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Opinions in p Volume 231

This action was instituted by appellant, as plaintiff, to recover upon a trade acceptance in the sum of $214.50, the making, delivery, and non-pay.ment of which is admitted. The entire controversy centers upon the counterclaim of the respondent as defendant. Therein it is alleged that the respondent was engaged in mild curing King salmon on the Copper River Flats near Cordova, Alaska, and that, h...
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This case is the aftermath of the case of Jahn Co. v.Yakima Produce Trading Co., 120 Wash. 164, 206 P. 944. In the former case, Jahn Company brought suit to recover $12,359.70, the claimed balance of an advance or deposit on the purchase of a large quantity of hay, alleging that the hay tendered by the seller was not of the quality required by the contract, and was properly rejected for that re...
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This was a suit for personal injuries. The only question involved is with reference to the verdict of the jury. It read as follows: “We the jury in the above entitled cause do find for the plaintiff in favor of the defendant city, and against the defendant Corwin auto, in the sum of $900. Phil Meredith, foreman.” Upon receiving this verdict, the jury was polled and each answered that it was his v...
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This is an action on a creditor's claim against an estate. To the amended complaint the defendant interposed a demurrer, both general and that the action had not been commenced within the time limited by law. The declarations in the amended complaint are that the plaintiff exhibited to and served on the executrix and filed with the clerk of the court his claim consisting of a duly verified stateme...
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By the second amended complaint in this action, which will hereinafter be referred to as the complaint, the plaintiffs sought recovery upon an injunction bond. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs in the sum of $300 damages. Motions for judgment notwithstanding the verdict and, in the alternative, for a new trial were interposed, both of...
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This action was brought for the purpose of foreclosing a mortgage upon real estate. The defendant T.M. Jones resisted the foreclosure, claiming that he had a superior right under a prior mortgage. The cause was tried to the court without a jury, and resulted in findings of fact and conclusions of law sustaining the right of the plaintiff to foreclose. From the judgment entered in accordance with t...
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Respondent, being the owner of a tract of land abutting on the Snoqualmie river, in King county, Washington, brought this action against appellants, as defendants, to recover for damages alleged to have been caused to his land by the operations of appellants in floating logs down the river, and for an injunction to restrain appellants from acts of omission or commission which might cause future da...
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W.T. Laube, as trustee in bankruptcy of Frank Waterhouse Company, a corporation, commenced this action against the Seattle Taxicab Company, a corporation, Frank Waterhouse, R.D. Smalley, Stanley N. Minor, John Sparling, Lane Summers, as individuals, and Circle Tours, a corporation, asking for a money judgment in the sum of $136,995.74 against the Seattle Taxicab Company, and for a receiver for th...
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The Norpia Realty Company, as owner of approximately 4,800 acres of land situated north of Olympia and east of Budds Inlet, instituted this action for relief from what it alleged were arbitrary and constructively fraudulent assessments upon its property for taxation for the years 1917 to 1922, both inclusive, the assessments being the same for each of the years involved. The superior court, on hea...
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The plaintiff, Mrs. Hutchings, nee Fanshier, seeks a decree setting aside a deed executed by her father, the defendant T.B. Fanshier, as the executor of the will of his deceased wife, her mother, purporting to convey to the defendant oyster company the interest of the deceased wife and mother at the time of her death in and to certain lands, principally oyster lands in Thurston and Mason counties,...
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On May 4, 1915, the respondent, being then a licensed physician and surgeon in this state, was convicted of the crime of abortion, and the judgment was affirmed by this court. State v.Russell, 90 Wash. 474, 156 P. 565. A short time after her conviction, a complaint was filed with the board of state medical examiners, calling attention to the conviction and asking that her license be revoked. After...
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From a judgment entered in favor of respondents denying recovery upon a promissory note, this appeal is taken. The note was a renewal note in the amount of $10,500, signed by respondents and payable to the order of the Scandinavian American Bank. The original note was given on March 23, 1920, for the payment of one hundred shares of the capital stock of the Scandinavian American Bank, formerly own...
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This is an appeal from a conviction on a jointist charge. It appears that appellant went into possession of the premises in question under a written lease, on September 17, 1922, and there conducted a lodging house until the information was filed. The information charged *Page 42 that the offense was committed jointly with one Frank Sells, but Sells was not apprehended and appellant alone was tri...
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Appellant was informed against, tried before a jury, and convicted on the charge of carnally knowing a female child four years of age, and sentenced to the penitentiary for life. From the judgment and sentence, he appeals. The first two errors assigned are based upon the admission of testimony by witnesses for the state, over objection, (a) that the child was at a certain time unconscious, and so ...
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A demurrer to the complaint having been sustained, the plaintiff refused to further plead, and has appealed from á judgment dismissing the action. The complaint alleges the following facts: Plymouth Rubber Company (predecessor in interests of the appellant) did business in Massachusetts, and the respondent in the state of Washington. Prior to December 1,1920, the respondent had purchased and recei...
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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 736 This is a petition for a writ of review wherein it is sought to annul orders of the respondent Railroad Commission requiring the payment of reparation in twelve proceedings instituted before it. The issues in the several proceedings were the same and the ...
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This is an appeal from an order quashing two writs of garnishment sued out by appellant, one against King county to garnish the salary of respondent Starwich, and the other against King county to garnish the salary of respondent McNamara. The appeal is brought here on the transcript of the record and the bill of exceptions. The affidavits of the two defendants show that, at the time of the issuanc...
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On Rehearing. In the petition for rehearing in this case (129 Wash. 538, 225 Pac. 429), our attention is called to what is claimed to be an incorrect statement in the opinion where it is said that “he admits” he has not yet served the sentence which was legally imposed. The words “he admits” will be eliminated from the opinion and there will be substituted in their stead “it has been held” (State ...
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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 3 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 4 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ...
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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 18 This is an application for a peremptory writ of mandate to compel A.E. Warmington, as president of the board of trustees of the Palo Verde Irrigation District, and Herman Bahls, as president of the board of directors of the Palo Verde Drainage District, to...
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Action to recover an amount paid by the plaintiff to the defendant on its indorsement of a cashier's check issued by the plaintiff, which check was cashed by the defendant for an impostor who forged the indorsement of the payee's name thereon. The case was submitted to the court below on an agreed statement of facts. As thus shown, the facts are as follows: The Bank of New South Wales issued its d...
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The opinion of the court was delivered by The action was one of ejectment to obtain possession of land in Barton and Stafford counties, and for partition of the land in Stafford county. Plaintiff claimed under a contract for the land, specific performance of which was prayed for. Judgment was rendered for defendant on the pleadings, and plaintiff appeals. The question is whether relief was barred ...
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THIS is a writ of error to a decree of the district court rendered on a petition for a review of a former decree of the same court, in supplemental statutory proceedings for the adjudication of priorities of water rights. The original or general adjudication decree in that district, rendered in 1888, is not involved. The two principal errors assigned are: (1) The petition for the review is insuffi...
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The opinion of the court was delivered by Defendant appeals from conviction on an information charging in three counts possession of intoxicating liquor, sale of intoxicating liquor, and keeping a liquor nuisance. A motion to quash asserted the information was not verified as required by law. The motion was denied, and later, when the case was called for trial, an objection was made to the introdu...
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*283The opinion of the court was delivered by The action was one to recover on a policy of fire insurance. Plaintiff prevailed^ and defendant appeals. The case was tried on an agreed statement of facts, which among other things, recited that the defendant was a New York corporation; that on May 1, 1921, O. W. Terrell, who was the owner of a frame house on real estate therein described, and located...
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The opinion of the court was delivered by The action was one by the payee to recover the proceeds of a promissory note, the transfer and negotiation of which had been induced by fraudulent representations. The plaintiff owned a note for $1,100, executed by one Murray and secured by chattel mortgage. On May 20, 1920, W. H. Simpson and Bern Thompson, both residents of Springfield, Colo,, induced the...
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In 1865 William Wallace and David M. Dunkelberg each located a homestead near the mouth of Dunkelberg Creek in what was then Deer Lodge County, and about the same time each made an appropriation of the waters of Dunkelberg Creek for the irrigation of his lands. In 1885, Dunkelberg acquired the Hanley homestead which is located three or four miles above the mouth of Dunkelberg Creek. Later other pe...
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THE bank, defendant in error, had judgment, after a trial to the court, in a suit to foreclose a mortgage which secured a promissory note signed by plaintiff in error and her husband, R. E. Hunt. She brings error. R. E. Hunt owed the bank a note for $3,120. As collateral thereto he deposited a note from himself to one Ed. Hunt, secured by chattel mortgage and endorsed by Ed. Hunt. The principal no...
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THE plaintiff in error was plaintiff below, the court directed a verdict for the defendant and the plaintiff brings the case here on error. The complaint, in form, contains two causes of action. For a first cause of action it alleged that one Alice Hopkins *Page 474 in 1912 was the owner of section 25-1-68, and granted to said defendant a right of way across the same for a pipe line for irrigatio...
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This is an action to recover possession of lot 8, situated in the NE 1/4 of the SW 1/4, Sec. 4, T. 33 N, R 75, in Converse County, Wyoming, and certain personal property and equipment used in connection therewith and for damages for coal mined from the land and waste committed thereon. The district court rendered judgment for the defendants, from which the plaintiff appeals. The court was, by the ...
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The opinion of the court was delivered by This is an action to recover the price paid for an automobile which plaintiff claimed he had been induced to buy by fraudulent representations that it was a new car, and which He *190had returned to defendant promptly on,discovery that it was an old one. It was tried to a jury which made findings of fact and rendered a general verdict for plaintiff, and th...
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The opinion of the court was delivered by The action was one to enforce a mechanic’s lien for material furnished for construction of a building. Defendant counterclaimed damages resulting from breach of warranty of quality of the material. Plaintiff recovered and defendant appeals. The answer alleged that while defendant was engaged in con*286structing a building,, he negotiated with plaintiff's a...
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The opinion of the court was delivered by The action was one to recover on a school teacher’s contract. The defendant prevailed and plaintiff appeals. The case was tried on an agreed statement of facts, which showed that on April 3, 1921, the plaintiff and defendant entered into- a written contract whereby the plaintiff agreed to teach music in the public schools of Bonner Springs for the year be...
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The opinion of the court was delivered by The action was one of replevin by a trustee in bankruptcy to recover money and property in the hands of a trustee to whom the bankrupt transferred his property for the benefit of creditors. Plaintiff recovered, and the trustee for creditors appeals. Klag filed a voluntary petition in bankruptcy. Pursuant to negotiation with some of his creditors, he execut...
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This was an action in the district court of Creek county by Nannie Monday, and others against John E. Hall and others to recover possession of and to quiet title to certain lands, comprising the surplus portion of the allotment Of Abraham McIntosh, a duly enrolled Creek Indian of the half-blood, who died intestate in April, 1909. Upon the conclusion of the evidence, the court entered its decree, a...
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Opinion by This appeal is by the proponent of the purported will of J. 0. Huff, deceased, from the judgment of the district court of Stephens county refusing to admit the will to probate upon the ground that it was a forgery. A jury was impaneled and the court made the following statement: “Gentlemen of the jury, the question that will be submitted to you will be as follows: (Q.) Did the dece...
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This action was originally commenced by the defendant in error, as plaintiff, in the district court of Carter county, against R.A. Peterson and T.C. Bridgman, upon two promisory notes, one in the sum of $12,000, and one in the sum of $460. Service was had upon the defendants January 13, 1923, and on January 18, motion to quash was filed, and overruled by the court on March 21, 1923, and defendants...
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In 1910, Oscar W. Walker, a minor, enrolled as a Choctaw by blood, under Roll No. 8546, quantum of blood one-fourth, in consideration of a stock of goods, two mules, and a wagon, sold and conveyed his homestead allotment to R. L. Rollins. Thereafter, title was sought to be perfected in Rollins by the appointment of a guardian and the sale of the land by the guardian. Rollins reconveyed to the allo...
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Parties will be referred to as they appeared in the trial court, inverse to their order here. Defendant Livingston signed and delivered to plaintiff the following: "Tulsa, Oklahoma, June 15, 1916. "1, the undersigned hereby agree to pay to J.S. Blair for certain or any contracts for casing-head gas, suitable for the purpose of manufacturing casing-head or natural gas gasoline, the sum of $2,500, p...
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Plaintiffs in error seek to have reviewed the order overruling motion for new trial made January 21, 1924. Petition in error with case-made attached was deposited with the clerk of this court July 23, 1924. On the same day that the record was received in the office of the clerk, this court entered an order directing the clerk to file the petition in error and case-made as of July 18, 1924. This or...
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This is an appeal from the judgment of the district court of Garvin county, dismissing the appeal of plaintiff in error from the judgment of the county court of Garvin county, disallowing certain items in the report of the plaintiff in error filed in the county court as guardian of the estate of Wallace B. Hervey, an incompetent. Upon motion of the ward, the district court dismissed the appeal fro...
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This is an appeal from the judgment of the district court of Garvin county, dismissing the appeal of plaintiff in error from the judgment of the county court of Garvin county, disallowing certain items in the report of the plaintiff in error filed m the county court as guardian of the estate of Wallace B. Hervey, an incompetent. Upon motion of the ward, the district court dismissed the appeal from...
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This is an application for a writ of habeas corpus filed in this court by N.M. Lowery, alleging he is unlawfully restrained and deprived of his liberty by R.D. Sanford, sheriff of Tulsa county. It appears from the verified petition that the petitioner was tried and found guilty of bastardy in the county court of Tulsa county, and pursuant to such conviction, under the provisions of section 8066, C...
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This action was instituted in the district court of Logan county, Okla., on the 21st day of November, 1921, by plaintiff in error, as plaintiff in the trial court, against the defendants in error. For cause of action, the plaintiff alleged that on the Ist day of March, 1913, T.F. McKennon and Ella McKennon, defendants in error, executed and delivered their certain promissory note to A.M. McKennon ...
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The plaintiff in error was convicted of manslaughter in the first degree on an information which charged that in Murray county, on or about the 4th day of April, 1922, W. A. Lawson did on said day and date in said county and state kill and murder one W. D. Hucks by shooting him with a pistol. *404 On the trial the jury returned a verdict finding Mm guilty of manslaughter in the first degree a...
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Ervin Fuller and A1 Kelley were jointly charged in an information filed in the district court of Choctaw county with grand larceny, for the theft of three automobile tires. Before the trial of the plaintiff in error A1 Kelley had entered his plea of guilty, and by a judgment of the court had been sentenced to imprisonment in the penitentiary. The ease proceeded to trial as to Ervin Fuller, result...
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J.O. Allen, plaintiff in error, defendant in the trial court, was convicted in the district court of Muskogee county of the crime of burglary in the second degree. By the verdict of the jury his punishment was fixed at confinement in the penitentiary for a term of two years. The evidence shows that Fred B. Reed, Kenneth Reed, Tom Reed, and K.K. Hendricks comprised the stockholders of an ice manufa...
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Plaintiffs in error, Ben Hopkins and William Reed, here referred to as the' defendants, were by information filed in the district court of Nowata county charged with the crime of assault with intent to kill a peace officer, alleged to have taken place on January 24, 1924. At the *406 trial the defendants by a verdict of a jury were found guilty as charged, with the punishment of each fixed at c...
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On the question of the remedy we earnestly contend that the order of dismissal, as moot, was and is not an appealable order and that mandamus is the remedy. We cite the following authorities which, we believe, amply sustain our position: Stateex rel. Montana Central Ry. Co. v. District Court, 32 Mont. 37,79 P. 546. Here this court held that where after defendant's motion for judgment on the pleadi...
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Plaintiffs exchanged with defendants some farm land, situate near Scottsdale, Maricopa county, Arizona, for the Woodford hotel, situate in Phoenix, Arizona. This suit is brought for damages for deceit the defendants are alleged to have practiced on plaintiffs in such trade. The deceit charged is that defendants represented before and at the time of the exchange of deeds that the land (consisting o...
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This action arises out of a contract entered into between appellant and respondents in 1919 for the purchase of certain lands in Bonneville county. Appellant claims that she was entitled, under the contract, to the crops growing upon the land during that year, alleged that *Page 789 she had been deprived by respondents of a portion of such crops and sought by this action to recover the value ther...
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The foregoing opinion is hereby approved and adopted as the opinion of the court, and it is ordered that the order appealed from be reversed and that a new trial be granted. Costs awarded to appellant. *Page 278 ...
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The plaintiff, a Nevada corporation, commenced this action in the district court of Salt Lake county against the defendants to recover an alleged balance of $7,200, which plaintiff alleged was owing from the defendants for 50,000 shares of mining stock, which it is alleged the defendants had agreed to purchase and pay for in connection with a certain lease of certain mining properties located in N...
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In this action plaintiff (respondent) seeks judgment against the defendant (appellant) for the wrongful construction of a dam or dike across a water course near the east line of the appellant's property and immediately west of the respondent's property. The construction of the dam, it is alleged, caused water to flood respondent's lands to his damage. Respondent had judgment. Defendant appeals. Af...
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This is the second appeal in this case. The facts concerning the offense of which the defendant was found guilty will be found in the opinion of the court affirming the judgment of conviction in State v. Cano, 64 Utah 87, 228 P. 563. Upon receipt of the remittitur of this court by the clerk of the district court, the defendant filed what is designated "Second motion for a new trial." That motion w...
