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Opinions in p Volume 223

The relator is seeking in this court a writ of certiorari to review an order of the superior court of Snohomish county in its cause No. 21888, denying a temporary injunction. It appears that the county commissioners of Snohomish county heretofore entered an order closing certain roads in that county, the material part of that order being as follows: “Whereas, it appears to the board of county comm...
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The purpose of this action was to recover for the breach of an alleged express warranty in the sale of a second-hand donkey engine and boiler. The trial resulted in a judgment dismissing the action, from which the plaintiffs appeal. The respondent, the Markey Machinery Company, is engaged in the machinery business in Seattle. The appellant Yakima Paving Company is engaged in road building in the e...
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Certiorari to review an order of necessity made by the superior court of Walla Walla county in an action begun by the state to condemn a *461right of way for a highway into Walla Walla from the west, to become a part of the Inland Empire highway. The state is seeking to condemn property for the purpose of changing the route of the Inland Empire highway from the limits of the city of Walla Walla to...
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This is a suit for the reduction of taxes on plaintiff’s property for the years 1919 and 1920. Prior to the year 1919, the Spokane & Inland Empire Railroad Company owned an electric railway system, one branch of which runs easterly from Spokane into Idaho, and another branch runs southerly from that city through Whitman county, thence into Idaho. It became insolvent in 1918 and was placed in the h...
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The defendant has twice been convicted on the charge of murder. On his appeal from the first conviction we reversed the sentence and directed a new trial. State v. Adamo, 120 Wash. 268, 207 Pac. 7. At a second trial he was again convicted, and has again appealed. Sufficient of the facts necessary to the consideration of the questions now raised may be found in our previous opinion. The first assig...
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In this action the appellant, Hans ft. Jacobson, sought to recover a judgment against the defendant, Chee Lumber Company, and to have the judgment declared a lien and foreclosed as such on certain described real property the legal title to which stands in the name of the respondent, Clark & Wilson Lumber Company. The Chee Lumber Company defaulted. The Clark & Wilson Lumber Company answered, in whi...
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Both parties to this action have appealed from the judgment below, and for convenience they will be referred to throughout as plaintiffs and defendant, except as reference to some individual plaintiff may be necessary. John W. Olmstead was an employee of the Henry McCleary Company, a corporation, engaged in the lumber and timber business, and in 1901 or 1902, by the investment of accumulations amo...
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delivered the opinion of the court. This case was heretofore in this Court by a .writ of error, prosecuted by the present defendant in error against the present plaintiffs in error. The opinion reversing the judgment then under consideration, is reported under the title Wahl v. Larsen, et al., 70 Colo. 274, 201 Pac. 48. The plaintiff Wahl brought the action in the district court, as stated in the ...
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delivered the opinion of the court. *486This action is by a shareholder against the Sterling National Bank and its receiver, in possession of its assets after insolvency, to establish, as a preferred claim, ahead of. general creditors, the amount of money paid by him under an illegal assessment, levied by its board of directors, to make good an impairment of the bank’s capital, or to replace worth...
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delivered the .opinion of the court. For a full statement of the facts of this case reference is made to Gillett, Receiver, etc. v. Moore, 74 Colo. 484, 223 Pac. 21. The only difference between that case and this is that in the Moore Case the promissory note, which he gave for the invalid assessment on his shares, was paid by him to the bank before the receiver was appointed, while in this case th...
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delivered the opinion of the court. This is an application for supersedeas in an action of divorce wherein the wife obtained a decree. The only assignments of error are that the findings of the court are contrary to law and not supported by the evidence. There is no bill of exceptions in the record and we do not know what number of witnesses testified or upon what evidence the court based its find...
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delivered the opinion of the court. Under an accident insurance policy, in the principal sum *516of §10,'000, issued to him by the defendant company, the plaintiff recovered §7,575.00 for injuries sustained as the result of an accidental gunshot wound of his foot which necessitated dismemberment above the ankle joint. The defendant does not deny liability, but says that it is not liable for the su...
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delivered the opinion of the court. This is a controversy between successive mortgagees of the same property by the same mortgagor. Each mortgagee is claiming a right, prior to that of the other, to the proceeds of a crop of wheat, the mortgaged property, amounting to $409.99. The first mortgagee is the J. I. Case Threshing Machine Company. It holds two mortgages. On August 21, 1920, it sold certa...
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delivered the opinion of the court. Plaintiff in error brought this action against defendant in error for a mandatory injunction to compel it to open and keep open the channel of a natural stream on which it had built a storage reservoir, and for damages already sustained by plaintiff, arising from defendant’s failure in that particular. The cause was tried to the court and the findings were for d...
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delivered the opinion of the court. *525The plaintiff and the defendant entered into a written contract, for the term of one year, whereby the plaintiff was to turn over to the defendant for collection and remittance various notes and accounts. For collecting them the plaintiff was to allow and pay the defendant “ten per cent on all collections and settlement's made without legal process on claims...
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delivered the opinion of the court. Plaintiff in error, hereinafter called defendant, was convicted on both counts of an information, one charging rape, and the other the crime against nature. The information, in the first count, charged defendant with an assault on, and with having carnal knowledge of, one Mrs. Thomas, forcibly and against her will; she not being the wife of the accused. The seco...
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delivered the opinion of the court. *573November 12, 1923, plaintiffs in error, a copartnership, as claimants, filed in the county court of Garfield county their claim against the estate of Josiah C. Austin, deceased, aggregating about $16,500, represented by three promissory notes executed by the administratrix and bearing date May 19, 1923, payable to claimants 180 days after date, which notes w...
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delivered the opinion of the court. This is an action, for divorce. It was tried in the absence of defendant and his counsel. Findings in favor of *558plaintiff were made and filed. Thereafter defendant’s motion to vacate such findings were overruled. Defendant brings the case here and asks that the writ of error be made a supersedeas. There has been no final judgment entered in this case. The fin...
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delivered the opinion of the court. Defendants in error, plaintiffs below, had judgment against Ginsberg, plaintiff in error, on a directed verdict in an action upon two causes; First, for rent on a lease; second, for violation of a covenant to keep the premises and surrender same in good order. There were four defenses: (1) Denial of breaches. (2) Termination of the lease by mutual agreement. (3)...
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delivered the opinion of the court. This case is before us on error to a judgment approving the report of the commissioners in a proceeding to condemn a right of way across the lands of the plaintiff in error for an electric transmission line of the defendant in error. Several objections were urged to the report of the commissioners and the court’s overruling of them is here assigned as error. The...
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delivered the opinion of the court. Suit brought to recover a commission for the sale of real estate. The defendant in error, Shipley, as plaintiff in the court below, and so designated here, had judgment, and plaintiff in error, defendant in the court below, and here so designated, brings the case here for review, and asks for a supersedeas. The suit wfas instituted by Shipley & Forcum, as a co-p...
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delivered the opinion of the court. Dependant was informed against for robbery with a gun which, under section 6718, C. L. 1921, passed in that year, is visited with a penalty of imprisonment in the penitentiary for life, or for a term of not less than ten years. The defendant, who at the time of sentence was eighteen years of age, was sent to the penitentiary for a period of not less than ten, no...
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delivered the opinion of the court. Schuber, plaintiff below, had judgment against Jennie E. Allison for $500. She brings error. The complaint, which was filed July 29, 1921, was in-the ordinary simple form for money had and received. The answer was a general denial. The evidence showed that on the 19th of July, 1920, the plaintiff gave defendant $500, and she gave him a contract in writing which ...
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delivered the opinion of the court. Edward Chase died September 27, 1921, testate. In his will defendant'in error (hereinafter referred to as plaintiff) and Frances Minerva Chase (hereinafter referred to as defendant) were named as executrices and were duly-appointed by the court as such .October 3, 1921. They filed their final report January 23, 1923. On June 14, 1923, plaintiff filed in the coun...
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delivered the opinion of the court. The court below overruled a demurrer to the further and separate answer of defendant Tolbert to plaintiff’s bill of interpleader, the plaintiff stood by the demurrer, and, upon judgment against him, brings error. There is no brief nor appearance for any defendant in error. The plaintiff was engaged in constructing a road under contract with the state highway dep...
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delivered the opinion of the court. Broughton, plaintiif below, had judgment against Skid-more on a promissory note, and the latter brings error. The defendant pleaded one defense, a counterclaim for damages for fraudulent representations by plaintiif as to the character and capacity of a certain tractor and plow for which the note was part payment. The representations set up in the counterclaim w...
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delivered the opinion of the court. This is an action brought by Alice L. Goodwin against The Holy Cross Gold Mining & Milling Company, to re*533cover upon an alleged contract, by the terms of which the company acknowledged itself indebted to her in the sum of $11,000, and agreed to pay the same. The trial court directed a verdict for plaintiff and defendant brings the cause here for review. It is...
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delivered the opinion of the court. Plaintiff in error was convicted of obtaining money under false pretenses, and brings error. The indictment alleged that the accused was the manager, operator and controller of a certain oil syndicate, designated as Texo Oil Syndicate No. 2; and that on or about the 20th day of January, 1920, he, with intent to defraud one Stockover, did, knowingly “unlawfully, ...
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delivered the opinion of the court. *512The plaintiff Younker sold to one Kimball a saw mill and equipment and personal property used in its operation. As part consideration of the purchase price, Kimball gave to plaintiff his promissory note- for $2,000, and assumed the payment of $275.00 which plaintiff had theretofore personally become liable for, arising out of a horse deal that he had made fo...
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Petitioner seeks a writ of habeas corpus upon the ground that he is detained under a judgment of a justice's court of Visalia township, county of Tulare, state of California, adjudging him guilty upon three counts of a complaint charging him with a violation of the Wright Act (Stats. 1921, p. 79). The first count charged him with the possession of intoxicating liquor, the second with transporting ...
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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 41 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 42 Each of the defendants appeals separately herein from a judgment of conviction upon a verdict of guilty against ...
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This is a petition for a writ of mandate to compel the settlement of a transcript under section 953a of the Code of Civil Procedure. The failure of respondent to certify the transcript in this case is based upon the proposition that the notice to prepare a record under the provisions of section 953a of the Code of Civil Procedure was given after judgment and before the decision of the trial cou...
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Certiorari. The purpose of this proceeding is to review the action of the superior court in a case appealed thereto from the justice's court. From a judgment rendered in a cause of action for damages arising out of a collision between two automobiles, the unsuccessful party to the action appealed to the superior court. In the course of the trial before a jury in the superior court, it was stipulat...
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This is an appeal by the contestants in a contest of a will where the proceeding was commenced after the will had been admitted to probate. George A. Moore was married twice. By his first wife he had several children – George J., Herbert B., Harry T., Mary F., and Jane W. By his second wife, Mary Ellen, he had no children. *Page 30 George A. Moore died testate in the year 1916, and by the terms o...
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This is an appeal by the plaintiff from a judgment against him in an action in which he sought to have a trust declared upon certain real property in Marin County, California. The legal title to said property was vested in the defendant, who is the mother of the plaintiff. Plaintiff alleged that prior to April 27, 1909, he was the owner of said real property and that on that date he deeded the sam...
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The defendant was convicted upon an information charging him with the crime of obtaining money by false pretenses made with an intent to defraud. He appeals from the judgment of conviction and the order of the trial court refusing his motion for a new trial. The appellant assigns as error the admission of evidence showing that the bail bond of defendant had been declared forfeited by the court ...
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Action to recover damages for breach of contract in the sale of four carloads of Zinfandel grapes. *99 The grapes were purchased by the plaintiff from the defendant Wood through defendant Ely as a broker acting for Wood. The purchase price was forty-five dollars per ton, which was paid at the time the cars were loaded by Wood at stations near Modesto, in Stanislaus County. Two ears...
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This is an appeal by the defendants from a judgment entered against both of them for damages arising out of personal injuries to the plaintiff Josephine Farrar and for damages to the property of plaintiff J. C. Farrar, her husband. The facts of the ease are that the two plaintiffs were riding in an automobile owned and operated by plaintiff J. C. Farrar upon one of the public highways in the co...
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This is an action by plaintiff to recover the sum of $1,600 on an automobile fire insurance policy. Plaintiff had judgment and the defendant appeals. [1] The only question presented for consideration upon this appeal is whether the plaintiff had an insurable interest in the automobile covered by the policy issued by the defendant at the time of its destruction by fire. It appears that some time pr...
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The board of school trustees of Clearwater School District caused notice to be given that an election would be held therein for the purpose of voting upon the question as to whether or not said district should issue and sell bonds to the amount of forty-five thousand dollars, as a means of "raising money for purchasing school lots, for building one or more school buildings, for making alterations ...
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This is an appeal from a judgment against plaintiffs upon sustaining a demurrer to their third amended complaint. The action was commenced by the filing of the complaint on January 8, 1914, and after the demurrers to the complaint and to three amended complaints were sustained judgment was entered on the last demurrer September 30, 1915. The amended complaint contains fifty-four separate causes of...
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This is an appeal by the defendants from a judgment against them for the sum of two thousand six hundred dollars, damages for personal injuries sustained by plaintiff, who was struck by an automobile owned by the defendant Bouchet and operated by defendant Joseph H. Meiss. The only issue upon the appeal is as to the contributory negligence of the plaintiff, appellants contending that under the fac...
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The plaintiff had judgment and the defendants appeal. The complaint alleges: "That for more than forty years last past continuously, the predecessors in interest of plaintiff and this plaintiff have been and are now the owners and *Page 55 entitled to the possession of an easement which is annexed and appurtenant to the lands of plaintiff of a road leading from the said lands of plaintiff across ...
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This is a proceeding to review and annul an order of the Superior Court of the City and County of San Francisco directing the issuance of a warrant of attachment to answer for contempt in disobedience of a subpoena duly served. Petitioner, together with several corporations, is defendant in two actions brought by his wife, Una Margaret Locke Paddon, to secure a divorce from him; also to set aside ...
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The questions presented in the above-entitled proceeding are the same as those involved in proceeding numbered 4790 of the same title, this day decided. Upon the authority of that case we are of the opinion that the proceedings had in the court below, in the action entitled Una Margaret Locke Paddon,Plaintiff, v. William Locke Paddon et als., Defendants, which said action is numbered 128432, ante,...
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The plaintiffs sought partition of the real property involved in this action, alleging that they and the defendant E. E. Hewlett, trustee for Edward Perrin, Jr., and Edward Perrin, Jr., individually, were the owners and in possession as tenants in common of said property; that prior to the commencement of the action one J. C. Anderson had a mortgage thereon, given him by a common grantor of all th...
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OPINION OP THE COURT. On March 22, 1919, tbe petitioner entered a plea of guilty to an information tberteofore filed in the district court of Colfax county, charging him with the unlawful sale of intoxicating liquor, and was thereupon sentenced to paying a fine of $500 with costs of court and to serve a term of four months in the county jail of that county. In the judgment, the jail sentence was s...
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OINION OF THE COURT. In August and September, 1920, the plaintiff, appellee here, was the owner of a herd of cattle in Socorro county, and the defendants, appellants here, were the owners of a flock of goats in Otero county, said goats then being intermingled with goats of other owners, among them being one Boyles, who was running defendants' goats on the shares, he to get half the mohair and half...
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delivered tbe opinion of tbe court. On tbe nineteenth day of October, 1923, one Doris appeared before Honorable William E. Carroll, one of tbe judges of tbe district court of Silver Bow county, and made complaint and affidavit that be bad just and probable cause to believe, and did believe, that intoxicating liquor was then unlawfully being manufactured, kept for sale, used and disposed of in tbe ...
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delivered the opinion of the court. The plaintiff and Roy M. and W. Baxter Morton in the spring of 1917 were copartners engaged in general farming in Fergus county, under the firm name of Morton & Harri. On April 13, 1917, the defendant opened an account with the copartnership in which were charged against it items for seed, farm implements and other supplies sold by defendant. On *151•June 1 the ...
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delivered the opinion of the court. This action was brought by the plaintiffs to recover for damages to an automobile under a policy of insurance containing the following provisions: “In consideration of an additional premium of $22 this policy also covers # * * damage to the automobile * * * by being in accidental collision during the period insured with any other automobile, vehicle or object. *...
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delivered the opinion of the court. The complaint filed herein states a cause of action for the foreclosure of a chattel mortgage which was executed by the *537defendant on certain horses, described therein, as security for the payment of defendant’s promissory note for the principal sum of $746, dated May 14, 1921, payable six months after date, with interest at the rate of ten per cent per annum...
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— This appeal is prosecuted by the Southern Pacific Company, a corporation, for the purpose of obtaining from this court a review of a judgment of the superior court of Yuma county awarding damages in the sum of $865 to the plaintiff, Foster Boyce, for personal injuries alleged to have been received by him on the twenty-second day of January, 1922, as a result of his being ejected from one of defe...
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Opinion by This action involves title to 120 acres of land, the surplus allotment of Tom Scott, a Creek freedman, who died intestate December 7, 1907. June 29, 1904, Tom Scott conveyed by warranty deed to U. S. Thompson, Wm. Thompson, and S. P. Baker for a consideration of $630 and they went into possession, open and notorious, and so continued until the 10th day of April, 1906, when they...
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This was an action commenced by the defendant in error, Ora Luse, against the defendants George S. Parker and Alf Reed, in the district court of Woods county, Okla., on May 15, 1919, wherein the plaintiff asks that defendants be enjoined from molesting his cattle, and for damages in the sum of $490; alleging in his petition that on or about the 5th day of May, 1919, the defendants wrongfully took ...
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This action was brought by T.S. DeArman, defendant in error, hereafter called plaintiff against S.B. Meese, plaintiff in error, hereafter called defendant, in the county court of Greer county, Okla., on a note secured by a chattel mortgage. The defendant files his answer unverified, and the only relief asked was that the mortgage be not foreclosed until a certain suit of S.B. Meese against T.S. De...
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This cause of action was commenced in the district court of Payne county, Okla., by plaintiff in error, as plaintiff, against the defendants in error, as defendants, to recover from the city of Yale damages as a result of changing the grade of certain streets, which had been previously established adjacent to the plaintiff's property in the city of Yale, said *Page 36 change in grade being occasi...
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In this case Dewey F. Reeder, as plaintiff, filed his petition in the district court of Kingfisher county against Joseph Franks, as defendant, for the recovery of monies due the plaintiff by defendant for services rendered by plaintiff as a farm hand upon defendant's farm. In his second cause of action, he says: "The plaintiff alleges that on the 1st day of August, 1920, he commenced work for defe...
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As presented in the brief of defendant, only two contentions are made in this court, as follows: First, that the trial court erroneously admitted certain testimony over the objections and exceptions of defendant. Second, that there is a variance between the allegations and the proof on the part of plaintiff, and that the evidence is therefore insufficient to support the verdict and judgment. Under...
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The plaintiff commenced its action against the defendant in the district court for possession of one automobile truck for the purpose of foreclosing a chattel mortgage then owned *Page 140 and held by plaintiff. The plaintiff took possession of the truck under a writ of replevin and sold the property before the trial of the cause, under the notice ordinarily given in a foreclosure of personal pro...
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This cause of action was commenced in the district court of Garfield county by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover $2,500 alleged to have been due under the terms and conditions of an automobile theft insurance policy. It appears that on December 24, 1920, the defendant issued to plaintiff an automobile theft insurance policy on a St...
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This suit was instituted by the plaintiff in error against the defendants in error for the recovery of 40 acres of land. The trial court sustained a general demurrer to plaintiff's petition, and, the plaintiff having elected to stand upon his petition, the same was dismissed, and from the judgment so rendered the plaintiff in error has appealed. The parties will hereinafter be referred to as they ...
