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Opinions in p Volume 255

This cause has been submitted upon a motion to dismiss the appeal. The motion must be denied on the ground, if no other, that a consideration of the cause upon its merits would be involved in a determination of the motion. A brief summary of the procedure in the cause will, we think, demonstrate this. The action was brought by James Enos against Henry Keating to obtain a judgment cancelling a deed...
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In this case there is no conflict in the evidence upon the material facts. There being no conflict, and there being no substantial evidence to sustain the verdict and judgment, the case presents a question of law. This can be determined on an appeal direct from the judgment. (Casey v. Northern P. Ry.Co., 60 Mont. 56, 198 P. 141; First State Bank v. Larsen,65 Mont. 404, 211 P. 214; Merhar v. Powers...
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There is no evidence to show that any of the property involved herein was purchased with any of the funds or moneys belonging to respondent wife. Her husband being insolvent when all these purchases were made, and the property being purchased in respondent's name, the burden of proof was on respondent to show that the money used in purchasing same was her money and not her husband's. The presumpti...
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The complaint in this action, after setting out in paragraph 1 existence of the defendant city and that the individual defendants are officers thereof, alleges that the plaintiff is, and for many years last past has been, conducting a rooming-house in the city of Billings called the "Owl Rooming House" under a license issued by the city; that on November 5, 1924, the city council of the city of Bi...
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The failure to take plaintiff before a magistrate issuing the warrant, without unnecessary delay, made detention in the Billings jail for period of four days false imprisonment. The following sections in the Revised Codes for Montana for 1921 are applicable to our case in showing noncompliance with law on part of defendants: Sections 11735, 11739, 11744, 11747, 11749, 10920. (See Vernon v. Plumes ...
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This is an action for damages. In the court below, plaintiff had judgment, on verdict for $20,000, against the defendant company. It made a motion, based on various grounds, for a new trial. Included in the grounds were "misconduct of the jury" and "excessive damages." *Page 146 At the hearing of the motion, only those two grounds were urged. As to the first mentioned, it was contended the miscon...
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Prior to April 3, 1922, McKinney Motor Company, a Montana corporation, with its principal place of business at Great Falls, was transacting business in that city. On that day, pursuant to the provisions of our statutes, the corporation was dissolved, all of which appears of record in the office of the clerk of the district court of Cascade county, and in the office of the secretary of state. Immed...
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The opinion of the court was delivered by This is an action to quiet title to real property. Judgment was rendered in favor of the plaintiff, and defendant executor appeals. The action was tried without a jury, and special findings of fact and conclusions of law were made, the material parts of which were as follows: “The court further finds that the property in question was deeded to John Kinsede...
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The opinion of the court was delivered by This case involves the single question whether a sale of four tubes and eight automobile casings by 0. H. Davis, *320a garage man and a retail dealer in tires, to the defendant, a retail dealer, without compliance with the provisions of the bulk-sales law, was void as against the plaintiff, a creditor of Davis. The case was tried upon an agreed statement o...
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The opinion of the court was delivered by This was an action in replevin to recover possession of three motor trucks or their value. Briefly the facts were these: Plaintiff, a Texas corporation, had three large motor trucks in Wichita for sale. One C. D. Shamel was plaintiff’s Wichita salesman. He sued the plaintiff, his employer, in Sedgwick county, and on publication service obtained judgment by...
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The opinion of the court was delivered by Frank Hardisty shot and killed Henry Hupp. Hupp’s widow brought this action against Hardisty and his wife, charging that the killing was murder in the first degree on his part, and that his wife aided and abetted him therein. A verdict was returned against both defendants for $10,000, but upon the special findings judgment was rendered in favor of Mrs. Har...
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The opinion of the court was delivered by The defendant appeals from a judgment in favor of the plaintiff in the sum of $1,773.50, for the electric current furnished to the defendant and used in his place of business in Emporia, Kan. The cause was tried without a jury, and findings of fact and conclusions of law were made as follows: “1. The plaintiff is a corporation engaged in the business of m...
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The opinion of the court was delivered by The defendant appeals from an order overruling its demurrer to the petition of the plaintiff in an action to recover under the workmen’s compensation law. The defendant argues that the petition is defective in a number of particulars, as follows: That “there is no allegation in the amended petition that the pjaintiff had been prevented from earning wages ...
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The opinion of the court was delivered by This was a proceeding in mandamus to compel the defendants, president and secretary of a corporation, to transfer certain stock on the books of their company. *360The circumstances were these: Deering J. Marshall and D. M. Hennessey were indebted to the plaintiff, D. A. Bailey. He sued them in the city court of Wichita and recovered judgment for $153. Mar...
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The opinion of the court was delivered by In a post-opinion motion for rehearing and to modify the judgment, the appellant drainage district urges that the judgment should go no further than to require defendant to remove the dike across the Big Slough creek. Possibly that is as far as the judgment now rendered goes. Just what work will harm to be done to comply with the decree of the court is a m...
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The opinion of the court was delivered by The plaintiff appeals from a judgment sustaining the defendant’s motion to quash a complaint filed by the plaintiff charging the defendant with unlawfully having and keeping in her possession for personal use or otherwise intoxicating liquors in violation of section 1 of ordinance No. 14,628 of the city of Kansas City. The material parts of the ordinance r...
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The opinion of the court was delivered by The action was one to recover $2,000 on a policy of insurance covering a barn. The defense was that the barn had not been occupied for more than thirty days previous to the fire, contrary to the provisions of the policy, also that the plaintiff burned the barn. Plaintiff prevailed and defendant appeals. The evidence disclosed these facts: A house on the p...
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The opinion of the court was delivered by The petitioner, David Kailer, brought this proceeding in habeas corpus against his brother and • sister-in-law, George and Margaret Kailer, to procure custody of his two children, Floyd Jack Kailer and Dorothy Mae Kailer, twins, whom petitioner intrusted to respondents because of the death of their mother when they were eleven days old, and because petitio...
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The opinion of the court was delivered by The action was one to contest provisions of a will as violative of the rule against perpetuities. A demurrer to the petition was overruled. Defendants stood on the demurrer. Judgment was rendered holding the contested provisions to be void, and defendant appeals. The material portions of the will follow: "I give and bequeath to the board of trustees or oth...
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The opinion of the court was delivered by Wilbur Ross sued the city of Cedarvale to recover for his services in operating a light plant of the city and also for damages for being wrongfully excluded from his position as an *345employee of the city. The court sustained a demurrer to plaintiff’s evidence and he appeals. It appears that plaintiff had been- an employee of the city prior to March 24, 1...
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The opinion of the court was delivered by The action was one to recover on a promissory note. Plaintiff prevailed, and a defeated indorser appeals. The facts are substantially these; The Citizens State Bank of Grenola secured the rediscount of a considerable amount of paper by the Traders National Bank of Kansas City. The appealing defendant was cashier of the Citizens Bank. The transaction in thi...
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*247The opinion of the court was delivered by This was an action to recover taxes alleged to have been illegally assessed and collected from plaintiffs upon corporate property, which they paid under protest. The plaintiffs were the directors and are the successors in interest of the corporation formerly called the Topeka Cold Storage, Ice and Fuel Company, but its name was changed to the H. & K. ...
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The opinion of the court' was delivered by The action was one to recover the purchase price of an acetylene lighting plant. The defense was that agents of the plaintiff had procured the contract through false and fraudulent representations. The defendants prevailed and plaintiff appeals. The contract was dated August 21, 1922. It was in the form of an order addressed to the plaintiff requesting s...
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The opinion of the court was delivered by This appeal presents the question whether or not an instrument hereinafter set out evidenced a valid gift of part of the estate of Josephine M. Linscott, deceased. The facts are substantially these; S. K. Linscott lived at Holton. *375Plaintiff was his only daughter. His wife died and he remarried. Of the second marriage, six sons were born. Mr. Linscott ...
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The opinion of the court was delivered by This is an action by the purchaser to rescind a contract for the purchase of a “He royalty” in certain land because of the nonperformance of such contract on the part of the sellers, and to recover the money paid, with interest. It was tried to the court and jury, special questions were answered, and plaintiff recovered the full amount claimed. Defendants...
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*243The opinion of the court was delivered by The action was one to recover a real estate commission. Plaintiff prevailed, and defendant appeals. The plaintiff was in the real estate business. Defendant was the owner of certain lots on Quincy street, Topeka. Following negotiations between them in 1923, plaintiff endeavored to sell the lots. Nothing was accomplished that year. There was evidence sh...