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On February 18, 1924, Frank P. Kelsey presented to the district court of Millard county his petition for a writ of habeas corpus, in which he alleged that he was illegally restrained of his liberty by Wilford Goff, sheriff of Washington county. A writ directed to the sheriff was issued and served. At the appointed time the sheriff appropriately responded to the writ, and filed an answer in his own...
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On July 18, 1910, the district court of Wasatch county entered judgment in favor of the plaintiff and against the defendants in an action pending therein, wherein the parties plaintiff and defendant were the same as in the present action. That judgment was rendered by the court pursuant to and in conformity with a stipulation of the parties. The judgment was for a definite amount, and provided tha...
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The defendant challenges the validity of the indictment by objecting to the state’s testimony. The accusation made by the grand jury reads: “The said H. E. Briggen, on the 8th day of January, A. D., 1923, in the said county of Harney, state of Oregon, then and there being, did then and there wrongfully, unlawfully, feloniously, and burglariously break and enter a building, to wit: a warehouse in w...
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IN BANC. AFFIRMED. REHEARING DENIED. This is a suit by the vendor, strictly to foreclose the vendee's right in certain tracts of land, five in number, covered by five contracts, in three of which the vendee was the original party and two of which he was the assignee of the original vendee. Except for the description of the land, the price to be paid and installments thereof, the contracts are iden...
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IN BANC. REVERSED. REHEARING DENIED. For many years the defendant, Oregon-Washington Railroad Navigation Company, has owned and operated a railroad running easterly out of the City of Portland in Sullivan's Gulch. When the scheme of improvement here involved was inaugurated, several streets crossed the railroad tracks at grade. The City of Portland is a municipal corporation, the legal voters res...
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IN BANC. This matter comes here upon appeal from an order of the Circuit Court overruling a motion to open up a default judgment and decree. The facts, briefly, are as follows: On February 23, 1921, defendant R.E. Weant executed a chattel mortgage in favor of the First National Bank of Vale, Oregon, to secure the payment of a note for $4,000. The mortgage was upon personal property described as 50...
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We are of the opinion that plaintiff had a right to proceed with its foreclosure to the extent of having the priority of the liens adjudicated, and that neither the stipulation nor the assignment in bankruptcy had the effect of ousting the jurisdiction of the Circuit Court. But the circumstances shown here clearly indicate to us that the defendant Nelson acted under the belief that the proceedings...
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IN BANC. APPEAL DISMISSED. REHEARING DENIED. As we must dismiss this appeal, we confine this statement to the matters pertaining to the question decided. The plaintiff filed a complaint containing five separate causes of action. A demurrer was interposed to each of the causes of action alleged. The demurrer was sustained as to the first cause of action and overruled as to the other four. Time was ...
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The plaintiff, Western Bond & Mortgage Company, a corporation duly organized and existing under and by virtue of the laws of this state, commenced these proceedings against defendant, the corporation commissioner of the State of Oregon, by petition filed in this court praying that an alternative writ of mandamus be directed to the defendant, commanding him, as such commissioner, to issue a permit ...
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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 IN BANC. AFFIRMED. REHEARING DENIED. The defendant appeals from a judgment of conviction based upon the verdict of a jury. *Page 300 The indictment upon which the defendant was tried, is as follows: "F.E. Gauthier, the above named defendant, is accused b...
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Transfers of property to near relatives is looked upon with suspicion, and the burden of showing a transaction in good faith and free from fraud is upon the grantees: Clark v. Pilomath College, 99 Or. 366, 378 (193 Pac. 470, 195 Pac. 822); Stubling v. Wilson, 50 Or. 282 (90 Pac. 11, 92 Pac. 810), and cases therein cited. The questions involved in this suit are principally questions of fact. The fa...
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IN BANC. The appellants filed their petition in the Circuit Court of the State of Oregon for the County of Multnomah, department of probate, in which they averred, among other things, that they are attorneys at law of this state, maintaining offices, as such, in Portland, Oregon; that Xarifa J. Faling died testate in Portland, *Page 8 Oregon, on July 5, 1917, age 76 years, leaving an estate consi...
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AFFIRMED. REHEARING DENIED. This is a suit to foreclose a mortgage on certain real property situated in Washington County, Oregon. It appears that in July, 1908, John *Page 159 Nellsen, unmarried, and Simon Nellsen and Minnie Nellsen, his wife, were the owners in fee simple of the property involved in this suit. While they were such owners, and on July 3, 1908, they executed to Joseph Nellsen, of...
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IN BANC. REVERSED. This is an application for a writ of habeas corpus, the petition in which alleges that "Erle Ashley is now detained, confined and restrained of his liberty by Hazel Ashley, his mother, at Seaside, Oregon." After alleging that the restraint is not by virtue of any process of any court, the petition goes on to say: "That the cause or pretense of such imprisonment and restraint, ac...
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IN BANC. This is an appeal from an order sustaining a demurrer to the complaint. The demurrer was filed in behalf of the defendant, Talent Irrigation District, and is based upon the ground that the complaint does not state facts sufficient to constitute a cause of suit *Page 73 against the defendants named therein. The City of Ashland and its mayor and recorder answered. The order appealed from i...
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THIS controversy grows out of the sale of a rolling mill and its equipment which the manufacturer, The Anglo-American Mill Company, a Kentucky corporation, plaintiff below, was requested to, and did, deliver at Brighton, *Page 310 Colorado, to the purchaser Blumenthal, whose rights and liabilities thereunder were assumed by the defendant Colorado Marvel Mill Company, Blumenthal's vendee. Upon rec...
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A WRIT of attachment was issued in an action brought against B. W. Rush, in the county court of Fremont county, and levied upon a Studebaker automobile of the model of 1923, in the possession of Thomas J. Jones and his wife, who, by their petition of intervention, claimed the ownership of the car. The second writ of attachment was issued, directed to the sheriff of Pueblo county, who levied upon a...
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IN 1910 William O. Schmitt recovered a judgment in the Denver district court against one F. D. Bright and Addie Bright. In 1921 he died, leaving heirs, two sons and a daughter, all of age. One of the sons, George W. Schmitt, was appointed administrator, settled the estate and was discharged. By an agreement with his brother and sister he purchased the business of their father and with it the judgm...
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delivered the opinion of the court. The defendant in error, plaintiff below, held a note secured by a deed of trust on land which at the time the action was begun, belonged to the plaintiff in error. A small house on the land having been blown down, the plaintiff in error sold the wreckage and it was removed from the land. The action was to recover the value of the material sold or removed, whi...
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This action arose out of a collision between the car of respondents and a motor stage of appellant, about two miles south of the city of Everett, about 1:00 o'clock p.m., on June 17, 1923. The jury awarded damages in the sum of $10,750, apportioning them by special findings as follows: $10,000 for injuries to the person of respondent Ella M. Buell; and $500 for the injuries to the person of S.E. B...
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On October 24, 1922, this action for unlawful detainer was instituted to secure possession of certain farm lands. These lands were leased by the husband of respondent, James MacDonald, now deceased, on October 1, 1915. The lease is long and many of the blanks are not filled in, one of these blanks being for the term of the rental for ____ years from the 1st day of October, 1915. This action is pro...
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The deceased, August Liebenwald, executed a will at Odessa, Washington, on the 23d day *Page 27 of April, 1907, wherein he gave all his property to his son, Paul Liebenwald, of Nue Glietzen, Germany, with the exception of $10 to each of his other heirs. Soon thereafter he left for Germany and resided there until his death on November 23, 1916. While in Germany, on February 17, 1911, he made anoth...
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The council of the city of Seattle passed an ordinance (No. 45727) for the regulation of second-hand dealers. The first section of the ordinance provides that it shall be deemed an exercise of the police power. The third section defines second-hand dealers as follows: “Any person who, within the city of Seattle, shall as a business engage in the purchase, sale, trade, barter or exchange of second-...
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This is an action by Mildred Odalovich, guardian ad litem of her minor daughter, Madeline, six years of age, for injuries received as a result of being run over by an automobile driven by respondent. The accident occurred on October 26, 1922, at about 11:30 a.m., on Rainier avenue, in the city of Seattle, near Genessee street crossing. The complaint alleges that the injuries of the minor child wer...
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Appellant, as liquidator of the insolvent Scandinavian-American Bank of Tacoma, instituted this action for the purpose of foreclosing an instrument, in form a quitclaim deed, as a mortgage, for the security of the payment of a note of $3,000 and interest, given the bank by L.Y. Stayton Company on October 17, 1919; and also for the security of sixteen promissory notes given the bank by Stayton indi...
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The plaintiffs’ judgments referred to in our statement are severally based upon payments made by each of them to the Linnhaven Orchard Company on contracts between them and the company, wherein each of the plaintiffs contracted to purchase from the Linnhaven Orchard Company certain orchard tracts. The trial court had jurisdiction of the parties and of the subject matter of the suits wherein the ju...
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IN BANC. AFFIRMED. The respondent, on January 1, 1920, leased to the appellants two lots in the City of Astoria for a term ending January 1, 1923. The first clause of the lease, which is the clause here in dispute, is as follows: "The second parties [appellants] agree to pay to the first party [respondent] as rental for said premises during said term the sum of Six Hundred and Fifty Dollars ($650....
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IN BANC. APPEAL DISMISSED. This is a motion to dismiss an appeal from a decree foreclosing a mortgage upon certain real property in Multnomah County. The decree was rendered on the second day of September, 1924. Notice of appeal was served upon the first day of November, 1924. Thereafter an undertaking *Page 42 on appeal was served on the twenty-fifth day of November, 1924. A transcript was filed...
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The facts in this case are the same as the facts in the other case of Harris v. Lebb, decided this day, and for the reason there 'given the appeal is dismissed. Appeal Dismissed. ...
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IN BANC. This is an action for negligence arising from the death of Gerhardt Wiebe in an automobile accident in Walla Walla County, Washington. The cause was tried to the court and a jury and a verdict rendered in favor of defendants. From a judgment thereon plaintiff appeals. The facts of the case, as far as it is necessary to here state, are as follows: On Sunday, March 4, 1923, at about 6 o'clo...
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This is a criminal action. Defendant, by the indictment, was charged with the crime of arson, committed as follows: “The said defendant on the 24th of July, A. D. 1921, in the County of Clackamas and State of Oregon, then and there being, did then and there willfully, maliciously, unlawfully and feloniously set fire to a store building owned by Jacob Peters at Wilson-ville, Oregon, by the burning ...
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OPINION OF THE COURT. An alternative writ of prohibition issued herein, returnable on November 10, 1924. The writ was issued upon a petition setting up the following facts: On October 25, 1924, there was filed in the district court of San Miguel county, by Thomas V. Truder, assistant district attorney, an accusation charging relator with misconduct in office, and praying ...
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IN several different informations in the Denver district court, the first of which was filed August 16, the others September 18, 1923, plaintiff in error, Maurice Mandell, was charged with conspiracy to defraud, and with larceny, embezzlement, abstraction and misapplication of the funds and securities of the Hibernia Bank and Trust Company of Denver. The result of the trial of the consolidated cas...
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delivered the opinion of the court. Defendant in error obtained from the city council authority for the building inspector to issue a permit to erect a store building on lots 23 and 24, in a subdivision named; but he began the work on lots 21 and 22. He was arrested for violation of an ordinance which prohibits the erection of a building without a permit, and was convicted in the police court. ...
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In the view taken of this case here it is only necessary to consider the second and third assignments of error, which read as follows: "Second. The court erred in sustaining objections of plaintiff to certain evidence offered and tendered by defendant. "Third. That the court erred in its findings of fact and conclusions of law." A brief statement of the facts necessary to a discussion of the quest...
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Mary E. Hart, who formerly lived in Ohio, died in Logan county, Okla., on January 27, 1919; on March 31, 1919, letters testamentary were issued by the county court of Logan county to Marie E. Koetsch as administratrix with the will annexed of Mary E. Hart, deceased; on March 31, 1919, said administratrix caused due notice to be given to the creditors of said deceased to present their claims within...
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This is one of those unfortunate and infrequent cases in which counsel are compelled by their sense of duty to a client to come to this court asking that the rules of procedure adopted for the orderly conduct and dispatch of the business of the trial courts be set aside in order to relieve the client from the results of oversight or lapse of memory of counsel. The following language from the opini...
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Two propositions are relied on in the brief of petitioners which are, in substance: First, that the finding of the State Industrial Commission that the claimant was an employe of the Williams Lumber Company is not sustained by the evidence; second that such finding is contrary to the law as contained in the Workmen's Compensation statutes of the state. It appears from the transcript in this case t...
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This appeal is prosecuted to reverse a judgment of the district court of Grady county, refusing to admit an instrument purporting to be the last will and testament of Annie Stover, deceased, to probate. O.R. McKinney petitioned the county court of Grady county to have an instrument bearing date of March 13, 1920, admitted to probate as the last will and testament of Annie Stover, deceased. By the ...
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Opinion-1--.n This is ■■a appeal from a judgment of the district court of Marshall county sustaining a demurrer to the plaintiffs’ first amended petition and dismissing their action. The facts out of which the controversy arose are about as follows: On the 30th of October, 1016, Oscar Driver and Pearl I. Driver, his wife, made a deed purporting to convey to Lidie Barry and John H. Ussery certai...
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This is primarily an action at law, though it invokes equity jurisdiction for the enforcement of a feature of the relief sought. Since the plaintiff in error was plaintiff in the trial court, and the defendants there are defendants in error here, they respectively will be referred to as their positions were in that court. The plaintiff is Gilbert S. Walker, a resident of Pittsburgh, Pa. The defend...
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The Oklahoma Union Railway Company, a corporation, instituted *Page 269 an action in the district court of Creek county, Okla., to condemn the right of way across the north 50 feet of lots one and two in block 29 in the original town-site of the city of Sapulpa, Okla. Michael Daskas, who was the owner of the above described property, had instituted an action in the same court to recover damages o...
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THIS is an action in replevin, instituted November 23, 1923, by J. B. Rhodes, the plaintiff in error, against E. W. Harmon and Charles Harmon, individually and as co-partners, and Ed Jones, to recover the possession of certain chattels consisting of gasoline storage tanks, machinery, tools, and fixtures. Upon the trial, at the close of plaintiff's evidence, the court sustained a motion of defendan...
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Parties appear in the same order as in the trial court. John T. Cooper, William Neff, and L.E. Neff, attorneys, sued Fannie Jackson, William Jackson, Eastman Richards, J.B. Lucas, and Britton H. Tabor to recover an one-half interest in 80 acres of land and $5,000 for legal services. The action was brought under section 4102, Comp. Stat. 1921, providing that should a party to an action, whose inter...
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Plaintiff sued defendant for the purpose of declaring a trust in certain real estate which defendant held by virtue of a sheriff's deed executed pursuant to a judgment in foreclosure proceedings covering the lands in controversy. It was alleged and proved that the plaintiff was an ignorant negro freedman unable to read or write; that he had been the owner of the land in controversy; that on Januar...
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This case was appealed to this court on petition in error and case-made. The case-made shows that the cause was submitted to the jury and the verdict was rendered for the plaintiff, Robert Williams, against the defendant, George C. Campbell, on November 13, 1910. The motion for a new trial was overruled on December 27, 1920, and the appeal was lodged in this court on June 17, 1921. On October 26, ...
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The plaintiff in error was plaintiff below, and the defendant in error was defendant; and for convenience the parties will be referred to herein as they appeared in the trial court. The plaintiff Calvin Jefferson, filed this action in the district court of Carter county on the 22nd day of January, 1921. He alleges in his petition that he is a Choctaw Indian of three-fourths blood; and that he was ...
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This is an appeal by the defendant, on the judgment-roll alone, from what is denominated an interlocutory decree in partition. The plaintiff alleged ownership, as tenant in common with the defendant, of an undivided half interest in the property, with like interest in the defendant. She prayed for a partition *Page 318 of the land according to the respective rights of the parties, or, if a partit...
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This appeal is from an order of the trial court setting aside the verdict of the jury in favor of defendant, plaintiff in error here, in an election contest. The motion for new trial set out a number of grounds, but the order of the court sustaining the motion does not state the grounds upon which new trial was granted. A number of errors are assigned by defendant in the petition in error, all of ...
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This case involves the question of whether certain deeds were delivered by the grantor before his death. On April 23, 1912, John S. Snodgrass executed his will and testament and also then executed two warranty deeds by terms conveying unto each of two of his adult children, Minnie E. Pierce and Geo. L. Snodgrass, a separate tract of real estate, subject to a reservation of a life estate to himself...
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This is an equitable proceeding commenced by the plaintiff to quiet title to certain real estate allotted to him as a Creek freedman. This appeal presents the question of the sufficiency of the evidence to support the judgment in favor of the defendants. It is claimed by the plaintiff that the deed offered in evidence by the defendants was forged. The alleged conveyance of land by a freedman is a ...
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This appeal is from a judgment for a broker's commission in the sale of a refinery by the Inter-State Refining Producing Company, defendant, plaintiff in error, to the General American Oil Company. The suit was on a written contract between defendant and A.F. Schmidt wherein defendant agreed to pay Schmidt $3,000 to introduce it to parties ready, willing, and able to lease defendant's refinery at...
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This action was instituted by the plaintiff for recovery of the value of supplies sold and delivered to the county clerk of Tulsa county, on a contract entered into by and between the plaintiff and the county clerk as the purchasing agent for the board of county commissioners. The plaintiff, in support of the contract sued on, proved the passage of a resolution by a prior board of county commissio...