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Preliminary to a discussion of the errors assigned in the petition in error, it is necessary to dispose of a motion filed herein by plaintiff to dismiss this appeal for the reason that defendants failed to assign as error in their petition in error the overruling of their motion for new trial. By chapter 34, Sess. Laws 1923, it is provided that such assignment of error shall be no longer required ...
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Opinion by This proceeding grew out of a suit filed in the justice of the peace court in Cleveland county. An examination of the record discloses that plaintiff in error Ben F. Williams filed a suit in the justice of the peace court of J. D. Grigsby, a justice of the peace in and for Cleveland county, against Mrs. S. O. Ross, Bruce M. Brady, Mrs. Bruce M. Brady, and Homer Sellers on an account ...
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Cindy Harrison, a duly enrolled citizen of the Seminole Nation of three-quarters Indian blood, died on August 11, 1918. On September 10, 1918, her heirs at law, some of whom were full-bleed Indian citizens, made, executed, and delivered a conveyance of the interest inherited by them, and this conveyance was thereafter duly approved by the county court of Seminole county, under the provisions of th...
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This action was commenced by the plaintiff in error to enjoin the issuance of bonds of union, graded school district No. 64, Caddo county, Okla., which were voted at an election held in August, 1922, for the purpose of building a schoolhouse for the union graded school district No. 64. It is the contention of the plaintiff in error that the bonds voted at this election are illegal for the reason t...
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This was an action in replevin filed in the district court of Craig county, wherein the defendant in error, plaintiff below, sought to recover possession of a certain number of bushels of cats from the plaintiffs in error, defendant below; the oats representing one-third of the crop of oats raised on 80 acres of land theretofore owned by Inez Weaver. For convenience the *Page 238 parties hereto w...
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On the 4th day of February, 1914, the plaintiff and her husband, Frank Pierson, were the owners of the real estate herein involved, and on the date in question, by instrument in form of general warranty deed, conveyed the premises to Joseph Kinch. Thereafter, both Frank Pierson and Joseph Kinch died. On March 14, 1922, Polly Pierson, as the widow and heir of Frank Pierson, *Page 110 deceased, com...
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This case was tried in the district court of Beaver county on the 28th day of September, 1920. An appeal was perfected by filing a petition in error with case-made attached in this court on the 2nd day of March, 1921. On the 1st day of August, 1923, the plaintiff in error filed his brief in this court. The appearance docket shows due service upon the attorney for the defendants in error on the 1st...
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The defendant in error brought this suit against the plaintiff in error on certain promissory notes which had been executed to R.L. Williams, and assigned by him to J.B. Thompson. The plaintiff in error filed an answer alleging an offset on account of certain advertising published in his newspaper and for which R.L. Williams and J.B. Thompson agreed to pay. Upon a trial of the case, the court dire...
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June 22, 1918, Julia Augusta Dutton was divorced from her husband, W. Forrest Dutton. The decree of divorce contained the following recital: "The court further finds that the said plaintiff and defendant have entered into a contract providing for the adjustment of the property rights between said plaintiff and defendant, said contract being dated June 21st, 1918, whereby said defendant transferred...
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Appellant instituted this action against respondents, asking that respondents be enjoined from issuing certain warrants and creating a certain indebtedness for the construction of a water filtration plant for the city of Kelso. The trial court entered an order denying the injunction, from which this appeal is taken. The state board of health has directed the discontinuance of the use of the water ...
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Opinion by It appears that both parties ' to this action had been engaged in the sale and handling of real estate on commission. S- C. Axtell alleges a customer came to his office for the purpose of purchasing a home. The plaintiff did not have suitable property and he took the proposed purchaser to the office of the defendant with the view of making an arrangement to sell the proposed purchase...
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This action was commenced by defendant in error against Mary S. Smith and W.S. Smith upon an account for lumber and building material furnished by the plaintiff in error and used in the construction of a garage on the property owned by Mary S. Smith, and for a foreclosure of materialman's lien upon said property. Judgment was rendered by default against defendant W.S. Smith for the full amount sue...
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Elizabeth Miller recovered a judgment for $500 for personal injuries suffered in a collision between a buggy in which she was riding and an automobile driven by Samuel Novak. A number of errors are assigned, but are presented under two proposition, which may be briefly stated as follows: (1) The evidence was not sufficient to go to the jury on the question of the injuries and sufferings of which p...
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P.W. Richardson died intestate, February 22, 1922, seized of an undivided one-half interest in 80 acres of land in Garvin county. He left surviving him, his wife, F.E. Richardson, and eight children. Before his death, he and his wife had executed all oil and gas lease on said lands, development had been had thereon and two or three gas wells had been brought in, and a producing oil well was brough...
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This is an appeal from the district court of Okmulgee county, Okla., and involves the question of superiority as between a mortgage lien and a materialman's lien. On the 3rd day of April, 1920, the owners of a certain oil and gas lease, in order to develop the same in a more expedient and economical manner, appointed L.E. Cooper trustee, who proceeded with the development of the lease in accordanc...
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Melinda Sockey et al. commenced a proceeding in the county court of LeFlore county against Fannie James et al., including Charles Sutter, the plaintiff in error here, for the determination of heirship of one Winnie Willis, deceased. Decree determining heirship of the said Winnie Willis, deceased, was entered by the county court. Charles Sutter, one of the defendants, feeling aggrieved by the judgm...
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This action was commenced in the district court of Oklahoma county, Okla., by the defendant in error, plaintiff below, against the plaintiffs in error, E. B. Hackley, Edna Hackley, and W. H. Williams, to recover judgment against the defendants upon a promissory note executed by them and to foreclose a real estate mortgage securing same. It appears that on April 26, 1922, the defendants executed...
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The record discloses that on August 21, 1920, L.F. Bishoff and Georgia A. Bishoff were the owners of certain real estate in the city of Cushing, Okla., and on that date L.F. Bishoff entered into a written contract with the defendant, Belle M. Myers, to sell the same to her. She paid $600 on the purchase price and agreed to pay $4,400 on November 21, 1920, which she failed to do. It further appears...
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Clara Showalter was appointed guardian of Georgia Valliere, now Hampton, by the probate court of Ottawa county, Okla., in the year 1915. Said guardian and her ward are members of the Quapaw Tribe of Indians. Clara Showalter, on the date of her appointment as guardian, was an unrestricted Indian, having been declared competent to attend to her business affairs by the Secretary of the Interior. Geor...
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The parties will be designated as in the court below. The plaintiff in the court below conducted negotiations with Lena Ward for the purpose of obtaining an oil and gas mining lease on her land. An escrow agreement was entered into for the taking of such lease, and while this transaction was pending a second oil and gas mining lease was made by Lena Ward to Hicks and assigned to Goble. The defenda...
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The First National Bank of Altus commenced this action in the district court of Jackson county against the Baker Cotton Oil Company to recover possession of eight bales of cotton on which it is alleged the bank held a first mortgage. The defendant Baker Cotton Oil Company denied generally the allegations of plaintiff's petition, and alleged it had purchased the cotton from John T. Hays, who repres...
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On the 8th day of February, 1915, Gertie Schultz instituted suit against Frederick C. Tanner in the district court of Harper county, state of Oklahoma, No. 902, to cancel a certain deed of conveyance to lands in Harper county occupied by the defendant, Frederick C. Tanner, plaintiff alleging that the deed under which the defendant held the property was a forgery, and asking that same be canceled. ...
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Ben H. Ash, plaintiff, instituted this action in the district court of Oklahoma county against Chus. F. Noble Oil Gas Company, a corporation, defendant, to recover damages for alleged breach of contract. The cause was tried to a jury on the 6th day of January, 1923, and a verdict returned in favor of the plaintiff in the sum of $15,000. Plaintiff Sled a motion for a new trial, which was by tile c...
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Plaintiffs maintained a garage in connection with their sales agency for the Willys-Knight automobile in Tulsa, and the defendant owned a Willys-Knight car. He left the car with Hobart L. Baugus, the head repair man of the garage connected with Cosden Company's refinery, to be "tuned up." Baugus took the car out on a joy ride and wrecked it. It was towed into plaintiffs' garage and rebuilt. After...
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This action was filed by the plaintiff in error against the M., K. T. Railway Company, a corporation, and Walker D. Hines, Director General of Railroads of the United States of America, to recover damages for the destruction by fire of certain fence posts belonging to the plaintiff in error. The action was dismissed as to Walker D. Hines, Director General, and proceeded to trial against the M. K....
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This suit was instituted by F.B. Conrad against Thad Shipman and wife, Nora Shipman, in the district court of Love county, Okla., to recover the sum of $1,701.35, the price of a lumber bill sold and delivered to Thad Shipman by Carey, Lombard, Young Company of Marietta, Okla., for the purpose of building a home on the lands of his wife, Nora Shipman, who was an Indian citizen, and only 16 years o...
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This action was filed by the plaintiff in error to quiet title to certain real estate in the city of Guthrie. The plaintiff in error alleged that he was the owner of said property under a certain resale tax deed and that the defendants in error were claiming to be the owners of said property. A demurrer was sustained to the evidence of the plaintiff in error and judgment was rendered for the defen...
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This is an appeal from the action of the trial court in issuing a peremptory writ of mandamus, directing the plaintiff in error, respondent below, to issue his proclamation, as mayor of the city of Shawnee, calling a special election in said city for the purpose of submitting to the qualified electors thereof the question of whether or not the charter of said city, and all amendments thereto, shou...
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The information in this case charges the defendants, Charles Keith and Jesse Robinson, with selling intoxicating liquors, to wit, corn whisky, to one John Ran-spot. Upon the trial they were found guilty, and their punishment fixed at confinement for six months in the county jail and a fine of $500 each. From the judgment rendered in pursuance of the verdict, they appeal. The evidence shows or t...
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On April 25, 1922, petitioner filed herein his application for a writ of habeas corpus, alleging that he was unlawfully restrained of his liberty by Austin Park as sheriff of Latimer county, Okla. The specific ground relied upon for the issuance of the writ was that petitioner was unlawfully restrained of his liberty and held for the crime of robbery with bond fixed at the sum of $2,000 by the dis...
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Plaintiff in error, J. P. Williams, was tried for assault and battery upon a complaint charging that he did willfully and unlawfully strike and beat one Laura James with a board. There was a trial by jury, a verdict of guilty, assessing a fine of $25 and a term of 20 days in jail. He has appealed from the judgment entered upon the verdict. *181 The errors assigned question the sufficiency of ...
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This is an appeal from the district court of Johnston county, wherein plaintiff in error, Willie Butler, hereinafter referred to as defendant, was convicted of the crime of grand larceny, and sentenced to serve one year's imprisonment in the state penitentiary. This appeal was attempted to be taken by the filing in this court of a purported case-made, as well as a certified transcript of the recor...
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M.J. (Dick) Newton, plaintiff in error, here designated the defendant, was by information filed January 20, 1921, charged with being in the unlawful possession of intoxicating liquor on January 18, 1921. At the trial, April 30, 1921, by a verdict of the jury he was found guilty, with the punishment fixed at confinement in the county jail for a period of 180 days and a fine of $500. From the judgme...
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The information in this case charges that the defendants Edgar Brewer and J. A. Newcomb, in Tulsa *179 county, on or about June 20, 1921, did steal a Ford touring car model 1921, of tbe value of $600, tbe property of tbe Tulsa-Rent-a-Car-Company. The jury returned verdicts finding each guilty and the punishment fixed at imprisonment in the penitentiary for terms of seven years. They have appeal...
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Plaintiff in error, Lafe Lewellen, was convicted in the county court of Tulsa county on the 28th day of April, 1922, of the offense, of unlawful possession of intoxicating liquor, and punishment fixed at a fine of $500 and imprisonment in the county jail for a period of 90 days. An appeal was attempted to be taken to this court by filing herein on June 21, 1922, a petition in error with case-made...
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This is an appeal from the county court of Oklahoma county, wherein plaintiff in error was convicted for maintaining a liquor nuisance at No. 1407 East Sixth street, in Oklahoma City, Okla., on the 5th day of September, 1921, and his punishment fixed as above stated. The facts are about as follows: The house located at 1407 East Sixth street was a one-story house of five rooms, with a back porc...
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The plaintiff in error was tried for adultery on an information charging that in Caddo county, January 23, 1920 – "Jack Mahseet and Kardsey, then and there being, did then and there commit the crime of adultery, by then and and there intentionally, unlawfully, willfully, and feloniously have voluntary sexual intercourse with each other, the said Jack Mahseet being then and there a married man, and...
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This prosecution was commenced by filing in the county court of Harper county on the 13th day of January, 1922, an information charging the defendant with unlawfully conveying V/z pints of whisky from the town of May, in Harper county, to the town of Laverne, in Harper county. Said crime was alleged to have been committed on the 29th day of December, 1921. A trial was had in January, 1922, resu...
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Arthur Jones was tried for murder upon an information charging that he did, on October 17, 1921, kill and murder one Semp Hudgins.. The jury returned a verdict finding him guilty of murder and assessing his punishment at imprisonment in the penitentiary for life at hard labor. He has appealed from the judgment rendered upon such conviction, but there has been no appearance in his behalf on his ap...
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The information in this case charged that Frank Klein in Custer county, November 13, 1921, did unlawfully and willfully convey and transport about one-half pint of corn whisky from a place unknown to another place described in Custer county. The jury returned a verdict finding him guilty, and assessed his punishment at a fine of $50 and a jail term of 30 days. The reverse the judgment rendered on ...
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The plaintiff in error was tried for cattle theft, upon an information charging that he did March 28, 1921, take, steal, and carry away one bull calf and one heifer calf, the personal property of Hutton Vore. The jury returned a verdict finding him guilty as charged in the information and assessing his punishment at imprisonment in the peniteniary for a term of two years. He has appealed from the ...
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Dan Mara, Earl Stanley, and W.A. Warren were jointly charged by information in the district court of Tulsa county with the crime of burglary in the second degree, alleged to have been committed on the 19th day of January, 1922, by breaking into and entering the store building of one W.R. Jeffries, located in the town of Glenn Pool, Okla., and stealing therefrom certain goods, wares, and merchandis...
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In the information in this case, appellant William Fowler, Holman Jackson, and Walter Miles were charged with manufacturing corn whisky, "by a method of fermentation and distillation from a mixture of cornmeal and other substance unknown to the county attorney but forming a substance commonly called `mash,' containing alcohol as a by-product, by and through and by means of a certain apparatus or p...
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The information in this case charges Bill Herald and Tom Boswell with unlawfully transporting intoxicating liquor. Five of the jurors returned a verdict finding “the defendant Tom Boswell guilty as charged in the information herein, and assess his punishment at $50 fine, 30 days in jail, and recommend the judge to omit the jail sentence.” He has appealed from the judgment rendered on the verdict....
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This is an appeal from a judgment of conviction for maintaining a liquor nuisance on premises located in Oklahoma county, Okla., more particularly described as the southeast quarter of section 18, township 13, range 1 west. Judgment was rendered on March 13, 1922, and punishment fixed at a fine of $500 and six months’ imprisonment in the county jail. Petition in. error and case-made were filed in...
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This is an appeal from a judgment of conviction, rendered in the county court of Cleveland county, wherein the plaintiffs in error were jointly informed against and tried for the unlawful manufacture of intoxicating liquors, and their punishment fixed at a fine of $100 each and confinement for a period of 60 days in the county jail each. The Attorney General has filed a confession of error, based ...
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The first assignment of error urged by counsel is: "The learned trial court erred in excluding competent and relevant testimony offered by the plaintiff in error." Defendant offered Nora (Quinn) Moring as a witness to prove that the deceased came upon the plaintiff in error with a knife at the time of the shooting. The testimony given by said witness is as follows: "Q. How did he open the bottle o...
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H. L. Garner, the plaintiff and respondent, sued the defendant and appellant H. H. Brown for the recovery of damages in the sum of $2945.90 alleged to have been caused to the person and property of plaintiff by the defendant Brown in negligently colliding with plaintiff’s car at the street intersection of Ninth Street and David Street in the city of Casper. The plaintiff recovered judgment for $24...
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The parties will be called plaintiff and defendant as in the district court where the plaintiff obtained a judgment on two causes of action each for damages for the breach of a written contract to sell alfalfa-hay of which the plaintiff was the owner and seller and the defendant the buyer. The trial was held without a jury, and the judgment was on a general finding. The two contracts were substant...
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Tlie facts and contentions in this case are in most respects similar to those in the case of the same plaintiff in error against R. S. 'Worthington, defendant in error, decided this day. What we said in our opinion in the Worthington case expresses our views on several similar contentions! in this ease, and need not be repeated. Only the differences between that case and this in so far as they see...
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The plaintiff in error Worland brought this action in the District Court of Fremont County against Walker D. Hines, Director General of Railroads. Thereafter, by stipulation, the name of the present defendant was substituted to meet the subsequent changes made officially in the office of Direct- or General of Ráilroads. The suit was instituted on account of alleged negligence in failing to unload ...
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— Respondent brought this action to quiet his title to certain land in Washington county that he had bought from one G-. W. P. Hill and his wife, Martha A. Hill, the deed for which was executed on September 27, 1921, and filed for record on September 30, 1921. The land in controversy was burdened with a mortgage of $3,000 and some accrued interest, payment of which was assumed by respondent, and i...
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— On January 4, 1923, an information was filed in the district court of the fourth judicial district for Gooding county charging one M. H. Sharp with the crime of bigamy. Application was made by the accused that his plea of guilty be received and that sentence and final judgment thereon be passed by the defendant judge at chambers at Hailey, which application was granted and on January 5, 1923, af...
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— This action was instituted by the plaintiff against the defendants to recover certain moneys standing to the credit of the plaintiff school district with the Bannock National Bank, at the time said bank became insolvent and was closed by the comptroller of the currency. The defendants were sureties upon a depositary bond given by said bank to the school district for the purpose of protecting sai...
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Defendants assign error of the court in rendering a judgment in favor of plaintiff for the reason that the complaint does not state a cause of action. This is the only assignment of error. Plaintiff alleges in his complaint, in substance, the following facts: The corporate character of the defendant bank: that on or about the first day of January, 1920, the defendants employed the plaintiff to car...
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The claimant, Tom Demitro, being dissatisfied with the amount allowed him by the State Industrial Accident Commission on October 6, 1922, on his claim for an alleged injury to his left eye, attempted to appeal to the Circuit Court of Multnomah County. His notice of appeal was filed October 30, 1922. Indorsed thereon at the time of filing was the following: “State of Oregon, County of Multnomah, — ...
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It is elementary law that the facts stated in the complaint are admitted by a demurrer thereto. It appears from the allegations of the complaint that the defendant, Bramwell, was wrongfully about to pay one of the creditors of the Crook County Bank, an insolvent corporation, to the irreparable injury of the other creditors. The sole contention of the defendant, Bramwell, on this appeal is that the...
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This is a suit to foreclose a mortgage upon real property situated in Deschutes County, Oregon. Defendants appeal from a decree in favor of plaintiff. For the purpose of giving plaintiff security for the payment of their promissory note for $7,000, payable to the order of plaintiff in annual installments of $1,000 and accrued interest, defendants on September 12, 1918, executed and delivered to pl...
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It is stated in respondents’ brief that the court concluded that the complaint did not state sufficient facts, and that the contract made between the parties was void because against public policy. Respondents have set out in their brief purported findings of fact and conclusions. From these, it appears that the Circuit Court considered the contract an attempt to dissolve the corporation without *...
