed to plaintiff's second amended complaint, which were sustained without leave to amend, and judgment of dismissal followed. The present appeal is from such judgment. Plaintiff appeared in the court below and does here inpropria persona. It is manifest that h...
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The petition in this matter is presented by a friend of Irene Shepard, and alleges that the latter is held under quarantine and isolation by the respondent, Dr. Alex M. Lesem, but that she is not afflicted with any disease quarantinable or isolable under the law. It is further alleged that the respondent has no information of the existence in Mrs. Shepard "of such diseases as may . . . be made the...
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OPINION OF THE COURT. On November 11, 1916, T. Lonnie Hite was indebted to the firm of Harrison & Dunn in the sum of approximately $40,000, which was represented by a note, secured by a chattel mortgage on cattle, owned by the said T. Lonnie Hite. The note and mortgage had been running for some time, and had been hypothecated by Harrison & Dunn with a bank in Kansas City, Mo. T. Lonnie Hite had b...
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On November 12, 1917, an information was filed in the district court, charging that appellant on or about the fifth day of October, 1916, wilfully and unlawfully transported intoxicating liquors into a prohibition district of the state. Appellant entered a plea of not guilty, and upon the trial was convicted. He has appealed from the judgment. The crime charged by the information is in this state ...
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The Southwestern Surety Insurance Company instituted this action in the district court of Seminole county against the plaintiffs in error to recover the *Page 281 sum of $1,600, and interest and attorneys fees, upon a promissory note. The defendant James Roberts filed his separate answer, in which he admitted the execution of the note, and pleaded that he had made certain payments thereon for whi...
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This is an appeal from the district court of Kay county, Hon. W.M. Bowles, Judge. This was an action on a promissory note commenced by the plaintiff on November 26, 1916, to recover from the defendants the sum of $2,000 and interest, with a copy of the note attached to plaintiff's petition. On January 9, 1917, the defendants filed their answer and cross-petition, and on April 5, 1917, filed an ame...
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This action was instituted by the defendant in error (plaintiff below) in the district court of Jackson county against the plaintiff in error (defendant below) for the recovery of the penalty for usurious interest, under section 1005, Rev. Laws 1910, alleged to have been paid by him to the plaintiff in error. Hereafter, for convenience, the parties will be designated as they appear in the court be...
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On the 19th day of October, 1918, Cornelius D. Freels, plaintiff in error, hereinafter referred to as the defendant, was informed against in the district court of Muskogee county for the murder of Jacob William Shoults in the city of Muskogee on the 24th day of September, 1918. Upon trial a verdict was rendered against the defendant for manslaughter in the first degree on November 23, 1918, and th...
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delivered the opinion of the court. The plaintiffs in error, as widow and minor children of *474Joseph Carroll, filed a claim for compensation with the Industrial Commission under the Workmen’s Compensation Act. Joseph Carroll died while an employe and working as such. The plaintiffs in error filed their claim as his dependents. After a hearing, the Commission found, as a conclusion based upon the...
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delivered the opinion of the court. This case is brought here under the statute to review *555the order of the Public Utilities Commission as to telephone rates in Fort Collins. The City of Fort Collins, after the passage of the Home Rule Amendment in 1912, S. L. 1913, p. 669, adopted a charter which gives that city control of the rates to be charged by public utilities within its limits. A contro...
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delivered the opinion of the court. The defendants in error, in their own right, and as assignees of four miners, brought suit against plaintiff in error to recover certain wages alleged to be due to the various parties, all of whom had been employed by The Bald Mountain Mines Company. Said company had a bond and lease on a mining property in Summit County, of which property the plaintiff in error...
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By the Court, W. C. Pitt, John G. Taylor, and Peter Anker, with thirty-five other persons and corporations, on behalf of themselves and all others, claiming a vested property right to the use of water from the Humboldt River *424stream-system, brought their suit in the district court of Humboldt County against J. G. Scrugham, as state engineer, seeking judgment and decree of the court: (a) That t...
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W. H. James, Jr., a Democrat, and J. H. Stern, a Republican, were rival candidates for the office of sheriff of Ormsby County at the general election in November, 1920. There were no other candidates for said office at said election. Upon the official returns, as canvassed by the board of county commissioners of said Ormsby County, Stern had a majority of one vote, and he was declared elected by s...
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delivered the opinion of the court. Certain questions arising out of this litigation have been determined by this court heretofore. (State ex rel. Smotherman v. District Court, 50 Mont. 119, 145 Pac. 724; State ex rel. Smotherman v. District Court, 51 Mont. 495, 153 Pac. 1019.) The 'action is for damages for trespass. Due service of process was made, but defendant suffered his default to be entere...
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delivered the opinion of the court. Plaintiff brought action against defendant for recovery upon a life insurance policy issued by defendant to John M. Harrington, now deceased. On May 23, 1913, insured made application to defendant for insurance policy, passed satisfactory examination, and policy was issued payable to his wife as beneficiary, plaintiff in this action. One James Cotter, who took t...
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delivered the opinion of the court. This action was brought for recovery of damages caused by the alleged wrongful killing of a Holstein heifer. Judgment was rendered in favor of plaintiffs. Appeal was taken from the judgment, and from order overruling motion for a new trial. The only questions presented upon these appeals are those [1] involving the admissibility of evidence. It appears that the ...
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Plaintiff, a resident and taxpayer of defendant city, seeks a writ prohibiting said city and the other defendants, commissioners of Salt Lake City, from issuing and offering for sale, or selling, certain negotiable bonds authorized by a resolution of the commissioners of said city. From the affidavit for the wait,, together with the exhibits made a part thereof, the following facts appear The defe...
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The case is submitted upon an agreed statement of facts summarized as follows: In„ May, 1919, Ollie E. Lister received injuries through the negligence of the Phelps-Dodge Corporation from which he died. Mabron Lister was appointed administrator of his estate, which consisted of a claim for damages against said corporation. The claim was settled, and the sum in the hands of the administrator, being...
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1, 2. The motion for a nonsuit and one for a directed verdict raise the same question. It is contended by counsel for defendants that at the time of the injury plaintiff was acting outside of the scope of his employment and that defendants’ request should have been granted. This is claimed on account of the fact that immediately before the accident plaintiff went across the street to mail his lett...
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1, 2. The facts are peculiar. Plaintiff’s judgment in the Circuit Court is based upon the promissory note which it held against Lambert. In an effort to collect its claim against him, a garnishee notice was served upon Kittie M. Stark personally, and as .executrix of her deceased husband. In response to the notice she made answer to the effect that she did not have any property belonging to Lamber...
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