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The opinion of the court was delivered by This is an action for damages under the mob statute. The principal question presented, and the only one we need to discuss, is whether the petition and opening statement on behalf of plaintiff set forth facts sufficient to state a cause of action under the statute. The portion of the petition material to be considered reads as follows: *363“That on or abo...
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*379The opinion of the court was delivered by The action was one to recover taxes paid under protest. Plaintiff recovered, and defendants appeal. The levy was made by the board of education of the.city of Topeka, in 1923, before the Revised Statutes of 1923 became effective. The board acted under section 1 of chapter 330 of the Laws of 1907, which at the time appeared as section 9070 of the Genera...
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The opinion of the court was delivered by The plaintiff appeals from a judgment sustaining a demurrer of the defendant to his petition. The action is for an accounting and to compel the defendants, William Ferrell and Bertha Virginia Walker, as trustees, to give bond for the faithful performance of a trust. The petition is a long one; for that reason its allegations must be *255summarized, which u...
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The opinion of the court was delivered by The action was one to recover on a policy of health insurance. The defense was that false statements, material to acceptance of the risk, were made in the application. Plaintiff recovered, and defendant appeals. The application was signed on August 23,1923, and contained the following: “I hereby apply to the United Casualty Company for a policy of insuran...
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The opinion of the court was delivered by This was an action by citizens of Medicine Lodge to enjoin the mayor, and council of that city from the grading and paving of a part of Main street in that city. A restraining order was first issued, but the injunction was finally denied and plaintiffs appeal. .The initial step taken by the city council was the passage of an ordinance declaring it to be n...
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The opinion of the court was delivered by The action is one to recover damages caused by the failure of the defendant to follow instructions given by the plaintiff to the defendant concerning the delivery of a bill of sale of a cleaning and pressing establishment. Judgment was rendered in favor of the plaintiff on the verdict of a jury, and the defendant appeals. The facts on which the plaintiff ...
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The opinion of the court was delivered by The action was one by an employee of a railroad company against the company for damages for personal injury negligently inflicted. Plaintiff recovered, and defendant appeals. *347Bad-order car wheels would accumulate in defendant’s yard, and it was necessary to. remove them. Wheels were in pairs, rigid on a connecting axle which protruded to form a journal...
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The opinion of the court was delivered by Henry F. Kersting sued C. S. Reese to recover damages sustained in a collision of their automobiles at the intersection of two country highways. The plaintiff recovered and the defendant appeals. The defendant was driving east on Central avenue, a paved and much traveled road which extended from Wichita to Augusta. Plaintiff was traveling north over anothe...
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The opinion of the court was delivered by The plaintiff, Sarah F. Allen, brought this action to overturn a ruling of the soldiers’ compensation board which denied her claim for compensation on account of the death of. her soldier husband, James Wayne Groves, who died in the Philippine Islands in the service of the United States during the world war. The rejection of plaintiff’s claim was placed on...
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The opinion of the court was delivered by This appeal presents the question whether the nominal payee of a note and mortgage can maintain an action thereon when he is not stricti juris the real party in interest. The instrument sued on was designated a second mortgage coupon bond for $10,700, with interest, “payable to the order of P. W. Goebel, trustee,” with the other usual recitals of monetary ...
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The opinion of the court was delivered by The Illinois Zinc Company brought this action to recover for a balance alleged to be due for zinc shingles and accessories sold and delivered to the defendant, C. Y. Semple. The plaintiff prevailed, and judgment was rendered against defendant for $10,683.68. Defendant appeals. There is no substantial question as to the goods sold and delivered and the pri...
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The opinion of the court was delivered by This is an action in the nature of a creditor’s bill by which the plaintiff seeks to set aside a deed to real property from the defendant M. C. Combs to the defendant Hattie A. Combs, and to set aside a transfer of bank stock in the Morton County State Bank of Elkhart, from M. C. Combs to Hattie A. Combs, both alleged to have been transferred for the purp...
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The opinion of the court was delivered by Defendants were convicted of manufacturing and having in their possession intoxicating liquor, and appeal. Walbridge bought a quart can of Jiffy Brew Malt. A statement was printed on the container in two places that the content was nonintoxicating. A recipe for using the malt was also printed on the container. Walbridge bought a miscellaneous lot of bottle...
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The opinion of the court was delivered by This was an action for damages sustained by plaintiff in a collision between defendant’s street car and an automobile driven by plaintiff. The collision occurred at the intersection of Van Burén street and Sixth street in Topeka, near the hour of midnight. Sixth street runs east and west, and Van Burén street runs north and south. Defendant’s street car wa...
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The opinion of the court was delivered by Plaintiff, a resident taxpayer of Labette county, who owns land within the limits of Joint Consolidated School District No. 1, comprised of portions of Labette, Montgomery, Neosho and Wilson counties, brought this action against that district to enjoin a certain tax levied on its behalf. The county treasurer of Labette county, as the principal taxing offi...
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The defendant, John M. Nichols, was charged by information with the crime of having unlawfully and feloniously burned his dwelling house, situated in Spokane county, Washington, on or about January 17,1926. The jury found him guilty. He has appealed from a judgment and sentence on the verdict. The testimony in the case is wholly circumstantial. It is quite voluminous but the facts, stated about...
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Appellant Beaman was tried and convicted on three counts, to wit: burglary in the second degree, petit larceny, and malicious destruction of property. *Page 282 From sentence thereon he appeals. The facts follow: In March, 1926, appellant was placed in the city jail in Cle Elum on account of drunkenness. His condition at the time was bad, the arresting officer being required to use force in makin...
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Appellant is an Indian of the Yakima tribe, residing on the Yakima Indian reservation, and appeals from a conviction upon a charge of having in his possession, in Kittitas county and east of the summit of the Cascade mountains, on November 11, 1924, a dead female deer. It is stipulated that appellant killed the deer at the place charged while hunting upon open and unclaimed lands, then and now bel...
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The plaintiff lodge commenced this action in the superior court for King county seeking an accounting from and a judgment against the defendant real estate company, for such amount as upon a trial should be found owing from it to the plaintiff. The cause, being treated as of equitable cognizance, proceeded to trial in that court sitting without a jury, resulting in findings and judgment awarding t...
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This action was brought by the appellant, Jarred, against the respondents, Burrows and Larson, to recover for the conversion of an automobile. The cause was tried by the court sitting without a jury, and resulted in a judgment denying a recovery. The record discloses that the respondents on May 9, 1925, sold to the appellant, under a contract of conditional sale, a Ford touring car for the agreed ...
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The appellants are real estate brokers. Action was brought by them against respondents to recover a real estate commission. A demurrer was sustained to the original complaint. Thereafter an amended complaint was filed, and a motion to strike from the amended complaint and a demurrer thereto, which were sustained. The appellants electing to stand upon their amended complaint, final judgment was ent...
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The plaintiff in the court below, appellant in this court, sued to foreclose two mortgages given to secure the same obligation, the one a mortgage upon chattel property, and the other a mortgage upon real property. The trial court permitted a foreclosure of the chattel mortgage, and permitted a foreclosure of the real property mortgage to the extent of certain payments made by the appellant neces...
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The plaintiff, Commercial Credit Company, seeks recovery of a Nash roadster automobile, or, in the alternative, a money judgment for the value thereof, from the defendant, National Credit Company. A trial upon the merits in the superior court for King county sitting without a jury resulted in findings and judgment denying to the plaintiff any recovery, from which it has appealed to this court. The...
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The plaintiff, Zindorf, commenced this action in the superior court for Snohomish county seeking foreclosure of his claim of lien against land of the defendant Roe in that county, notice of which claim was duly filed in the office of the county auditor. Zindorf's claim is for diking repair and construction work performed with his steam shovel ditcher upon Roe's land. The amount originally claimed ...
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The defendant, Dixon, was charged by two counts in one information: First, under Rem. Comp. Stat., § 2435 [P.C. § 9107], with the crime of rape, in that he ". . . did wilfully, unlawfully and feloniously perpetrate an act of sexual intercourse with C---- M---- T----, a female person over the age of ten years, not the wife of said James Dixon, against her will and without her consent, the resistanc...
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The respondent was injured in August, 1925, while at work icing a refrigerator car belonging to the Northern Pacific Railway Company. The Addison Miller Company and the Northern Pacific Railway Company, in October, 1924, had made a contract whereby the railway company leased to the Addison Miller Company an ice house and icing platform which the railway company owned, and the lessee agreed, at its...