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Opinion by Board of County Commissioners of Tulsa County v. News-Dispatch- Print. & Audit Company, No. 13940-, this day decided, controls this appeal *263 and results in tile reversal and remanding of this cause for further proceedings in accordance with the views therein expressed. Therefore, it is recommended that this cause be reversed and remanded, with di...
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Opinion by Board of County Commissioners of Tulsa County v. News-Dispatch Print. & Audit Company, No. 13940, this day decided, controls this appeal and results in the reversal and remanding of this cause for further proceedings in accordance with the views therein expressed. Therefore, it is recommended that this cause be reversed and remanded, with directions to dismiss the plaintif...
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The plaintiff in error was the plaintiff below, and the defendant in error Amerada Petroleum Corporation was a defendant. These parties will be designated herein as plaintiff and defendant, as they appeared in the trial court. The plaintiff is a pipe-line company operating a pipe line for the transportation of crude oil in the vicinity of Stephens county, Okla. The defendant is an oil producing co...
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This action was commenced in the county court of Tulsa County, Okla., by the Constantin Oil Corporation, a corporation, defendant in error, plaintiff below, against the city of Tulsa, a municipal corporation, plaintiff in error, defendant below, for the recovery of $811.42 on open account. The parties will be referred to as plaintiff and defendant as they appeared in the lower court. The plaintiff...
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The county commissioners of Sequoyah county issued a proclamation, pursuant to section 10092, Comp. Stat. 1921, calling an election for the people to vote on the question of the county issuing its bonds for the construction of several bridges on the public highways of the county. The section, among other provisions, requires the location of the proposed bridge to be described in the proclamation. ...
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Effie Young was by the county court of Creek county appointed administratrix of the estate of Al Young, deceased. She presented and had approved her bond as such administratrix with the Aetna Casualty Surety Company, a corporation, as surety thereon, and received her letters of administration. It was on February 28, 1919, that she filed her application *Page 152 in the county court for appointme...
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This suit is by a number of judgment creditors of George W. Dixon, former president of the Miami State Bank, for the discovery of assets and an accounting. The Vantage Mining Company, C.W. Clapp, W.W. Ennis, and R.P. Sharpe were joined as defendants. It is alleged that Dixon entered into a joint adventure with Clapp, Ennis, and Sharpe for the purchase of the controlling interest of the Vantage Min...
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This is an appeal from a judgment of the district court of Tulsa county, canceling and setting aside a certain contract between the defendants in error and John O. Mitchell, dated June 1, 1912, with reference to certain real estate described in the said contract, and canceling a certain quitclaim deed of the same date conveying to John O. Mitchell an undivided one-half interest in said real proper...
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This appeal arises out of the action of the board of county commissioners of Payne county, Okla., in rejecting the petition of Josey Oil Company, which was a petition on account of an erroneous assessment, and in the petition it was claimed that taxes for the year 1920 had been erroneously assessed against certain materials, machinery, and equipment belonging to said company. The company set out i...
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The action in this case was brought August 27, 1920, by Gus Mueller, as plaintiff, against John W. Teer and Lena L. Teer, as defendants, to recover damages for personal injuries sustained by him while walking across Main street in Ardmore, in being struck by defendant's automobile. The parties will be referred to as they appeared in the trial court. The petition states that the plaintiff is a man ...
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The plaintiff in error was the defendant in the trial court, and the defendant in error was the plaintiff. The parties will be referred to herein as plaintiff and defendant as they appeared in the trial court. The plaintiff filed his petition in replevin in the district court of Okfuskee county, on the 24th of August, 1922. Plaintiff alleges in his petition that he is the owner and is entitled to ...
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This action was begun in the superior court of Tulsa county by the Sinclair Oil Gas Company, a corporation, defendant in error, Plaintiff below, against the Producers Supply Company, a corporation, plaintiff in error, defendant below, for the recovery of 54 joints of 8 1/4 inch casing of the value of $2,437.10. The parties will be referred to as plaintiff and defendant as they appeared in the low...
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The plaintiffs are children and grandchildren of John Rhoads by a former marriage. John Rhoads after the death of his first wife married Harriett Rhoads. They lived together in Missouri for several years, where the husband was successful in business affairs until a short time before he moved with his wife to Oklahoma in the early '90's. The husband met with reverses in his business affairs which s...
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This is a suit in ejectment by the St. Louis-San Francisco Railway Company against George McBride and T.H. Slover to recover certain lands consisting of a part of its station grounds and right of way in the city of Sulphur, Okla. The plaintiff alleges that it is the owner of the above described lands and tenements by reason of having purchased the same from the Sulphur Springs Railway Company, whi...
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The plaintiffs in error were the defendants below, and the defendants in error were the plaintiffs. They will be referred to herein as plaintiffs and defendants as they appeared in the trial court. The plaintiffs commenced this action in the district court of Stephens county, on December 2, 1921. They seek judgment in the sum of $650, with interest at six per cent. per annum from October 26, 1921,...
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This is an action in ejectment originally brought in the district court of Creek county, by D.J. Turner against L.B. Jackson and others to recover the possession of certain real estate then in the possession of L.B. Jackson, claiming title thereto through a deed to him by one J.L. Byrne, to whom a tax deed had been issued by the county treasurer of Creek county. Judgment was rendered in favor of t...
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This was an action in the district court of Grant county, upon an appearance bond given to secure the release of one Jeff Duree, a plaintiff in error, from custody of the sheriff of Grant county on a charge of burglary. The said bond was in the principal sum of $10,000 and was signed by Jeff Duree, as principal, and by W.R. Blair and J.H. Abbott, as sureties. The name of J.W. Thompson appeared on ...
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This suit was commenced by Zegar Williams, Stephen Williams, Pearlie Williams, Myrtle Williams, Isham Williams, and Annie Williams, minors, by their guardian, Israel Williams, against Eastman Roberts, their former guardian, and the Southern Surety Company, as surety, to recover on a special or sales bond given in the sale through the county court of certain lands belonging to the minors. The suit ...
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The parties will be referred to in this opinion as plaintiff and defendant as they were designated in the trial court. This action was commenced by the plaintiff to recover damages alleged to have resulted by reason of salt water escaping from the defendant's oil wells and flowing down a natural water course running through the plaintiff's pasture, farm, and feed lot. The substantial averments of ...
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This action was commenced in the district court of Atoka county, Okla., by Julius Ischomer, Ruben Ischomer, and Emily Ischomer, minors, by their legal guardian, L.M. Ischomer, plaintiffs in error, plaintiffs below, against Gordon Fryer, defendant in error, defendant below, to recover the sum of $500, with interest thereon at the rate of six per cent. from the 14th day of November, 1912. The partie...
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Upon authority of Ellis v. Outler, 25 Okla. 469,106 P. 957, the cause is reversed and remanded for new trial for failure of defendant in error to comply with rule 7 of this court. By the Court: It is so ordered....
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The plaintiffs in error were the plaintiffs below, and the defendants in error were the defendants. The parties will be designated herein as plaintiffs and defendants as they appeared in the trial court. The plaintiffs filed their suit against defendants on the 8th of January, 1921. By their petition they seek to recover the sum of $2,500 with interest at 6 per cent. from May 2, 1918, the principa...
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This action was originally instituted in the district court of Murray county, on March 11, 1914. The plaintiff was Ike Adler, in his capacity as receiver of the United Mining Milling Company, a corporation. The suit was brought against Isaac E. Powell as defendant, and was clearly a suit to declare and enforce a trust under the provisions of article 4, ch. 77, Compiled Oklahoma Statutes, 1921. It...
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This appeal is from a judgment of conviction rendered on the verdict of a jury, finding the defendant *Page 379 guilty of grand larceny and fixing his punishment at imprisonment in the penitentiary for the term of one year. The information charged the theft of 375 pounds of seed cotton, alleged to be the personal property of one Trave Patt. It is contended, for appellant, that there is a fatal va...
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On an information charging that he did have in his possession one gallon of whisky with the unlawful intent to sell the same, Pete Committi was convicted and his punishment fixed at confinement in the county jail for 30 days and a fine of $200. He has appealed from the judgment rendered upon such conviction. The evidence shows that a search warrant was issued on the affidavit of Austin Parks, sher...
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The information in this case charges that the defendants, Pete Committi and Anna Committi, did in Latimer county on the 24th day of December, 1923, have and keep in their possession about 30 gallons of intoxicating liquors, to wit, beer, a malt and fermented liquor, with the unlawful intent upon their part to sell the same. They were tried together, the defendant Pete Committi was found guilty, an...
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Eddie George and Hattie George, plaintiffs in error, were convicted and each sentenced to be confined in *Page 389 the county jail for 30 days, and pay a fine of $100, on an accusation which, omitting title, is as follows: "Complaint. "Complaint for Maintaining a Place for the Unlawful Sale of Intoxicating Liquor. "State of Oklahoma, Pawnee County – ss: "Before me. L....
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Harry Baker, defendant in the trial court, was convicted in the district court of Nowata county of the offense of illegally attempting to manufacture intoxicating liquor, the same being a second offense and therefore a felony, the defendant having been, prior to this time, convicted of the unlawful transportation of intoxicating liquor. Defendant's punishment was assessed at confinement in the pen...
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On the 19th day of September, 1923, these plaintiffs in error, defendants in the trial court, were by separate verdicts of a jury found guilty of the unlawful possession of narcotic drugs. Defendant Howard’s punishment was fixed at confinement in the state penitentiary for a term of seven years and to pay a fine of $500; defendant Barr’s punishment was assessed at confinement in the penitentiary ...
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The information charges that these plaintiffs in error, here referred to as the defendants, did on or about the 25th day of May, 1921, in Oklahoma county, voluntarily and feloniously have sexual intercourse with one another; that Clemmie Daves was a married woman, the wife of G.S. Daves, and not the wife of O.R. Lee, her codefendant. On the 23d day of January, 1922, the defendants were tried joint...
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After an examination of the record, the conclusion is reached that the confession of error of the Attorney General should be sustained. *Page 440 While it is not necessary for the trial court to instruct on some theory of the law not supported by the evidence (Newby v. State, 17 Okla. Cr. 291, 188 P. 124), it is nevertheless incumbent on the trial court to give, and the defendant has a right to h...
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The plaintiff in error, Bennie Milam, was jointly charged with one Blackie Long in the district court of Rogers county with the crime of robbery alleged to have been committed by them on the 15th day of April, 1921, by robbing one R. R. Henderson, agent of the Missouri Pacific & Iron Mountain Railway Company in the city of Clare-more, Okla. The 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 Dewey county on the 7th day of April, 1923, wherein Aaron Cokely was adjudged guilty of the offense of manufacturing intoxicating liquor, and his punishment fixed by the jury at imprisonment in the county jail for 90 days and to pay a fine of $400. Several assignments of error are relied upon for reversal of this judgm...
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The opinion of the court was delivered by This is a suit to enjoin the rebuilding of a sidewalk, and from recurbing and reguttering in front of plaintiff’s lots on Main street in Pleasanton, a city of the third class. At the trial the court denied the injunction as to rebuilding the sidewalk, from which the plaintiff has appealed, and allowed the injunction as to recurbing and reguttering, from wh...
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(dissenting): This claimant was a resident of Missouri at the time war with Germany was declared by the resolution of congress. Afterwards, and while a resident of that state, he applied for admission to the army of the United States; he was examined as to his qualifications for his admission to the army and was accepted and assigned to the reserve corps. In my judgment that fixed his status so fa...
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The opinion of the court was delivered by Neander C. Ewing commenced one of these actions to recover from the defendant damages sustained by him in a collision with a train while he was attempting to cross the railroad track of the defendant at a public highway. Neander C. Ewing, as administrator of the estate of Hattie E. Ewing, attempted to recover damages for her death, which occurred 'in the ...
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The opinion of the court was delivered by An effort was made to enlarge the boundaries of rural high-school joint district No. 8 of Shawnee and Wabaunsee counties. An appeal from the failure of the superintendents of public instruction of the two counties to make the change was taken to the state superintendent, who ordered it. An action was brought by the attorney-general in the name of the state...
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This appeal is by the defendant George Peak from a judgment in favor of the plaintiff in an action for the recovery of the possession of certain personal property or for the sum of $6,735.35, the value thereof, in case a delivery cannot be had, with damages and costs. The complaint was in the ordinary form of claim and delivery with certain added allegations averring that whatever possession the d...
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Plaintiff, a duly licensed real estate broker, procured for defendant one.Sophie Lev to purchase certain real property, situated in the city of Los Angeles and owned by defendant, and as a result of plaintiff’s efforts defendant, on the eighteenth day of April, 1921, entered into a contract of sale with the said Sophie Lev, whereby she agreed to sell, and said Sophie Lev agreed to buy, said rea...
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[1] It appearing upon the face of the petition herein that the petitioner has heretofore applied for a similar writ of prohibition to the district court of appeal, in and for the third appellate district, and that its said application was, on the fourteenth day of November, 1924, denied by said court, the remedy of the petitioner herein was by application for a transfer and hearing in this court u...
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Johanna F. Ahlborn commenced an action to obtain a decree revoking an order theretofore made admitting to probate a document purporting to be the last will and testament of her father Gustavus W. Dorn, deceased. The respondent, Sadie P. Dorn, as executrix and as sole devisee, filed her answer and the case was tried before the trial court sitting without a jury. The judgment went for the defendant ...
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The petitioner herein was adjudged guilty of contempt of court for noncompliance with the provisions of an interlocutory decree of divorce directing him to pay stated monthly amounts of money for the maintenance and support of two minor children. He prays a writ of review, alleging that the trial court had no jurisdiction to entertain the contempt proceedings because the affidavit upon which they ...
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The city of Los Angeles instituted proceedings in eminent domain against the petitioner herein and others, and, issue having been joined, it was stipulated that referees be appointed by the court to determine the issues and report findings and judgment. Thereafter it was ordered that the respondents take the evidence to determine the issues and report to the court in writing their findings and a j...
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This is an appeal by Louise Breitter from orders of the superior court in the matter of the estate of Hugo Breitter, denying her application to have the estate of said deceased set aside to her under section 1469 of the Code of Civil Procedure, and denying her application for a family allowance for herself and her minor child. The decedent, in his lifetime, had been the husband of Louise Breitter,...
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This action is predicated upon a refusal of payment of a check given in part payment for 1,387 orange trees of nursery stock. Right of recovery in plaintiff depends upon whether or not the trees were warranted by him to be free from scale. The findings of the trial court were to the effect that the trees were so warranted, but, as a matter of fact, that the trees were so diseased. Judgment was ord...
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This is a proceeding in certiorari to review an order of the superior court dismissing an appeal from the justice's court. *Page 446 Judgment was recovered against petitioner in the justice's court in an action wherein he was the defendant and one Cora Osborn was the plaintiff. In due time petitioner appealed to the superior court upon questions of both law and fact. The appeal was not brought to...
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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 418 This is an appeal upon the judgment-roll. A judgment was rendered against defendants Wade and Mason for the amount of rent which they had collected from subtenants of real property belonging to the plaintiff. The facts are complex and we quote from the fi...
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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 503 The defendant was found guilty by a jury in the superior court of Yolo County of the crime of willfully omitting, without lawful excuse, to furnish necessary food, clothing, shelter, and medical attendance for his two minor children. He made a motion for ...
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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 339 In this action plaintiff sued for the specific performance of a contract to convey real property, or in the event that specific performance could not be had, for resultant damages. The agreement of the parties was evidenced by certain escrow instructions ...
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This is an action in replevin. Judgment went for the defendant and the plaintiff has appealed under section 953a of the Code of Civil Procedure. On the sixth day of July, 1920, the plaintiff as vendor and the defendants as vendees executed a written agreement to sell and buy a vineyard in Fresno County, together with the improvements and certain personal property. The consideration stated was $25,...
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This appeal is by Minnie Helene Setchel from a judgment of nonsuit against her upon her cross-complaint. The case requires a somewhat extended statement of facts. The action was originally commenced by B. Lencioni and after his death the administratrix of his estate was substituted in his place and stead. The Fidelity Trust & *326 Savings Bank of Fresno was made defendant and ...
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This is an appeal by a judgment creditor from a decree of settlement of a final account and of final distribution. John Muntz died intestate August 23, 1922, leaving surviving him six children, all of whom were over the age of majority. His wife, Mary Muntz, predeceased him on the twenty-third day of November, 1913, and at that time all his children were over the age of majority. The only property...
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The trial court awarded a judgment against the defendant quieting the title to a small farm located in Santa Cruz County and from that judgment the defendant has appealed under section 953a of the Code of Civil Procedure. Alfred Rodriguez, the deceased, Frank O. Rodriguez, the defendant, Melquicidec J. Rodriguez, A. B. Rodriguez, and Santa Arana were brothers and sisters, and Charles Warden, Lucil...
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The defendant was convicted of grand larceny and appeals from the judgment and order denying his motion for a new trial. The indictment charges the defendant with the theft of a cow, the personal property of George E. Crocker and Ida F. Proebstel. The evidence shows that the defendant has a homestead in Tunawee Canyon, in the county of Inyo. Upon this homestead is a small cabin of three rooms, in ...
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Action by plaintiffs for money had and received by the defendant in its savings department and credited to the account of the plaintiffs in the sum of $624.25. The plaintiffs had judgment and from this judgment and also the order of the court denying defendant's motion to vacate and set aside the same the defendant appeals. Before signing and filing findings in the above-entitled cause the learned...