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Upon this record we do not think the claimant was entitled to be heard upon the question of temporary disability upon his appeal to the Circuit Court. It appears from the records of the Commission that on the twenty-eighth day of October, 1922, the Com*230mission finally passed upon Kane’s claim and awarded to him, in addition to the snm of $372.17 theretofore paid, the further sum of $12.83, whic...
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We are informed by the record tbat an injury happened to the claimant on May 8, 1922, while in the service of an employer subject, the same as he was at the time, to the operation of the workman’s compensation law. On July 7th, the Industrial Accident Commission considered his claim, found that he was entitled to payment as compensation in the sum of $119.07, that he had been paid $86.19, and allo...
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The opinion of the court was delivered by This action was brought upon a bond given to procure the dissolution of an attachment and the release of the attached property. The bond had been given in an action brought by John Toelle against the Sells-Floto Shows Company, in which quite a number of elephants, camels and other wild animals valued at $25,000 had been attached. A bond in the penal sum o...
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The opinion of the court was delivered by The plaintiff prosecutes this action to compel the' defendants E. T. Thompson, as state treasurer, and Norton A. Turner, as state auditor, to withdraw from the defendant, the Home State Bank of Russell, and place in the treasury of the state the money arising from the sale of certain state property under the provisions of chapters 278, 279, 280, and 281 of...
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The opinion of the court was delivered by This is an original proceeding brought in this court by the attorney general challenging the authority of the board of county commissioners of Franklin county to use what is called the state-aid road fund in payment of the cost of constructing bridges unconnected in any way with the construction of a highway, and incidentally questioning the action of the ...
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The opinion of the court was delivered by The action was one for libel. Plaintiff recovered, and defendant appeals. Plaintiff, who resided at Hutchinson, was an employee of the defendant, a wholesale hardware company, for about twenty-one years, and from 1908 until he was discharged in January, 1922, was a traveling salesman in what was known as territory No. 4. He also had authqrity to collect f...
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The opinion of the court was delivered by This was a railway crossing damage case. Plaintiff’s husband, George Nevitt, was riding as a guest in a Ford car enclosed with an all-weather top. The driver was Irwin Gibson who was seated on the left side, and Nevitt sat by his side on the right. Olive street runs east and west in the north suburban part of Winfield. The railway coming from the north in...
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The opinion of the court was delivered by This was an action for damages on account of injuries sustained by plaintiff as the result of an explosion of 200 quarts of nitroglycerin which wrecked part of the village of Liberty and wrought other tragic consequences to life and limb. *508It appears that the defendant is a manufacturer and distributor of high explosives used in oil and gas well develop...
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The opinion of the court was delivered by James Ellis was injured while in the employ of Ismert Hincke Milling Company. He and his employer entered into an agreement for arbitration under the workmen’s compensation act. The arbitrator made an award finding that while he was engaged in catching empty tin cans, weighing from 65 to 70 pounds each, used for packing flour, the first three fingers of h...
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The opinion of the court was delivered by We shall speak of the parties as they appeared in the court below. This proceeding was initiated by the plaintiff filing in justice court the following bill of particulars (omitting formal parts): “The plaintiff complains of the defendant and for his cause of action herein states: That he is the legal and equitable owner of the following described persona...
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The opinion of the court was delivered by In 1917 R. N. Turner executed to the Farmers State Bank of Spring Hill' two mortgages, for $3,500 and $1,000 respectively, covering the same land. Shortly thereafter the bank sold one’ of these mortgages to J. C. Baily and the other to George Osborn, but in neither case was an assignment recorded. On November 19, 1918, and February 1, 1919, payments of $90...
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The opinion of the court was delivered by The defendant was convicted of the felonious stealing of a wire cable used in oil drilling operations, and the main question here is whether there was any substantial testimony to sustain the verdict and judgment of conviction. The defendant, Harry Moskowitz, and one F. A. Newberger were engaged as partners dealing in new and second hand supplies for drill...
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The opinion of the court was delivered by The action was one of ejectment. The trial court sustained a demurrer to plaintiff’s evidence. The plaintiff filed a motion for new trial, setting up all the statutory grounds. The court allowed the motion without stating upon what ground or *421grounds, and ordered a new- trial. • Defendants appeal from the order granting a new trial. The plaintiff-claim...
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*413The opinion of the- court was delivered by The plaintiff sought to recover judgment for money received by Irwin Williams as cashier of the bank and misappropriated by him. The plaintiff asked that the money be adjudged to' have been a deposit made by it in the bank, or in the event that the evidence did not warrant such a judgment that it be declared a preferred claim against the funds in the...
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The opinion of the court was delivered by The. defendant appeals from a judgment in favor of the plaintiff for damages on account of the conversion of an automobile seized under an order of attachment issued out of the district court of Sedgwick county in an action wherein the Commercial Investment Company was plaintiff and A. C. Jones was defendant. There was evidence which tended to prove that t...
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The opinion of the court was delivered by Appellant was convicted of the sale of intoxicating liquor. While twenty-seven assignments of error are set forth in the abstract, the record presents but one question, viz., is the evidence sufficient to sustain a conviction of a sale of intoxicating liquor? The state relies upon a sale of intoxicating liquor to Mrs. Parker on March 9, 1922, as shown by e...
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The opinion of the court was delivered by This is a suit upon notes and to foreclose a deed as a mortgage. The plaintiff claimed to be a mortgagee in possession and entitled to rents to apply upon his debt. It was tried to the court. The court rendered judgment for plaintiff upon the notes, held the deed to be a mortgage, and decreed its foreclosure. The court found against plaintiff upon his clai...
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*495The opinion of the court was delivered by S. L. Bracken brought this action against his wife to obtain a divorce. The ground upon which a divorce was asked was extreme cruelty of the defendant towards the plaintiff. He alleged that without cause she falsely, frequently and in an insulting manner charged him with being criminally intimate with a large number of women of respectability in the ci...
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The opinion of the court was delivered by This action grows out of the sale and purchase of the merchandise stock of a drug store in disregard of the bulk-sales act. For some time prior to June, 1920, one Frank P. Kibbey conducted a drug store in Junction City, and as an incident thereto he dealt in phonographs which he bought at wholesale from one of his creditors, the Great Eastern Manufacturin...
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The opinion of the court was delivered by This is a suit in accounting. J. M. Hatfield and- his son on the one part, and R. C. and Otto Tucker on the other part, were partners engaged in the business of taking mineral leases on land, developing the leases by drilling wells for oil or gas and selling the gas produced. They had several leases, well-drilling tools and machinery, some producing wells ...
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The opinion of the court was delivered by Plaintiffs brought this action seeking a judicial determination that a certain deed of conveyance made by them to the defendant bank was merely a mortgage on a quarter section of Jackson county land constituting plaintiffs’ farm. The deed which was one of general warranty was exhibited by copy attached to plaintiffs’ petition. Plaintiffs alleged that at t...
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The opinion of the court was delivered by This is an action to determine the interests of the children of A. U. Mussey, in a tract of land and for the partition of the same among the parties. Oliver W. Mussey, the only son of the deceased, claimed the entire interest in the tract, alleging that his father had entered into a contract with him twenty-four years before that if he would remain upon th...
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The opinion of the court was delivered by This was an action to set aside a deed executed on March 20, 1915, by Joseph Rezac to his son Charles. He conveyed three hundred and twenty acres to his son Albert, the validity of which is being tested in another action. The grounds for setting aside the deed are that it was obtained by the exercise of undue influence and fraud, another that the deed was ...
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*396The opinion of the court was delivered by This appeal involves the right to specific performance of an alleged contract for the sale of land. Samuel Weinhold, an elderly widower, who had six living children and owned separate farms, some of which he had sold, decided that he would sell each of his three sons, Arthur, Charles and Merl, a quarter section of land. He entered into negotiations wit...
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The opinion of the court was delivered by This is an appeal from the conviction of the defendants for maintaining and conducting a common nuisance, a place where intoxicating liquors were kept for sale in violation of law. The information included separate charges of having liquors in possession and of two sales of liquor, but the verdict of the jury contained no finding or mention of these offens...
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The opinion of the court was delivered by Jesse Abrams appeals from a conviction of murder •in the second degree. He admitted the killing (of Will Brown) and relied upon evidence tending to show that he acted in self-defense. He gave testimony tending to show these facts: He had had some difficulty with his wife. She sued him for a divorce. Later they lived together for seven or eight months but w...
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The opinion of the court was delivered by This is an appeal from an order striking out certain portions of the petition and amended petition of the plaintiff, who sued to recover damages sustained by him on account of injury to his son, Elmer L. Stone, caused by the negligence of the defendant in operating an electric light plant in the city of Pleasanton. The boy has recovered judgment for the da...
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The opinion of the court was delivered by Rufus B. Overlander died testate January 15, 1919, owning a farm of 200 acres in Doniphan county and other land. By his will, which was duly probated, he devised this farm to his five sons, Rufus M., Jesse L., John E., Charles L. and Jacob A. Overlander. April 26, 1922, Rufus M. Overlander brought this action for its partition, making his four brothers def...
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The opinion of the court was delivered by This is an action by a trustee named in an assignment for the benefit of creditors. The court sustained a demurrer to the petition and plaintiff has appealed. The Solomon Valley Milling Company, a corporation, became heavily involved financially and executed the following instrument: “Know all men by these •presents, that the Solomon Valley Milling Compan...
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The opinion of the court was delivered by The action was one to enjoin the board of dental examiners from enforcing its order, made after complaint, notice and hearing, revoking plaintiff’s license to practice dentistry. A demurrer to the petition, which exemplified the revocation proceedings in full, was overruled, and" the board appeals. Plaintiff, a duly licensed dentist, is an employee of the ...
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The opinion of the court was delivered by The plaintiff commenced this action to recover the possession of a Jordan roadster automobile from defendant Myrtle Brown. The plaintiff based its right-to recover on a chattel mortgage on the automobile given by defendant Nicodemus. Judgment was rendered in favor of Myrtle Brown who had possession of the car, and the plaintiff appeals. Plaintiff, was a c...
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The opinion of the court was'delivered by The action was one to recover for injuries suffered by plaintiff while in defendant’s employ. The plaintiff appeals from an order of the court sustaining a demurrer to his evidence. *497Plaintiff had worked for the defendant about two years, first at building fires in the roundhouse, later as a flue borer’s helper, and the last two weeks before the injury...
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The opinion of the court was delivered by The plaintiff, a boy thirteen years old, recovered a judgment for $19,000 for injuries received when he came in contact with a live electric light wire operated by the defendant. The defendant appeals. *380Part of the electric light system consisted of a pole on which were strung several bare electric light wires carrying 2,300 volts of electricity. To th...
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The opinion of the court was delivered by The appeal was taken from an order refusing to issue a. commitment pursuant to a judgment of contempt. The sole question raised by the appeal is whether the court abused its discretion. *501Defendant was adjudged guilty of contempt for refusing to obey an order requiring him to provide funds for the maintenance ana. education of his daughter. The order was...
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The opinion of the court was delivered by The action was one to set aside a will on account of undue influence and because the testatrix was of unsound mind. Defendants prevailed and plaintiffs appeal. Complaint is made that the court erred in rejecting evidence, in finding generally for defendants and in overruling plaintiffs' motion for a new trial. What the rejected evidence was is not shown. ...
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The opinion of the court was delivered by This is a suit for an accounting between partners. It was tried to the court and judgment rendered for plaintiff. The der fendant has appealed and objects generally to the judgment and specifically to the allowance by the court of four items in favor of plaintiff and against the partnership. Edd Calvin, the plaintiff, J. B. Doran, and E. B. Long owned abou...
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The defendant, Weston, was, by information filed in the superior court for Spokane county, charged with the offense of bootlegging, in that he did “unlawfully and feloniously carry about with him intoxicating liquor, to-wit: whiskey, for the purpose of *551the unlawful sale of the same.” His trial in the superior court for that county, sitting with a jury, resulted in a verdict of guilty and the r...
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This action is to recover damages for personal injuries received by Eldridge Bacon, a boy ten years of age, as a result of a collision, while riding a bicycle, with an automobile operated by appellant L. M. Varney. The case was tried without a jury. The collision occurred in daylight, at the crossing of Grand avenue, which runs slightly west of north, and Seventeenth street, which runs east and we...
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The plaintiffs, Stanley Anderson and wife, seek recovery of an installment of $2,000 and interest claimed to be due to them from the defendants, F. W. Anderson and E. E. Mayer, as a portion of the purchase price under a contract by which the plaintiffs agreed to sell, and the defendants agreed to purchase, a tract of land in Spokane county. A trial in the superior court for that county, sitting wi...
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The defendant, Magnusson, was, by information filed in the superior court for Spokane county, charged as follows: “Comes now the prosecuting attorney in and for Spokane county, state of Washington, and charges the defendant Albert Magnusson with the crime of being a bootlegger, committed as follows: “That the said defendant Albert Magnusson, in the county of Spokane, state of Washington, on or abo...
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This is an action, commenced and prosecuted by respondent as plaintiff, to recover upon a collision clause in a policy of automobile insurance. From a judgment as prayed for, the defendant has appealed. The facts involved are very little in dispute, and such dispute as exists seems not to be material to a correct solution of the legal questions upon which the case must be determined. The provision...
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Suit to recover various payments made under a contract for the sale of real estate and for the value of improvements placed thereon. Based on the findings made by it, the trial court entered judgment dismissing the action, and this appeal results. In December, 1907, the respondent and one Gordon and wife (the parents of appellant) entered into a written contract whereby the former agreed to sell, ...
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This is a case brought here by direct appeal from the District Court of Big Horn County to review a judgment of that Court holding the defendants below, appellants here, liable for their proportionate part of the expense of the maintenance and operation of a ditch known as the McDonald Ditch. The correctness of the decree below depends upon the construction to be given the following contract (omit...
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*353By the Court, This action was commenced in the district court for Washoe County to recover judgment upon a contract *354executed in New York State, and by its terms payable there. Several defenses were pleaded in the answer, among them the statute of limitations. The trial court found that this defense was established, and accordingly rendered judgment in favor of the defendant. This appeal i...
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W. G. Griffiths is the administrator of the estate and sole heir of Gertrude Griffiths Miles, deceased, who died in 1921, leaving estate in Cache county, consisting mainly of real estate, valued at $5,267.75. On April 13, 1923, Griffiths, as administrator, filed his petition setting forth the administration of the estate, and that it was ready for distribution; that he was the father and sole heir...
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At the time this action was filed under the Workmen’s Compensation Law (Comp. Laws 1917, §§ 3061-3165) claimants had the option of instituting suit in the district court or claiming compensation by petition to the Industrial Commission. This action was commenced in Emery county, but was transferred for trial to Carbon county. A trial was had before the court without a jury, and a judgment was rend...
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*162This- case was formerly argued and submitted to this court and a decision rendered affirming the judgment. Later, upon the petition of appellant, a rehearing was. granted, and oral arguments were again made, in which the questions in dispute were presented in a somewhat different aspect from that in which they were first presented and considered. Upon the rehearing we have reached the conclusi...
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Opinion by This case was originally brought in a justice of peace court and there was judgment for the plaintiff, and the defendant appealed to the district court of Oklahoma county, where the case was tried de novo before the court and a jury, and judgment was again rendered for the plaintiff. The facts are as follows: Minnie Brem-icker was running a dairy on a small scale in the city of Okl...
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Opinion by The parties will be referred to as they appeared' in the trial court. It. appears from the record in this case that shortly prior to the 21st day of February, 1918, James H. Ryan was the owner of a drug store in the town of Commerce, in Ottawa county, Okla. That some time in the early part of said month he madte a deal with W. R. Vaughn in which he sold said store to Vaughn, subjec...
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This is an appeal from an order overruling a motion to vacate a *Page 121 judgment rendered on March 2, 1918, in favor of defendant in error against the plaintiffs in error. The judgment in favor of the defendant in error was procured on service by publication. In conformity to such judgment, a sale of certain real estate belonging to plaintiffs was made and order of confirmation was entered in t...
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The National Bank of Commerce, as plaintiff, began this action against B.B. Bell, as maker of a promissory note, and Wade Alexander and T.B. Pickens as indorsers thereon. Bell filed an answer and cross-petition against Alexander and Pickens, and also made Hopkins a party and asked for judgment against Alexander, Pickens, and Hopkins. Judgment was recovered by the National Bank of Commerce against ...
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This action was commenced in the district court of Love county on November 3, 1920, by the plaintiffs in error, plaintiffs below, against the defendant in error, defendant below, to recover possession of and to quiet title to certain lands, and to recover damages for the wrongful detention thereof. The petition filed by the plaintiffs alleges that Frazier McLish was a duly enrolled full-blood Choc...
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On November 24, 1919, Wisey McNac, plaintiff, commenced this action in ejectment and for accounting in the district court of Creek county against Fred A. Chapman, defendant. The action involved a part of the allotment of Sanford Hope, a one-half-blood Creek Indian who died in the year 1901. The plaintiff alleged in her petition she was his mother and the only heir to his allotment. The defendant f...
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This action was brought by the defendant in error to quiet his title to a lot in Stillwater, Okla. Judgment was rendered for the plaintiff on the pleadings, from which the defendants appeal. The principal controversy involved in this suit is the construction to be given to the following deed: "Warranty Deed. "Know All Men by These Presents, That Sarah Smart, a widow, of th...
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The bill of exceptions herein was settled and ordered engrossed in pursuance of a stipulation between *Page 18 the parties. The time for the engrossment of the bill of exceptions was extended from time to time and was presented for certification to the trial judge more than forty days after the order settling the bill. Upon application to the trial judge for certification of the engrossed bill of...
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This is an appeal from a judgment of the superior court of Pottawatomie county in favor of the defendant in error and against the plaintiff in error for damages for personal injury in the sum of $10,495. The facts appear as follows: The city of Shawnee maintains and operates, within its corporate limits, a hospital *Page 61 for the care of the sick, accepting some charity patients, but all patien...
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The plaintiff commenced his action against the defendants in the district court of Logan county, for possession of the real estate described in petition and for an accounting on rents and other items of expense pertaining to the subject-matter. As grounds for his cause of action the plaintiff alleged that his mother, Lottie M. Mottley, was the owner of the property and in possession thereof at the...
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This proceeding in error is brought by James C. Davis, agent provided for in the Transportation Act of 1920, to obtain review of proceedings *Page 240 in the district court of Oklahoma county, Okla., in a certain action commenced in that court by the defendant in error, as plaintiff, against John Barton Payne, as Director General, in charge of and operating the railroads of the Chicago, Rock Isla...
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This is an appeal from a judgment of the district court of Atoka county, rendered on November 9, 1920. The plaintiff in error, J.L. Hull, with R.A. Price, Jr., A. Neely, and F.P. Semple, were defendants, and defendant in error H.C. Morris, was plaintiff. The plaintiff in bringing his suit made F.P. Semple a party defendant and in the progress of the case the interest of the plaintiff decreased unt...
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On March 3, 1920, J.H. Morgan filed a petition against W.H. Stevens to vacate a judgment rendered in the district court of Coal county oil September 2, 1913, and to set aside an order confirming a sale of real estate made in said cause on February 23 1914. Byrne Statler, the purchaser at the sheriff's sale, was made a party to the proceeding. The trial court refused to vacate the judgment and the ...