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This action was brought to recover two thousand dollars alleged to be the balance due on a contract for the building of the Jason Lee school building in the city of Tacoma. The defendant school district counterclaimed. Findings of fact and judgment were entered for the defendant. The plaintiff has appealed. As the case is presented on the appeal, the controversy is over the ground floor corridor t...
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Respondent was arrested in April, 1926, charged with the crime of being a jointist. The case came on for trial in September, 1926, a jury was empaneled, and the prosecuting attorney made a full and complete opening statement. The gist of the statement made was that the respondent had opened up and maintained *Page 334 a drug store in which he was selling large quantities of denatured alcohol, and...
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On January 27, 1925, and for sometime prior thereto, the respondent, Belle Speirs, was the owner of real property situated in the town of Kirkland, in King county, and also held a contract of purchase for certain lots situated in the city of Seattle. *Page 298 On the date given, she entered into a contract with the defendant, Martin E. Jahnsen, by the terms of which Jahnsen agreed to erect for he...
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This action was brought to recover from the estate of C.C. Gibson, formerly treasurer of Lincoln county, and from his official bondsmen the sum of $26,671.05. Upon trial the court entered judgment for the county, and the defendants have appealed. No error is assigned upon any of the items making up the judgment save one of $6,402.44. The facts concerning it are as follows: The First State Bank of ...
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The information upon which the appellant was tried and convicted of burglary contained the allegation that the appellant entered in the night-time ". . . the dwelling house of a party whose true name is unknown to this prosecuting attorney except the name of `Frank,' in which there was at the time a human being, . . ." [1] It is contended by the appellant that the allegation of ownership of the dw...
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Section 4, ch. 90 of the Laws of 1923, p. 266 [Rem. 1927 Sup., § 5711], provides that it shall be unlawful for any person to fish or take for sale any food fish in the waters of this state, unless he is a citizen of the United States, and that the word "fishing" shall be construed "to mean the catching or taking of food fish with any appliance, gear or trap, floating or fixed, whatsoever." The def...
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Isadore West owned real property in Seattle. On August 12, 1925, he executed and delivered an instrument entitled "Revised form of earnest money receipt," by which he agreed to sell the property to C.D. Foster, who also signed the instrument agreeing to buy the property. The agreement was brought about by one Paul acting as agent for Foster. The instrument was filed and recorded in the county audi...
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The plaintiff Breedlove commenced this action in the superior court for San Juan county seeking a decree canceling a contract for the sale of his land in that county to the defendant, Holton, and also subrogating him to the rights of Holton in a contract entered into on the day following by Holton for the sale of the same land to the defendant Buchanan. The cause, being of equitable cognizance, pr...
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The plaintiff bank seeks recovery upon a promissory note executed and delivered to it by W.D. Grandy prior to his death. The defendant, administrator of the estate of Grandy, resists recovery upon the ground of failure of consideration, undue influence on the part of the president of the plaintiff and those acting with him inducing Grandy to execute the note, and want of mental capacity on the par...
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The appellant, Pacific Warehouse Company, is the owner of a building situated in the city of Seattle, the rooms in which are designed to be let, and which it lets, to small concerns desiring to engage in the business of manufacturing articles for the general trade. The building is some five stories in height, and it has near its center a passenger elevator serving each of the floors, and to which ...
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By an information filed in the superior court of Spokane county, the appellants, Denby and Linem, were charged with the crime of robbery. The charging part of the information reads as follows: "That the said defendants, Warren O. Denby and Dick Linem, alias Jack Armstrong, in the county of Spokane, state of Washington, on or about the 11th day of March, 1926, then and there being, did then and the...
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This is an action to recover for goods sold and delivered. The only question — which is one of fact — is whether the appellant is liable for the value of the goods, it being his claim that, although he was at one time a member of a partnership, after its dissolution the goods were furnished and that he is not liable to pay for them. On disputed facts, the trial court found that the appellant ...
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In 1909, Leontine Briggs and Robert Briggs, husband and wife, and both now deceased, were the owners of lot 6, block 33, Railroad Addition to Spokane. At the same time, one Gardner and wife were the purchasers under a conditional sale contract of the adjoining lot 5. Briggs and wife, being desirous of building on a portion of said lot, entered into a party wall agreement with the Gardners. It was ...
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About the year 1904, David Helser was the owner of a twenty-acre tract of oyster land located in Kamilchie Bay, commonly known as Oyster Bay, in Mason county. That year he caused the same to be subdivided into three tracts, a five-acre tract on the east, a five-acre tract on the west, and a ten-acre tract in the middle. Plaintiffs now and for more than fifteen years have been the owners of the two...
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This action was brought to recover the balance due upon the purchase price of an automobile. The defendants counterclaimed, asserting that they had been defrauded in the transaction. The cause was tried to the court without a jury and resulted in findings of fact, conclusions of law and judgment sustaining a recovery in the sum of $592.58, together with interest. The defendants appeal. On April...
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This is an appeal from the judgment of the county court of Beckham county forfeiting the appearance bond of plaintiff in error, and from the order overruling motion to set aside said forfeiture. The plaintiff in error was defendant below. The plaintiff in error in due time served and filed his brief in full compliance with the rules of this court, but the defendant in error has wholly failed to fi...
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This is an appeal from the judgment of the county court of Beckham county forfeiting the appearance bond of plaintiff in error, and from the order overruling motion to set aside said forfeiture. The plaintiff in error was defendant below. The plaintiff in error in due time served and filed his brief in full compliance with the rules of this court, but the defendant in error has wholly failed to fi...
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This is an original action instituted in this court by the plaintiff in the nature of quo warranto to quiet title to the office of the district judge of the Twenty-First judicial district, said district being composed of Tulsa and Pawnee counties. The facts in this case are undisputed. It is the manner provided by the Legislature for the election of judges in said district that is in constitutiona...
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Herein is presented an application of E. Byrd Davis for a writ of habeas corpus to secure his release from the custody of the sheriff of Oklahoma county. The facts are, briefly, as follows: Archer Bryden, a mercantile corporation of Oklahoma City, brought a suit in replevin against the petitioner and his wife, wherein it seeks to recover possession of a lady's fur coat. On March 23, 1927, W. J. W...
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On February 2, 1926, a petition for writ of prohibition was filed by petitioners in an original action in this court. On said date an alternative writ of prohibition was issued by this court to the respondent, Thomas S. Harris, county judge of Creek county, directing him to show cause on the 6th day of February, 1926, why the writ should not be made absolute and permanent. No return has been made...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county on a charge of maintaining a place where intoxicating liquor was sold, and sentenced to pay a fine of $50 and serve 30 days in the county jail. The judgment in this case was rendered on April 21, 1925. A case-made was filed in this court on August 19, 1925, and a petition in error filed on A...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Cleveland county on a charge of transporting whisky, and the defendants L. J. Taylor and John Helms were each sentenced to pay a fine of $300 and to serve four months in the county jail, and the defendant S. L. Russell was sentenced to pay a fine of $250 and to serve three months in the county jail. At...
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The plaintiffs in error, hereinafter called defendants, were convicted in the superior court of Okmulgee county on a charge of open and notorious adultery, and were each sentenced to pay a fine of $250. The record discloses that the defendant George East had been divorced from a former wife, and that the defendant Myrtle East (formerly Myrtle Ross) had been divorced from a former husband, and a...
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The plaintiff in error, Barnes Taylor, hereinafter called the defendant, was charged with contempt of court in Noble county, by an application filed on the 18th day of August, 1923, asking for a citation to issue commanding the defendant to show cause why he should not be fined for contempt of court. Citation was issued and served on defendant, the defendant appeared and filed his motion to quash...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tulsa county on a charge of having the unlawful possession of Choctaw beer containing more than one-half of 1 per cent. of alcohol, measured by volume, and capable of being used as a beverage. At the time charged, two officers saw some persons in an automobile drive up to the residence of defendant and go in...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of selling milk without a permit and sentenced to pay a fine of $10. This is a prosecution for the violation of a city ordinance; it originated in the municipal court of Oklahoma City, and from a conviction there defendant appealed to the county court. The complaint charges that d...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Osage county on a charge of selling whisky, and was sentenced to pay a fine of $50 and to be confined in the county jail for a term of 30 days. It is first argued that the evidence is insufficient to sustain the verdict. This contention cannot be sustained. The state's witness Maudlin testified that he went ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of practicing medicine without a license, and his punishment fixed at a fine of $500. *Page 410 The information charges that defendant, without having a license, did practice medicine by injecting a preparation of arsenic as a treatment for syphilis into the veins of a certain pati...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Lincoln county on a charge of selling whisky, and each sentenced to pay a fine of $400 and to serve a term of 60 days in the county jail. The information alleged the offense to have been committed on or about April 1st. At the opening of the trial, the county attorney asked leave to amend the information ...