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Tie exists in tallies, though not in footings. Tallies control. Declaration of result must yield to tally list. Totals, if incorrect, must be corrected. People v. Butler, 29 Cal. App. 385; Rice v. Canvassers, 50 Kan. 149; Dalton v. State,43 Ohio, 652; State v. Hill, 20 Nebr. 119; People v. Ruyl, 91 Ill. 525; Hughes v. Parker, 65 P. 265. Any candidate for assembly or senate may demand recount when ...
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Appellant contends that the complaint does not allege "performance of the contract for which the property (automobile) was pledged as security," within the rule of Reardon v.Patterson, *Page 36 19 Mont. 231, 47 P. 956, and that, therefore, the complaint does not state facts sufficient to constitute a cause of action. The failure of the respondent to allege facts showing ability to perform her offe...
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It is necessary under section 3189, Revised Codes of 1921, in order for the information to state a public offense to allege that the sale, barter, exchange or giving away of the prohibited drugs was made by the purchaser without any original written prescription of a duly licensed physician, duly licensed to practice medicine in Montana. It will be observed that the state at no stage of proceeding...
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1. "In the absence of a statute to that effect, evidence of the reputation of a defendant's place is not admissible in a criminal prosecution." (7 Ency. of Ev. 742; Cook v. State,81 Miss. 146, 32 So. 312; State v. Fleming, 86 Iowa, 294,53 N.W. 234; Commonwealth v. Eagan, 151 Mass. 45, 23 N.E. 494;State v. Benson, 154 Iowa, 313, 134 N.W. 851; Hookman v.State, 59 Tex. Cr. 183, 127 S.W. 825; Trayhan ...
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By this proceeding relator seeks a writ of supervisory control designed to annul an order of the district court denying his motion for a change of place of trial. Suit was brought in Valley county against the defendant as[1] sheriff of McCone county. Summons was served upon him in McCone county. If the defendant, sued as he was in his official capacity, pursued his statutory remedy he was entitle...
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The Consolidated Elevator and Milling Company, a Montana corporation, was a warehouseman, running an elevator, with a number of bins, at Greybull, Wyoming. The plaintiffs Nelson and McIntosh deposited 378 and 829 bushels of wheat, respectively in this elevator from January to March, 1921. Thomas H. Whaley and E.E. Yarnell, hereinafter called intervenors, took 2524 bushels of No. 1 soft wheat to th...
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This is an action brought by Black Yates, a Corporation, plaintiff, against the Negros-Philippine Lumber Company, a Wyoming corporation, defendant, for the recovery of $199,625. The plaintiff in its petition alleged that by a written offer made by defendant to plaintiff on February 14, 1916, and a written acceptance thereof made by plaintiff thereafter, defendant and plaintiff entered into a cont...
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The defendant Charles D. McFetridge was convicted of larceny, and he appeals. The conviction was for stealing, in Laramie County, Wyoming, on or about October 1, 1921, one pure-bred Hereford cow bearing a tattoo-brand with the number 105 in the ears as well as on the horns. The defendant admitted that the animal in question was in his possession, on the so-called McFetridge ranch in the state of C...
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The plaintiff filed an amended petition in the District Court of Niobrara County containing twelve causes of action, all seeking recovery of money upon similar statements of fact. The first cause of action alleges in substance that defendant is a Wyoming corporation; that on January 14, 1922, an account was stated between the, parties on which a 'balance of $85.98- was found due -the-plaintiff ...
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Samuel Scott Sowers died at his residence near Jackson, on the 18th day of June, 1920, leaving a widow, the plaintiff in error in this case, and a minor son, eight years old. The widow authorized a message to the defendant in error, W.J. King, an undertaker doing business at Driggs, Idaho, asking him to come to the Sowers ranch, bring with him a *Page 170 black casket, and be prepared to embalm t...
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On March 1, 1921, H.W. Strangman leased to F.J. Strawn certain premises for the raising of a crop of cotton, the term of the lease beginning March 1, 1921, and ending February 1, 1922. Strawn agreed to pay as rent to Strangman the cost of the electric power furnished by the appellant for the pumping of water upon the premises demised. Strangman was under contract with the appellant to pay for the ...
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This is an action by plaintiff in his own behalf and on behalf of all others similarly situated against the Wood River Land Company, a corporation, to have a portion of its decreed water declared abandoned and lost for a failure on its part, for more than five years, to apply such water to a beneficial use. The several intervenors withdrew their respective pleadings and joined plaintiff in demandi...
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The action herein involved is one in claim and delivery, brought by respondents to recover from appellant the possession of a Maxwell truck or its value in case a delivery could not be had. It is apparent from the record that upon the seizure of the truck by the sheriff, appellant furnished a redelivery bond and retained possession of the truck. The cause was submitted to the trial court sitting w...
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The question of the sufficiency of the fourth amended complaint in this action was determined adversely to appellants in Phy v. Selby, 35 Idaho 409, 207 P. 1077. On petition for rehearing this court modified the original opinion and remanded the cause to the trial court, ". . . . with authority, within its legal discretion, to entertain and determine a motion by appellants to amend their complaint...
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This is an action for damages. In the fall of 1920, appellant, whose principal place of business in this state was Payette, through one J.C. Evans, its agent, contracted with respondent, a grower of potatoes, for the purchase of 1,050 bags of No. 1 potatoes for $1.15 per hundred F. O. B., and for the purchase of an additional 1,050 bags of No. 1 potatoes for 80¢ per hundred F. O. B. The date of th...
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Defendant appeals from a judgment of conviction on the charge of having treated "human ailments without the use of drugs or medicine, and without operative surgery," and "without first having secured a license from the state to do so." The undisputed evidence shows that the defendant, as a chiropractor, treated those who applied for treatment for their ailments. Appellant first assigns as error th...
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This proceeding involves the review of an award made by the Industrial Commission under the Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165) to the dependents of Victor H. Eckman, who sustained injuries in an automobile accident near Logan, Utah, on December 20, 1923, from which he died the following day. At the time of the accident Eckman was employed by the Ford Motor Company, one of t...
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The plaintiffs hereinafter called appellants, as trustees for the Indians named in the title, commenced this action in the district court of Duchesne county against the state engineer of Utah to set aside a certain order made by the engineer. *Page 492 The action is brought pursuant to our statute which permits any person who is affected by any order of the state engineer affecting water rights t...
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This is an application by plaintiff to review an order of the Industrial Commission of September 3, 1924, rescinding an award of compensation made July 9, 1924, and dismissing the application for compensation. On May 18, 1922, Charles McLead, plaintiff, was injured in an accident at Lake Side, Utah, while employed by the Southern Pacific Company as a powderman at the company's rock quarry, the acc...
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Russell Worthen sustained a hernia while employed by Westinghouse Electric Manufacturing Company. After a hearing, upon his application for compensation, the Industrial Commission made an order awarding him compensation against the employer, and against the plaintiff herein as insurer. The plaintiff has brought the case here by writ of review, contending that the accident and disability of the em...
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The Potomac Insurance Company, hereinafter called plaintiff, commenced this action as the assignee of one W.R. Wallace to recover judgment against the defendant who conducted a public garage in Ogden City, Utah. W.R. Wallace was a party to the action when it was commenced, but during the course of the trial he was dismissed from the action, and the trial proceeded with the insurance company as the...
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Respondent secured judgment against appellants in the amount of $548.12 for groceries, *Page 139 logging tools and implements sold to appellants, from which judgment this appeal is taken. Some time prior to the 19th day of March, 1923, the appellant Joseph A. Patnude and one R.G. Dunning were copartners doing business under the name of Dunning Patnude, engaged in the logging business near Shelto...
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This case had its origin in Omaha, Nebraska, where respondent's testator and herself brought an action against the defendant Horton to recover possession of certain premises in that city, described as Apartment No. 3, Stratford Terrace, on a certain avenue. On April 17, 1916, in the county court of Douglas county, Nebraska, the respondents recovered judgment against Horton for the restitution of *...
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In January, 1924, Francis M. Ross began an action in the superior court of Klickitat county, seeking a decree of divorce from Nettie R. Ross, the *Page 103 relator in this proceeding. The relator was then a resident of Seattle, in King county. After the service of process upon her, she, through her attorneys, gave notice of her appearance in the action, and at the same time moved that the venue o...
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Appellant was found guilty by the verdict of a jury of the crime of murder in the first degree. From the judgment and sentence, this appeal is taken. The information charged that the appellant, on or about the 29th day of November, 1920, "did murder and kill one Enoch Anderson, his brother, by striking and beating said Enoch Anderson on, over and against the face and head with a certain blunt weap...
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I cannot agree with the majority. In my judgment the question here is a simple one. The contract between the county and Graves, in apt and conclusive language, requires Graves to give a statutory bond. The surety company knew this fact beyond peradventure, as is demonstrated by the fact that it attached a copy of the contract to the bond, and thus established in this case that, following the usual...
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The appellant is dissatisfied with the trial, which resulted on his conviction of burglarizing a jail, and asks for another, freed from the errors of which he complains. (1) Evidence of a prior independent offense committed by the appellant was improperly admitted, no connection having been established between the crime of which the appellant is here charged and the other offense. This is the appe...
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In the trial court plaintiff in error was one of the defendants and defendant in error was plaintiff, and for convenience the parties will be mentioned in this opinion as they appeared there. Plaintiff filed his petition March 30, 1918, basing his cause of action upon a promissory note and mortgage dated April 1, 1908, and due April 1, 1913, and signed by the defendant. A summons was issued on Apr...
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The plaintiffs in error, as plaintiffs below, filed their petition against the defendants, in which they allege they are the heirs at law of J.H. Morris, who died intestate on February 24, 1921, leaving a widow, Anna Morris, who was duly appointed the administratrix of the estate, and that defendants Rollin N. and Mabel Morris are infants, and are in the custody of defendant Anna Morris. That at t...
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This is an original action in this court wherein the plaintiff, James E. Payne, county treasurer of Creek county, makes application for a writ of prohibition commanding J. Harvey Smith, judge of the superior court of Creek county, to dismiss a certain action pending before him in such court. The said action is one wherein M.D. Gibbs and many others, plaintiffs similarly situated, bring a lawsuit p...
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This action was instituted by the defendant in error, as plaintiff, for the purpose of foreclosing a real estate mortgage, purporting to have been executed by Aurelius-Swanson Millwork Company, a corporation, covering certain real estate, fixtures, and machinery, and securing a certain purported promissory note for $35,000. Judgment was rendered for the plaintiff, and the defendants have appealed....
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This was an action by the Dickason-Goodman Lumber Company against the Osage Oil Refining Company and James E. Whitehead to recover on two promissory notes; both of the notes are in the same form and are identical, except as to the maturity dates; and are as follows: "For Building Material. "$5168.20 Town, Oklahoma City, Date Nov. 10, 1920. "February 1st, 1921, after date for ...
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In this case there was an appeal from the judgment of the district court of Oklahoma county, wherein the plaintiff, Dickason-Goodman Lumber Company, recovered from the defendants, Osage Oil and Refining Company and James E. Whitehead, on the 21st day of March, 1922, a judgment in the sum of $12,143.41. On April 29, 1922, a supersedeas bond in the sum of $24,500 was filed in the district court of O...
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This was a suit to remove cloud from title instituted in the district court of Carter county by the defendant in error, as plaintiff in the trial court, against Edward E. Holmes, defendant in the trial court, plaintiff in error in this court. Upon the trial of the case judgment was rendered quieting title in the plaintiff and canceling a certain deed held by the defendant, Edward E. Holmes. The re...
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Plaintiff in error filed this action in the district court of Oklahoma county against the Waddell-O'Brien Motor Company, praying judgment on certain promissory notes, and at the same time attached certain property as the property of the defendant, and the property so attached included one Grant touring car. One R.C. Cope intervened in the cause, claiming ownership of the car, and filed his petitio...
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The action in this case was brought in the district court of Pittsburg county by Joseph Eggers, as plaintiff, against Elizabeth J. Olson, administratrix of the estate of Olee M. Olson, deceased, Milton Olson, Charles Olson, Millie Olson, Elizabeth J. Olson, guardian, for and on behalf of Milton Olson, Charles Olson, and Millie Olson, minors, as defendants, for the purpose of quieting title in and ...
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This case turns largely on the construction of section 7660 and 7661, Comp. Stat. 1921, which read as follows: "7660, Mortgaged chattel may be attached. Personal property mortgaged may be taken under attachment or execution issued at the suit of a creditor of a mortgagor. "7661. Same – Rights of Mortgagee. Before the property is so taken the officer, on execution, or attachment creditor, must pay ...
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This is an appeal by I.O. Stuart, O.H. Ruble, J.W. Thompson, J.E. Bruin, and Irene E. Upton from a judgment of the district court of Tulsa county, Okla., in favor of Henry Mayberry, setting aside certain deeds executed by Henry Mayberry to I.O. Stuart and O.H. Ruble, and by Henry Mayberry to J.W. Thompson, J.E. Bruin, and Irene E. Upton to Henry Mayberry's allotment in the Creek Nation as a Creek ...
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The board of education of the city of Tulsa entered into a written contract with the Latimer Rouch Construction Company for the erection of certain school buildings in the city of Tulsa. The written contract between *Page 186 the board of education and the construction company provided that the construction company should furnish the material and labor at its cost and expense for the construction...
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The defendant in error was plaintiff in the trial court, and the plaintiff in error was a defendant. The parties will be referred to herein as they appeared in the court below. On the 18th of September, 1920, the plaintiff and defendant Mrs. Emma Baldwin entered into a contract concerning real estate whereby plaintiff agreed to buy and the said defendant to sell a quarter section of land in Beckha...
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This is an appeal from the district court of McIntosh county, wherein judgment was rendered for the plaintiff for two mules, or the value thereof, in a replevin action. The defendant prosecutes this appeal, and sets forth various assignments of error, but in his brief bases his right to a reversal of this case: First, on the insufficiency of the evidence to sustain the judgment; second, on objecti...
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The First State Bank of Mansville, Okla., became insolvent in the month of September, 1915, and the State Bank Commissioner took charge of same and *Page 161 proceeded to liquidate the bank as provided by law. Eugene B. Wolverton was cashier of this bank, and at that time he individually owned a certain tract of real estate in which his bank owned no interest. His bank at that time was heavily in...
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This is a companion case to cause No. 15099 in this court, entitled “Emmett Key and J. A. Bodovitz, Plaintiffs in Error, v. State of Oklahoma ex rel. John L. Hodge, County Attorney, Defendants in Error.” The history of all three of these cases in the lower court is practically the same. The opinion this day handed down in this court in the first of these cases is equally applicable here on ques...
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The appeal is from an order of the county court overruling motions of plaintiffs in error to set aside an order forfeiting a bail bond. The forfeiture was taken July 24, 1923, at the July term of court, and the applications to set aside the order of forfeiture were made October 18, 1923, at the October term of court. On October 19, 1923, the court heard the motions and overruled them on the theory...
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In this case plaintiffs in error demurred to the petition of defendant in error; the demurrer was by the trial court overruled. The defendants below excepted to the overruling of demurrer and gave notice of intention to appeal from the judgment of the trial court overruling the demurrer. Defendants did not stand upon their demurrer, and no final judgment was entered in the cause. This court has he...
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This is an appeal from the judgment of the district court of Okmulgee county approving the report of the referee in this cause, and rendering a judgment in favor of the defendant in error and against the plaintiffs in error, from which judgment the plaintiffs in error have duly appealed to this court. The defendant in error was the plaintiff and the plaintiffs in error the defendants in the trial ...
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This is an appeal from a judgment of the district court of Coal county wherein the plaintiff there, Katie Scott, defendant in error here, secured a judgment in the sum of $10,000 against the plaintiff in error, Folsom Morris Coal Mining Company. The plaintiff in the court below brought suit alleging she was the widow of Tom Scott, deceased, and brought suit for the benefit of the next of kin. She ...
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On November 11, 1921, the cotton compress of the Traders Compress Company at Shawnee, together with about 9,000 bales of cotton, was destroyed by fire. Of this cotton so destroyed. O.K. Precure was the owner of seven bales, which was stored with the compress company, and this action was brought by him, as plaintiff, against the compress company, as defendant, to recover the value of said cotton, w...
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This was an action by O.C. McMahan, as plaintiff, against the Traders Compress Company, as defendant, to recover the sum of $942, the alleged value of nine bales of cotton stored with the defendant by the plaintiff, which cotton was destroyed by fire while in the possession of the defendant. A trial resulted in a judgment in favor of the plaintiff for the amount sued for, from which the defendant ...
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This is a suit brought in the superior court of Creek county, Okla, by Isaac Nolan, an incompetent person, against L.B. Jackson, as defendant. The object of the suit is to cancel a deed given by a former guardian of this incompetent conveying certain real estate unto the defendant above named. The lower court sustained a demurrer to the evidence of the plaintiff and rendered judgment against him. ...
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The plaintiffs herein, Sophia Mussellem and M.S. Mussellem, sued the defendants, Magnolia Petroleum Company. McMann Oil Company, and National Products Company, for a large sum of money. The trial court sustained a demurrer to the plaintiffs' evidence, rendered judgment in favor of the defendants, dismissing plaintiffs' petition, and they have appealed to this court. The parties appear in this appe...
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Defendant in error will be designated as plaintiff and the plaintiff in error as defendant, as they appeared in the trial court. Plaintiff alleges in his petition that he is a broker, dealing in oil and gas leases, and defendant engaged his services, as broker, and agreed to pay plaintiff five per cent. commission on the purchase of leases produced by plaintiff, and plaintiff hereafter and under t...