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This is an appeal by the plaintiff in error, plaintiff below, from a judgment of the district court of Carter county, in favor of the defendant in error, defendant below. The action calls for damages in the sum of $515.03 and interest at six per cent. from January 1, 1918, for breach of implied warranty of fitness and soundness of a carload of potatoes. The plaintiff had an agreement over long dis...
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The defendant contracted to assign and sell certain oil and gas leases to the assignor of the plaintiff pursuant to the terms of a written contract entered into by and between the parties on the 8th day of February, 1918. The contract included both commercial and departmental leases. Oil was being produced from both the commercial and departmental leases at the time of the execution and delivery o...
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W.L. Smith, hereinafter called the plaintiff, sued Missouri, Kansas Texas Railway Company, hereinafter called the defendant, to recover $16,500 for personal injuries received by him while an intending passenger standing on the defendant's depot platform in Cleveland, Okla. The evidence tends to show that Smith had purchased a ticket and was waiting for a passenger train upon which he intended to ...
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Opinion by This suit was instituted in the district court of Cleveland eounty by G. L. Bradfield against Forest Nelson to recover possession of a certain Buick automobile. The parties will be referred to as they appeared in the court below. The petition is in the ordinary form of a petition in replevin, and the answer consists of a general denial only. The case was tried 'before the court and...
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Defendant in error, W.L. Payton, herein referred to as plaintiff, sued plaintiffs in error, Edith Osmon and her husband, Emmet W. Osmon, herein referred to as defendants, in the district court of Oklahoma county to quiet title to real estate. On January 31, 1911, Mr. Osmon acquired, by purchase, lots 1, 2, 3, 4, 5, and 6 in block 3, in Eckroat's *Page 195 addition to Oklahoma City, and soon there...
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In the petition in error herein nine assignments are made, *Page 207 but in the view taken of the case here it is only necessary to consider the seventh, which reads as follows: "The court erred in refusing to grant a postponement or to continue the trial until such time as counsel for defendant was so recovered from his illness as to be able to proceed with the trial, or until other counsel coul...
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In the year 1910, S.W. Gregory, by his general warranty deed, conveyed a strip of land across a quarter section to the Wichita Falls Northwestern Railway Company for use as a railroad right of way. The railroad company partially prepared a roadbed on the strip of land, but did not proceed farther with the work of completion. Charles Orth became the purchaser at a sheriff's sale in foreclosure pro...
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This is an appeal by the superintendent of public instruction of Major county from a decree perpetually enjoining her from disorganizing school districts Nos. 4 and 14, Major county and joint district No. 54, composed of territory lying partly in Major county and partly in Alfalfa county, and from further proceeding to create a consolidated school district embracing the territory of the districts ...
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This is an action by the plaintiffs in error against the defendant in error for the cancellation of a deed to certain lands in Pittsburg county. The parties will be hereafter referred to as plaintiffs and defendant, as they appeared in the trial court. The ease was tried to a jury and a verdict returned for the defendant and judgment rendered thereon by the trial court, from which an appeal has- ...
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This action originated in the district court of Murray county, Okla., on the 14th day of February, 1916, by the American Surety Company, a corporation, defendant in error, plaintiff below, filing its petition against W.H. Richardson, plaintiff in error, defendant below, and by amended petition, filed July 16, 1918, in which Charles C. Caldwell and Estell Caldwell were made parties plaintiff, askin...
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This controversy arises from the interpretation of the following contract: "This agreement, made and entered into by and between Herman Horn, the party of the first part, and R. Dick, party of the second part: "Party of the first part, for a consideration of $650.00, leases to said second party the S. 1/2 of N.E. 1/4 and N. 1/2. of S.E. 3-10-17, from date, and the S. 1/2 of S.E. 3-10-17 from Oct. ...
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On June 9, 1922, the plaintiff in error, hereinafter called plaintiff, filed suit in the county court of Tulsa county against defendant in error, hereinafter called defendant, to recover on five promissory notes, each in the principal sum of $60, and one note in the principal sum of $28, making a total of $328. A demurrer to the petition, by the defendant, was overruled by the court. The defendant...
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This motion was brought by the defendant in error, plaintiff below, in the district court of Love county, Okla., to recover judgment against the plaintiff in error, defendant below, for damages for breach of warranty contained in a deed of land purchased from the plaintiff in error by the defendant in error. For convenience the parties will be designated as they appeared in the court below. The st...
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This is a replevin action commenced in the district court of Osage county by the Oil Country Drilling Company, a corporation, defendant in error, as plaintiff below, against the Western Supply Company, a corporation, plaintiff in error, defendant below, for recovery of certain machinery and oil well supplies, listed in schedule attached to petition and affidavit, aggregating the value of $10,995. ...
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A.L. Ivey, plaintiff in error, here designated the defendant, was convicted in the county court of Oklahoma county of keeping a place where intoxicating liquors were sold contrary to law, and his punishment was fixed at a fine of $500 and confinement in the county jail for a period of six months. The facts may be briefly stated thus: In May, 1920, the county attorney of Oklahoma county filed a pet...
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Plaintiffs in error were jointly charged with the murder of Felix Pugh, alleged to have been committed on August 18, 1921. At the trial, May 6, 1922, each was adjudged guilty as charged, and their punishment was fixed at confinement in the penitentiary for life. From this judgment and sentence they appeal. Although the time for filing briefs in this court has long since passed, no briefs have b...
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On tbe 23d day of September, 1923, tbe county attorney of-Adair county filed an information in tbe county court of said county charging Lee Allison with the crime of unlawful conveyance of whisky from a point unknown in said county to tbe town of Stillwell in said county. Trial was bad on the 16th day of November, 1923, resulting in a verdict of guilty, with punishment fixed as above stated. On t...
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This is an appeal from a judgment rendered by the county court of Pontotoc county, finding the plaintiff in error guilty of selling intoxicating liquor and fixing his punishment at 30 days in jail and a fine of $50. Plantiff in error contends that he was denied a fair trial, because the court failed to instruct the jury upon the law of reasonable doubt. The Attorney General has confessed error ...
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This is an attempted appeal from a judgment of conviction rendered in the district court of Cherokee county on the 1st day of March, 1922, wherein the plaintiff in error, Bob Butler, was convicted of the crime of larceny of live stock, and punishment fixed as above stated. The petition in error and case-made were filed in this court on August 22, 1922. *246 The Attorney General has filed a mo...
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The record discloses that this prosecution was commenced by filing on the 2d day of February, 1923, what is styled a complaint against the defendant, Walter Gibson, and another person by the name of Jess Dodd, charging them with the crime of unlawfully conveying intoxicating liquor, to wit, whisky, on the 30th day of January, 1923, from the residence of one Robert Berg to a point on the public hig...
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This is an appeal from the county court of Adair county, wherein the plaintiff in error, Charley Washington, was convicted of the crime of unlawfully manufacturing intoxicating liquor, and sentenced to pay a fine of $200, and to be imprisoned in the county jail for a period of 60 days. The Attorney General has filed the following motion to dismiss the appeal: "Comes now George F. Short, Attorney G...
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Walter Barefield was on February 22, 1922, by information filed in the county court of Stephens county, charged with having sold intoxicating liquor contrary to law. At the trial, June 3, 1922, by verdict of a jury he was found guilty as charged, assessing his punishment at confinement in the county jail for a period of 30 days and a fine of $50. From the judgment on the verdict he appeals. The...
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On the 11th day of September, 1922, plaintiff in error was convicted of wife and child abandonment and his punishment assessed at a fine of $500. The plaintiff in error files a motion to dismiss the appeal from the judgment of the trial below, for the reason that the fine assessed by the county court has been fully paid. That being true, the issues involved in the appeal are moot. The appeal is...
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This is an appeal from the county court of Adair county, wherein the plaintiff in error, Charley Washington, was convicted of the crime of unlawfully manufacturing intoxicating liquor, and sentenced to pay a fine of $200, and to be imprisoned in the county jail for a period of 60 days. The Attorney General has filed the following motion to dismiss the appeal: “Comes now George F. Short, Attorney G...
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On the 27th day of August, 1923, the county attorney of Kay county filed in the county court of *Page 266 said county an information charging H.B. Houser, A. Houser, Clen Denning, and C.E. Mills jointly with the unlawful possession of certain intoxicating liquor, including whisky and Jamaica ginger. Thereafter the said defendants appeared in person and by counsel and were duly arraigned and enter...
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J. B. Langham was by information filed in the county court of Stephens county May 22, 1922, charged with having been, on May 20, 1922, in the unlawful possession of intoxicating liquor, with intent to sell the same. At the trial, June 3, 1922, he was by a verdict of a jury found guilty as charged, fixing his punishment at confinement in the county jail for 30 days and a fine of $100. The accused ...
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In the year 1884 Ervin L. Hunsicker and Emma J. Hunsicker, his wife, and their only child, Stella May Hunsicker, then of the age of about three years, were residents of Monroe County, Pennsylvania, as was also Andrew S. Hinton. In that year, by a proceeding in the court of common pleas in that county, and with the consent of the parents of the child, Hinton duly adopted said Stella May Hunsicker a...
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Petitioner seeks by this proceeding to have annulled an award of the Industrial Accident Commission of the state of California, the respondent herein, made on the thirteenth day of June, 1923. Said award was based upon findings of said Commission made on the date thereof, *Page 46 and thereafter amended by said Commission on August 1, 1923, at which latter date said award of June 13, 1923, was co...
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This is an appeal from a judgment vacating and setting aside an order admitting to probate the will of Mary D. Little, deceased, and from an order denying a new trial, and also from an order refusing to vacate and set aside said judgment. The contest of said will was instituted by respondents and was based upon fraud, unsoundness of mind, and undue influence of Anna F. Curson, Samuel T. Curson, Al...
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This is a proceeding on writ of review in relation to an order made by respondent court granting an application to set aside the default of the defendants in an action wherein petitioner Hinds was plaintiff and Charles M. Johnson and Donald Johnson were defendants. The default had been entered on the fourth day of January, 1923. The motion to set aside default was made upon the ground that the def...
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The only question raised upon this appeal is whether or not the trial court had discretion under the facts presented to render a judgment against a tenant holding over for rental only, without trebling the amount. Respondent purchased certain premises of which appellant held possession under a verbal agreement which respondent alleged was a tenancy from month to month, and served upon him a thirty...
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In this action the plaintiff sought a dissolution of the partnership between himself and the defendant, and an accounting. The copartnership had been conducted under the name M-K Fisheries Company. After a hearing the court rendered an interlocutory judgment which provided: "1. That the partnership heretofore existing between the plaintiff and defendant, under the name of M-K Fisheries Company, be...
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Prohibition. A judgment in a justice's court was entered in the docket on March 9, 1923, as follows: "March 9, 1923. "After due and careful deliberation upon the evidence adduced in the above entitled action, the court finds for the defendants, and denies plaintiff his claim. "It is therefore ordered and adjudged that plaintiff take nothing from said defendants, and that said defendants recover th...
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This is an appeal from a judgment in favor of the defendants in an action based upon fraud. The complaint contains two causes of action, one for rescission and the second for damages; but the second cause was abandoned and plaintiff elected to rely solely upon her claim for rescission. The controversy arises out of the sale of certain real property in the county of Santa Clara, and the basis of th...
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This is an appeal by the defendant husband from a decree awarding a divorce to his wife. The complaint charged extreme cruelty and specified as one of the circumstances that the defendant communicated to the plaintiff a venereal disease, gonorrhea. The defendant interposed an answer and cross-complaint. The plaintiff answered the cross-complaint and a trial was had by the trial court sitting witho...
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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 67 By this action the plaintiff seeks an accounting and settlement of a copartnership between himself and defendants, alleged to have been entered into on or about January 1, 1907, and dissolved by mutual consent on or about the first day of June, 1910. The c...
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This is essentially an action for damages for failure to deliver water for irrigation purposes. From the record it appears that appellant and her husband purchased ten acres of land in Kootenai county, together with a water right, from the Interstate Irrigation Company, a corporation, which later became the separate property of appellant by divorce proceedings. Subsequent to the purchase responden...
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This is an appeal by the defendant B. Stark from the judgment in favor of the plaintiff for the sum of $3,920.50 as damages suffered by the plaintiff by reason of the alleged failure of the defendants to complete the purchase of a certain grocery and bakery business, which plaintiff claimed he sold to defendants for the sum of $10,000. A motion for a new trial was denied by the trial *Page 138 co...
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Defendant appeals from a judgment of conviction of the crime of murder. [1] The first objection urged is that the trial court erred in instructing the jury that "a witness false in one part of his or her testimony is to be distrusted in others." It is true that a similar instruction was criticised in the case of People v. Plyler, 121 Cal. 160 [53 P. 553]. However, in a later decision, our supreme ...
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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 144 Plaintiff sued to recover from defendant the amount of four promissory notes in varying sums. The complaint is in four counts, each setting out as a cause of action a promissory note. The first note was for five hundred dollars, dated January 19, 1918; th...
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Plaintiff brought this action to secure an injunction perpetually restraining the Industrial Accident Commission of the state of California and William T. Soley from enforcing an award made by the commission to Soley for injuries alleged to have been sustained by the latter in *Page 139 the course of his employment by this plaintiff. The action was dismissed as to the commission. The demurrer of ...
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The defendant appeals herein from a judgment in favor of plaintiff in an action to quiet title and to set aside a trustee's sale under power of sale in a trust deed, and to cancel the deed executed pursuant thereto, or to compel a reconveyance of the property. The essential facts may be stated as follows: On February 15, 1918, one E.W. Myers, who was then the owner of the property involved herein,...
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This is an appeal under section 953a of the Code of Civil Procedure from a judgment following a verdict in favor of plaintiff for $2,044.50 as damages for the death of his minor son, which resulted from a collision between an automobile driven by defendant and a motorcycle driven by one Clarence Garns, upon which the decedent was riding as a guest. In arriving at their verdict for the plaintiff th...
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The opinion of the court was delivered by This was an action for damages for injuries sustained by plaintiff at an alleged ■ defective bridge on a township road in Decatur county. The road was the division line of Center and Olive townships; and for convenience of the township authorities that portion of the road where the accident occurred was supervised and maintained by Center township. • The p...
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The opinion of the court was delivered by The action was one for services rendered in conducting a farm under an alleged express contract. Plaintiffs recovered and defendant appeals. It was claimed by plaintiffs, and evidence was introduced showing, that on or about August 15, 1919, the defendant hired plaintiffs for the purpose of overseeing, living on, and conducting the affairs of a farm for de...
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The opinion of the court was delivered by This controversy involves the ownership and right of possession of certain restaurant property in the city of Marion. Plaintiff recovered and defendants appeal. The restaurant was sold by H. L. Perdue to W. H. Quiring and O. S. Green, a copartnership under the firm name of' Quiring & Green. Two instruments in writing were executed, one a promissory note b...
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The opinion of the court was delivered by October 13, 1914, Otto Johnson, owner of a quarter section of land, died intestate, the title passing one-half to his widow, Clara Johnson, and one-sixth to each of his three daughters, Edna 0. Heline, Edith E. Johnson and Ellen A. Nelson. December 21, 1920, Ellen A. Nelson- and her husband, Oscar F. Nelson, executed a deed for her interest in the land to...
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The opinion of the court was delivered by The defendant was convicted of violating the prohibitory liquor law and appeals. 1. The defendant complains that the court erred in allowing the court stenographer to read the testimony of one of the state’s witnesses after the jury had deliberated for some hours. He contends that the reading of this particular testimony from the stenographer’s notes gave...
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The opinion of the court was delivered by Mrs. Ada Kemble, the widow of P. H. Kemble, who died December 16, 1916, sued 0. 0. Beardsley, the widower of her daughter Vera, upon a note. Liability upon the note was not denied, but Beardsley by way of cross demand set up a claim against the plaintiff for a part of the proceeds of a farm which she was handling as a trustee under her husband’s will. The ...
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The opinion of the court was delivered by The plaintiff bank sued the defendant, S. Murphy, for certain moneys advanced to C. L. Murphy, a son of the defendant, pursuant to an alleged oral agreement between plaintiff and defendant. In behalf of the bank, the evidence tended to show that defendant is a man of substantial means, a stockholder and director of the *351plaintiff bank, and was for some...
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delivered the opinion of the court. In May, 1918, Merrill J. Babcock borrowed from plaintiff the sum of $1,600. To secure payment of this sum Babcock executed to plaintiff a note and mortgage due. December 1, 1923, the mortgage containing a clause whereby the mortgagor agreed to keep the building upon the land mortgaged insured against loss or damage by fire, the policy to be made payable to the p...
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sitting in place of MR. CHIEF JUSTICE CALLAWAY, disqualified, delivered the opinion of the court. This is a suit for a partnership accounting. Plaintiff was awarded a judgment for $53,887.87, and a decree entitling him to an undivided one-third interest in about 3,000 acres of land. Defendant has appealed from the judgment and decree. The pleadings, transcript of the evidence, decree and briefs co...
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delivered the opinion of the court. The plaintiffs instituted this action to enforce the cancellation of an oil and gas lease, executed and delivered by them to the defendant. Their complaint alleges that they are the owners of the leased premises (760 acres) situated in Toole county; that on August 16, 1922, the defendant prepared, and the plaintiffs executed and delivered to him, the instrument ...
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delivered the opinion of the court. The real estate which is the subject of this controversy was conveyed by Emil Felenzer, then a widower, to Walter A. Beck by deed which was intended as a mortgage to secure the payment of a promissory note given Beck by Felenzer. Walter A. Beck transferred the note and executed a deed to the property to Charles F. Beck. After due time the latter brought an actio...
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delivered the opinion of the court. The plaintiff brought this action to quiet title to lots 10, 11 and 12 in block 115 of the original town site of Billings. The amended complaint alleges the following facts; Since April 6, 1901, plaintiff has been the owner of the lots in question, and from July 1, 1884, to May 22, 1920, he and the defendant Martha Bury were husband and wife. In April, 1920, Mar...
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delivered the opinion of the court. This action was instituted by the plaintiff to recover the sum of $1,933.34, claimed to be due under contract for equipping a three-story building and basement, located in Billings, belonging to the defendant, with a system of automatic sprinklers and fire-extinguishing apparatus. For a more complete statement of the issues involved reference is made to the form...
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delivered the opinion of the court. This action was brought by plaintiff to recover damages from the defendant for the death of his minor son, Burnell Liston. The death resulted from an automobile accident which occurred on the county fair grounds at Missoula on July 4, 1921, when certain automobile races were being conducted on a half-mile elliptical track the curves of which were on the east and...
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delivered the opinion of the court. In this action plaintiff seeks to recover damages for personal injuries. When the cause was submitted to the jury but two •questions were presented for determination: (1) Was plaintiff injured as the result of defendant’s negligence? And (2) if so, what amount will fairly and reasonably compensate her? By the general verdict the jury answered the first question ...
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OPINION OP THE COURT On December 12th a petition for a writ of prohibition was filed in this court, seeking to prohibit the district court of the Fourth Judicial district, and D. J. Leahy, as judge of said court, from further action in a mandamus proceeding hereinafter to be noticed. We issued an alternative writ of prohibition as prayed, returnable on December 20th. On said day there was filed a...
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— This action was, commenced in the district court of Minidoka county against respondents, as executors of the estate of John Joseph Gray, deceased, and was thereafter transferred to the district court of Ada county, upon motion and affidavit of said executors that the county in which said action was commenced was not the proper county. Appellants’ action was to recover $65,649 damages for an alle...