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In the original opinion in this case we held that there was evidence to go to the jury in support of plaintiffs' allegations of fraud, but that the latter were estopped from maintaining their action for the reason that, with full knowledge of the facts, they had accepted one hundred dollars of the forfeit money put up on the Chenault contract. We have re-examined the record in the light of plainti...
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Defendant was convicted of aggravated assault. He appeals. *Page 524 The information charged, in substance, that the defendant, on May 25, 1925, in Maricopa county, Arizona, while intoxicated, in a grossly and criminally negligent manner, with reckless disregard of his own safety and wilful indifference to the consequences liable to follow and with reckless disregard of the lives and safety of ot...
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This is an action brought to recover damages for an assault and battery. The case, as claimed by the appellant, grew out of a mutual combat between the respondent and the appellant. Respondent claimed both compensatory and punitive damages. The jury awarded him $2,500 compensatory but no punitive damages. The court overruled appellant's motion for a new trial on condition that the respondent remit...
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The complaint alleges that plaintiff was indebted to the Stockgrowers’ Bank of Evanston, Wyo., in the sum of $3,000 upon three promissory notes of $1,000 each, falling due respectively on September 19, 1923, December 19, 1923, and March 19, 1924, with interest on each of said notes at 8 per cent per annum. The complaint further alleges that on the 27th day of August, 1923, plaintiff sold and deli...
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THE COURT. Three motions are presented herein for determination. The respondent has made a motion to dismiss the appeal from the judgment and a motion to affirm said judgment. The appellant, while opposing these motions, presents on his own behalf a motion to recall the remittitur heretofore issued by the clerk of this court upon the dismissal of four appeals from orders after judgment. A summary ...
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THE COURT. This appeal was placed upon a special calendar of this court upon an order to the respondent to *Page 717 show cause why the judgment herein should not be reversed, or that such order be made as might be meet in the premises. At the time of the placing of said cause upon said calendar, and the entry of said order, it appeared that the appellants' brief had been filed herein, but that n...
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THE COURT. This is an appeal by the defendant from a judgment entered by the superior court of the county of Los Angeles in an action for damages for breach of contract. It appears that the plaintiffs had agreed to sell and the defendant had agreed to purchase a leasehold interest in a bungalow, together with certain household furnishings, for the sum of $8,000. The contemplated sale was not consu...
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THE COURT. This is an appeal by the defendant from an order of the superior court of the county of Los Angeles refusing to set aside and vacate a default judgment obtained after publication of summons. The appeal was placed upon a special calendar of this court upon an order to the respondent to show cause why said order appealed from should not be reversed, or that such order be made as might be ...
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THE COURT. This appeal was placed upon a special calendar of this court upon an order to the respondents to show cause why the judgment herein should not be reversed, or that such order be made as might be meet in the premises. *Page 725 At the time of the placing of said cause upon said calendar, and the entry of said order, it appeared that the appellants' brief had been filed herein, but that ...
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On the judgment-roll alone the defendant appeals from a judgment in favor of the plaintiff for $5,000 and interest on a promissory note. The complaint sets forth a copy of the note which is as follows: "$5,000.00 Capistrano, California, Dec. 22, 1922. "Six months after date, for value received, I promise to pay to the order of myself Five Thousand No/100 Dollars payable at Any bank in Sa...
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MEMORANDUM CASES. THE COURT. [1] This is an appeal on the judgment-roll from a judgment in favor of the plaintiff on a promissory note. The facts are the same as those involved in The Anaheim National Bank v. Dolph,ante, p. 17 [255 P. 184], with the exception of the amount of the note. By stipulation this appeal was submitted for decision on the arguments and briefs in that...
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THE COURT. [1] This is an appeal on the judgment-roll from a judgment in favor of the plaintiff on a promissory note. The facts are the same as those involved in The Anaheim National Bank v. Dolph,ante, p. 17 [255 P. 184], with the exception of the amount of the note. By stipulation this appeal was submitted for decision on the arguments and briefs in that case. On the authority of said case, 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 762 By a stipulation of the parties the above-entitled causes were heard together in the court below, and while separate judgments were entered in each case and separate notices of appeal filed, still a consolidated record on appeal was prepared and the cause...
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This appeal is from an order of the superior court of the county of Los Angeles fixing the inheritance tax to be paid by the devisees under the last will and testament of Sarah E. Letchworth, deceased. Sarah E. Letchworth was the surviving wife of Pierre E. Letchworth and the sole devisee under his will. Pierre E. Letchworth died June 1, 1924. His will was admitted to probate in the superior court...
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The plaintiff and respondent herein has moved this court to affirm the judgment in his favor, from which this appeal has been taken, upon two grounds: (a) That no sufficient record is before the supreme court upon which said court can predicate error; (b) that no sufficient record on appeal in this case has been printed in appellant's brief. [1] The facts upon which the respondent predicates his m...
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The petition recites that Louis Babbick is unlawfully detained in the state prison at San Quentin by the warden thereof. [1] Proceeding it alleges that on or *173 about May 21, 1926, the district attorney of Los Angeles County filed an information in the superior court of said county charging petitioner in one count thereof with a violation of the provisions of section 464 of the Penal Code (bu...
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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 724 In this action plaintiff sues to recover on an express contract for work and labor performed for, and materials furnished to, defendants. It seeks, further, to enforce a claim of lien against the premises benefited by such labor and materials. Judgment 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 30 Defendant was charged in two informations with violations of section 337a of the Penal Code. By stipulation of counsel the cases were tried together. Information No. 47,988 charged the defendant with the crime of violation of subdivision 3 of section337a o...
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This is an original proceeding in mandamus to compel the admission of the minor petitioners herein to the public schools of the Vernon City School District. The following facts are undisputed: The territory in which the petitioners reside was, prior to February 20, 1914, outside of any incorporated city, and situated in what was then known as the Fruitland school district of Los Angeles County. On...
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The defendant was found guilty of burglary in the first degree. Prom the judgment of conviction he has appealed and has brought up a copy of the ‘ record of the action” (Pen. Code, sec. 1207), and a certified copy of the reporter’s notes as transcribed. The appellant presents two points. One that the evidence was insufficient to sustain a verdict of burglary in the first degree and the other po...
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A complaint was issued charging the defendant with the degenerate crime denounced by section 288a of the Penal Code. At the time of his arraignment upon the complaint the defendant expressed a desire to waive his legal rights and confessed to the committing magistrate his guilt of the offense charged. Whereupon the justice of the peace ordered that he be held to answer before the superior court. T...
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Plaintiff sued defendant, who was an innkeeper, for the loss of certain articles of personal property and apparel which were taken from her room while she was a guest at his hotel. Plaintiff had judgment and defendant appeals. [1] Section 1859 of the Civil Code reads, in part: "The liability of an innkeeper . . . for losses of . . . personal property . . . placed by his guests . . . under his care...
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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 143 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 144 Action by plaintiff Susan M. Dawson for damages resulting from the death of her husband William E. Dawson. It ...
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This is an action to recover a certain sum of money under the terms of two fire insurance policies. The property insured belonged to plaintiff and was used by him as a country home. It was situated at Woodside, San *Page 133 Mateo County, and consisted of several buildings located on a tract of land of some twenty acres. The buildings consisted of a dwelling-house, a garage with living-rooms on t...
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Claiming that M.S. Eisner, deceased, was at the time of his death under obligation to pay the plaintiff certain moneys, the plaintiff commenced this action against the defendants as executors of the estate of the deceased. The trial court made findings in favor of the plaintiff and a judgment in accordance with those findings was entered. From that judgment the defendants have appealed and have br...
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At the time when the cause of action herein accrued the defendant Silent Drama Syndicate was an unincorporated association operating by virtue of a trust agreement under which defendants Graydon and Brown were its trustees. The business or property of the syndicate was divided into shares of the par value of $100 each, of which one Keady was the owner of 220 shares evidenced by a certificate of st...