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This is an action against the Director General of Railroads for damages suffered in the transportation and handling of six car-loads of cattle, consisting of 294 head, from Clovis, N. M., to Oklahoma City. A fair statement of the case is contained in the brief of defendant in error, plaintiff below, as follows: "The particular acts of negligence causing the damage as alleged in the petition, p. 2-...
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The action involves a guaranty contract. Denny Cawley was the debtor and his creditors were the guarantees, John W. Cawley and Patrick B. Cawley were guarantors, and V.E. Oehler was trustee. Denny Cawley was conducting a mercantile business in Ranger, Tex., and in 1920, and sometime prior thereto, under the name of Cawley Brothers, had become somewhat embarrassed in meeting his obligations and kee...
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The two above entitled cases were tried together in the trial court upon a stipulation that the evidence should be considered in both cases, but that separate verdicts should be rendered. The cases will be referred to in this opinion as the "Rattray" case and the "Steyne" case. The defendant in error E. D. Rattray was the plaintiff in the Rattray case, and the defendant in error Allen N. Steyne wa...
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T.F. Donnell commenced this action in the district court of Oklahoma county against the members of the Oklahoma county election board to secure a writ of mandamus requiring said election board to issue to him a certificate of nomination as justice of the peace, and to place his name on the ballot at the general election. It is alleged that chapter 224, Sess. Laws 1923, was null and void by reason ...
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Plaintiff in error, Frank Wheeler, was convicted on a charge of maintaining a public nuisance, in that he did unlawfully and willfully keep and maintain a place of public resort on Davis avenue in the city of Sulphur, which place was a place commonly resorted to by persons for the purpose of obtaining and drinking intoxicating liquors, and *444 in accordance with the verdict of the jury was sen...
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Plaintiff in error, Watson Ned, was charged by information with the murder of Will Ritter. Upon the trial the jury found him guilty of manslaughter in the first degree, and assessed his punishment at imprisonment in the penitentiary for the term of 99 years. A motion to set aside the verdict and for a new trial was duly filed, which was overruled, and on the 29th day of May, 1923, judgment was ren...
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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 73 Appeal from a judgment of dismissal after a general demurrer sustained to the complaint without leave to amend. Plaintiff Porterfield, a citizen and resident of the county of Los Angeles, this state, and an owner of agricultural land situate in said county...
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The trial court overruled appellants' general demurrer to the complaint and upon their refusal to answer judgment was entered in favor of respondent. The appeal is from the judgment so entered. Respondent George A. Carter is a citizen of the United States of America and a resident of Imperial County, this state, and the owner of agricultural lands situate therein. His corespondent, Hakam Singh, al...
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Appeal from a judgment entered in favor of respondents after demurrer sustained without leave to amend. Appellant F.S. Jones is a citizen of the United States of America, a resident of and an owner of a parcel of land consisting of ten acres, situate in the county of Los Angeles, this state. Appellant Takeo Makimoto is a native of Japan and ineligible to citizenship in the United States of America...
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Petitioner, a native and subject of Japan and admittedly ineligible to citizenship in the United States of America, is restrained of his liberty by the constable of Los Angeles township, county of Los Angeles, on a warrant issued upon a complaint charging him with a criminal violation of the initiative Alien Land Law adopted by the *Page 93 electors of this state November 2, 1920 (Stats. 1921, p....
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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 293 The complaint alleges that the plaintiffs are husband and wife; that in the year 1907 they and David H. Hutchison, the above-named decedent, entered into an oral agreement providing that "in consideration of board, lodging and washing to be furnished to a...
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Plaintiff instituted this action to recover the sum of $1,260 as the agreed price for casting certain check valves for the defendant according to designs furnished by the defendant and using materials also furnished by the defendant. The answer admitted the allegations of the complaint, and by way of counterclaim and cross-complaint alleged that the plaintiff was indebted to the defendant in the s...
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This is an appeal from an order denying the motion of defendant to strike from the files plaintiff's amended cost bill on appeal and denying his motion to tax costs. The plaintiff recovered a money judgment against the defendant for certain repairs to defendant's automobile, which automobile had been attached by the plaintiff. An appeal was taken by the defendant to this court, which affirmed 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 477 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 478 Defendant was convicted of the crime of obtaining money by false pretenses. The information charges that one E...
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Action to recover the sum of $2,750 as a commission under a broker's contract providing for the exclusive sale of certain real property. Plaintiff alleges that defendant entered into the contract on the twenty-eighth day of November, 1922, and that by its terms he was authorized to sell the property in question for the sum of $55,000 upon a five per cent commission. The complaint, proceeding, reci...
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In the first count of the complaint the plaintiff stated a cause of action for merchandise sold and delivered to the defendants, in part by the plaintiff and in part by the plaintiff's assignor, the Pioneer Transfer and Storage Company. On this cause of action judgment was rendered in favor of the plaintiff in the sum of $82.35. [1] The only point urged by appellants in connection with this cause ...
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Defendant was convicted upon a charge of robbery. He appeals from the judgment of conviction and from an order of the trial court denying his motion for a new trial. The evidence shows without dispute that the prosecuting witness, one Scobie, was walking along the sidewalk of a *Page 549 well-lighted street in the evening, when a man stepped from his concealment behind a palm near the sidewalk an...
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The defendant C. V. Clark was charged with the crime of escape, it being alleged that while he was in the lawful custody of William G. Kiester, deputy sheriff of the county of Los Angeles, and F. E. Wadsworth, superintendent of the detention camp, he escaped from said officers. The defendants Henry and Lewis M. Dischner are charged with assisting said Clark in making his escape from said officers....
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This is an appeal by W. T. Lass from an order of the superior court, in and for the county of Alameda, denying confirmation of a sale of real property, which sale had been made by the executor of the last will and testament of Richard Flaherty, deceased, to said appellant for $33,300. [1] The executor filed his return of sale of the real property, which sale was made privately pursuant to power gi...
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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 259 This is an appeal from a judgment of conviction (murder in the first degree) and from order denying defendant's motion for a new trial. [1] Appellant insists that the court erred in denying her motion for a change of venue. It is made manifest by uncontra...
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This is an appeal by the defendant, Laird, from a judgment entered upon a verdict of a jury, finding him guilty of the crime of robbery. A motion for a new trial was made and denied. Appellant and Frank Trombly were charged, jointly, in the information with the commission of the crime. [1] Appellant complains that the evidence identifying him as one of the men who perpetrated the robbery is insuff...
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The petition for rehearing is denied. One of the grounds principally relied upon by the appellant is that no sufficient description of the property designating in what school district it is located was contained in the tax proceedings, and especially that the map received in evidence is indefinite as to location of the property in question. It is true that it is nowhere indicated upon the map as 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 468 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 469 Defendant was convicted of the offense of having in his possession a pistol after a previous conviction of a f...
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The defendants’ demurrer to the plain- tiff’s fourth amended complaint was sustained without leave to amend and judgment was entered in favor of defendants for costs. This appeal is from the judgment. The facts herein stated are taken from the allegations of the second cause of action stated in the complaint. “On and prior to the 8th day of August, 1910, plaintiff and defendant Dwight H. Miller we...
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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 526 This is an appeal by the defendant from a judgment of conviction of the crime of obtaining money by false pretenses. The outstanding facts appearing in the record are that defendant had contracted to build a home in Oakland, California, for the prosecutin...
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— This is an action by Constantino Gia-coma against James Braceo for an accounting of their partnership business. In 1922 the plaintiff filed his complaint alleging that in 1904 they had formed a partnership to carry on the business of retail liquor dealers, in Globe, Arizona; that by mutual consent they dissolved the partnership in January, 1907; that they again reformed their partnership in 190...
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The appellee brought action against the appellant to recover the sum of $5,000 due upon a lease. The complaint was filed on February 5, 1921. On the same day an attachment writ was issued and levied upon certain real property. Also on the same day a summons was issued and delivered to the sheriff. The summons was not served, however, upon the appellant until August 21, 1922, not within one year fr...
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This is a review of an order made by the Industrial Commission denying to plaintiff Campbell additional compensation for an injury alleged to have been sustained by him while in the employ of defendant Eagle & Blue Bell Mining Company. *431 It appears that plaintiff suffered an injury while in that employment on October 23, 1922. The employer reported to the Commission the fact of...
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Plaintiff sued for $149.86 for wheat sold and delivered by it to defendant. As a counterclaim, defendant pleaded that plaintiff had furnished him moldy wheat, unfit for feeding poultry, for which purpose it was purchased by defendant, and that by reason of being fed this moldy wheat 105 of defendant's hens died, 225 others became worthless for laying purposes, and the entire flock lost in egg prod...
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This is an appeal from the district court of Emery county. The facts alleged in the complaint and found by the court, in substance, are: That the defendant is a corporation created and existing for the purposes of appropriating, acquiring, storing, and holding water, and to distribute the same to its members or stockholders for irrigation, power, domestic, and culinary purposes in Emery county, Ut...
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Defendants were charged with feloniously stealing "one calf, the property of John E. Brown," on September 29, 1921, at Grand county, Utah. They were tried before a jury, found guilty of grand larceny, and sentenced to imprisonment in the state prison. From the judgment against them, they have appealed. The principal ground urged against the validity of the judgment is that the evidence is insuffic...
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OPINION OF THE COURT. The appellant contested the election of the appellee for the office of sheriff of Colfax county. The court, on motion of appellee, struck appellant's reply, and then sustained appellee's motion for judgment on the pleadings. The motion to strike the reply was based on two grounds: First, that service of the reply had not been made as required by law;...
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It is alleged that the grantor was not conscious at the time he signed the deed and it is incumbent upon the plaintiff, appellee herein, to establish that fact to the satisfaction of the court. Dicken v. Johnson, 7 Ga. 484; Howe v. Howe,99 Mass. 88; Brown v. Brown, 39 Mich. 792; Chancellor v. Donnell, 95 Ala. 342; Gibbons v. Dunn, 46 Mich. 146; Kimball v. Cuddy,117 Ind. 213; Titcomb v. Vantyle, 84...
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OPINION OF THE COURT On June 26, 1924, there was issued by the clerk of the district court of Socorro county, an amended writ of mandamus upon the information of J.S. Baca, relator, against the board of county commissioners of Socorro county and the state tax commission of the state of New Mexico. The writ recites in substance that the relator has, since January 1, 1923, ...
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OPINION OF THE COURT. On January 21, 1876, a suit in partition was filed in San Miguel county, to partition a land grant known as the Hacienda de San Juan Bautista del Ojito del Rio de las Gallinias, which is hereinafter styled the Preston Beck grant. On June 18, 1907, the board of trustees of the Anton Chico land grant intervened in the cause, setting up a claim to a large portion of the land ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 105 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 106 IN BANC. REVERSED AND REMANDED. The plaintiff commenced this action against the defendants, Neal Gaskell, cop...
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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 388 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 389 IN BANC. AFFIRMED. REHEARING DENIED. This is an appeal from an order of the Circuit Court of Marion County, Or...
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THIS suit was brought by Smith and others to recover possession of real estate upon the alleged forfeiture by the vendee, Roller, under the terms of a contract of sale. There were allegations looking toward equitable relief by cancellation of the contract which were eliminated at or before the trial. The plaintiff had a verdict and judgment below, and the defendant, Roller, brings error. The elimi...
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On Rehearing. THE judgment below was upon a verdict directed for defendants in a suit by Ruth Williams against Stringfield and others for the taking and conversion of an automobile. She brings error. The defendants took the automobile upon execution against one Le Master, to whom they say it belonged. The plaintiff contends that the machine never belonged to Le Master; that, though it was purchase...
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THIS is an action in equity by Andrew W. Welty against A. R. Burks, his wife and a warehouse company, for foreclosure of a chattel mortgage on personal property executed by Mr. Burks alone. He made no defense. His wife in her answer alleges full payment of the secured note, and in her counterclaim, the invalidity of the mortgage, and asks for its cancellation. Her right to a cancellation and use o...
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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 146 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 147 This is a direct appeal from a judgment entered on a directed verdict. The parties will be called plaintiff an...
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There was fraud in the inducement. (25 C.J. 1090; Buhler v.Loftus, 53 Mont. 546, 165 P. 601; Koch v. Rhodes,57 Mont. 447, 188 P. 933; Pocatello Security Trust Co. v.Henry, 35 Idaho, 321, 206 P. 175; Fischer v. Hillman,68 Wash. 222, 122 P. 1016; Horowitz v. Kuehl, 117 Wash. 16,200 P. 570.) Lack of consideration: The application for the stock furnished by the company recites: "I hereby subscribe for...
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This is an appeal from a judgment of conviction of the crime of unlawful possession of intoxicating liquor. The principal specifications of error, and the only ones which we find it necessary to expressly mention are (1) that the court erred in permitting the introduction *Page 72 of evidence as to the alcoholic content of certain liquid, and (2) that the evidence is insufficient to show that the...
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On Rehearing. A DEMURRER to the complaint of the Pacific Lumber Company in an action to enforce a mechanic's lien was sustained, the plaintiff elected to stand, judgment was given for defendants, and the case is brought here for review. We held in department for affirmance but granted a motion for rehearing and sent the case to banc for oral argument. The only question is whether the lien of the p...
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THIS cause, under the same title, was here on error to a judgment in favor of defendant, and the judgment was reversed because of errors in the admission of evidence. The facts are stated in the opinion, 71 Colo. 58, 203 P. 1098. On the second trial the defendant again had judgment, and the plaintiff brings error. The record discloses that errors for which the judgment was reversed were again comm...
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THE Centennial Mutual Insurance Company was incorporated under Division III of Chapter 42, C. L. (Colo.) 1921, p. 836, et seq., relating to mutual insurance, its object apparently being to insure against loss or liability by reason of bodily injury or death. Under this law an insurance company may not issue policies or transact any business of insurance unless and until it has fully complied with ...
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For convenience in this opinion the plaintiff below will be called plaintiff, and the defendant below, defendant. This is an action on a promissory note given by the defendant Charles Eidam to the plaintiff, under the name of A.D. Kelley Realty Company. The plaintiff filed his petition in the District Court of Laramie County, Wyoming, in the name of A.D. Kelley Realty Company, plaintiff. The petit...
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The defendant was convicted of stealing 33 head of sheep in Albany County, the property of one W.S. Pickens, and he appeals. The defendant owned and occupied a farm in said county, about five miles north and west of the range of the complaining witness where the sheep in question, together with others to the number of about 4000, were grazing. *Page 228 A storm from the southwest struck this rang...
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In this action for the recovery of real property, the judgment of the district court was for the defendant, and the plaintiff brings the case here on error. The defendant bought the property at a sale pursuant to a judgment of the district court of Big Horn County, Wyoming, in an attachment proceeding against two defendants, *Page 290 one a resident of Big Horn County, and the other, R.H. Ahrens,...
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OPINION OF THE COURT Wesley Stewart was indicted for the murder of G.I. Maloy, which is alleged to have occurred on August 21, 1921, and at the trial was convicted of murder in the second degree, and from this conviction he appeals. The appellant, Stewart, who will hereafter be referred to as the defendant, had an interest in lands in Dona Ana county, under the Picacho co...
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OPINION OF THE COURT This is an action for taxes for the year 1919, resulting in a judgment for appellee, from which judgment the state has appealed. The complaint, filed September 28, 1921, alleges that for the year 1919 there were taxes legally assessed and levied against the appellee in the sum of $5,605.20, of which appellee paid $4,000, leaving a balance of $1,605.20...
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OPINION OF THE COURT This is an action upon a stock subscription to the capital stock of the Val Verde Hotel Company, resulting in a judgment for the plaintiff (appellee) from which the defendant (appellant) has appealed. The stock subscription is in the following terms: "We, the undersigned, subscribe and agree to pay for the number of shares of stock in the Val Verde Ho...
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OPINION OF THE COURT This case was before this court once before, and was reversed for considerations not pertinent to this inquiry. See State v. Hunt, 26 N.M. 160, 189 P. 1111. Over the objection of appellants, the court in this trial submitted to the jury the question of guilt of appellants of voluntary manslaughter. The trial resulted in a conviction of voluntary mansl...
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This is an appeal from a judgment discharging a temporary restraining order, denying a permanent injunction and holding the same for naught, and holding and deciding that respondents are the absolute and unqualified owners of a certain lateral or ditch running upon and over respondents' land, and that respondents are entitled to the free and undisturbed use and possession of such ditch on the land...
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Appellant was charged, under subdivision 1 of C. S., sec. 8262, with what is commonly designated as statutory rape, committed upon the person of Leona Rogers, who at the time of the commission of the alleged offense was seventeen years old. From a judgment of conviction appellant appeals to this court and makes numerous assignments of error, not all of which it will be necessary to consider. The p...
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This action was brought to recover damages for the alleged destruction of certain sugar-beets and sugar-beet tops by appellants' cattle. Two counts are set forth in the amended complaint, the second count being subsequently amended. In the first count it is alleged that respondent had leased and was in the possession of 85 acres of land adjoining that owned by appellants, the southerly boundary li...
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Respondent sued to quiet title to certain water out of Tramway Spring Creek, in Lemhi county, claiming the priority right thereto under appropriation, and use for domestic and irrigation purposes, and asking a permanent injunction against defendant's use thereof. Appellant Idaho Minerals Company denied respondent's title and claimed title in itself by purchase, adverse use, prescription and also t...