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— Respondent, an irrigation district, is under the duty of collecting penalties for the nonpayment of its assessments, but is in doubt as to the proper measure of such penalties. Defendant Carey A. Head is a land owner in the district, whose assessment for 1922 is delinquent, and whose lands must be sold as required by law. Defendant and appellant Daniel A. Barker is a land owner in the district, ...
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— Respondent is an irrigation district. Appellants are owners of certain lands of the district. The district entered into a contract with the United States government for three main purposes: (1) to build a drainage system for the district, (2) to furnish full water rights for about 40,000 acres of dry land in the district and (3) to furnish a supplemental supply of stored water from the Arrowrock...
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— This is a suit brought by appellant to recover from respondent the amount of a certain check given by respondent to appellant on June 10, 1921. It is agreed that the amount represented by the check was to cover an advance payment on an automobile to be purchased by respondent from appellant. The auto was to be selected, equipped with certain accessories, and made ready to be delivered on the fol...
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— On October 5, 1923, plaintiffs filed their amended complaint in which they allege they are taxpayers and owners of real estate within the defendant district; that they are legal voters within said district and that this suit is brought not only for themselves but on behalf of a large number of other voters and resident taxpayers similarly situated. The suit is brought to enjoin the defendants, H...
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— This is an appeal from a decree of the district court in and for Washington county quieting the title of respondent, Martha A. Hill, in and to the following described lands and premises, to wit: “The south half of the southeast quarter and the northeast quarter of the southeast quarter of Section Two, and the southwest quarter of the southwest quarter of Section One, in Township Twelve, North, o...
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The writ of habeas corpus does not take the place of an appeal. It is a civil proceeding providing a remedy for one who is wrongfully deprived of his liberty. Upon a conviction for vagrancy, the Municipal Court of the City of Klamath Falls is empowered to impose a sentence of not more than 50 days, or a fine of not to exceed $100, or both such fine and imprisonment. The Municipal Court did pronoun...
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This is a motion to dismiss an appeal on the ground that the notice of appeal does not sufficiently state the judgment appealed from. The contention arises out of thé following circumstances: On September 20, 1923, the Circuit Court entered in favor of pláintiff the following decree: “It is considered, ordered and adjudged that the plaintiff, Arthur Myron Richter, is entitled to, and he is here...
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This is an appeal by defendant from an order granting the plaintiff's motion for a new trial based upon the ground of insufficiency of the evidence to support the verdict. The action was one to recover the sum of twenty thousand dollars as compensation for personal injuries, loss of earnings, and damage to property resulting from a collision between the motorcycle of the plaintiff, upon which he w...
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Petitioner is detained in the California state prison at Folsom and seeks a writ of habeas corpus. The judgment under which he is imprisoned sentenced petitioner to be confined in the California state prison according to law. The petitioner was convicted of the crime of robbery after a prior conviction of a felony. (In re Heath,49 Cal.App. 657 [194 P. 68].) The punishment fixed by law is life impr...
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Plaintiff brought this action to recover from the defendant the sum of $1,050, with interest, the amount evidenced by a certain certificate of deposit made and delivered by the defendant to the plaintiff. Judgment was entered for the defendant, and plaintiff has appealed. On the eleventh day of December, 1920, appellant held an interest-bearing certificate of deposit for $1,050, issued to him by t...
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This action in unlawful detainer was instituted by the plaintiff for the purpose of recovering from the defendant the possession of certain real property in the city of Madera. It was alleged that defendant had occupied the premises under a tenancy from month to month; that the tenancy had been terminated and possession of the premises demanded by plaintiff in accordance with the provisions of sec...
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Appeal from a judgment of nonsuit in an action by appellant to recover damages from respondents for injuries sustained by the former while driving an automobile by reason of being struck by an engine drawing a train of cars, which, it is alleged, was operated by respondents in a careless and negligent manner. A single track of the Western Pacific Railroad Company, a steam railroad, occupies a posi...
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This is an application for a writ of mandamus directed to the respondents. An alternative writ was issued by the district court of appeal of the first appellate district, division one, and a peremptory writ denied after hearing, without any written opinion. [1] Under the rule stated in Burke v. Maze, 10 Cal.App. 206 [101 P. 438], we do not grant a transfer unless an error appears upon the face of ...
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Petition for mandate to compel the performance of a public duty. The allegations of the petition show that petitioner is a resident of the city of San Leandro, county of Alameda, and that he is a registered qualified elector, freeholder, and taxpayer therein; that the defendant, Gill, is the qualified and acting city clerk of said city and charged with the performance of all the duties and obligat...
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This is an action by a shipper against the carrier to recover for the total loss of a shipment *Page 166 of four bales of goatskins, the goods having disappeared after their delivery to the carrier for carriage from San Francisco to Wilmington, Delaware. Judgment was given in favor of the plaintiff for the admitted value of the goods. The appeal is by the defendants. The undisputed facts of the c...
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Certiorari. The purpose of this proceeding is to determine whether or not the superior court exceeded its jurisdiction in dismissing an appeal from the justice's court; also whether or not the justice's court exceeded its jurisdiction in the action pending before it in rendering a judgment on a counterclaim. It appears that judgment was rendered against the plaintiff on a counterclaim in the justi...
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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 154 This is an action to quiet title to a right of way. The plaintiff and the defendant are the owners of adjoining ranches. The plaintiff's ranch is known and referred to in the testimony as the "Marion ranch," one Joe Marion being the plaintiff's grantor or...
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Plaintiff, a boy eleven years of age, brought this action to recover damages for injuries alleged to have been caused by defendant's negligence. He claims that his asserted right of recovery is justified by the doctrine of the turntable and attractive nuisance cases. Defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The dem...
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This is an appeal from a judgment in favor of plaintiff against defendant Huntington. The parties entered into a written contract containing the following terms: “Whereas said J. A. Huntington, party of the first part, has entered into a contract with Cordua Irrigation District to build and construct a main irrigation canal according to plans and specifications attached to said contract; and ...
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On petition for writ of mandate. It is conceded by respondents that prior to the sixteenth day of August, 1923, it was lawful for the superior court in a proper case to appoint as guardian of an estate any suitable person, notwithstanding that such person was ineligible to citizenship in the United States. Section 1751a of the Code of Civil Procedure was added to that code by an amendment which be...
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This is an appeal by the plaintiff from a judgment against him in an action in which he sought to *Page 61 have certain transfers of personal property declared void and the property subjected to execution in satisfaction of a judgment obtained upon August 20, 1921, against the defendant S. Tatsuno for over two thousand dollars upon a promissory note dated September 29, 1920. The complaint alleged...
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By indictment in ease superior court number 16,949, defendant was charged with grand larceny from the person of one Bernard Odell, committed on the third day of August, 1921. By information in case superior court number 18,925, he was charged with grand larceny from the person of Willett Woolsey, committed on the ninth day of September, 1922. By order of court the two cases were consolidated and ...
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This is an action of unlawful detainer. The complaint alleges that defendants held over after breach by them of certain covenants of a lease under which they occupied the premises in question in the cause and after due notice to quit. Judgment went for defendants and plaintiffs appeal. The lease involved in the action was made to respondents by a predecessor in interest of the appellants. The latt...
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This is an application for a writ of prohibition to be directed to the superior court in and for the county of Los Angeles and to Harry R. Archbald, as judge thereof, requiring the said respondents to desist from any action or proceeding based upon a temporary injunction following a restraining order issued out of said court under the order of the said judge. The facts appear to be that Rosa Green...
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This is an original application of the relator, Mabel E. Morris, in this court for a writ of mandate to compel the superior court for Pierce county to enter a final decree of divorce in her favor in an action commenced and prosecuted in that court by her against her husband, L. ft. Morris, in which action an interlocutory order was entered determining fier to be entitled to a decree of divorce, mo...
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The plaintiff bank seeks foreclosure of a crop chattel mortgage. The defendant, Womach, resists such foreclosure, claiming ownership of the crop freed from the claimed mortgage lien of the bank, rested upon his purchase of the interest of the mortgagor in the land after the execution of the mortgage, at a sheriff’s sale under an execution issued upon a personal money judgment rendered against the ...
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The plaintiff hank commenced this action in the superior court for Grant county against defendant Bell, as treasurer of that county, seeking an injunction restraining him from selling certain securities deposited with him by the plaintiff to secure deposits of county funds made by him with the plaintiff bank. The real controversy is over a claim of deposit of $2,500 made by the defendant which the...
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The plaintiffs, May and wife, seek recovery of damages for an alleged malicious criminal prosecution and the causing of their arrest therein by the several defendants conspiring together to that end. A trial upon the merits in the superior court for Spokane county, sitting without a jury, resulted in dismissal of the case upon the merits as to all of the defendants save Godfrey at the close of the...
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This is an action in mandamus by relator, contractor for the construction of Permanent Highway No. 1-D in Kitsap county, to require a certificate to the state auditor of the completion of the work, and to require the approval of the vouchers issued by the county commissioners and the issuance of warrants upon the permanent highway fund in the *533amount of $4,933.26. The matter having been referre...
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William Gr. Smith entered into a written contract with school district No. 41 of Walla Walla county, as a teacher for a term of nine school months, commencing September 5, 1922. Trouble arose in his management of the school about the end of the fifth month, resulting in written charges against him signed by the school directors that were served on him, together with a notice to show cause why he s...
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The plaintiff syrup company seeks recovery from the defendant bank of the sum of $5,007.77, claimed by the company to have been paid to the bank by W. E. Sander, president and general manager of the company, from its funds without authority from its trustees, upon a debt owing by him personally to the bank, under circumstances charging the bank with notice of such want of authority and of the fact...
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The state, by its Attorney General, commenced this action in the superior court for Thurston county, seeking an injunction forbidding the defendant Railroad & Navigation Company from shipping into the state, or through the state- except in sealed containers, any alfalfa hay from certain territory of neighboring states, in violation of a quarantine order, issued and promulgated by the state directo...
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This action was commenced by the defendant in error to foreclose a real estate mortgage executed by Irene Waite Kerr on May 29, 1920. Judgment was rendered foreclosing the mortgage, from which an appeal has been taken. Mrs. Kerr was a married woman at the time of the execution of the mortgage, but, according to the finding of the trial court, her husband had abandoned her for more than one year pr...
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Plaintiff in error filed his brief herein on January 4. 1924. No brief has been, filed by defendants in error and no extension of time given to file same, and no reason assigned why brief has not been filed. Under the rule of this court, when the brief of plaintiff in error appears reasonably to sustain the assignments of error, this court will not search the record to find some theory upon which...
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This is an appeal from an order of the State Industrial Commission wherein J.M. Taylor, respondent herein, was awarded the sum of $94.60 for injuries received and medical bills incurred while, as he alleges, he was in the employ of Moore and Gleason, petitioners herein. The only controversy which appears from the record is that of whether or not J.M. Taylor was an employe of Moore and Gleason, or ...
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Judgment was rendered in this cause in favor of Steve Kessler and against E. Messersmith et al. Later E. Messersmith filed his application in the cause praying the court to set aside the judgment rendered therein. Upon due consideration of the application the same was overruled. The petitioner followed this action by filing other applications to set aside the judgment which were denied by the cour...
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Plaintiff sued defendants to recover the sum of $1,000, with interest thereon from the 9th day of June, 1910, at the rate of four per cent. per annum, together with costs. The basis of plaintiff's claim was a cashier's check made payable to the plaintiff and left as security with the defendants as an indemnity against any liability which might be enforced against the sureties on a certain undertak...
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This record, as a case-made, is a nullity, but is certified as a transcript. At the time the motion for a new trial was overruled the defendant was given 60 days to make and serve case-made. December 9, 1920, the time was again extended in these words: "* * * The defendant be and he is hereby granted extension of 60 days from the date thereof within which to make and serve a case-made. * * *" Febr...
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The defendants in error, J.H. Parsons and Y.O. Hill, plaintiffs below, instituted this suit in the district court of Wagoner county, Okla., against the plaintiff in error, John Barton Payne, Director General of Railroads, as agent, under section 206 of the act of Congress approved February 28, 1920, defendant below, *Page 169 to recover $2,990, as damages to a shipment of 327 head of cattle shipp...
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This suit was instituted on March 14, 1921, by James Ruark, defendant in error, against Southern Surety Company, plaintiff in error, in the district court of Ottawa county, to recover the sum of $1,983.43, alleged to be due plaintiff, Ruark, from the Picher National Bank of Picher, Okla., at the time of its failure July 10, 1920. The suit is based upon a surety bond written by defendant, Southern ...
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This suit was instituted in the district court of Tulsa county, Okla., on May 9, 1921, by the Bank of Quapaw, a corporation, plaintiff, against Charles W. Flint and Roy Lundy, defendants, for the recovery of $750 together with interest and attorney's fee, as evidenced by a certain promissory note bearing date of October 1, 1920, executed by the defendants. To the petition of plaintiff defendants f...
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Opinion by Plaintiff in error contends that the court erred in admitting in evidence certain written instruments and in refusing to give to the jury a requested instruction. The action was on an oral contract to recover $2,500 as commission or compensation for securing parties who were ready, able, and willing to lease for a period of 99 years, at an annual rental of $12,000, a certain bu...
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This is an action for the recovery of damages for the alienation of a wife's affections. The jury returned a verdict for defendant. Plaintiff appeals. A number of errors are specified, but it is necessary to notice only one, which necessarily requires a reversal. On February 21, 1920, defendant filed an amended answer; on February 24, 1920, plaintiff filed a demurrer to this answer. On February 24...
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The parties will be designated as they appeared in the trial court. This was an action instituted on the 28th day of January, 1922, by the defendant in error, as plaintiff, in the superior court of Okmulgee county, seeking judgment on a promissory note for $600, bearing interest at 6 per cent. from maturity and providing for an additional 10 per cent. as attorney's fee. The defendant in error also...
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The only question for consideration, as presented by the record and brief of the plaintiff in error, is whether the court erred in refusing to instruct the jury to return a verdict for the defendant. It has been held by this court that where the evidence is conflicting, and the court is asked to direct a verdict, the evidence favorable to the moving party must be eliminated from consideration and ...
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Opinion by The plaintiff in error, as plaintiff below, filed this action in the district court of Tulsa county, on the 31st of March, 1919, seeking to recover for certain alleged personal injuries. After the issues were made up the case was called for trial on the 14th of February, 1921, and a verdict returned in favor of the defendants on February 1(5, 1921. The plaintiff filed a motion for a ...
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This action was commenced in the district court of Cimarron county by R.S. Tudor against H.H. Strasburg to recover $66 alleged to be the balance due for drilling a well under an oral contract. Strasburg filed an answer and cross-petition, admitted the drilling of the well under a contract, but alleges the plaintiff agreed to drill a straight hole, and guaranteeing the well would not be completed i...
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Opinion by The plain-liff commenced his action against the defendant for damages on account of personal injury alleged to have been suffered on account of the negligence of the defendant. In the trial of the cause judgment went for the plaintiff, and the defendant lias perfected an appeal of the cause to this court. The defendant rests its right of reversal on a single proposition: (a) Improp...
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This action was brought by the Oklahoma Tool Supply Company against the city of Bartlesville to enjoin the city and its officers from removing a switch connecting the property of the Oklahoma Tool Supply Company with the A., T. S. F. Ry. Co. The petition alleged that this switch was constructed by the railroad company under authority of a resolution of the board of commissioners of the city of ...
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Parties appeared in the trial court in the same order as here. Plaintiff bank had judgment for about $5,000 against defendant Wisdom for negotiating fraudulent securities to plaintiff. In the same proceeding, plaintiff garnished $1,000 in the hands of a justice of the peace as the property of Wisdom, who disclaimed any interest in said fund. Jones intervened, and on verdict of jury had judgment fo...
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The city of Sapulpa, a municipal corporation, plaintiff, instituted this action in the district court of Creek county against Paul Land, defendant, to have decreed a lien on certain lots located in the city of Sapulpa and said real estate lien foreclosed, and said real estate sold to pay the ad valorem taxes due the city of Sapulpa on said lots for the years 1911 to 1921, inclusive; the amount of ...
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This action was brought in the district court of Okfuskee county by the defendant in error, plaintiff in the trial court, against the Mutual Aid Union, an Arkansas corporation, to recover upon a certain certificate of membership in said Mutual Aid Union in the nature of insurance upon the life of Mrs. M.E. Stephens, the mother in-law of plaintiff, in which defendant in error, John Thomas Stephens,...
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The defendant in error has filed a motion to dismiss the appeal on the ground that the petition in error was not filed in this court within six months from the date the motion for new trial was overruled. The motion for new trial was overruled on May 13, 1921, and the petition in error was filed in this court on November 12, 1921, and was within the six-months period prescribed by statute. The per...
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This is a suit by Bernice Selsor-Badley, nee Bernice Selsor, to quiet title. The defendant Reed asserted ownership and title was quieted in him. Mrs. Cornelius' interest was that of mortgagee of Reed. They claim through W.J. Thompson as a common source of title. There appears to be no important conflict of evidence. The facts are these: John A. Selsor, father of Bernice Selsor, a minor, desiring t...
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The material facts in this controversy are substantially as follows: The plaintiff commenced this action on May 22, 1922, in the county court of Garvin county to recover judgment in the sum of $750 against the defendant for destroying 75 pecan trees valued at $10 each. On the 2nd day of October, 1922, judgment was rendered against said defendants by default for $750 and costs. On the 11th day of D...
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This case turns on the question of whether the transaction between the plaintiff and the defendant comes within the purview of what is known as the Blue Sky Law, being chapter 49 of Session Laws of 1919. The plaintiff contends that the transaction between him and the defendant, as shown by the pleadings and the exhibits in the case, comes clearly within the provision of said chapter 49, Session La...
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Opinion by The parties will be referred to as plaintiff and defendant as they appeared in the court below. The plaintiff, Lillian Maverick, brought this action against the defendant, Midland Valley Railroad Company, to recover damages for personal injury alleged to have been sustained by plaintiff on the 20th of December, 1920, by reason of a collision between a freight train being operated u...
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Bill Smith, defendant in error, had judgment against S.P. Smith, plaintiff in error, in the justice of the peace court for $55 labor bill. The Smiths will be referred to as they appeared in the lower courts. Trial on appeal to the district court was upon the merits and judgment, on verdict of jury, was for plaintiff. The only error argued by defendant in this appeal is that the justice of the peac...
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Parties appear here in the same order as in the trial court. Defendant has not favored the court with any brief. It has been necessary to make some reference to the record, however, in order to determine whether plaintiff's brief reasonably sustains the assignments of error. Plaintiff sued defendant for the purchase price of a certain gas engine and repairs therefor. Defendant answered that such e...
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This action was instituted by plaintiffs in error as heirs of Nellie Greenwood, to recover certain lands which had been allotted to Nellie Greenwood, a full-blood Chickasaw Indian, during her lifetime. Defendants in error claim title through an executor's sale made through the probate court of Johnston county. Nellie Greenwood executed a will on April 25, 1908, devising all of her property to E.J....
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Judgment was rendered in this case in the district court of Murray county against the plaintiffs in error, Solomon Battiest et al., plaintiffs below, and in favor of the defendant in error, Mat Wolf, defendant below, in an action by plaintiffs to recover as heirs their alleged interest in the allotment of Elijah Woods, deceased. The case was tried upon an agreed statement of facts, containing exhi...
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This was an action instituted in the district court of Mayes county by plaintiff, plaintiff in error, Cealy Wilson, against E.W. Clark and the Home Farm Mortgage Company, defendants, defendants in error, to recover possession of 40 acres of land and quiet title thereto, and for damages for rents and profits therefrom. Cealy Wilson was a Cherokee freedman and the land in controversy was her homeste...