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This proceeding is founded upon an alleged "prejudice and bias" of Honorable Hugh J. Crawford as Judge of the Superior Court in and for the County of Los Angeles against petitioner which, if established, would prevent petitioner from having a fair and impartial trial in an action now pending in said court. Prior to the filing of the petition herein petitioner, as plaintiff in the action, made and ...
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The defendant was convicted of the crime of grand larceny and has appealed on a typewritten record. She claims the evidence is insufficient to sustain the verdict and that the verdict is contrary to the evidence; that the verdict is contrary to law and the evidence; that the trial court misdirected the jury in a matter of law; and the trial court erred in the decision of questions of law arising d...
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Defendant, cross-complainant, and appellant has appealed from a judgment entered against her in the sum of $3,083.74, assigning four reasons why the judgment should be reversed by this court: 1. That the complaint does not state a cause of action and the findings do not support the judgment for the reason that the complaint and findings both proceed upon the theory of the breach of a special contr...
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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 64 The three defendants above named were charged by information in three counts with the crimes of grand larceny, conspiracy to commit grand larceny, and embezzlement, respectively. King and Fay only were tried at the time of the proceedings here presented fo...
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Habeas corpus. In the first count of the information petitioner was charged with "the crime of conspiracy to commit the crime of extortion"; and in the second count of the information with the "crime of conspiracy to falsely move and maintain a suit, action and proceeding." On the trial of the action petitioner herein was convicted on each of such counts. Under the first count, by order of the tri...
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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 48 Supersedeas. Briefly stated, the facts appear to be that in an action brought in the municipal court plaintiff recovered judgment against defendant for the sum of $514.85. Defendant appealed to the superior court, where a judgment was rendered in affirmanc...
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THE COURT. Supersedeas. In this proceeding the facts and the prayer of the petition are similar to those set forth in the case ofScott v. Larson, post, p. 46 [255 P. 248]. The only additional point presented is that the judgment by the superior court in affirmance of the judgment rendered by the municipal court is not such a judgment as is within the meaning and intent of section 963 of the Code o...
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A writ of certiorari was issued by the superior court of Los Angeles County, directed to the board of supervisors of that county for the purpose of reviewing the proceedings leading up to the creation of the "Moneta County Fire Protection District of Los Angeles County" under the provisions of "An Act to provide for the formation, management and dissolution of county fire protection districts, and...
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Action on a promissory note given for the sum of $5,600. The case was tried without a jury. The findings in effect determined that the defenses interposed were true and judgment followed in favor of defendants. At the opening of the trial plaintiff moved for judgment on the pleadings. The motion was denied. Appellant here claims, first, that the lower court erred in its denial of the motion for th...
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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 118 The complaint alleges that the "plaintiff advanced to and for the use and benefit of said defendants . . . $4,779.35, which said amount defendants agreed to repay to said plaintiff, . . . but said defendants failed and refused to repay the said sum or any...
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Respondents first recovered judgment against Jay H. Merrill for the death of their son, Robert, Jr., caused by the negligent operation of an automobile in which he was riding while driven by the son of said Merrill. An execution on said judgment having been returned unsatisfied, respondents next commenced this action against appellant, the insurance carrier for said Merrill. Judgment was for respo...
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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 100 In this case the information charges the defendant McGill and one Frank McGettigan in count one with the crime of burglary and in count two with the crime of grand larceny. Defendant McGettigan entered a plea of guilty. Defendant McGill stood trial and wa...
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Two causes of action are stated in the complaint. In the first it is alleged that the plaintiff was induced by false and fraudulent representations made by defendant to purchase 100 shares of its treasury stock at $100 a share, to the plaintiff's damage in the sum of $5,629. In the second it is alleged that the defendant is indebted to the plaintiff for services performed in the sum of $527.50. Th...
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This is an appeal by defendants from a judgment enjoining defendants from violating a building restriction in a residence district. [1] Plaintiff *Page 182 and defendants are the owners, respectively, of adjoining lots, each deraigning title by a separate chain of title from a common grantor. Consequently, as between plaintiff and defendants, there is no privity either of contract or estate, and ...
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Two cases, entitled Upland Realty Insurance Company v.J.H. Donner and Montrose McCann and E.O. Bowden v. J.H.Donner, were appealed from the justice's court to the Superior Court of Los Angeles County, but were not brought to trial within the year following the date upon which the appeals were filed.[1] For thirteen days after the one year expired no steps were taken to have the appeals dismissed,...
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Petition for alternative writ of mandamus. It is alleged therein, in substance, that on the twenty-first day of September, 1926, the California Prune and Apricot Growers Association, a corporation, as plaintiff, filed in the superior court of Tehama County a verified bill in equity against petitioners wherein said plaintiff claimed that, under and by virtue of a certain written agreement dated Apr...
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Defendant Pickwick Stages Northern Division, Inc., appeals from a judgment in favor of plaintiff, as sole heir of Leslie W. Seney, in the sum of $15,000 for the death of said Leslie W. Seney, alleged to have been caused by the negligence of defendant in operating one of its autostages upon which the deceased was a passenger, in such a manner that the stage was overturned and resulted in said death...
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The petitioner seeks a writ of mandate directing the County Auditor of Los Angeles County, H.A. Payne, to countersign the bonds of the Los Angeles County Water Works District No. 9. The respondent Payne and the respondent Alleman, a taxpayer of the district, have appeared by demurrer, so that for the purposes hereof we may refer to the petition for the facts. It appears therefrom that on January 1...
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The merits of this appeal rest upon a certain ordinance adopted by the city council of the city of Los Angeles on the fourteenth day of July, 1922, designated a "set-back ordinance." In that ordinance the city council "determined that the public peace, health, safety, comfort, convenience, interest and welfare require and it is hereby ordered that the minimum distance back from the street line for...
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The Citizens' State Bank of Gooding failed and was taken in charge by E.W. Porter, Commissioner of Finance, under Sess. L. 1921, c. 42, p. 53. Some twenty-one parties filed their claims with said commissioner, asking for various classifications. The commissioner allowed their claims, but the claimants being dissatisfied with their classifications perfected an appeal to the district court. The appe...
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Plaintiff brought action to recover from defendant for labor and services alleged to have been rendered by him in caring for sheep at defendant's instance and request. Defendant by answer denied plaintiff's cause of action, and set up counterclaims based on three promissory notes, aggregating more than plaintiff's claim. The jury allowed recovery on the counterclaims in full, and in response to a ...
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Aaron G. Scott, deceased, gave appellant two notes secured by a mortgage upon real property. Both parties were residents of the state of Idaho at the time the notes and mortgage were given but appellant subsequently moved to California, where he has since resided. After Aaron G. Scott's death June 11, 1922, letters testamentary were issued to the son, who, as executor, caused notice to creditors t...
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Appellants Pleasants, husband and wife, were the owners of certain land which they contracted to sell to the appellant Northwestern Investment Company under an escrow agreement. Roy Parker and W.C. Bosley, respondents, after consulting with Mr. Pleasants as to the standing of the Northwestern Investment Company, entered into a contract with the Northwestern Investment Company for grading and level...
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A.M. Cox and James Cox filed an action against Wade H. Ross and Ruby D. Ross, husband and wife, wherein in the amended complaint they alleged that plaintiffs were in possession of four certain placer mining claims and that on or about March, 1919, an agreement was entered into between plaintiffs and defendant Wade H. Ross whereby it was mutually agreed in consideration of the plaintiffs surrenderi...
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We concur in the foregoing opinion by Mr. Justice Budge, except that portion relating to funds deposited in the Public Administrator’s Account. ...
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This action is brought to quiet title to land owned by plaintiffs, as against the claims of defendants under a contract whereby plaintiffs agreed to sell to them the land for an agreed sum, payable in part in deferred instalments, the first two of which instalments became due on January 21, 1922, and January 21, 1923, respectively; defendants further agreeing to pay certain taxes, water maintenanc...
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This action is brought by respondents as taxpayers and electors of School District No. 5 of Ada county, to restrain the defendant trustees of said school district from reporting and certifying a certain attempted levy of a five mill tax for high school tuition for the year 1923, and declare said levy void; to declare an attempted levy of ten mills to raise $10,256 special tax for said year void, t...
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This is an action commenced by respondent to foreclose a real estate mortgage. Arthur Brothers executed and delivered to one Charlie M. L. Daley their promissory note in the sum of $6,000 and secured the same by a real estate mortgage. Daley assigned said note and mortgage to respondent, who commenced this action. Defendants all defaulted except The Stockyards National Bank, which filed a separat...