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This is an appeal from a judgment and from an order overruling a motion for new trial. E.F. Walton, the respondent, filed an information in the district court of Twin Falls county against D.F. Clark, the appellant, a member of the board of trustees of Independent School District No. 1, of Twin Falls county, charging him with neglect and refusal to perform the duties pertaining to his office, and p...
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On the authority of the case of Walton v. Clark, ante, p. 86,231 P. 713, the motion to dismiss the appeal from the judgment is granted, and the order denying motion for new trial is affirmed, with costs to respondent. McCarthy, C.J., and Brinck, District Judge, concur. Budge and William A. Lee, JJ., dissent....
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On the authority of the case of Walton v. Clark, ante, p. 86,231 P. 713, the motion to dismiss the appeal from the judgment is granted, and the order denying motion for new trial is affirmed, with costs to respondent. McCarthy, C.J., and Brinck, District Judge, concur. Budge and William A. Lee, JJ., dissent....
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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 288 Sam B. Shellabarger, a crossing watchman for the Oregon Short Line Railroad Company in Nampa, Canyon county, was killed on duty at the 9th Avenue crossing in said city about 10 o'clock on the night of March 14, 1923. An examination of the body made soon t...
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In an action in equity, brought to determine and define the water rights in a ditch, judgment was entered for the plaintiff, and certain of the defendants have appealed. In 1885, Henry Masters appropriated 600 inches of water from the South Fork of the Pitt Biver, in Modoc County. He • constructed a ditch, and held title to all the water so appropriated until 1887, when he commenced to convey c...
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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 113 The petitioner seeks a writ of mandate to compel the respondent, as judge of the superior court in and for the county of San Diego, to proceed with a hearing and determination of a demurrer to an amended answer and amended cross-complaint in an action pen...
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This appeal is from an order of the trial court denying the motion of the appellants to recall and quash a writ of execution. The history of the transaction and of the litigation between the parties hereto which finally resulted in the issuance of said execution and the motion for its recall, the denial of which led to this appeal, is quite fully set forth by this court upon a former appeal in thi...
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This appeal is from a judgment in the plaintiff's favor in an action to quiet his title to certain real estate and to enjoin a sale thereof under a certain writ of execution which the plaintiff asserted to be void. Many of the facts which exist as a background to the present litigation have been set forth by this court in its decision in the case of Montgomery v. Meyersteinet al., 186 Cal. 459 [19...
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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 97 Horace W. Philbrook, the above-named plaintiff and surviving husband of Florence E. Philbrook, has taken an appeal from a judgment following the sustaining of a demurrer to his second amended complaint. The action was originally commenced by Florence E. Ph...
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This is a motion to dismiss an appeal taken by the above-named respondents from an order of the superior court of the city and county of San Francisco, department 8 thereof, Honorable T.I. Fitzpatrick, Judge presiding, granting a motion for a new trial interposed on behalf of petitioner, following the reversal by this court of a judgment based upon a petition for partial distribution in the above-...
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This is an appeal by petitioner from a judgment of the superior court denying him a writ of mandate directed to the board of fire commissioners of the city and county of San Francisco. The sole question presented is whether or not he is a "member" of the fire department entitled to the benefits of the firemen's relief fund. In substance the material allegations of the pleading are to the effect th...
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The question involved in this case is in all respects similar to that in Hurley v. Sykes et al., ante, p. 310 [231 P. 748].[1] Upon the authority of that case it is ordered that the judgment be reversed and that a decree be entered in favor of appellant, with the direction that the writ issue. Tyler, P. J., and Knight, J., concurred....
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The question involved in this case is in all respects similar to that in Hurley v. Sykes et al., ante, p. 310 [231 P. 748].[1] Upon the authority of that case it is ordered that the judgment be reversed and that a decree be entered in favor of appellant, with the direction that the writ issue. Tyler, P. J., and Knight, J., concurred. *Page 793 ...
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The question involved in this case is in all respects similar to that in Hurley v. Sykes et al., ante, p. 310 [231 P. 748].[1] Upon the authority of that case it is ordered that the judgment be reversed and that a decree be entered in favor of appellant, with the direction that the writ issue. Tyler, P. J., and Knight, J., concurred....
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The question involved in this case is in all respects similar to that in Hurley v. Sykes et al., ante, p. 310 [231 P. 748].[1] Upon the authority of that case it is ordered that the judgment be reversed and that a *Page 795 decree be entered in favor of appellant, with the direction that the writ issue. Tyler, P. J., and St. Sure, J., concurred....
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The question involved in this case is in all respects similar to that in Hurley v. Sykes et al., ante, p. 310 [231 P. 748].[1] Upon the authority of that case it is ordered that the judgment be reversed and that a decree be entered in favor of appellant, with the direction that the writ issue. Knight, J., and St. Sure, J., concurred. *Page 796 ...
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The question involved in this case is in all respects similar to that in Hurley v. Sykes et al., ante, p. 310 [231 P. 748].[1] Upon the authority of that case it is ordered that the judgment be reversed and that a decree be entered in favor of appellant, with the direction that the writ issue. Tyler, P, J., and St. Sure, J., concurred....
Views: 1
The question involved in this case is in all respects similar to that in Hurley v. Sykes et al., ante, p. 310 [231 P. 748].[1] Upon the authority of that case it is ordered that the judgment be reversed and that a decree be entered in favor of appellant, with the direction that the writ issue. Tyler, P. J., and St. Sure, J., concurred....
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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 349 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 350 This is an original proceeding in this court for a writ ofmandamus to compel respondents, as members of the bo...
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The question involved in this case is in all respects similar to that in Hurley v. Sykes et al., ante, p. 310 [231 P. 748].[1] Upon the authority of that case it is ordered that the judgment be reversed and that a decree be entered in favor of appellant, with the direction that the writ issue. Knight, J., and St. Sure, J., concurred....
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The defendant appeals from a judgment rendered against him on an account for merchandise sold and delivered to the defendant. Appellant was the owner of a parcel of land on which there was an orchard of fruit trees. The premises also were used,as a poultry farm. Some time during the year 1917 he placed on this farm as manager one Masterson. At the trial of this action it was claimed by appellan...
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This is an action involving the title and possession of certain real property, brought by plaintiff as administrator of the estate of Charlotte Haley, sometimes known as Charlotte Parker, deceased, against D. E. Parker, who claims as the husband of said deceased. The facts herein, as shown by the bill of exceptions, are that on November 22, 1915, Michael Haley and decedent were married in the city...
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This is an appeal from a judgment entered against defendant, after demurrer of defendant to the amended complaint had been overruled and defendant had refused to answer. The demurrer was general, on the sole ground that the complaint did not state facts sufficient to constitute a cause of action. The only point involved in the action which appellant offers to present for consideration is that, as ...
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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 560 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 561 Defendant and one Talbott were charged jointly with the crime of embezzlement. From a judgment of conviction a...
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On June 8, 1922, respondent's decedent, Fred H. Hartje, then living in Yakima county, received injuries in an automobile collision in Yakima county, from which he died. The automobile causing the injuries was a delivery truck owned by appellant and driven by its agent. Thereafter respondent was named as administrator of the estate of Hartje, and brought an action against appellant for the benefit ...
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If the respondent's testimony was properly received by the trial court, the facts are these: Ben Kille, John Einmo and E.N. Ryan were co-partners engaged in the fishing business in Alaska. There was an understanding between Mr. Kille and his co-partners that he would furnish the necessary money to carry on the business. In order to do this he borrowed certain sums from the respondent Olsen, with t...
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Respondent secured judgment against appellant in the amount of $730.50 upon a certain written guaranty, from which judgment this appeal is taken. *Page 245 In July, 1919, one A.J. McLean borrowed $4,000 from appellant to purchase a stock of groceries and fixtures from one H.H. Soule, at Anacortes, Washington, and to secure this loan a chattel mortgage was given upon the stock of groceries and fix...
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An information was filed against appellant charging him with the crime of forgery in the second degree, and he has appealed from conviction thereunder. The information charges that the defendant, with intent to defraud the Northern Pacific Railway Company, made a false entry in a private record or account of such company, in this manner; by certifying to the railroad company (which certificate bec...
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By the terms of a written contract, the plaintiffs agreed to sell, and the defendants agreed to purchase and pay the purchase price for, certain real estate. The price was $10,000. Fifteen hundred dollars of it was paid down in cash, and the balance was payable in $500 installments at certain fixed periods. When all of the purchase price was paid, the plaintiffs were to give their deed to the prop...
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On October 27, 1924, Triest Company, a non-resident corporation, began an action in the superior court of King county against the relator, J. Arine, to recover upon an account for goods, wares and merchandise sold and delivered by it to the relator. In its complaint it charged Arine with insolvency and with fraud in contracting the obligation sued upon. In substance, it alleged that the relator w...
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Respondents J.B. Marquette and Anna L. Marquette, his wife, owned as community property the west half of the northwest quarter of section 34, township 18, north, of range 19 east, W.M., and in December, 1922, conveyed the property to respondent E.M. Heyner. They inadvertently described the property as the west half of the northwest quarter of section 34, township 19, north, of range 19 east, W.M. ...
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At the conclusion of plaintiff's testimony, the court granted a nonsuit, and subsequently entered a judgment of dismissal. The suit is based on a written contract which is too long to be here set out in full. In it the party of the first part is the appellant, and the party of the second part is designated as "The Business Men of the Town of Burlington, Skagit County, Washington." A preliminary cl...
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On August 25, 1919, respondents made a real estate sale contract to one Luttrell, by the terms of which they agreed to sell, and he agreed to buy, an orchard tract in Chelan county for $35,000. The contract recites the receipt of the initial payment of $15,000, and provides for the payment of the remainder in stated installments, due on December 15 each year, commencing with 1919 and ending in 192...
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Respondent, as plaintiff, brought this action against appellant, as defendant, to recover upon certain promissory notes made by the defendant, of which it claimed to be the holder in due course. The defense was that the execution of the notes had been induced by fraud, and that the plaintiff had notice of the infirmities and was not a purchaser in good faith. The trial was to a jury, which found ...
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Appellant was found guilty by a jury of the crime of having intoxicating liquor in his possession, and from judgment and sentence upon the verdict, this appeal is taken. *Page 287 On the 14th day of October, 1923, three deputy sheriffs called at the home of appellant, near Tekoa, Washington, and searched his buildings and premises. They found some empty barrels and jugs in the cellar containing t...
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The plaintiffs Fenton and wife seek recovery of damages claimed as the result of injuries inflicted upon their lots 9 and 10, of block 36, Gilman's Addition to Seattle, by the city's alleged unreasonable *Page 195 and negligent establishing and physical construction of the original grade of the street upon which the lots front. A trial upon the merits in the superior court for King county sitting...
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The relator, James Fisher, instituted this action against appellant, secretary of the Flathead Petroleum Company, a corporation, to secure an order permitting the inspection of the stock books of the company and for a penalty for the refusal to allow the inspection. The law granting this right of inspection provides as follows: "It shall be the duty of the trustees of every company incorporated un...
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This is an appeal from a judgment of dismissal, entered after the sustaining of a demurrer to the complaint, and the question presented here is whether or not the appellants' complaint states a cause of action. That complaint, after the formal allegations, alleges: "3rd: – That on the 2nd day of April, 1923, a purported petition was filed with said board of commissioners, pretending to petition fo...
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The legislature, in 1923, passed an act which appears as ch. 145, Laws of 1923, p. 466, relating to the admission of the insane to state hospitals and providing for the charges to be paid by persons and counties for the care and maintenance of such insane. Section 1 outlines the procedure for the examination of relatives of the insane persons for the purpose of determining the ability of the insan...
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Respondents recovered judgment against appellant for money had and received in the amount of $1,725.90, from which judgment this appeal is taken. *Page 240 On November 20, 1915, the respondents entered into a contract for the sale of certain real estate and personal property to Hodgson Brothers, providing in part as follows: "Said `purchasers' (Hodgson Bros.) shall deliver to said `owners' (Respo...
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Catherine Rainey and Peter L. Rainey, her husband, pursuant to the statutes of Idaho, commenced this action in the district court of Salt Lake county as plaintiffs against the defendant to recover damages for personal injuries, which, it is alleged, Catherine Rainey sustained through the alleged "wanton and willful" negligence and misconduct of defendant's employees. In view that no damages are so...
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The appellant (defendant below) owns and operates a cement plant located in Weber Canyon, Morgan county, in this state. The respondent and cross-appellant (plaintiff below) owns a farm of about 100 acres located in the immediate vicinity of the cement plant. It is alleged in the complaint that there are located upon respondent's land a dwelling house and other buildings, including corrals for feed...
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The transactions involved in this action took place at a time when the Oregon Short Line Railroad was operated by the federal government through James C. Davis as director general of railroads, or by his predecessor, and hence Davis was made the nominal plaintiff, although the Oregon Short Line Railroad Company is the real party in interest. The action was commenced by the director general...
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In its complaint plaintiff sought to recover judgment against defendants on two promissory notes. Judgment was entered on one note in favor of plaintiff and upon the other in favor of defendants. Plaintiff appeals. The note upon which judgment was entered in favor of plaintiff is not involved in this appeal, and will not be further considered. The note in question is dated January 27, 1921, and by...
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This is a second appeal. The facts out of which the litigation grew are stated in some detail in the opinion on the former appeal. Lawley v. Hickenlooper, 61 Utah 298, 212 P. 526. The action was originally brought to obtain a decree of court declaring that the defendant Sheya held the legal title to certain real estate described in the complaint in trust for plaintiffs. The trial court dismissed t...
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The plaintiff, Joseph Nelson Plumbing Heating Supply Corporation, commenced two separate proceedings in this court against the Hon. Wm. M. McCrea, as judge of the district court of Salt Lake county, Utah, and against the court. In the first proceeding plaintiff prayed for an alternative writ of prohibition against said court, and in the second one it prayed for an alternative writ of mandate. At ...
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The plaintiff sued to recover a balance of $1,690.90, alleged to be due him for services performed as general manager for defendant from October 17, 1917, to April 15, 1918. The defense was a general release, in writing, entered into and executed by the parties on December 4, 1920. The plaintiff admitted the execution of the release but contended that the claim sued upon was not included in it. Th...
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This action was commenced in the district court of Weber county, Utah, by Ephraim Ellison against all of the defendants named in the title. The defendant, James Pingree, filed an answer to the complaint, and, in connection therewith, also filed a cross-complaint against all of the defendants. The Ogden Packing Provision Company, hereinafter called company, filed a separate answer to the cross-comp...
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The Otis Elevator Company, one of the defendants, appeals from a judgment rendered against it and the Bonneville Hotel Company. The Bonneville company has not appealed. The action was brought against the above-named defendants and William N. Clark, the case against the latter having been dismissed on plaintiff's motion during the trial. The complaint charges that the Otis Elevator Company is an Il...
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The defendants Henry C. Hett, alias George Allen, and Arthur Hayes were charged with the crime of murder in the first degree. The jury found both defendants guilty as charged, recommending life imprisonment as to the defendant Hayes. Hayes was thereafter sentenced to life imprisonment by the court, and Hett was sentenced to be shot to death. Both appeal. So far as Hett is concerned there is no que...
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*400The opinion of the court was delivered by G. R. Gage sued^J. H. Leslie and his wife, asking the specific performance of a written contract for the exchange of real estate. He recovered judgment and the defendants appeal. The property which by the terms of the contract the defendants were to convey was their homestead. They contend that although Mrs. Leslie signed the contract, after doing so s...
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*367The opinion of the court was delivered by In July, 1920, Louis J. Masopust sold a tractor to A. J. Hopkins, receiving in payment a steam engine valued at $2,000, $1,040 in cash, and a note for $1,800, which was secured by a mortgage on the tractor and other property. He brought this action in replevin for the tractor, claiming title by a sale under the mortgage. The defendant in his answer, in...
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This action was commenced in the district court of McCurtain county by the Bank of Millerton, as plaintiff, against J.M. Beeson and J.W. Guest, defendants in error, as defendants, to recover the sum of $1,200, which it is claimed the Bank of Millerton paid to take care of an overdraft by which the defendants had overdrawn their account. After suit was brought, the Bank of Millerton became insolven...
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Plaintiffs in error, plaintiffs below, brought an action in the district court of Nowata county, Okla., on the 22nd day of August, 1922, against the defendants in error, defendants below, to cancel a certain deed covering the south-west quarter (S.W.1/4) of the northwest quarter (N.W.1/4) of the southeast quarter (S.E.1/4) of section 31, township 26 north, range 16 east, I.M., in Nowata county, Ok...
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This action was originally instituted by E.S. Sabin (who will hereinafter be called complainant) filing his claim with the State Industrial Commission, for compensation for injuries received while in the employ of the plaintiff in error, who will hereinafter be designated "respondent." From the claim filed it appears claimant was employed by respondent, at Bristow, Okla., and on July 20, 1922, he ...
Views: 4
On September 20, 1924. plaintiff in error filed his petition in error m this court seeking a reversal of an order *253 of the district court of Oklahoma county, wherein the said district court presumably vacated a temporary injunction attached to the petition in error. There is no final judgment included among the various papers attached thereto. There is no transcript of the evidence or .the p...
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This action was instituted by the defendant in error to recover certain claims alleged to be due from the plaintiff in error, and for convenience the parties hereto will be designated as they appeared in the court below. *Page 121 Plaintiff alleges A is the owner and holder for value of certain claims against the defendant by reason of the assignment to plaintiff of the following claims: Claims o...