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W.E. Sunday, plaintiff, instituted this action in the district court of Okmulgee county against the Sequoyah Oil Refining Company, a corporation, and James D. Ward, defendants, to compel the defendants to convey an undivided one-eighth interest in certain oil and gas leases and for an accounting of the proceeds from the operation thereof. Judgment was rendered in favor of the plaintiff approving ...
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This action was commenced in the district court of Creek county by the defendant in error, as plaintiff, against the plaintiff in error, as defendant, to recover on an insurance policy for the loss of two diamonds and other personal property alleged to have been forcibly taken from the plaintiff by highwaymen. At the conclusion of the plaintiffs' evidence, the defendant demurred thereto, which was...
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This action was commenced in the district court of Stephens county, by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover an alleged balance due on a contract for the sale of certain oil and gas interests. The plaintiff alleges that on or about February 7, 1922, the plaintiff and defendant entered into a written contract, whereby the plaintiff agre...
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On the 1st day of July, 1922, the plaintiffs in error, plaintiffs below, filed their suit in the district court of Okfuskee county, against the defendants in error, defendants below, to enforce the specific performance of a contract. For convenience, the parties will be referred to as plaintiffs and defendants, as they were designated in the trial court. On the 31st day of December, 1921, the defe...
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This action was commenced in the district court of Latimer county, Okla., by Nick Box, defendant in error, plaintiff below, against C. Carignano, plaintiff in error, defendant below, to recover $1,100 upon a loan from defendant in error to plaintiff in error. The parties to this action will be referred to as plaintiff and defendant as they appeared in the court below. Plaintiff alleges that on the...
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The plaintiff in error, O.A. Simmons, as plaintiff, obtained a judgment again the defendant in error, L. McLennan, before Hal M. Cannon, justice of the peace, Ardmore district, Carter county, Okla., on the first day of September, 1922, in the sum of $150 and interest, attorneys' fees, and cost, aggregating the sum of $170. On October 18, 1922, plaintiff filed an abstract of said judgment in the di...
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This action was originally filed in the district court of Ottawa county, Okla., by the defendant in error, plaintiff below, wherein it was sought to recover judgment against the plaintiff in error, defendant below, for goods delivered at a certain mine in Ottawa county at the special instance and request of the defendant. For convenience the parties will be designated as they appeared in the court...
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G.W. Wheatley and Milley Wheatley brought separate suits in the district court of Tulsa county against F.E. Riddle to recover damages for personal injuries. Said suits being numbered 16713 and 16714, respectively, and as the same question is involved in both actions on appeal they are, by agreement, consolidated and will be considered as one question. The plaintiffs first brought their suits again...
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This action was commenced in the district court of Haskell county on May 25, 1919, by the plaintiff against the defendants to recover damages for alleged false and erroneous certificate to a certain abstract. The plaintiff alleges, in his petition, that E.M. Zebold was engaged in the abstract business during the year 1916, and that his codefendants, R.A. Zebold and H.D. Price, are sureties on the ...
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On the 19th day of July, 1919, the Whittington Park Amusement Company made and executed its note in the sum of $3,000, payable to the State National Bank of Ardmore, Okla. The plaintiffs became indorsers for the amusement company, and to indemnify plaintiffs against loss by reason of paying the notes, the amusement company executed and delivered its mortgage to the plaintiffs covering certain prop...
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This case was tried in the court below without the intervention of a jury, the parties having agreed to waive a jury and submit the issues of fact and law to the court. In the brief of defendant only two propositions are presented and argued, which are as follows: (1) "The court erred in admitting in evidence the ledger of the plaintiff. (2) "The evidence of the plaintiff was insufficient to warra...
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This action was commenced by defendant in error for the recovery of a certain tract of land situated in McClain county, Okla., allotted to her as a member of the Chickasaw Tribe of Indians. The petition alleged, in substance, that the lands were illegally sold in 1910 by her guardian, W.C. Randolph, through the county court of Garvin county, Okla., and that Ernest T. Bynum was the parchaser at the...
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Plaintiff in error, as plaintiff, on April 21, 1921, commenced this action against the Oklahoma Railway Company, a corporation, and Anton H. Classen, as defendants, to recover the value of the 36 1/4 acres of land situated in S.E. 1/4 of S.W. 1/4 of section 32, township 11 north, range 3 west, Oklahoma county. Upon demurrer the cause was dismissed against Classen. The facts as shown by the pleadin...
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On March 4, 1916, the Maryland Casualty Company, a corporation, as obligor, executed and delivered to the First State Bank, of Dewar, Okla., as obligee, a bond indemnifying it against the defalcations of Scott W. Whitehead, its cashier. The substantive parts of the bond herein considered read as follows: "Whereas, the employer has delivered to the Maryland Casualty Company, a corporation of the st...
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The plaintiffs in error base their ground for reversal on what they claim to be the insufficiency of the amended petition, and the points relied on are stated as follows: (1) The court erred in overruling the demurrer to the amended petition of the plaintiff below. (2) The court erred in overruling the objections of the plaintiffs in error to the introduction of evidence under the amended petition...
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This proceeding is submitted upon the petition for the writ and the demurrer to the petition on behalf of respondent, the sheriff of Pawnee county. It is averred in the petition that petitioner, Mattie Long, is unlawfully confined in the county jail of Pawnee county, by C.W. Scott, sheriff of said county, upon a commitment issued by the judge of the county court on a conviction of the offense of m...
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Dave Coker and J.B. Coessee, plaintiffs in error, here designated the defendants, were by information filed in the district court of Seminole county, May 21, 1918, charged with the murder of Ben Coker on April 14, 1918. At the close of the trial, February 22, 1921, by a verdict of the jury they were found guilty of manslaughter in the first degree, with the punishment of each assessed at imprisonm...
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The defendant testified in the preliminary examination of Dickson, Charles Brankel, Bennett Highfill, and Joseph Hierholzer, charged with robbing the Citizens' State Bank of Salt Springs, that Brankel and Highfill were not to his knowledge at his (defendant's) home on Monday the 28th day of March, 1921, and that they did not with his knowledge and consent take the horse used by Hierholzer on the 3...
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This was a conviction for perjury, founded upon the testimony of the accused, Jess Downard, in a criminal case pending in the county court for his neglect or refusal to appear in response to a notice from the road supervisors of McKinley township, Wood county, to work on the roads (section 10016, Comp. Stat. 1921). On conviction of the perjury charge plaintiff in error was sentenced to serve a yea...
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The plaintiff in error, John Guegel, was convicted in the county court of Canadian county of the offense of unlawfully conveying intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a period of 90 days and to pay a fine of $250. Judgment was rendered on the 28th day of October, 1922. Petition in error with transcript of the record attached was filed in.this court o...
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On the 24th day of October, 1921, the county attorney of Oklahoma county filed in the district court of said county an information charging Neal C. Rank with the crime of rape, alleged to have been committed on one Ila May Brucker in Oklahoma county on or about the 7th day of July, 1921. The cause was tried to a jury in January, 1922, resulting in a verdict of guilty, with punishment fixed at imp...
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This is a joint appeal by plaintiffs in error from a conviction and judgments rendered in the county *329 court of Alfalfa county on the 10th day of April, 1922, against each defendant on a joint trial for selling intoxicating liquor to one S. M. Alexander, with punishment fixed against each plaintiff in error at a fine of $200 and 60 days imprisonment in the county jail. The petition in error ...
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Plaintiff in error, Dave Owens, was convicted in the county court of Canadian county of the offense of unlawfully conveying intoxicating liquor and punishment fixed at imprisonment in the county jail for a period of 60 days and to pay a fine of $250. Judgment was rendered on the 13th day of November, 1922, and petition ih error with case-made attached were filed in this court on the 24th day of N...
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On the 20th day of November, 1921, the county attorney of Ottawa county filed an information in the county court of said county, charging Butch Mitchell with the offense of unlawfully manufacturing whisky. Trial was had on the 5th day of September, 1922, resulting in a verdict of guilty with punishment fixed as above stated. On the 15th day of September, 1922, judgment was rendered in accordanc...
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This conviction rests solely upon circumstantial evidence. The chief issue raised by this appeal is the sufficiency of the evidence, and, incidentally, the sufficiency of the instruction relating to circumstantial evidence; also the refusal of the court to issue a commission to take the depositions of nonresident witnesses, and the overruling of defendant's motion for a continuance. *Page 333 Lat...
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This is an appeal from a judgment of conviction rendered in the county court of Oklahoma county on the 29th day of December, 1922, wherein Sandy Ivey was convicted of the offense of maintaining a public nuisance and sentenced to pay a fine of $250, and to be imprisoned in the county jail for a period of 90 days. Petition in error and case-made were filed in this court on the 28th day of April, 19...
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This is a motion to dismiss an appeal. The amount involved is less than $250. The appeal was taken and perfected in May, 1922. Appellant’s abstract was filed June 28, 1922, and briefs of respective counsel were filed shortly thereafter. There is no ground for the assumption that counsel have been dilatory in any respect. In 1923, and before the case could have been heard here in its order upon the...
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The judgment-roll in the divorce case was introduced as a part of the testimony of the petitioner Nelson in his petition presented to have Walter removed as administrator, and was received without objection. It is contended by the respondent that the judgment-roll in the divorce suit shows on its face that the Circuit Court never acquired jurisdiction of the subject matter, and that the decree was...
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This is an action instituted by plaintiff: against the defendants to recover damages for the alleged alienation by defendants of the affections of plaintiff’s wife. Plaintiff, by his complaint, charges in substance that on or about the first day of November, 1919, the defendants entered into a conspiracy to alienate the affections of plaintiff’s wife from plaintiff and to disrupt plaintiff’s home ...
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The record is unnecessarily voluminous. A great deal of immaterial evidence was introduced over the objection of the plaintiff and after the court had sustained the objections. The contentions of the appellant will be considered in their order as given in the statement. The plaintiff conceded at the trial that the item of $75 for services of Hazelwood, who was employed by the plaintiff, and the i...
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This is an appeal from a decree of the Circuit Court granting a divorce and the custody of a minor child to Fred Marshall, the defendant and cross-complainant. It now comes up on motion for an order striking out the brief of appellant and affirming the decree for the reason that the appellant has failed to comply with the rules of this court. There is an entire absence of any attempt to comply wit...
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In 1915, the legislative assembly passed the act of February 23d, Chapter 128, Laws of 1915, entitled, “An Act to regulate employment agents, procuring of positions for employees or workers or furnishing them with employment or information leading thereto, providing for bonds and license fees by employment agents, regulating the conduct of employers hiring labor through employment agencies, and fi...
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The plaintiffs, as taxpayers, sue to enjoin the sale of certain road bonds issued by Polk County for the purpose of raising money to be used for the construction and maintenance of permanent roads within that county. It appears from the complaint that pursuant to Chapter 103, Laws of 1913, a petition was presented to the County Court of Polk County petitioning the County Court to call a special el...
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This is a suit for dissolution of a partnership and for an accounting. The issues are somewhat complicated and the evidence on material points is in some respects flatly contradictory. The Circuit Court found in favor of the plaintiff and against the defendant, in the sum of $2,106.40, from which decree defendant has appealed. The respondent has taken a cross-appeal, claiming that he is entitled t...
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The defendant is a dealer in automobiles. He agreed to sell to the plaintiff an automobile under a conditional sales contract which contained the following provisions: “The said property and the whole thereof shall remain the property of said seller and title to said property shall not vest in the buyer until the unpaid balance of the purchase price and any judgment or decree rendered thereon is w...
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delivered the opinion of the court. This controversy arises out of a case once before this court, where we reversed an order appointing a receiver of certain coal properties, reported under the title Rude v. Wagman, 71 Colo. 499, 207 Pac. 992. The receiver took possession of the property and operated the coal mine, from which he received a considerable sum of money. The mandate of this court in th...
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delivered the opinion of the court. Jones brought replevin against the Sowards for two automobile trucks; trial to the court and judgment for the plaintiff. The defendants bring error. Kelly and Jordan mortgaged the trucks in question, with others, to Jones, describing them as “one ton Ford truck Engine No. 2,833,626; one ton Ford truck Engine No. 2,625,165 * * * located in the County of Conejos a...
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delivered the opinion of the court. The court below dismissed a bill for foreclosure of a mortgage, brought by plaintiff in error, on the ground that it was barred by the limitation of chapter 42, S. L. 1917. The question is: Was this right? The said chapter 42 is as follows: “When a cause of action has heretofore arisen or hereafter arises in another state * * * and by the laws thereof an action ...
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delivered the opinion of the court. This is an action brought by the defendant in error, as county treasurer of Crowley county, against The Fidelity and Casualty Company, as surety on the depository bond of the Citizens State Bank of Ordway, indemnifying the treasurer against loss of county funds kept in that bank by him. *11The trial was to the court and the plaintiff had judgment. The defendant ...
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delivered the opinion of the court. The district court directed a verdict and gave judgment thereon against Bloom and others in a suit on a promissory note. He alleges error. We think the judgment must be affirmed. - The complaint, which Was filed June 24, 1922, states thát defendants, including Bloom, gave plaintiff bank a 60. day *29note for $3,000, dated March 24, 1921, and, after its maturity,...
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delivered the opinion of the court. *42This is a review, at the instance of an unsuccessful claimant, of a judgment of the district court which approved an award of the Industrial Commission, made under the Workmen’s Compensation Act, denying compensation. This Act expressly declares, and this Court has repeatedly held, that such an award may be set aside by the courts only when the Commission act...
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delivered the opinion of the court. A rather extended statement of the facts seems to be *35necessary for a full understanding of the conditions out of which this litigation arose. It appears that during the month of March, 1920, W. E. Whittier, L. A. Whittier, and A. L. Litel, organized a corporation, known as The Sterling Loan and Investment Company, which will be hereinafter referred to as the ...
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delivered the opinion of the court. In 71 Colorado, at p^ge 492 (208 Pac. 457), is announced our reversal of a judgment in this case because of the trial court’s having overruled a demurrer to the second defense. The parties now appear in the reverse order. The defendant, plaintiff in error here, amended his sec*32ond defense and added a third defense. . Demurrers to these defenses were sustained ...
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delivered the opinion of the court. Plaintiff in error brought a suit against defendant in error seeking thereby to be adjudged owner of a two-fifths interest in certain realty claimed and held by the defendant. The circumstances under which the cause arose are fully set forth in Binkley v. Switzer, 69 Colo. 176, 192 Pac. 500. On the second trial the court found for the defendant and entered judgm...
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delivered the opinion of the court. An action was brought by the plaintiff in error against the defendants in error to set aside a decree foreclosing three quit claim deeds as mortgages, wherein the Citizens State Bank was plaintiff and the defendants C. H. Paul and John Paul were defendants. The complaint herein alleged the title to the property to be in the plaintiff, which she avers she acquire...
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delivered the opinion of the court. The defendant in error moves to strike the motion for a rehearing on the ground that it violates rule 48. We do not think so. It states a point that we might have overlooked, and states matters showing the relation of that point to our decision and nothing irrelevant thereto. The motion to strike should be denied. We dismissed the writ of error without opinion o...
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delivered the opinion of the court. There is a motion to strike the bill of exceptions because not filed in time; i. e., within sixty days from the judgment, under S. L. 1911, p. 9 (Code 1921, § 420). A motion for a new trial may be heard at the next term succeeding that at which the judgment is rendered, but not after (Bates v. Woodward, 66 Colo. 555, 185 Pac. 351), unless there be an order of co...
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The defendant was tried in the district court of Salt Lake county on an information charging him with the crime of manslaughter, caused by negligently operating an automobile and thereby colliding with and injuring one Dale Holt, which injury resulted in his death. At the beginning of the trial the defendant was permitted to enter a plea of former acquittal, in addition to his plea of not guilty t...
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The Casper Motor Company, plaintiff and respondent here, brought an action in the district court of Natrona *117County against J. L. Marquis, as Sheriff of said Cotrnty, defendant and appellant, in order to recover possession of a certain Buick automobile, which the said sheriff had then in his possession pursuant to a writ of attachment issued in a case wherein Joe Rodish was plaintiff and one Ge...
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OPINION OP THE COURT. Action for libel brought by the appellee against the appellants, based on two letters dated June 13, 1918, and June 23, 1918, respectively, written by the appellant Mabel, and transmitted by mail to Albert Ares, from Eddy County, N. M., to Austin, Tex. Appellants are husband and wife, and Albert is the son of the appellant Paul and stepson of the appellant Mabel. Appellee is...
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The opinion of the court was delivered by An opinion in these cases was filed November 10, 1923. A rehearing has been granted, and the opinion filed has not¿ been published. The entire case has been reexamined and reconsidered, and this opinion is filed to take the place of the one filed in November. The former opinion contained language which has been understood as a criticism of the public util...
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The opinion of the court was delivered by This controversy arises over the appointment of a receiver for the defendant company, at the instance and on the application of certain of its stockholders. The record shows that the defendant is a corporation existing under the laws of Kansas, with its principal place of business at Topeka; .that it owns four elevators, located at Stickney, Hitschman and ...
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The opinion of the court was delivered by In each of these actions the plaintiff asked the cancellation of an oil and gas lease on certain real property in Seward county. Judgment was rendered in favor of the plaintiff in each action cancelling the oil and gas lease unless actual drilling for oil be commenced in good faith on or before March 1, 1923, upon the premises described in the lease. The c...
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The opinion -of the court was delivered by In an application for a modification of the judgment of this court, the plaintiff asks that it be permitted to retain that part of the property in controversy in this action, to which the plaintiff would be entitled as a creditor of J. M. Maddock. It appears in this case that the property of J. M. Maddock is in the custody of the United States district co...
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The opinion of the court was delivered by This is an action for damages caused by a fire. It was tried to a jury, which returned answers to special questions, and a general verdict for plaintiff. The court sustained defendant’s motion for judgment upon the evidence and special findings, notwithstanding the general verdict, and the plaintiff has appealed. The plaintiff owns and lives upon a 160 acr...
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The opinion of the court was delivered by Prior to 1920 six school districts of Rooks county maintained high schools under the “free tuition” act, providing in substance that residents of territory having no accredited high schools might attend them elsewhere in the county, a fund for paying their tuition being raised by a tax levy on such territory. (R. S. 72-3801 to 72-3803.) On November 2, 1920...
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— The particular clause of the prohibition law defendant was charged with violating is found in section 2, chapter 63, Laws of 1917, and reads as follows: li . . . And it shall be unlawful for any person to transport or cause to be transported, within the state of Arizona any ale, wine, beer or any malt, vinous or spirituous liquors or any mixture or preparation of a like nature, or any intoxicati...
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By the Court, Petitioner instituted a civil action for damages in the justice’s court against the city of Lovelock. The action was tried before a jury, which, on the 15th day of January, 1921, returned a verdict in favor of defendant. Costs were taxed against the petitioner, but no memorandum of the items of defendant’s necessary costs and disbursements was filed in the case or served upon petiti...
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delivered tbe opinion of tbe court. Tbis action was commenced in tbe justice court of Big Spring township, Fergus county, on January 29, 1923, by tbe filing *66of a complaint. The defendant filed his answer thereto on February 5, 1923, and the ease was set for trial on February 8, 1923., at which time a part of the testimony was taken, and then the trial was by agreement continued to the fifteenth...