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This is an action to recover money on a contract. The cause was tried to the court and a jury and a verdict rendered in favor of plaintiff. From a consequent judgment defendant appealed. Plaintiff alleges, in effect, that on March 26, 1909, one Frances Murray Blumauer was plaintiff in an action against Phillip Blumauer, defendant herein, pending in the Circuit Court to recover the sum of $50,000. ...
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REVERSED AND SUIT DISMISSED. This is a suit to enjoin the City of Portland from discontinuing water service to plaintiffs and others similarly situated who reside outside of the corporate limits of the defendant municipality but contiguous to it. It is estimated there are between 800 and 1,200 people residing in the district in question. When this suburban tract was first platted it was practicall...
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IN BANC. This is an appeal from a judgment of the Circuit Court dismissing plaintiff's petition for writ of review. Plaintiff appeals assigning numerous errors in the proceedings of the County Court for Clackamas County for the purpose of altering a certain road in said county. The proceedings were initiated by resolution of the County Court as prescribed in Section 4556, Or. L. The resolution was...
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IN BANC. MOTION TO DISMISS ALLOWED. Plaintiff recovered judgment against defendant. Defendant appeals from that judgment. Thereafter defendant filed a motion to dismiss his appeal, basing his motion on the records and files and affidavits of himself and another party. The substance of the affidavits is that since taking the appeal defendant has paid and fully settled with the plaintiff. Plaintiff ...
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This is a suit by the three plaintiffs, as trustees, against George H. Thomas for an accounting as a trustee. The trial court rendered a decree in favor of plaintiffs in the sum of $1,879.30, with interest and costs. Defendant appealed. Since the appeal *Page 353 the administratrix of the defendant, who is now deceased, has been substituted as defendant. George H. Thomas was made a trustee under ...
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Our contention is that plaintiff and defendant are in this case bound by the provisions of the Workmen's Compensation Act for three reasons: (a) The employment is not unlawful, and (b) assuming it to be unlawful, plaintiff has acquiesced in it and accepted the benefits both of medical and hospital treatment as well as the regular monthly payments of compensation in the amounts prescribed by the Co...
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District Judge, sitting in place of MR. JUSTICE MYERS, disqualified, delivered the opinion of the court. In 192'4 the defendant was constructing a line to be used in the transmission of electric power and employed plaintiff, then under sixteen years of age. The particular purpose for which plaintiff was employed was to drive a team and with the team drag logs cut on the right of way for the line o...
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The crucial question in this case is whether the agreement between the Libby Lumber Company and the Montana State Bank of Geraldine was an option or a sale; an escrow upon terms which, according to its effect and the real intent of the parties, merely extended the time to redeem from December 21, 1921, to October 31, 1922, or a contract of sale which vested a present equitable interest in the Mont...
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2. Recovery of compensation by rightfully discharged employee, see notes in 13 L.R.A. 72; 24 L.R.A. 23. See, also, 8 R.C.L. 539. *Page 222 Appeal from judgment in favor of plaintiff. The complaint filed herein alleges that in October, 1923, plaintiff was employed by defendant, a foreign corporation, to act as its salesman in Montana on commission of eight per cent of the gross sales made; that up...
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The plaintiff brought an action in the district court of Yellowstone county to recover judgment on a promissory note alleged to have been executed and delivered to her by the defendant. The cause was tried on May 25, 1925, and resulted in a judgment in favor of the plaintiff. During the course of this trial the note on which the suit was based was offered and received in evidence. Rule 14 of the d...
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The case appears to involve a rather unusual accident. Five persons, including the plaintiff and Mr. Baker, were on their way from Greeley to the Platte Valley on a fishing trip. They were traveling in two cars, one driven by the plaintiff and the other by Mr. Baker. On their way they stopped at Laramie to replenish their supplies and get lunch. It was discovered that Mr. Baker's car had a flat ti...
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This is a proceeding in error to review an award made by the District Court under the Workmens' Compensation Act, (Comp. Stat. 1920, Sec. 4315-4348, Chap. 138 Laws 1921, Chap. 60, Laws 1923), for permanent partial disability in favor of one K. Sakamoto hereinafter designated as the "claimant," a miner in the employ of the Kemmerer Coal Company hereinafter called the "company." It is urged by the c...
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This action was instituted by J.W. Hereford as a local land owner and water user, and also as representative of other land owners within the Burbank Irrigation District, and the irrigation district itself, against the county treasurer of Walla Walla county, the complaint being as follows: I. "That Burbank Irrigation District No. 4 of Walla Walla county, Washingto...
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The questions in this case concern the claim filed with the appellant for the personal injuries sustained by the respondents. As far as material, the claim reads: "I hereby present to your honorable body a claim for damages for personal injury sustained by falling on crosswalk, said injury which consisted of a compound fracture of the right arm (permanent fracture) occurred while crossing the cros...
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The plaintiff brought this action to recover for personal injuries and also for damages to an automobile owned and driven by him at the time it collided with an automobile owned by the defendant and operated by one of its agents. The defendant responded by answer and a cross-complaint in which it sought damages to its automobile. The cause came on for trial before the court and a jury. At the conc...
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The plaintiff brought this action to recover on a note for three thousand dollars, and interest, executed in his favor by the defendants. The note was not due by its terms at the time the suit was brought, but at the time of its execution the defendants had executed a mortgage as security therefor, which provided, among other things, that they would pay the taxes and assessments levied against the...
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Jane Berry Donohue died in Snohomish county, on April 19, 1925. She had been for many years a resident of that county. She was frugal and through her own ability acquired a competence, leaving an estate inventoried at $20,000. She had relatives in this country and some in Ireland, but had no close contact with any of them for about a year before her death, due partly to the fact that, after a para...
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The following finding of fact made by the trial court we think sufficiently states the case: "The city of Spokane, desiring to redeem certain land from certain delinquent general taxes pursuant to chapter 170, Laws of 1925, Extraordinary Session, tendered to the county treasurer the face of such tax with the costs of sale and without penalty or interest, and demanded a certificate of redemption wh...
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Appellant, being the owner of certain second mortgages on land situated in Grant county, Washington, foreclosed its mortgages in 1922, took possession of the property, and thereafter handled it for two years. The respondent was the owner of a first mortgage which he foreclosed early in 1925. Some time prior to his receipt of a certificate of sale, and evidently with the consent of appellant, he to...
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The relator by this proceeding seeks a review of the action of the trial court in denying his application for the revocation of an order, theretofore regularly made, appointing an administrator. It appears that Anne M. Karney had at one time been a resident of Thurston county, and that about the year 1922 she and her husband removed to and took up their abode in Pierce county; that the husband die...
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In 1924, the defendant Kniffen was in possession of certain farm lands in Walla Walla county, under a lease from the owner, Collins. He was indebted to the plaintiff in the sum of approximately $12,000, and to secure the debt, executed a mortgage in March, 1924, to the plaintiff covering the crop of wheat to be sown in 1924, and harvested in 1925. He summer-fallowed the land preparatory to the see...
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Near the city of Longview, the appellant constructed and maintained, on the property of a diking and drainage district, an electrical transformer and other appliances for reducing and stepping down the high voltage used by it for power in the operation of the district's pumps. The transformer consisted of a great number of wires highly charged with electricity. The pump-house and transformer abut ...
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The appellant was charged by information with the crime of murder in the first degree and, having been convicted of manslaughter, appeals. He claims that the shooting was done in defense of his person. [1] One of the errors assigned is the failure of the trial court to give an instruction that the appellant was presumed to be innocent. Under Rem. Comp. Stat., § 2308 [P.C. § 9139], every person on ...
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Respondent was injured in September 1922. A claim was filed with the department of labor and industries for compensation, which was allowed, and he was classified as having a temporary total disability, and paid at the monthly rate provided until August, 1923. At that time, he was re-classified as having a permanent partial disability and an award was made of two hundred fifty dollars, and his cla...
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The opinion of the court was delivered by' This action involves the question whether a city park dedicated for general park purposes may be used for operation of a tourist camp. The action was one in quo warranto to oust the city from maintaining and operating such a camp. Plaintiff prevailed and defendant appeals. It is contended that the operation and maintenance of the tourist camp is a commerc...
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OPINION OF THE COURT Akers and W.K. Jones were sued upon an indebtedness incurred while they were doing business as copartners. The partnership had been dissolved, and Akers had assumed its liabilities. The judgment was against Akers, but in favor of Jones; the court's conclusion of law being "that the plaintiff at least impliedly released W.K. Jones, and is estopped to h...