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The plaintiff in error, defendant below, will be referred to herein as the defendant; and the defendant in error, plaintiff below, as the plaintiff. This action, brought by the plaintiff, is based upon a written contract entered into between the parties, wherein the plaintiff *Page 125 agreed to sell and the defendant to buy 520 barrels of flour at a price fixed at $12.25 per barrel, and providin...
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This appeal is from a judgment of the district court of Creek county, entered November 20th of this year, directing a peremptory writ of mandamus to issue commanding the excise board of that county to reconvene as the excise board of Creek county, and to forthwith approve the estimate made by the board of county commissioners for the purpose of co-operating with the United States Department of Agr...
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At all times herein mentioned, Dillard H. Clark was the owner in fee of lots 3 and 4 and the south half of the northwest quarter (referred to herein as the N.W. 1/4) of section 2 township 24 north, range 1 west, Noble county, Okla. He and wife, Ella, executed an oil and gas mining lease to W.E. Templeman, on October 25, 1916, for a term of years, and as long thereafter as oil and gas was produced....
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The parties will be designated as in the court below. This suit was brought to recover damages alleged to have been sustained by reason of incompleteness and imperfections of an abstract and error made by an abstracter in compiling an abstract. The suit is brought against the abstracter and the sureties on the abstracters statutory bond. It appears affirmatively from the face of the plaintiff's pe...
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This suit was instituted in the district court of Caddo county by appellees, plaintiffs below, against the appellant, defendant in the lower court, to recover the sum of $500, the amount due appellees under all oral contract wherein they agreed to sell, trade, or exchange the farm of the appellant, and further allege that pursuant to said agreement they did cause an exchange of the property for a ...
Views: 2
This was an action in damages by J.B. Caldwell, as plaintiff, against W.B. Garnett and L.J. Huling, doing business under the firm name of Garnett Huling, and Blanche L. Messer, J.A. Hamm and Mrs. J.A. Hamm. The cause was submitted to the jury, resulting in a verdict of $918.24 against the defendants, Mr. and Mrs. J.A. Hamm, who prosecute an appeal to this court. The record shows that J.A. Hamm no...
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This case involves the surplus allotment of Agnes Stephen, a member of the Choctaw tribe, said land being described as 19.26 acres of lot 4, section 6, township 5, range 7 east, and lot 5 and the east 20 acres of lot 6, and the southeast quarter of the northeast quarter of section 1, township 5, south, range 8 west. Agrees Stephen, the allottee, married a man by the name of Webster. In the early p...
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The case of Donaldson Yahn v. Benight et al.,105 Okla. 108, 232 P. 116, operates to cause the reversal and remanding of this appeal for further proceedings in accordance with the views therein expressed. By the Court: It is so ordered....
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Parties will be referred to as they appeared in the trial court, inverse to their order here. Plaintiff, Kelley, bought a motor truck from defendant corporation for $2,950. As finally amended, plaintiff's petition contained two causes of action. In the first, it was alleged that, as a part of the purchase, defendant "Impliedly warranted that the truck was suitable to perform the ordinary work whic...
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This suit was instituted in the district court of Washington county, Okla., by Gunter Ross, appellant, against G. C. Alworth et al., appellees herein, on April 22, 1922. This suit seems to have been instituted originally in the name of Maud W. Ross, as guardian of Gunter Ross, the said Gunter Ross having reached his majority subsequent to the institution of the same, for the cancellation of a cert...
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The parties will be referred to in this opinion as plaintiff and defendant, as they were designated in the trial court. On the 7th day of August, 1917, the plaintiff recovered a judgment against the defendant James J. Burns by default, upon a promissory note and for the foreclosure of a mortgage securing the payment thereof, on certain land in Beckham county. On the 19th day of April, 1923, the de...
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This action was instituted in the district court of Tulsa county on the 14th day of October, 1920, by appellant, plaintiff in the trial court, against the appellees, defendants in the trial court, to recover damages for an alleged breach of a contract of sale of gasoline by defendants to plaintiff, and this appeal is taken from a judgment of the trial court sustaining defendant's general demurrer ...
Views: 4
' The information in this case charges that the defendants, Bill Mundell and Tom Gilstrap, in Jefferson county, on or about the 3d day of June, 1922, did take, steal, and carry away two head of cattle, the personal property of George Fulson. It appears that the defendant Bill Mundell pleaded guilty and testified as a witness for the state on the trial of his eodefendant, Tom Gilstrap, which trial...
Views: 0
Plaintiff in error, Walter Neff, was convicted in the district court of Ottawa county, on a charge of transporting whisky, second offense, and his punishment fixed at a fine of $500 and imprisonment in the penitentiary for a term of two years. From the judgment rendered on the verdict, on May 19, 1923, an appeal was perfected by filing in this court on November 16, 1923, a petition in error with ...
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Plaintiff in error, Walter Zaionc was convicted on an information charging that he did shoot at one W. J. Price with a gun with the intent to kill the said Price, and his punishment fixed at imprisonment in the penitentiary for the term of one year and one day. From the judgment rendered on the verdict he appealed by filing in this court September 8, 1923, petition in error with case-made. Sinc...
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On December 6, 1924, an order was made and entered by this court, dismissing this cause for want of service of notice of appeal or service or waiver of summons. A subsequent inspection of the files and dockets disclosed that service of summons was waived by the Attorney General, and that a record thereof was in *3 advertently omitted. The order of dismissal heretofore made herein is therefore s...
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Earl Byxbee, plaintiff in error, defendant in the trial court, was on the 16th day of March, 1922, found guilty of illegally manufacturing intoxicating liquor. By the verdict of the jury his punishment was fixed at confinement in the county jail for a term of 90 days and a fine of $500. From the judgment rendered in accordance with this verdict he appeals. This cause was originally affirmed by thi...
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The information in this ease charges that the defendants Jimmie Lynch and Dewey Pruitt did, in Carter county, about the 15th day of August, 1922, have in their pos *446 session intoxicating liquor with intent to sell the same. Upon the trial they were found guilty, and the punishment of each assessed at a fine of 50 dollars and 30 days’ confinement in the county jail. They have appealed from th...
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Frank Blumhoff, plaintiff in error, defendant in the trial court, was a farmer who lived in the same neighborhood with and near the farm of the complaining witness, J.T. McFatridge. Both men had horses which were allowed to run at large. About the 18th day of February, 1922, a three-year old black Percheron horse was missed by the complaining witness. The proof offered by the state indicates that ...
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Plaintiff in error, Roy Crump, was convicted on a charge that he did have in his possession whisky, with the unlawful intent to sell the same. In accordance with the verdict of the jury he was sentenced to pay a fine of $250 and be confined in the county jail for 30 days. From the judgment an appeal was taken by filing in this court, on March 21, 1923, a petition in error with case-made. The testi...
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The complaint fails to state a cause of action against the bonding company as it does not allege that plaintiff had first exhausted his remedies against Hanson and the sureties on his general bond. The weight of authority is that the general bond of an administrator and an additional bond given on a sale of real estate are separate and distinct and that an action does not lie upon the additional b...
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Elizabeth A. Morrison, the owner and holder of two policies issued by the Reliance Insurance Company, insuring a building belonging to her against loss by fire, instituted an action to recover the amount of the two policies. She also commenced an action against the Concordia Fire Insurance Company to recover 8. Credibility of witnesses, see note in 86 Am. Dec. 328. *Page 99 upon a third policy wh...
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When property is paid for with the money of one person and the title taken in the name of another, the person holding the title is a trustee for the person whose money paid for the property. A resulting trust is created. (Sec. 6785, Rev. Codes; Wilson v.Wilson, 64 Mont. 533, 210 P. 896; Lynch v. Herrig,32 Mont. 267, 80 P. 240; Eisenberg v. Goldsmith, 42 Mont. 563,573, 113 P. 1127; Clary v. Fleming...
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Defendants submit that the complaint fails to state facts sufficient to constitute a cause of action against defendants or either of them, or which will entitle them to equitable relief for the following reasons: (a) It does not allege that said bank was a party to the proceedings in which plaintiff was appointed receiver; or (b) that the bank is being liquidated by the court. (c) It does not alle...
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This is an appeal by the executor of the estate of Mary C. O'Reilly, deceased, from an order of the lower court sustaining objections and exceptions to certain items in the final account of the executor. The testatrix died in Maricopa county, Arizona, leaving an estate of the approximate value of $20,000. Upon the will being admitted to probate, Eugene D. O'Reilly was appointed executor, and as su...
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This suit involves the question as to which of the litigants, appellant and appellee, is entitled to letters of administration upon the estate of Marguerite Graham, deceased. *Page 168 The intestate died October 4, 1923, in Cochise county, Arizona, and left surviving her Howard P. Graham, her husband, and Mary Jane Graham, a minor child. It appears the husband was insane, and John P. Cummings had...
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Benjamin A. Funk in an action of replevin seeks to recover from Chris Pallas a certain diamond described in the complaint as weighing 3.93 carats, or, in case it cannot be delivered, $1,200, its alleged value. The trial was begun upon the general issue, but during its progress the defendant asked and was given permission to amend his answer, setting *Page 171 up, in effect: That on September 22, ...
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This is an appeal by the husband and father, Samuel E. Selph, from a judgment committing him to jail for contempt in failing to comply with the court's order to pay his wife, Lillie Selph, for the permanent support of herself and the children *Page 177 of the parties, the sum of $50 per month as provided in decree for separate maintenance theretofore entered. The decree was entered in the superio...
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Lee Arnett, assignee of three promissory notes executed by appellee, Thomas J. Hardwick, in favor of Ruby and Bowers, brought this action to enforce their collection. A general demurrer to the complaint was filed by appellee July 16, 1921, but no ruling thereon was ever made nor was any further action taken in the case until April 2, 1923, when it was dismissed with prejudice at appellant's cost. ...
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The appellee brought this action against the appellants for the purpose of quieting his title to five mining claims situate in Black Rock and Blue Tank mining districts, Yavapai county, Arizona, alleging in his complaint that he was the owner by virtue of a certain deed of conveyance dated January 31, 1917, and recorded in the office of the county recorder of Yavapai county, and that defendants cl...
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Clarence Brown was charged by the grand jury of the Circuit Court of the State of Oregon for Polk *Page 151 County with offending against Section 2, Chapter 30, General Laws of Oregon, 1923, reading, in part, as follows: "No mash * * fit for distillation or for the manufacture of spirituous, malt, fermented, alcoholic, or other intoxicating liquors, shall be * * possessed within this state by any...
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This was a suit to foreclose a mortgage upon real estate, given to secure payment of two promissory notes. The respondents executed the two notes on March 1, 1920; one payable one year and four months after date, and the other payable two years and four months after date. The notes were executed to Lloyd McCallum in payment of a jackass. On June 5, the mortgage to secure the notes was *Page 577 ...
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The appellant was convicted by a jury of the crime of carnally knowing a female child under the age of eighteen years. From a judgment entered upon the verdict, this appeal is taken. This case was first tried on February 14, 1921, resulting in a conviction, and upon appeal to this court the judgment was reversed. A statement of the facts in controversy in the former appeal is found in the case of ...
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The facts in this case are stipulated and are that Baldoser, on March 1, 1921, was the owner and operator of a retail grocery business in Yakima county, the assessor of which county assessed the stock of goods and fixtures as of that date for taxation for the year 1921; that Baldoser continued to own and operate the business from March 1, 1921, to November 16 of the same year, when he sold the bui...
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The appellant, Anna Roswall, as the administratrix of the estate of Oscar Roswall, deceased, brought this action against the respondent, Grays Harbor Stevedore Company, to recover in damages *Page 275 as for the wrongful death of her intestate. To her complaint the respondent interposed a demurrer, which the trial court sustained. The appellant thereupon elected to stand on her complaint and refu...
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The plaintiff, Davis, by his original complaint filed in the superior court for Pierce county in this action, sought foreclosure of his stumpage lien claim upon logs and lumber manufactured therefrom which were then alleged to be at the defendant mill company's mill, which logs had been logged from his land by the defendant Allison and by him sold to the mill company. That complaint may also be re...
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This action is to foreclose certain lien claims filed by appellants against the 1923 crop of defendant Savage, consisting of boxed apples, for labor performed in harvesting, housing, assisting in harvesting and housing, and grading the apple crop, which labor consisted of picking, sorting, grading, storing, and housing the apple crop. Appellants vigorously contend and ably argue that the statute, ...
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The appellant was convicted of a violation of one of the ordinances of the city of Leavenworth, making it a misdemeanor to keep or transport intoxicating liquors for the purpose of sale, and has appealed. The first ground urged for reversal is that the court failed to suppress evidence seized by the arresting officer without a search warrant. The motion for the suppression of this evidence was pro...
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ON REHEARING. The plaintiffs, McMillan and several other owners of fish traps located and heretofore operated by them in the waters of Skagit Bay, sought a decree from the superior court for Skagit county enjoining the defendants, Sims, Ramwell and Blake, constituting the state fisheries board, and certain other law enforcement officers, from enforcing an order made and p...
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Respondents, who were plaintiffs below, being the owners of a tract of 240 acres of land in Pend Oreille county, through which flows a stream called Calispel creek, brought this action to restrain the defendant from diverting the waters of that creek above their land, and thus interfering with their rights as riparian owners. It is admitted that the defendant *Page 256 is a public service corpora...
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This action is for the recovery of damages for personal injuries sustained by appellant in a collision between a Ford truck operated by appellant and a Dodge sedan operated by the minor son of the respondents. The collision occurred at the intersection of public highways about one mile north of Opportunity, in Spokane county. The car of appellant approached the intersection from the east, and the ...
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The complaint in this action states that the American State Bank had legal title deducible from the United States of the real estate involved, and by good and sufficient deed, in June, 1922, conveyed all its right, title and interest to appellants; that respondents claimed some right, title, estate, lien or interest in and to the premises which is unknown to appellants, and prayed that respondents...
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Appellant brought this action as plaintiff to- obtain the removal of the lien of an attachment from certain real estate, claimed to be her separate property. From a decree granting her prayer as to an undivided eight-seventeenths interest, and holding the remaining nine-seventeenths to be the community property of herself and her husband, and therefore subject to the lien of the attachment, the p...
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ON REHEARING. This case was before a department of this court and decided inNorthwest Lum. Co. v. Scandinavian American Bank of Seattle,130 Wash. 33, 225 P. 825, allowing the return of a special deposit against the insolvent bank and its liquidator, and allowing interest on such special deposit. Appellants, content with the decision upon the principal question, petitioned...
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The plaintiff brought suit upon a promissory note which was in ordinary form and which was signed, "Diamond Lake Lumber Co., Arthur Cairns, Secy. Treas., Olaf Lamon." The action was against Olaf Lamon and wife only. The answer of the defendants made certain admissions and denials and pleaded affirmatively as follows: "1. That on the 16th day of March, 1921, he held the office of Vice-President of...
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H.B. Vaughn was doing business under the name of the Commercial Plumbing Heating Company, in 1922, and being in need of additional funds with which to carry on his business, made an *Page 209 arrangement with the appellant to advance money to him. This agreement was reduced to writing and provided that the appellant should furnish $1,000, or such additional sums as might be desired to be used by...
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The plaintiff in this action sought recovery of damages for personal injuries. The defendants answered with certain denials and admissions and alleged affirmatively that the plaintiff was guilty of contributory negligence. The cause was tried to a jury, and resulted in a verdict in favor of the plaintiff in the sum of $1,500. At the conclusion of the evidence, the defendants made a motion for a di...
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IN BANC. This is a suit to enjoin the defendants from maintaining a tile drain across the east half of Lot No. 12, in Brown's Addition to Silverton, Oregon, and for the sum of $500 damages, arising from the maintenance thereof. From a decree of the lower court dismissing the plaintiff's suit and awarding defendants their costs, plaintiff appeals. AFFIRMED. REHEARING DENIED. *Page 329 The defendan...
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REVERSED AND REMANDED. REHEARING DENIED. The defendant, being tried separately, was convicted of the crime of manufacturing intoxicating liquor. The principal testimony relied upon by the state to secure a conviction was that of an accomplice, Tom Scott, who testified that the liquor was manufactured upon his own place; that the defendant furnished the still, the material from which the liquor was...
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AFFIRMED. On May 2, 1921, a decree of divorce was rendered by the Circuit Court for Polk County in favor of defendant Walter Rasmussen and against the plaintiff Ethel Rasmussen, now Ethel Sowers, after the plaintiff had withdrawn her complaint for a divorce. The care and custody of Leroy Rasmussen, *Page 147 minor child of the parties, who was born on the fourteenth day of January, 1916, was awar...
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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 189 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 190 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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IN BANC. APPEAL DISMISSED. This is a motion to dismiss an appeal upon two grounds: First, that this court has no *Page 210 jurisdiction; and, second, that the defendant is a fugitive from justice, and no bond on appeal has been filed, and no certificate of probable cause issued. It appears from the record and an affidavit on the file that the defendant was arrested on the charge of violating city...
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IN BANC. This is a suit for specific performance of a contract to convey real property. On October 15, 1920, Wm. A. Ryan entered into a written agreement to sell E. Asher lots 5 and 6 in block 15, Riverside Addition, Salem, Oregon, for the sum of $750. In accordance with the terms of the contract $150 was paid upon execution thereof and the balance of the purchase price was to be made in monthly i...
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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 510 IN BANC. AFFIRMED. REHEARING DENIED. The complaint in this case contains three causes of action. The first cause is for labor and services performed by James A. Gilbert, the husband of the plaintiff, at the defendant's special instance and request, at an ...