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delivered the opinion of the court. The fact conditions in State ex rel. Mills v. Dixon, 68 Mont. 526, 219 Pac. 637, are applicable to this case except as we shall supplement them in this opinion. On October 6, 1923, the state board of education requested the state board of examiners to issue and sell series F of educational bonds of the state of Montana in the sum of $555,000, pursuant to the pro...
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This cause of action was commenced in the district court of Tulsa county by the plaintiff in error, as plaintiff, against the defendants in error, to recover the value of 800 barrels of oil which the plaintiff alleges he purchased from the defendants in connection with two oil leases and equipment thereon, and for which he paid a total consideration of $9,500. It is admitted that the leases and al...
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Plaintiff in error filed its brief herein on November .1, 1923. No brief has been filed by defendants in error, and although an extension of time was granted to do so, they have not complied nor assigned any reason for failure to do so. Under the rule of this court, when the brief of plaintiff in error appears reasonably to sustain the assignments of error, this court will not search the record t...
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The Carter Oil Company brought an action in the district court of Stephens county in the nature of a "stakeholder's suit" to determine the proper parties to whom rentals due under its oil and gas lease should be paid. The oil company's lease was executed by Nancy Tucker and J.A. Tucker, who are parties to this action. Subsequent to the execution of the oil and gas mining lease said Nancy Tucker an...
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This appeal grew out of the following matters, to wit: In October, 1896, W.T. Whitaker and wife, by written instrument duly executed, acknowledged, and recorded, donated to the Cumberland Presbyterian Church for church purposes certain lots in the town of Cooyyah, Cherokee Nation, which lots later became and are now lots 14 and 15, block 37, in the town of Pryor Creek, Mayes county, Okla. Said ins...
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This appeal is prosecuted by Nut-Te-Che Lewis, a minor, by R.L. Simpson, his legal guardian, to reverse the judgment of the district court of Okfuskee county, rendered on the 19th day of March, 1923, in favor of E.E. Ward, sustaining his motion for judgment on the pleadings. The case involves the validity of a probate sale made by Major Wesley, former guardian of Nut-Te-Che Lewis, purporting to co...
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This controversy was before this court heretofore in cause No. 7963, Mary A. Daniels, Plaintiff in Error, Y. Abel N. Bunch et el., Defendants in Error, 69 Okla. 113, 172 P. 1086. This court in its decision in that cause held that the transaction involved therein and herein was usurious, and that the plaintiff had not proved that she was an innocent purchaser without notice of the usurious transact...
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Mariah Johnson, a Creek freedman, brought this action against E.W. James and others to recover the possession of certain land and to cancel a deed executed by her guardian, conveying said land to defendant E.W. James, and for rents and profits in the sum of $5,000. From a judgment in favor of the defendants, the plaintiff has appealed. It appears that in June, 1912, the guardian of Mariah Johnson,...
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This appeal is prosecuted by the city of Enid, a municipal corporation, plaintiff in error, defendant below, to reverse a judgment of the district court of Garfield county, denying its petition to vacate and set aside a judgment theretofore obtained against it in said court by Frank Rector, the defendant in error, plaintiff below. The parties will be hereinafter referred to as they appeared in the...
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This suit was commenced by A.M. Baldwin, one of the defendants in error, in the justice court on February 17, 1921, against W.A. Henderson, plaintiff in error, to recover on a note for $20, which note was dated May 20, 1916, and matured July 15 of the same year. The plaintiff obtained judgment in the justice of the peace court and the defendant Henderson appealed to the county court of Pottawatomi...
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The parties will be referred to as in the court below. Plaintiffs sued defendant to recover damages which they allege accrued by reason of the death of their son, Bruce Hays Millikin. It is claimed that on the 21st day of May, 1920, Bruce Hays Milliken, son of the plaintiff, whose age on said date was 13 year, six months, and eight days, in company with three other boys of about the same age, were...
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The parties will be referred to as in the court below. Plaintiff sued the defendant in the county court to recover the sum of $250 as rent claimed to be due on certain real estate situated in Noble county, Okla. The defendant's answer set forth a denial of plaintiff's ownership, and alleged ownership in a third person. The evidence relied on to disclose ownership in a third person shows that said ...
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The first proposition presented by defendants in their brief is based upon the alleged error of the court in admitting the testimony of John Ellett which was given by deposition, it being contended that there was not sufficient identification of the cotton reclassed by him to authorize the admission of his testimony. It was shown by the testimony of Mr. Jenkins, secretary of Hubbell, Slack Compan...
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This suit was instituted by the plaintiff in error, plaintiff below, against the defendant superintendent of public instruction of Rogers county to enjoin her from changing the boundary line of the plaintiff district; to enjoin the defendant county assessor from assessing the disputed territory in controversy as belonging to defendant school district No. 20 Rogers county, Okla., and to enjoin the ...
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This is an appeal by the plaintiff in error from a judgment of the district court of Murray county in favor of the defendant in error. The plaintiff in error filed his motion for new trial and on May 19, 1921, the court overruled the same, and plaintiff in error gave notice of appeal and was granted 120 days from that date in which to prepare and serve his case-made, ten days in which to suggest a...
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This is an action in ejectment to recover certain lands in Wagoner county, Okla., instituted in the district court of said county by James E. Secrest and William E. Long, plaintiffs, appellants herein, against James Nobles et al. The plaintiff Secrest deraigned his title and relied on the deed from his coplaintiff, William E. Long. The answering defendant, B. Mobbs, who appears and adopted an answ...
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This action was commenced in the district court of Logan county by S.E. Shore, as plaintiff, against the Board of Education of the town of Crescent, and others, to enjoin the defendants and all other persons from issuing certain bonds and from negotiating and selling the same or from doing any act that would injure plaintiff in the premises or be a charge and burden on his property or cloud the ti...
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This cause of action is a consolidation of two cases commenced by the defendant in error, Southwestern Mortgage Company, as plaintiff, in the district court of Tulsa county, Okla., to recover on a note and to foreclose a mortgage securing the same in each of said cases. The first case, being against J.D. Simmons and Laura G. Owens, was based on a $1,000 note and mortgage securing the same executed...
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The parties will be referred to as plaintiff and the insurance company. Plaintiff was the owner of a stock of merchandise and fixtures of the value of approximately $11,000. An inventory of the stock was made on April 1, 1921, and on August 1, 1921, less than one year thereafter, the insurance company issued to plaintiff its fire insurance policy number 8110, insuring the fixtures in the sum of $5...
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This action was instituted by plaintiff in error, William Boorigie, as plaintiff, in the district court of Cherokee county against the defendant in error, Abdo Boorigie. The parties will be referred to as plaintiff and defendant, as they appeared in the trial court. Plaintiff alleged, among other things, in his amended petition, that the defendant and the plaintiff had been theretofore engaged as ...
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This cause was begun in the district court of Pawnee county, Okla., on the 26th day of October, 1917, by the plaintiff below, plaintiff in error here, against the St. Louis San Francisco Railroad Company, one of the defendants in error. He caused summons to issue against the defendant, and the same was served upon the depot or ticket agent at Pawnee, Okla., in said county. The defendant St. Louis...
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On August 12, 1922, a petition was filed by Oscar W. Lovan, India J. Lovan, S.R. Latimer, and Mrs. S.R. Latimer, to vacate a judgment rendered in the district court of Murray county, on December 9, 1920, in favor of W.W. Wade, administrator, as plaintiff, and State National Bank of Ardmore, as cross-petitioner. On February 25, 1922, the petition to vacate was denied and the petitioners have appeal...
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This was an action commenced by the plaintiff in error to enjoin the defendants in error from interfering with it in drilling wells for oil and gas on a certain one-half acre of land in Kay county, Okla. The parties will be referred to as plaintiff and defendants, as they appeared in the trial court. Samuel H. McKee made homestead entry on 160 acres of land in what is now Kay county, Okla., and fi...
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Bessie Leola Starks, by her legal guardian, filed this suit to recover the allotment of land which was patented to her as a member of the Choctaw Tribe of Indians. The defendant answered and asserted title to said lands by virtue of a guardianship sale made by the guardian of said minor through the county court of Bryan county, Okla. An agreed statement of facts disclosed that a petition for appoi...
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This suit was instituted by appellees in the district court of Garfield county against the district court of cover the sum of $4,574.05 as damages for breach of a certain contract. The record discloses that appellees Morris, Hanby, and Denny, were partners doing business as the Berryville Canning Company, and that the appellant, the Ranney-Davis Mercantile Company, a corporation, doing a general w...
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Plaintiff in error, Curtis Taylor, was convicted in the county court of Canadian county of the offense of unlawfully conveying intoxicating liquor, and punishment fixed at imprisonment in the county jail for a period of three months and to pay a fine of $250. Judgment was rendered on the 23d day of November, 1922. This is an appeal by transcript of the record. This cause was finally submitted o...
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This is an appeal from a judgment of the district court of Delaware county upon a verdict of a jury rendered October 21, 1921, against plaintiff in error, Harve Johnson, here referred to as the defendant, fixing his punishment at confinement in the state penitentiary for a term of 20 years. The information charged the defendant with the murder of Lum Moore on the 29th day of April, 1913. At the...
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This is an appeal from the county court of Pawnee county wherein on the 22d day of March, 1923, the plaintiff in error was convicted of the offense of manufacturing whisky and punishment fixed as above stated. The Attorney General has filed a confession of error which is as follows: "Comes now George F. Short, the duly elected and qualified Attorney General of Oklahoma, and confesses error in the ...
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delivered'the opinion of the court. This action was brought by the plaintiff against the defendants Fred R. Jameison, as maker, and O. E. and Ida E. Benson, as guarantors, upon two notes dated August 30, 1911, each in the sum of $400 and interest. They were given to plaintiff *28■with two others of like date and amount in payment of -a second-hand threshing outfit purchased by Jameison. It was for...
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delivered the opinion of the court. The city of Havre created Special Improvement District No. 90 for the purpose of laying water-mains and installing fire-protection apparatus. The improvements were completed and the costs charged to the property included in the- district. The assessments were made payable in four annual installments, the first of which became due in 1921. The district includes l...
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delivered the opinion of the court. The facts in this case are that Katie Becker, in April, 1919, leased to C. B. Cashman, for a period of five years, lot 12 ■in block 12 of the original town of Hardin, at a monthly rental of $450. Pursuant to the lease Cashman took and retained possession of the premises. In August, 1923', there was due and owing to Becker from Cashman one month’s rent. In Septem...
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delivered the opinion of the court. This is an action to recover damages for an alleged breach of a contract for the furnishing of certain diagrams and material to be used in the construction of a public school building *39in the city of Helena. Plaintiff in his complaint alleges that he is an engineer, skilled in the art and practice of preparing diagrams and plans for the erection of buildings, ...
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delivered tbe opinion of tbe court. This is an election contest. The object sought to be attained by its institution was to determine whether the plaintiffs or the defendants were elected as trustees of school district No. 21 of Broadwater county in an attempt to hold an election therein on the seventh day of April, 1923. As a result of the balloting tbe judges declared that tbe defendant Seese ba...
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delivered the opinion of the court. From November, 1913, until August, 1917, the Farmers’ Elevator Company of Outlook employed Oscar J. Brown as its manager in the business of buying, selling and storing seed and grain. To secure the faithful performance of his duties, Brown gave to the elevator company a fidelity bond in the sum of $3,000, with the American Surety Company as surety. By the terms ...
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delivered the opinion of the court. The plaintiff, as administratrix of the estate of Frederick Root, deceased, brought this action to have declared null and void a tax deed issued to Jefferson county on May 16, 1921, the land covered by which had been conveyed by said county to the defendant on December 6, 1921, or, in the event that said deed should be upheld, to have it decreed that the defenda...
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delivered the opinion of the court. By verdict of a jury in the district court of Hill county, rendered on the twenty-ninth day of September, 1923, the defendant in this action was found guilty of the crime of unlawfully possessing intoxicating liquor. From the judgment pronounced on this verdict and the order of the court overruling his motion for a new trial he has appealed. 'The two specificati...
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delivered the opinion of the court. As employed herein, “assessed value” means the value fixed upon taxable property by the county assessor and equalized by the county and state boards of equalization. “Taxable value” means that percentage of the assessed value which is made the basis of computation of taxes by sections 1999 and 2000, Revised Codes of 1921. In round numbers the assessed value of a...
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delivered the opinion of the court. This action was instituted to enforce payment of a balance due upon a debt represented by four promissory notes, executed by Asa D. Taylor and Susan C. Taylor, and to foreclose a real estate mortgage executed by Susan C. Taylor and purporting to have been given as security for the debt. Several other persons were joined as defendants, but they defaulted, and Asa...
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The first proposition to be determined on this appeal is the right of the plaintiff to maintain this suit. The defendants, who are the appellants, contend that the plaintiff is without capacity to sue. This contention is based upon the well-established law in this state that, as against public officers, the drastic remedy of injunction can be invoked only by the state acting through its proper law...
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1, 2. The Circuit Court was correct in treating the case as an action at law. The- allegations of the answer do not constitute a defense to the complaint. At most, the facts attempted to be alleged would constitute a counterclaim. Section 390, Or. L., does not authorize the pleading of equitable counterclaims in actions at law. In order to defend an action at law with matters cognizable in equity ...
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Plaintiff brought this action against Marion County to recover damages alleged to have been occasioned by the wrongful acts of the agents and employees of the county. The complaint alleges that the plaintiff is the owner of a farm situate within the county and on the bank of the Willamette River, which river forms the boundary between Marion and Yamhill Counties; that along the west boundary of th...
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The allegations of the complaint upon which this cause was heard in the Circuit Court are as follows: “1. That plaintiff is the owner in fee simple, and entitled to the immediate possession, of the following *522mentioned and described real property situate in Multnomah County, State of Oregon, to wit: “An undivided one-half of Lots 9 and 10, in Block 23, in Columbia Heights, according to the plat...
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We have carefully considered the testimony and are satisfied therefrom that the allegations of the complaint are substantially sustained and that the court was fully justified in its findings in favor of plaintiff. There are no questions of law arising that have not been decided over and over again by this court, and to spread upon the records the facts shown upon the trial would simply encumber t...
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1,2. It is earnestly contended that, because there is no allegation of damage and no specific proof of damage in this case, it is not a case for the equity side of the court. There was no de*571murrer to the complaint, which is not so full perhaps as it should have been. In fact, it is not even stated that the conditional sales contract was in writing, but this is expressly aided by the statement ...
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It is the contention of the Attorney General that the State Industrial Accident Commission is an arm of the state, administering the act commonly known as the Workmen’s Compensation Act, *153and that the state is, therefore, the real party in interest. From these premises he argues, because the state cannot be sued, the Industrial Accident Commission cannot be. The legislature has provided that th...
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It appears from the complaint of plaintiff, W. L. Cooper, that on the-day of June, 1917, one O. Ellenreider instituted a suit in the State of Washington against F. W. Sagert, and a deficiency judgment was rendered against F. W. Sagert on the fifteenth day of November, 1917, for the sum of $933.60, no part of which has been paid. It is further alleged that about December-, 1917, the said O. Ellenre...
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1. We will consider the case along the lines suggested by the Attorney General. We understand that the question of jurisdiction raised by the Attorney General is based exclusively upon his contention that the work, in which the claimant was engaged at the time he received the injury, is not defined by the statute as hazardous. There is no doubt that the workman was engaged in work on a stone-crush...
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The following opinion, prepared by Mr. Justice Kerrigan prior to his retirement, is hereby adopted as the opinion of the court. This is an action for damages for breach of a contract to buy a carload of wire. Plaintiff recovered a judgment of $2,848.10, being the difference between the contract price and the market value of the goods, and defendant appeals. The facts of the case as they appear fro...
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The parties hereto intermarried in this state on August 19, 1918. The defendant gave birth to a child seven months and ten days after the marriage took place, having been pregnant before and at the time of the marriage by a person other than the plaintiff. Such pregnancy was not disclosed to the plaintiff and he had no knowledge of the same and believed that the child was his child and a child of ...
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The petition is denied. The petitioner having applied to the district court of appeal for a similar writ, which petition was by said court denied, the appropriate procedure under the rules of this court is that of an application for a rehearing in this court upon said petition and the order of the district court of appeal denying the same....
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The plaintiffs recovered judgment in the court below in. an action upon contract to recover the agreed price for services rendered by them as architects employed by the defendant. The defendant has appealed therefrom upon the judgment-roll alone. But two points are made by him upon this appeal. The first is that the court erred in allowing plaintiffs to amend their complaint. The original compl...
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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 313 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 314 This is an appeal by the defendant, Southern Pacific Company, from a judgment rendered against it in the sum o...
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Defendants appeal from a judgment in favor of plaintiff in an action upon a promissory note. The sole *Page 199 contention urged by them upon this appeal is that the cause of action was barred by the statute of limitations. After the former decision of this case a rehearing was applied for by the respondent upon the ground that we had failed to consider one of the points made by her upon the oral...
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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 299 Defendants appeal herein from a judgment on verdict in favor of the plaintiff in an action to recover damages for personal injuries sustained by the plaintiff in falling to the bottom of an elevator shaft in an apartment house operated by the defendants. ...
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Application for writ of habeas corpus. The petitioner, who, on the nineteenth day of August, 1923, was engaged in the business of conducting an employment agency in the city of Los Angeles, is restrained of his liberty by the chief of police of said city of Los Angeles by virtue of a warrant of arrest issued upon a *Page 338 criminal complaint charging him with the violation of that portion of se...
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Del Rote, while employed by the petitioner here, was shot by a fellow-employee. The respondent Commission found that the injury, which resulted in Rote's death, occurred in the course of and arose out of his employment. It also found that the employee left surviving him, and wholly dependent, his wife, Mary Rote, to whom it awarded a death benefit in the sum of four thousand nine hundred dollars, ...
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The principle of law which rules In re Smith, ante, p. 337 [223 P. 971], is decisive of the instant case. The facts of the two cases are so similar in material respects as to bring both within the same rule of law. [1] Upon the authority of Exparte Smith the writ is granted and the petitioner is released from custody. *Page 1 ...
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The respondents moved to dismiss the appeal from the judgment taken by the appellants upon the ground that the notice of appeal was filed too late. This question turns upon whether or not there was a motion pending for a new trial. Appellants claim that the notice of intention to move for a new trial was not properly served and filed. Since the hearing of the motion affidavits have been filed show...
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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 227 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 228 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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Defendant was charged and convicted of the crime defined in section 288 of the Penal Code. He appeals from the judgment and from an order denying his motion for a new trial. He contends that the evidence is insufficient to warrant the verdict and also that the trial court committed error in failing to make more specific an instruction given on a certain point of law. [1] The victim of defendant's ...
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The information, following in that respect the complaint filed with the magistrate, was originally in two counts, the first charging that the defendant, on or about the seventh day of March, 1923, in the county of Napa, did willfully and unlawfully sell and furnish to one Prank Martinetti intoxicating liquor containing one-half of one per centum or more of alcohol by volume, etc., and the second ...
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Appellant was convicted in the superior court upon an information charging him with assault with intent to commit the infamous crime against nature, denounced by section 220 of the Penal Code; the charging part of which information, essential to this appeal, read as follows: "W. S. Green is accused by the District Attorney of Riverside County and State of California, by this information, of the cr...
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The two actions herein were tried as one, consolidated upon appeal, presented upon one transcript and one set of briefs, and will be considered and determined as one case. *Page 285 The cause of action arises from an injury received by the plaintiff by reason of being run into by a Ford automobile truck driven by the defendant William Nunes. Plaintiff had judgment against all the defendants and G...