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OPINION OF THE COURT On January 25, 1926, judgment was rendered in the district court. An appeal was granted March 18, 1926, and supersedeas bond was filed on March 22, 1926. The return day of the appeal was June 16, 1926. A skeleton transcript was filed by the appellee in this court on June 24, 1926, and a judgment of affirmance was here rendered on June 25, 1926. On July 26, 1926, a motion to...
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The evidence is very conflicting. Plaintiff relies exclusively on his own testimony and the testimony of his employee, Smith, and one other witness who worked with Smith in sinking the *67 wells. The. burden of proof was on the plaintiff to establish the modification of the contract in writing between him and the defendant E. C. Eansom. The learned circuit judge saw the witnesses, observed thei...
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OPINION OF THE COURT A motion to strike the bill of exceptions is filed based upon the proposition that the same was settled and signed by a district judge without authority. It appears that Judge Ryan, of the Sixth judicial district, at the request of Judge Mechem, judge of the Third judicial district, sat in the trial of the case. In settling and signing the bill of exc...
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OPINION OF THE COURT The Atchison, Topeka Santa Fe Railway Company having withdrawn its station agent at Fulton (now June) without having obtained the consent of the State Corporation Commission, the latter cited the former "to show cause why the agency [1] 33 Cyc p. 144 n. 39, 41. *Page 305 at Fulton, N.M., was discontinued, and why such agency should not be reinstated...
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OPINION OF THE COURT An application for certiorari to supply portions of the record has been filed by appellee. The parts of the record sought to be brought up show that a previous appeal had been taken, which, upon application of appellant, was dismissed by the district court, and thereafter the present appeal was granted and has been perfected. The effectiveness of the ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 321 OPINION OF THE COURT It appears that the venue was changed from Eddy county, where the crime was committed, to Chavez county for trial upon the application of the state, and over the objection of defendants. Appellants all assign...
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Jim Rombous was accidentally injured while employed by the plaintiff, and afterwards died. Under the Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165), the Industrial Commission awarded compensation in the sum of $1,000, on account of his death, to his partially dependent mother, Mary C. Rombous, a non-resident alien. The plaintiff seeks by this writ of review to annul the award. The awar...
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OPINION OF THE COURT This is an action in replevin, in which the district court found that the plaintiff was not entitled to the possession of the chattels at the time of the suing out of the writ. The court, refused, however, to either award the return of the chattels, or [1] 34 Cyc p. 1539 n. 36 New. *Page 265 to render judgment for the assessed value thereof. The defe...
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OPINION OF THE COURT [1] A motion is presented to strike from the transcript the special findings given and refused, and a paper entitled "Statement of Facts," [1] 4CJ p. 159 n. 62. [2] 4CJ p. 443 n. 44. [3] 4CJ p. 505 n. 84. *Page 247 upon the ground that they are not a part of the record proper and are not included in any bill of exceptions. The findings and conclusion...
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OPINION OF THE COURT A motion to dismiss the writ of error has been filed by defendant in error, based upon the proposition that the praecipe for the record calls for a partial record, as provided by section 32, chapter 43, Laws 1917 and the praecipe contains no statement of the questions sought to be reviewed. Plaintiff in error thereupon filed an application to amend th...
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Plaintiff, Jacob Stroup, plead that under United States patent of August 19, 1881, he was the owner and entitled to possession of lots 1 and 2 of section 8 in township 8 N., R. 5, W., B. M., in Payette county, with the exception of a small described strip on the north side of said lot 1; that the approved and filed government plat and fieldnotes of the survey of the same affirmatively show such lo...
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Plaintiff plead that for more than 19 years last past school district No. 17 of Gem county had had a "regular and designated" school site upon which at all times there had been maintained a schoolhouse; that such house had fallen into disrepair; that the electors had voted bonds for building a new one, but that the defendant trustees had refused either to build or repair, and had arbitrarily moved...
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Plaintiff, appellant, brought this action to quiet title in two pieces of real estate claimed by her as her separate property, against a judgment, and execution and sale thereunder, in an action wherein defendant was plaintiff against her husband, W. W. Wheaton. This appeal, is from a judgment for the defendant. Plaintiff’s complaint alleged: ‘ ‘ That the said lands and premises and every par...
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Certain settlers filed with the court their petition praying the organization of Drainage District No. 3 in Ada county. Appellants protested, and the court made a temporary order organizing the district and excluding from the territory as proposed the New York Canal. Ultimately, the commissioners filed their report to which appellants filed an original and later an amended remonstrance. The issues...
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Plaintiff appealed from "the whole and every part" of a judgment made and entered against it and in favor of defendants by the district court of Kootenai county on October 6, 1926, and from the order of the court signed on December 9th and filed on December 11, 1926, denying plaintiff's motion to strike and disallow defendants' memorandum of costs and disbursements. Respondents move to dismiss bot...
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Plaintiff, respondent, a foreign corporation, brought this action as assignee of the Badger Furniture Company, a domestic corporation, to set aside a deed whereby the Badger Furniture Company had conveyed real estate to defendant, and to recover a money judgment. Defendant, by demurrer, by answer, by objection to the introduction of evidence, and by motion made at the close of plaintiff's evidence...
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This is an action to recover damages for numerous alleged assaults by the defendant upon the person of plaintiff alleged to have occurred in Salt Lake City, Utah, on and between July 14 and December 5, 1924. The complaint, in substance, alleges that during all of said times plaintiff resided in the Kelvin Apartments, in said city; that on July 14, 1924, defendant wrongfully, unlawfully, and malici...
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The plaintiff brought this action to recover from the defendant James A. Kelly, who was plaintiff's guardian, and from the other defendants, who were sureties on the guardian's bond, for waste and dissipation of plaintiff's estate. The case was tried to the court and a jury. At the close of plaintiff's evidence the defendants interposed a motion for nonsuit on the grounds: (1) That the complaint d...
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This is an action in conversion, brought by plaintiff against defendant in the district court of Garfield county, Corpus Juris-Cyc. References: [1] Appeal and Error 4 C.J. p. 844 n. 66; p. 884 n. 37. *Page 392 Utah. The complaint sets out three causes of action. The first charges defendant with unlawfully taking and carrying away one Jeffrey touring car belonging to plaintiff, and converting and ...
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The plaintiff had a verdict and judgment for $3,500 damages for personal injuries, and the defendant appeals. The case is based on negligence under the doctrine of attractive nuisances or the "turntable cases." The refusal of Corpus Juris-Cyc. References: [1] Negligence 29 Cyc. p. 638 n. 94. *Page 396 the trial court to direct a verdict for defendant is the only assignment of error necessary to b...
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This action was commenced in the district court of Washington county. The plaintiff in his complaint declares upon two promissory notes, one dated April 20, 1922, in the principal sum of $1,917, and one dated October 28, 1922, in the principal sum of $5,481. Subsequent to the filing of the complaint the defendant, William Chinn, filed a confession of judgment in favor of the plaintiff for the amou...
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PLAINTIFFS in error, petitioners below, brought certiorari in the district court against the board of adjustment, created by a Denver municipal ordinance, and against the members of the board. Respondents had judgment and petitioners bring the case here for review. The suit involves a comprehensive building zone ordinance. The city building inspector denied the application of Colby and his brother...
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ORIGINAL proceedings in this court, on a petition for writ of prohibition, brought upon the relation of the City and County of Denver, Stapleton, mayor, and other officers of the municipality, to restrain the district court of the Second Judicial District, and others from taking any further proceedings in the matter of Henry Buche, et al., against the City and County of Denver. We issued a rule to...
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THE Fulton Investment Company, plaintiff in the district court, recovered judgment against the Farmers Reservoir and Irrigation Company, and the latter brings the case here for review. They will be hereinafter designated as in the trial court. Two causes of action were alleged: first, trespass vi et armis, in taking and carrying away a certain pipe line theretofore installed for the carriage of wa...
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THE grounds of the motion are, in substance, but one: That it does not appear that the bill contains all the evidence. That is not ground for striking it and the motion must be denied. The function of the bill of exceptions is to make that a part of the record which would otherwise not be such. Formerly, when an exception was taken, counsel then and there prepared his bill and the judge certified ...
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delivered the opinion of the court. These parties appeared in reverse order in the trial court and we hereinafter so refer to them. Plaintiff *64 held two of defendant’s notes, each secured by a collateral note and mortgage. One of these mortgages was on land in Weld county, the other on land in Ouray county; hence we refer to them as the Weld and Ouray mortgages, respectively. There was an a...