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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 134 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 135 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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This proceeding is before us on a petition for a writ ofcertiorari praying for the annulment of an award made by the Industrial Accident Commission. Herbert O. Willson was the business agent of the Plumbers' and Gas Fitters' Local Union No. 444, with offices in the Labor Temple, in the city of Oakland. His death occurred August 1, 1922, following an illness of four days' duration and, it is claime...
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The defendant was tried under an information which charged him with violation of the Juvenile Court Law (Stats. 1915, p. 1225), the offense having relation to his conduct with a certain female under the age of twenty-one years. The court imposed upon him the penalty of imprisonment in the county jail in the county of San Diego *597 for the term of eight months. The defendant gave notice of “app...
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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 123 This is an application for a writ of mandate to compel the respondents as members of and constituting the council of the city of Los Angeles to certify the adoption of a certain separate proposition submitted to the electors of said city in connection wit...
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This action was commenced against the above-named W. J. Doherty December 6, 1912. Judgment was rendered in favor of the defendant and the same was reversed on appeal. (Mallett v. Doherty, 180 Cal. 225 [15 A. L. R. 19,180 P. 531].) The case was retried February 3, 1920. Judgment was again rendered in favor of defendant and the plaintiff has appealed. Thereafter W. J. Doherty died and Lillian C. Doh...
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Plaintiff sued to recover for personal injuries suffered as the result of having been struck and run upon by an automobile truck driven by defendant Schneider, as the employee of defendant Miller. The verdict was in favor of defendant Schneider and against defendant Miller. Defendant Miller moved for and was granted a new trial "on the ground of the insufficiency of the evidence to justify the ver...
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Plaintiff sued for damages suffered by him while attempting to board a street-car operated by the defendant. The accident occurred about 9:30 P. M. on the 13th of November, 1919. Plaintiff had been a passenger on *Page 591 a Market Street car operated by the defendant coming east through the Twin Peaks tunnel. He obtained a transfer and alighted from said car at Market and Church Streets. He then...
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This is an action in equity to recover a portion of the estate of Marian S. Wood, deceased, on the theory that the deceased and her husband contracted with plaintiff *Page 553 and her father to give to plaintiff a one-third vested interest in the property of the estate. The facts of the case are that in 1874, in the state of Michigan, the deceased and her husband agreed with the father of the pla...
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This action was one brought to recover damages for personal injuries claimed to have been received through the negligent operation of an automobile driven by defendant. Plaintiffs are husband and wife, and the injuries complained of were suffered by the wife. They consisted of a fracture of the left hand and certain cuts and bruises on the face and knee which, it is alleged, incapacitated her from...
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The defendants were charged with an attempt to commit robbery. Defendant Gonzales was convicted and appeals from the judgment and from an order of the trial court denying his motion for a new trial. [1] It is contended that the evidence was insufficient to support the verdict in that there was no showing of an attempt to rob. It is said that the defendants frightened the complaining witness, who w...
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The opinion of the court was delivered by The action was one to recover on a beneficiary certificate issued by the national council of the Knights and Ladies of Security, predecessor of defendant, the Security Benefit Association. The plaintiff, Augusta Pickens, who had been named as beneficiary, recovered, and defendant appeals. Dues were payable on the first day of each month. If not paid by th...
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The opinion of the court was delivered by The plaintiff installed a heating plant in a district schoolhouse, and brought this action to recover the agreed price. The school district resisted collection on the ground that a guaranty of its operation with respect to heating and ventilation had been broken. On a trial without a jury judgment was rendered for the defendant, and the plaintiff appeals. ...
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The opinion of the court was delivered by This is an original proceeding to oust Mr. Justus N. Baird from the office of county attorney of Wyandotte county. The petition charged willful neglect of duty in respect to prosecutions for violations of the intoxicating liquor laws. This court appointed a commissioner to take the testimony and to make findings of fact and conclusions of law. The commiss...
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The opinion of the court was delivered by The state board of administration on December 27, 1924, made an order removing the chancellor of the state university from that position. On the same day the chancellor brought an action in the district court asking an injunction against the enforcement of the order, the operation of which was stayed pending the hearing. On January 5 judgment on the pleadi...
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The opinion of the court was delivered by The action was one to recover damages for injury sustained by the plaintiff when jumping from one of defendant’s trains. A general verdict for plaintiff was returned by the jury; also answers to special questions. The trial court overruled a motion by defendant for a new trial, but sustained its motion for judgment on the special findings. The plaintiff a...
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The opinion of the court was delivered by On October 8,1928, the mayor and council of Marysville, a city of the second class, passed an ordinance forbidding gasoline, kerosene or other inflammable or combustible liquid to be kept or stored within the corporate boundaries otherwise than in tanks, barrels or other containers buried at least three feet underground, exceptions being made in the case o...
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The opinion of the court was delivered by The plaintiff was swindled out of twenty thousand dollars’ worth of Liberty bonds by one Francis C. McCarty in a fraudulent sale of a quarter section of Finney county land, and sought to fasten liability therefor on the defendants as principals of McCarty or as his coconspirators. Demurrers to plaintiff’s evidence were sustained, and he appeals. To test th...
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The opinion of the court was delivered by The Lawrence Business College, a "Kansas corporation, obtained a permanent injunction against the county clerk, treasurer and sheriff, forbidding the enforcement of personal taxes against it for 1921 and 1922, on the ground that its property is used exclusively for educational purposes within the meaning of the provision of the state constitution (art. 11...
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The opinion of the court was delivered by The action was one to recover damages because of failure and refusal to accept certain securities according to contract. Each party prevailed in part, and both appeal. The plaintiff is engaged in the business of buying and selling road machinery and building bridges in the state of Texas. The defendant is engaged in buying and selling municipal securities....
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This is a second appeal from the district court of Craig county. It is an injunction suit seeking to prevent the issuance and sale of $25,000 bonds of consolidated school district No. 2 of Craig county, containing three school districts of Craig county and a part of a district in Nowata county. On the first trial in the district court, an injunction was sought for alleged irregularities in the ele...
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This action was commenced by W.A. Love and Cora Love, his wife, as plaintiffs, against the Hotel Lawrence Company, a corporation, and Julius L. Burtschi, as defendants, for the recovery of $73,000, as damages for breach of lease contract. The cause was tried to a jury and at the close of all the testimony in the case the defendants filed a request for an instructed verdict in their favor, but befo...
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This action was begun in the district court of Ottawa county in the year 1916. Minnie Newman Warner and C.T. Warner, plaintiffs in error herein, were the plaintiffs in the district court, and the defendants in error, G.L. Coleman, A.E. Coleman. J.F. Robinson. C.M. Harvey, individually and as copartners, and Commerce Mining Royalty Company, trustees for said G.L. Coleman, A.E. Coleman, J.F. Robins...
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John Frymyer, the defendant in error, died after the submission of this cause, but before the opinion was approved by this court. The *Page 178 death of the defendant in error has been suggested to this court for the first time and proved to have occurred after submission of the cause, and before the approval of the opinion by the court. While the fact of said death between the submission and dec...
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This action was commenced in the district court of Oklahoma county by Mrs. J.E. Thacker, plaintiff in error, plaintiff below, against R. Stewart Ross and Everett H. Price, defendants in error, defendants below, for recovery of $10,042.80, damages. The parties will be referred to as plaintiff and defendants as they appeared in the lower court. To the petition, first amended petition, and second ame...
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The defendant in error, plaintiff in the trial court, obtained judgment, by verdict of a jury, against the plaintiff in error, defendant, for personal injuries as a passenger on its Interurban street car in West Tulsa, caused by the negligence of the conductor and motorman, in starting the car while plaintiff was in the act of getting off. 1. Defendant contends that the petition did not state fact...
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Opinion by There are six assignments of error in the petition in error, but the contentions made by defendant for a reversal are fully stated in the following paragraph at page 5 of his brief: “The principal position that we take in this case is that the court .erred in not sustaining motion for new trial.' That the court committed further error in its charge to the jury. That the court commi...
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The facts out of which this action grew are about as follows: A man by the name of H.O. Richards was the owner of certain shoe shop equipment and material in Oklahoma City, consisting of machinery, tools, and implements used for shoe repairing, and certain materials to be used in such business. It seems that H.O. Richards owed certain monies to R.J. Inge, one of the defendants in error. Richards s...
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The plaintiff in error was the defendant below, and the defendant in error was the plaintiff. The parties will be designated herein as plaintiff and defendant, as they appeared in the trial court. The plaintiff, by his petition, sought to recover damages from the defendant because of certain alleged slanderous statements published by the defendant of and concerning the plaintiff. The cause was tri...
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Opinion by This suit is by J. M. Brogan and 12 others against Spencer Chapel Methodist Episcopal Church and its trustees to enjoin them from building a negro church on the north 50 feet of lot 7, and south 70 feet of lot 6, block 236, in the city of Muskogee, upon the ground that they were attempting to- build a negro church in a white community, which would constitute a nuisance, and thereby d...
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The Phoenix Coal Company, as lessee, had a government coal lease upon certain land in Pittsburg county, and the lessee was required to execute a bond to the United States in the sum of $10,000 for the payment of royalties under said lease. On April 1, 1914, the defendant, Oppenheim, executed a bond to the plaintiff, National Surety Company, to the effect that the plaintiff would be held harmless f...
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The plaintiff in error was the defendant below, and the defendant in error was the plaintiff. The parties will be referred to herein as plaintiff and defendant as they appeared in the trial court. The plaintiff seeks to recover damages for personal injury. In substance and effect the plaintiff alleges that he was employed by the defendant and was working as a section hand upon the defendant's rail...
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This appeal presents error from the district court of Kiowa county. The plaintiff in error was defendant and defendant in error was plaintiff in the trial court, and for convenience will be referred to here as they were there. Plaintiff brought suit against defendant to recover the sum of $1,607.99 for a bill of sugar and syrup which plaintiff claimed defendant ordered and agreed to pay for, and w...
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Only two assignments of error are argued by the appellant: First, that the evidence is insufficient to sustain the verdict of the jury; second, the failure of the court to instruct on the defense of alibi. The state relies wholly upon circumstantial evidence. The evidence clearly shows that some one set fire to the house in which the plaintiff in error lived as a tenant. The connection of the plai...
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Sam Wells, plaintiff in error, hereafter referred to as the defendant, was jointly charged with Wilson Weaver with the larceny of a red calf. At the trial, by a verdict of the jury, both defendants were found guilty and each was sentenced to confinement in the penitentiary for a term of two years. A motion for a new trial which was filed was sustained as to Weaver, but overruled as to this defenda...
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OPINION OF THE COURT James Mair, a stone mason, and William Keir, a carpenter, submitted a joint bid for the performance of certain labor for the government in repairing the Tohatchi Indian school building, which was accepted, and they entered into a joint contract to perform the services and gave a joint bond as security therefor. They performed the services, and in due ...
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Including a rehearing this case is before the court for the third time. See 20 Ariz. 485, 181 P. 577, and 23 Ariz. 541,205 P. 904. It is an action under the Employers' Liability Law (Civ. Code 1913, pars. 3153-3179) to recover damages from the Inspiration Consolidated Copper Company for the death of Allen Bryan, an unmarried man. The suit was instituted by his administrator, Riley Bryan; but upon ...
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It is elementary that plaintiff in replevin must recover on strength of his own title and not on weakness of his adversary's, and he must establish his right to possession by preponderance of evidence. Mountain Home Sheep Co. v. Faraday, 212 P. 970. Contract, reiterating words "rent" and "lease" created relation of landlord and tenant, and not that of owner and cropper. If contract gives owner his...
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Some years prior to 1905 appellant Olive acquired from one Curd title to certain lands along the South Fork of the Snake River in what is now Madison county, together with certain water rights, including the three quarter-sections he conveyed in 1905 to respondent Koon and one Graves, respondent's grantor. In February, 1905, appellant Olive filed an answer and cross-complaint in the case of Rexbur...
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This action is to recover damages for personal injuries. A demurrer to the plaintiff's complaint was sustained, and the action was dismissed. The plaintiff appeals. The facts pleaded in the complaint as the grounds of defendant's liability are, in substance, that the defendant is a municipal corporation, and owns and maintains Liberty Park, a public park situated within the city; that on July 4, 1...
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On November 23, 1922, the defendant leased to Peter Lucas a certain building in Shelby, which he agreed to erect and have ready for occupancy not later than January 25, 1923, for a period of two years at a monthly rental of $150, payable in advance. On February 2, 1923, at Billings, Lucas, the plaintiff, Mrs. George Checuras, and John Stamos, having in contemplation the opening of a restaurant in ...
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On July 25, 1924, E.M. Howell, a deputy sheriff of Gallatin county, made affidavit before a justice of the peace, and secured a warrant to search certain described buildings. On the following *Page 79 day Howell, with the sheriff, entered one of the buildings and seized 170 gallons of mash, an incomplete still, and various other articles. On July 31, an information was filed in the district court...
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PLAINTIFF in error was plaintiff below and was defeated upon trial to the court in a suit against Sackett, administrator of the estate of Caroline C. Gillette, intestate, to enforce a contract to make a will in plaintiff's favor. She brings error and moves for supersedeas. There were general findings for defendant. Mrs. Gillette, the intestate, died August 28th, 1921. She and her husband lived wit...
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PLAINTIFF in error was plaintiff in an action against defendants in error for the conversion of a quantity of wheat. He claimed ownership and right of possession under a chattel mortgage given to him by one Dinsmore, the lessee of land belonging to defendant Wagner, on which the wheat in question had been raised. Wagner's answer alleged that, finding that Dinsmore had abandoned the premises, she h...
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BRIGHT had a verdict and judgment below for personal injuries caused by the alleged negligence of the plaintiff in error. The case comes here on writ of error and motion for supersedeas. The principal contention is that there was no evidence of negligence. Plaintiff was injured by falling into a cement pit, in an engine room under construction, which pit was made to accommodate a large fly wheel. ...
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PLAINTIFF in error, defendant in the court below, and so referred to here, was tried and convicted of an assault upon, with intent to murder, one Gus Brodt, and sentenced to the penitentiary for a period of not less than five nor more than ten years. Defendant brings the case here and applies for a supersedeas. He requests that the case be disposed of on this application. Defendant's first content...
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THIS is an action brought by Simon T. Horn against Joseph M. Hurwitz and E. M. Hurwitz, husband and wife, to recover possession of certain real estate. The complaint alleges that in a prior action the plaintiff recovered a judgment against Joseph M. Hurwitz, upon which judgment execution was issued, and upon an execution sale the plaintiff purchased the property in question and received a sheriff'...
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Upon authority of Ellis v. Outler, 25 Okla. 469,106 P. 957, the cause is reversed and remanded for new trial for failure of defendant in error to comply with Rule 7 of this court. By the Court: It is so ordered....
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This proceeding was instituted in this court to disbar Herman *Page 139 Fox Davis, alleging he had been convicted of a felony, and attaching to the petition a certified copy of the judgment of conviction. The said Herman Fox Davis has been personally served with summons, and failed to appear or answer, and is now in default. Upon authority of In re Horine, 64 Okla. 315, 167 P. 1148, the license h...
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On the 15th day of January, 1920, a contract was entered into between J.L. Emerick, an attorney at law, of Wewoka, Okla., of the one part, and Primus Dean and Ruthie Dean, his wife, of the other part, by the terms of which Primus Dean and Ruthie Dean employed J.L. Emerick to file suit to recover certain lands in Seminole county, Okla., and in said contract it was agreed that said Emerick should re...
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This case is controlled by Levine et ux. v. Allen et al.,96 Okla. 252, *Page 279 221 P. 771. Upon the authority of that case, and according to the stipulation of the parties, it is recommended that this cause be affirmed. By the Court: It is so ordered....
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Upon authority of Ellis v. Outler, 25 Okla. 469 106 P. 957, this cause is reversed and remanded for new trial for failure of defendants in error to comply with rule seven of this court. By the Court: It is so ordered....
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The parties will be referred to in this opinion as plaintiff and defendants as they were designated in the trial court. On the 28th day of November, 1921, the plaintiff commenced an action before a justice of the peace of Pawnee county against the defendant Ira Cales and one John Kinney. The plaintiff recovered in the justice *Page 55 court against both defendants, and from this judgment the defe...
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On the 7th day of March, 1922, the county attorney of Woodward county filed an information in the county court of said county, charging this plaintiff in error with the offense of manufacturing whisky. A trial to a jury in January, 1923, resulting in a verdict of guilty of attempting to manufacture whisky, with punishment assessed at a fine of $250 and imprisonment in the county jail for a period...
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Upon authority of Ellis v. Outler, 25 Okla. 469,106 P. 957, the above cause is reversed and remanded for new trial for failure of defendant in error to comply with rule 7 of this court. *Page 265 ...
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The appellant was convicted in the Circuit Court of Multnomah County of the crime of murder in the second degree. From such judgment he appeals to this court. No bill of exceptions has been filed in this appeal, and, while the brief discloses several alleged errors, we cannot consider them in the absence of a bill of *254 exceptions. This leaves nothing bnt the sufficiency of the indictment a...
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The appellant was convicted of having possession of intoxicating liquor and sentenced to serve sixty days in jail and pay a fine of one hundred dollars, but before doing so he has appealed. Several errors have been assigned, in none of which do we find sufficient merit to -warrant their discussion in an opinion. The rule requiring abstracts to be furnished in cases which contain statements of f...
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