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The plaintiff sued for a divorce from the defendant upon the grounds of extreme cruelty. The complaint alleged that the parties intermarried in June, 1909; that they resided in the county of Humboldt for the statutory period; that two children were born of the marriage; and that they separated on the 18th of February, 1922. The charge of cruelty found in the complaint related to the conduct of 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 270 The defendants were jointly charged with being members of the Industrial Workers of the World, in violation of the Criminal Syndicalism Act. (Stats. 1919, *Page 271 p. 281.) They were jointly tried. Flanagan and Stagland were convicted and the other defe...
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This is an action to recover damages for malicious prosecution. Trial was had by jury, which gave plaintiff a verdict for fifteen hundred dollars, upon which judgment was entered. Defendant appeals from the judgment and also from an order denying his motion for a new trial. Defendant claims, in support of this appeal, that the evidence is insufficient that he instituted a criminal action without p...
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This is an action to quiet title to a group of mining claims and to enjoin defendants from removing certain improvements, fixtures, and machinery therefrom. Decree went for plaintiffs and two of the defendants appeal. [1] The first point made by appellants is that the complaint is insufficient in that it contains no allegation that respondents were entitled to the possession of the claims at the t...
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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 183 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 184 On rehearing. This is an original petition seeking a writ of mandate directing and requiring the respondent as...
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This is an action on a garnishment bond in which respondent, as plaintiff, sought the recovery of damages for the wrongful suing out of the writ of garnishment. From a judgment against them as principal and sureties on the bond, in the sum of $449.74 and costs, the defendants have appealed. It seems to be conceded that the writ of garnishment was wrongfully sued out, and the matters now in issue g...
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The United States Food Products Company became insolvent and the appellant was appointed receiver. After he had collected all of the available assets, he petitioned to have the stockholders’ liabilities established. Notice of the hearing of this petition was served upon the respondent. A hearing was had at which the respondent appeared and denied that he had been a subscriber for the corporate sto...
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In January, 1922, D. C. McCorkle and Katherine M. McCorkle, his wife, entered into a written agreement with respect to their property and property rights, which, so far as material here, reads as follows: *557“This agreement, made and entered into this 25th day of January, 1922, between Katherine M. McCorkle, party of the first part, and D. C. McCorkle, party of the second part, “Witnesseth: That,...
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This action calls in question the power of the city of Tacoma, a city of the first class, to change by ordinance the name of one of its residential streets, the change having been made upon petition therefor, without the consent of the plaintiffs and other owners of property abutting on the street. The judgment of the lower court was in favor of the city, upon the refusal of the plaintiffs to plea...
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Appellant instituted this action to recover $300 as an overpayment to respondent by mistake upon the purchase price of 65,300 feet of cedar logs. Appellant claims that, on the 29th day of September, 1922, he purchased 65,300 feet of cedar logs at the agreed price of $22 per thousand, amounting to *593$1,437.26; that the computation of the amount due was made in the presence of respondent; that the...
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Appellant is a corporation engaged in the retail feed business in the city ’ of Seattle. It brought this action, as plaintiff, to recover from respondents, as defendants, for the value of certain chicken feed sold and delivered to them. After making certain admissions and denials, respondents, by affirmative answer and cross-complaint, pleaded that they were engaged in the business of raising poul...
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This action originally was one for the foreclosure of a real estate mortgage, resulting in foreclosure and sale of the mortgaged property, and a deficiency judgment against the defendants Soderberg in excess of twenty thousand dollars. Thereafter supplemental proceedings upon the deficiency judgment were begun, and a hearing was had on October 3,1922, which hearing was continued at subsequent date...
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Respondent recovered judgment for damages resulting from injuries received by bis *554automobile' being struck by a street car at the street intersection of Rich avenue and Addison street, in the city of Spokane. The street car track runs north and south upon Addison street. Respondent was proceeding westerly along Rich avenue; At the time of the accident, there was a severe snow storm. When respo...
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This is an appeal hy the state from an order sustaining a demurrer to and dismissing an indictment for the crime of transferring property of an insolvent bank with a view to the preference of one creditor over another. The prosecution was commenced under § 3262, Eem. Comp. Stat. [P. C. §305], which reads: “Every transfer of its property or assets by any bank or trust company in this state, made in...
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The question involved here is, which of two automobile transportation companies shall he permitted to serve the government reconstruction hospital in its connection with the city of Tacoma. *6Long prior to the institution of this proceeding, the department of public works had issued to the appellant a certificate of necessity authorizing it to carry passengers between Camp Lewis and the city' of T...
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These causes all arise out of one accident and were consolidated and tried as one, resulting in a verdict awarding A. L. Devoto $250; Leo Devoto $1,500; and E. J. Thompson $1,000. From a judgment on the verdict, the defendants have appealed. As we view the questions now to be decided, it is unnecessary to set out the details of the accident out of which the causes of action arose. It will be suffi...
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Tom Plumas made an application to the town of Cosmopolis for a license to sell soft drinks. Upon considering the application, the town council refused it for reasons expressed in a resolution to the effect that the applicant was not a person of good moral character; that many persons had frequently become intoxicated in the place of business conducted by the applicant; that members of the town cou...
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This is an action brought by the respondents, Fulton, against the appellants, Seegebarth, to recover for personal injuries and for damages to their passenger automobile, resulting from a collision between their automobile and an automobile truck owned and operated by the appellants. The cause was tried by the court sitting without a jury, and resulted in a judgment in favor of the respondents in t...
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A motion made by respondent in the briefs to dismiss the appeal on account of the insufficiency of the bond is denied, the bond being sufficient as an appeal bond, and whether sufficient as a supersedeas and stay bond is unnecessary now to determine. Respondent secured a judgment against the principal defendant for an account due of a balance of $364.07, upon service by publication, the service be...
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The appellants were convicted of the misdemeanor of fishing for salmon with a purse seine in the Pacific ocean within three miles of the shore of Pacific county, the information charging that the defendants violated “the rules, orders and regulations of the state fisheries board.” The defendants demurred to the information, and at the end of the state’s case, demurred to the evidence and moved tha...
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An order of necessity having been entered in favor of respondent in condemnation proceedings, a jury was summoned to determine the damages, a trial was had, and the jury returned a verdict awarding damages to appellants in the sum of $19,000. Thereupon respondent filed a motion to reduce the award to $8,000 on the grounds: first, that there was no competent evidence to substantiate an award of $19...
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Appellant, owning a lease in Seattle on the Olive Apartments, on February 21, 1922, concluded negotiations for the sale of the lease and furniture in the apartments to defendant Fillion, possession to be delivered March 1, 1922. At the time of making the sale, appellant was indebted to respondent for furniture in the sum of $448.50. This action was brought by respondent to recover $398.50, fifty d...
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On April 7,1920, the appellant, Dotson, gave to one Harry Dudman his promissory note for the sum of $1,200, payable six months after date, with interest at the rate of eight per cent per annum. The note was payable at the banking house of the Pioneer National Bank of Bitzville, and was in form a negotiable instrument as that term is defined in our negotiable instruments act. Bern. Comp. Stat., § 3...
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The respondent, Benson, while crossing the interstate bridge extending over the Snake river between the city of Lewiston, Idaho-, and the city of Clarkston, Washington, was injured by an automobile driven by the appellant, Anderson. In the action from which this appeal is prosecuted, there was a verdict of the jury in his favor and a judgment upon the verdict. The bridge mentioned is some fifteen ...
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Defendant was convicted of forgery, and appeals. During the trial, and after the jury had been impaneled and sworn, a witness testified that the check, the subject of the forgery in question, had been presented to and paid by the Continental National Bank to defendant, whereupon a juror interrupted the proceedings and voluntarily .stated that— “Our company does business with the Continental Nation...
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— This action was brought by J. F. Brown against the defendant electrical district and its officers to enjoin the issuance and sale of its bonds in the sum of $304,000, said bonds being a part of a larger issue theretofore voted and authorized by said district. There is no question as to the competency of plaintiff to maintain the suit or of the intention of the defendants to issue and sell bonds ...
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ON REHEARING. — In the original opinion, we held that the judgment should be affirmed because appellants did not offer, in their complaint, to pay maintenance based on the actual cost of operation. In a petition for rehearing, they claim that the court has misconstrued the record in this regard. After re-examining the record, we are not convinced that we have misconstrued it. However, on re-argume...
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— This action was brought by appellant to -recover certain money upon an alleged contract. Respondent filed his answer and upon the issues thus framed appellant introduced his testimony. Whereupon a motion for nonsuit was made by respondent and sustained by the court. These proceedings were had on December 16, 1921. On February 24, 1922, a notice of appeal was served and filed, which recites that ...
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*389By the Court, This proceeding is one authorized by subdivision 3 of Supreme Court Rule 6 to review the decision of the *390clerk of this court taxing appellants’ costs herein at the sum of $782.30. All concede or must concede that the practice of awarding- and taxing costs on appeal, the time within which the cost bill must be filed, and the items allowable are all matters of statutory regulat...
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delivered the opinion of the court. These parties appeared in reverse order in the trial court and are hereinafter referred to as there. Plaintiff sued on a policy of fire insurance, and to review a judgment in her favor, entered upon the verdict of a jury, defendant brings error. The policy in question was for $7,500 and was issued December 18, 1920, on certain buildings and contents. The fire oc...
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delivered the opinion of the court. Mary Hewitt, now deceased, was defendant in error and Ruth Little, her successor in title, has been substituted. Mary Hewitt had a decree in an action brought by her against McKinney, plaintiff in error, to quiet title to a house in Colorado Springs. The judgment must be affirmed. The essential facts are that Mary Hewitt got title to the house by a decree of cou...
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delivered the opinion of the court. The question here before us is the right to recover of the surety on an appeal bond, notwithstanding the discharge in bankruptcy of the principal pending the appeal. The parties appeared in reverse order in the trial court and are hereinafter so designated. Plaintiff recovered judgment in the county court against one Hopke. The latter appealed, and defendant bec...
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delivered the opinion of the court. Action in replevin brought by plaintiff to recover three steers. The complaint alleged inter alia: That the steers were estrays and not the property of defendant. Defendant answered setting up a claim of ownership and the right to possession. Some time before the trial, the firm of Clayton & Murnan intervened in the action, claiming ownership and right of posses...
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delivered the opinion of the court. This is a proceeding which was originally instituted in the county court of the City and County of Denver to determine the heirship in the matter of the estate of H. B. Parker, deceased. The heirship of several persons was not disputed, but was denied as to the claimant who is the plaintiff in error here. The county court found against her. On appeal to the dist...
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*605The opinion of the court was delivered by This is an action to enforce a chattel mortgage, given by J. P. Ricketts and wife upon a crop of growing wheat and which when threshed had been sold by Ricketts to the defendant. The defendant prevailed and plaintiff appeals. The validity of the mortgage is conceded, and that it was a lien upon the crop is not denied. A part of the crop when threshed w...
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The opinion of the court was delivered by The action was one to recover on a contract of insurance. Plaintiffs prevailed, and defendant appeals. The Hill Investment Company is an insurance agency at Arkansas City, and was defendant’s agent. Plaintiffs applied to the investment company for insurance in the sum of $32,000, on an airplane hangar, a stock of airplanes, a stock of airplane appliances a...
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The opinion of the court was delivered by The material questions argued on the rehearing have been passed upon in the original opinion herein (114 Kan. 804), or in former opinions of this court pertaining to the bank guaranty law. We, therefore, adhere to our original opinion and direct that judgment be entered for defendant....
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*805The opinion of the court was delivered by This is an original proceeding in mandamus to compel the bank commissioner to issue a certificate upon the state bank guaranty fund for the amount of a certificate of deposit. Briefly, the facts are: The Farmers State Bank of Quenemo, Kansas, operating under the provisions of the State Guaranty Law, on May 13, 1921, issued a certificate to Joel Barret...
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The opinion of the court was delivered by William Norris appeals from a conviction of murder in the first degree. 1. Tony Gwartney, a Leavenworth taxi driver, gave testimony tending to show these facts: Norris came to him about 10:30 at night at his usual stand and told him to come on, that he might -give him a drive [i. e., furnish him a passenger] to Kansas City. They got into the car and at the...
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The opinion of the court was delivered by This was an action by a wife against her husband for alimony. The woman prevailed and the man appeals. Hi's principal point is that several months after this action was begun, he went to Oklahoma where he claimed a residence, and there instituted an action on publication service against his wife for a divorce and obtained judgment thereon before issues we...
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The opinion of the. court was delivered by The plaintiff appeals from a judgment against her, rendered on a contract for the sale of real property, the material parts of which read: “This agreement, made this 17th day of July, in the year 1911, between H. H. Huggins and his wife Jessie M. Huggins, of Shawnee county, State of Kansas, party of the first part, and J. R. Switzer and Maggie Switzer hu...
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The opinion of the court was delivered by The defendant sold to the plaintiff stock in an oil company. It is conceded to have been worthless when the time arrived within which it was to be delivered. No delivery was in fact made, and none is contemplated. The plaintiff sued the defendant for the amount he had paid, on the ground that he had been induced to make the purchase by the fraudulent repre...
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The opinion of the court was delivered by J. Studer was convicted of manslaughter resulting from the negligent operation of an automobile bus in Wichita, by which Iva Lattin was killed. He appeals. He was prosecuted on an information filed October 9,1922, which he insists had been quashed. The original information was filed September 29, 1922, and a motion to quash the same was filed October 3, 19...
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The opinion of the court was delivered by In this action James Revere was granted a divorce from Lena Revere, the custody of their two children was determined and an allowance made to the defendant as permanent alimony. The defendant appeals. The grounds upon which the divorce was sought was neglect of duty and extreme cruelty. In defendant’s answer and cross-petition she charged her husband with...
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The opinion of the court was delivered by The defendant was convicted of the theft of an automobile and appeals. The only error alleged here is the misconduct .of two jurors, Orahood and Maris. With reference to juror Orahood, defendant, on a hearing of his motion for new trial, offered the affidavit of one Hutton, who had been a witness for the defendant on the trial. The affidavit stated, subst...
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*611The opinion of the court was delivered by This is an action to recover under the workmen’s compensation act for an accidental injury to the plaintiff, an employee of the defendant, which operated an electric interurban railway in Wyandotte county. This is the second appeal in this action. (Kasper v. Rly. Co., 111 Kan. 267, 207 Pac. 208.) The action was commenced under the federal safety-appli...
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The opinion of the court was delivered by F. H. Wright, a canner of tomatoes at Richland, Mo., entered into a written contract with Larson Brothers Wholesale Grocery Company, of Kansas City, Kan., to furnish it a carload— 1,000 cans. He brought this action against the company for damages for its refusal to accept and pay for a car shipped to them. The plaintiff recovered and the defendant appeals....
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*657The opinion of the court was delivered by The action was one on contract for services. The plaintiff prevailed and defendant appeals. In January, 1921, L. W. Clapp, then city manager of Wichita, employed plaintiff as police woman at an agreed salary of $150 per month. It was the understanding of both the plaintiff and Mr. Clapp that the employment should last for a period of one year. At the t...
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The opinion of the court was delivered by This is a controversy between parties as to the conditions of a lease of land and as to steps taken towards terminating it. The lease was executed by F. T. McNinch to Bruce Bierce for a term of sixteen months from April 1,1921, and among its provisions was one that: *543“This lease is made subject to a sale of the premises and in case of a sale the purchas...
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The opinion of the court was delivered by The action was one for damages by a landlord against his tenant. The defendant prevailed and plaintiff appeals. The defendant cultivated certain land belonging to the plaintiff during 1918 and 1919, under a verbal contract which provided that plaintiff should have one-third of the grain raised on sod land and one-fourth on other land, the same to be delive...
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The opinion of the court was delivered by The action was one to recover on a book account of J. M. Courtney and on two promissory notes signed by Courtney and his wife. The referee to whom the cause was referred reported that recovery on the notes was barred by the statute of limitations. The report was approved, judgment was rendered accordingly, and plaintiff appeals. The notes were executed on ...
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*563The opinion of the court was delivered by This is an action for damages. The trial court rendered judgment for defendant upon the pleadings and the opening statements of counsel. The plaintiff has appealed. The question for decision is the statute of limitations. Does the petition state a cause of action for assault and battery or a cause of action for malpractice? If the former, the one-year...
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The opinion of the court was delivered by The plaintiff recovered damages for injuries sustained by being struck by defendants’ street car at a street crossing in Kansas City. *638The circumstances were these: Central avenue in Kansas City runs mainly east and west. Harrison street runs into Central avenue from the south. About 1:30 a. m., one night, the plaintiff was driving northward on Harrison...
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Obe Hathaway was, by information filed in the county court of Oklahoma county January 17, 1922, charged with the illegal transportation of intoxicating liquor. At the trial, February 24, 1922, he was by verdict of *271 a jury found guilty as charged, with his punishment fixed at confinement in the county jail for a period of 90 days and a fine of $250. From the judgment on this verdict he appea...
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This is an attempted appeal from a judgment of conviction rendered against plaintiffs in error in the county court of Adair county on the 16th day of November, 1923, wherein eaeh of these plaintiffs in error was convicted of the offense of unlawfully conveying intoxicating liquor, and punishment of each fixed as above stated. The appeal was not lodged in this court until the 18th day of January, ...
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This is an appeal from a judgment of conviction rendered in the county court of Oklahoma county on the 6th day of March, 1922, wherein A. L. Ivey was convicted of the offense of illegal possession of intoxicating liquors, and sentenced to pay a fine of $250, and to be imprisoned in the county jail for a period of 90 days. Petition in error and case-made were filed in this court on the 3d day of J...
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Plaintiff in error, Louis Baker, was convicted on a charge that he did have in his possession whisky with the unlawful intent to violate provisions of the pro *150 hibition. liquor laws, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for 30 days and to pay a fine of $50 and the costs. From the judgment he appealed, by filing in this court on De...
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Application of Hon. J. C. Walton against George W. Clark, judge of the district court of the Thirteenth judicial district, Oklahoma county, filed in this court December 11, 1923, alleging that respondent had refused to disqualify in the trial of' six certain indictments returned by the grand jury in the district court of Oklahoma county on the 23d of November, 1923; that four of said indictments ...
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On February 13, 1924, the Attorney General filed a motion to dismiss this appeal for the reason that the same was not filed in this court within 6 months from the rendition of judgment. This ease was tried on the 18th day of October, 1922. On October 23d a motion for a new trial was filed, which was by the court considered and overruled on October 27, 1922. After the overruling of the motion for ...
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This. is an application of John Kelley for writ of mandamus, alleging the disqualification of B. C. Logsdon, judge of the district court of Love county, to try an information wherein relator was charged with the crime of murder, and alleging that respondent had refused to disqualify in the trial of said information. The alternative writ was issued, and on the return day all parties appeared, and ...
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This is an appeal from the county court of Woods county, where the plaintiffs in error were jointly tried and convicted of the crime of manufacturing intoxicating liquor, and punishment assessed against each at a fine of $50 and imprisonment in the county jail for 30 days. Judgment was rendered against each defendant on the 24th day of March, and petition in error and case-made were filed in this...
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Petitioners seek a review of an award made by the Indus*144trial Commission of this state. It appears that on or about August 11, 1922, the State Insurance Fund filed with the Industrial Commission its petition asking that it be awarded the sum of $750 by reason of the death of one Hazuto Hatai, which occurred on November 28, 1918, while said Hatai was an employé of the petitioner Spring Canyon Co...
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