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THESE parties appear here in the same order as in the trial court and we hereinafter refer to them as there. The life of Margaret E. Watkins, as a member of the Ouray council of defendant, was insured by the latter in the sum of $1,000 in favor of plaintiff, her mother. The insured died and the mother sued on the contract. At the close of the evidence each party moved for a directed verdict. Plain...
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THIS is an action by the people to the use of the Mine Owners' Association, suing as a taxpayer of Teller county in its own behalf and of other taxpayers similarly situated, against John H. White, a former county clerk and recorder of the county, and the Fidelity and Deposit Company of Maryland, a corporation, as surety on his official bond. The object is to secure a judgment in the sum of $3,937....
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BENNETT sued Schreiber and a large number of other defendants to quiet title to certain Denver lots. Schreiber moved to require plaintiff to separately state and number causes of action. The motion was denied. Schreiber then demurred to the complaint on several grounds, which was overruled. He elected to stand on his demurrer, brings the case here and asks for a supersedeas. The ground of the moti...
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CORNELIUS J. Ebert, one of the defendants, was indebted to the plaintiff Hawkins in the sum of more than $21,000 and interest, which represented the balance due upon his promissory notes which he gave to Mrs. Hawkins as part of the purchase price of a cattle ranch and water rights which he bought of her. The notes were secured by a mortgage, in the form of a deed of trust, upon the purchased prope...
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By mandamus, the defendant in error Duncan sought to compel the payment of salary claimed to be due him as commander of the Soldiers' and Sailors' Home. The trial court awarded him a peremptory writ. The plaintiffs in error seek a reversal of the judgment. The defendant in error Duncan will be referred to as the plaintiff, and the plaintiffs in error as the defendants. The government of the home i...
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THE plaintiffs in error, plaintiffs below, attacked the will of Elizabeth Gallup. They were defeated in the county and district courts and bring error. Elizabeth Gallup died August 16, 1923, and left all her property in trust for her husband during his life, remainder to her nieces, defendants in error. September 25, 1923, her husband filed a written waiver of citation and consent to the probate, ...
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Plaintiff, as administratrix of the estate of Edward Goodrich, deceased, commenced this action to recover damages resulting from an automobile accident alleged to have been caused through the negligence of defendants. Edward Goodrich, on July 1, 1924, was driving his Ford automobile on the Pacific Highway near Salem, in a northerly direction, and, it is alleged, on the right side of the pavement. ...
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IN BANC. Plaintiff brought this suit against the defendants for the purpose of quieting title to lots 1, 2, 3 and 4, Block 2, Burfield Addition, Multnomah County, Oregon. A decree was rendered in favor of plaintiff and Alice C. Borthwick, intervener, and defendant appealed. AFFIRMED. The complaint contains the usual allegations, among which is that the plaintiff is now, and it and its predecessors...
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Rehearing denied May 31, 1927. ON PETITION FOR REHEARING. (256 P. 763.) REHEARING DENIED. Defendant Weiner asks for a rehearing upon the ground that this court has erred in its holding that the plaintiff is not estopped from a successful prosecution of this suit by the decree rendered in a foreclosure suit brought by Weiner as...
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Reduced to a skeleton the complaint alleges that the plaintiff furnished supplies to the amount mentioned in the complaint which were used by the contractors in the prosecution of the work on this road, and for which plaintiff had a lienable claim; that the contractors had given a bond with the National Surety Company as surety to save harmless the railway company from all liens; that the contrac...
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On October 20, 1924, the plaintiff secured a judgment against Charles E. and Hildegarde M. Kenner. In order to satisfy this judgment, execution was issued and served by garnishing C.H. Webber, doing business as the Redimade Building Company. The garnishee returned that it had no money or property belonging to the judgment debtor. On November 25, 1924, following issuance of an order directing the e...
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MODIFIED. REHEARING DENIED. This is a suit to enjoin an action of forcible entry and detainer and for the specific performance of a parol contract for the leasing of real property. It is admitted by the answer that a contract of that kind was actually entered into between plaintiff and defendants, but there is a dispute as to the terms thereof. Plaintiff claims that the lease was to be for a term ...
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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 554 IN BANC. This is an appeal from a judgment based on a verdict in favor of defendants. The plaintiff brought an action to recover $10,000 in damages for injuries received by her when struck by an automobile belonging to the defendants and operated by one o...
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IN BANC. MOTION TO DISMISS APPEAL OVERRULED. On the twenty-fifth day of September, 1925, the plaintiff filed a suit for divorce. On the sixth day of October, 1925, the defendant filed a general demurrer, the disposal of which does not appear in the record. On the same date the defendant filed an affidavit asking for attorney's fees and support pendente lite, which was contested by plaintiff. On th...
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The plaintiff and appellant, Mitchell, as the owner of lands in agricultural improvement district No. 3, Maricopa county, Arizona, brought this action against the board of directors of such district, to wit, J.O. Power, R.W. Simkins and Fred Wilson, defendants and appellees, charging that said district was not legally organized, and that its proposed bond issue is void. The relief sought was an ad...
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The common council of the town of Tempe passed an ordinance requiring that every hardware establishment, among other businesses or occupations, pay a quarterly license tax, graduated upon the average sales of such establishment, and made it a misdemeanor for any person to carry on such business or occupation without procuring a license. The appellant, Terrell, was convicted, in the police court of...
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On the twenty-third day of March, 1925, the plaintiff, Margaret Matzenauer, and the defendant, Eugene Redewill, entered into a written contract, under the terms of which plaintiff agreed to come to Phoenix and give a song recital, in consideration of which the defendant agreed to pay her the sum of $1,250. The recital contracted for took place on January 28, 1926, and, the defendant failing to pay...
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This action is for damages and is predicated upon defendant Ackel's promise or undertaking in an injunction bond to the effect that if the restraining order applied for should wrongfully enjoin and restrain plaintiff, Mason Dry Goods Company, and if the court should so decide, he would pay to the Mason Dry Goods Company "all costs and damages" incurred or suffered by reason thereof. Defendant file...
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Philip Buntman and George O. Ford, hereinafter called plaintiffs, applied to the superior court of Maricopa county for an injunction forbidding *Page 20 the city of Phoenix, a municipal corporation, hereinafter called the city, and its commissioners, from holding an election for the purpose of submitting to the taxpaying qualified electors of said city the question of whether or not it should iss...
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W.H. Perry, E.P. Perry and Othello L. Perry, hereinafter called plaintiffs, brought suit against the city of Phoenix, a municipal corporation, hereinafter called the city. The complaint charged, in substance, that the septic tanks owned and operated by the city for the purification of its sewage were insufficient in number and capacity; that the waters discharged therefrom were impure and filthy, ...
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THE COURT. This is an appeal by the defendant from a judgment entered by the superior court of Los Angeles County and from an order refusing to set aside and vacate the defendant's default. The action was instituted to secure the specific performance of a contract for the exchange of real properties. It is alleged in the complaint that the parties to the action executed on October 2, 1924, a contr...
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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 59 This action was brought to recover damages sustained by plaintiff Edward Smith for injuries caused by the alleged negligence of the defendants in the operation of an electric car or train belonging to the defendant corporation. The defendant Tom Kelley was...
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This appeal is by the defendants from a judgment declaring null and void certain resolutions of the board of directors of the defendant Imperial Irrigation District, by which said board attempted to change the boundaries of the divisions of said Irrigation District in purported exercise of the discretion vested in said board by the California Irrigation District Act. The judgment further decreed t...
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[1] This appeal is from the identical judgment involved in the case of McKim v. Imperial Irrigation *Page 769 District et al., ante, p. 110 [255 P. 506], and is submitted upon the transcript and briefs filed in said case. The facts material to this appeal are set forth fully in the decision just referred to, and reference to the same will suffice here. The judgment appealed from having been revers...
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THE COURT. This action was instituted by the plaintiff to recover damages for injuries alleged to have been sustained in a collision between one of the defendant's electric cars and a refuse truck on which the plaintiff was employed by the city of San Diego. At the time of the accident the refuse truck was being operated by one H.W. Preston, with whom the plaintiff was riding toward the city dumpi...
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This is an appeal from a judgment in plaintiff's favor in an action brought by him against the defendant to restrain certain asserted acts of trespass upon a certain portion of the property alleged to belong to plaintiff *Page 75 and to perpetually enjoin any further interference on the part of said defendant with the rights and ownership of plaintiff in said property. The defendant in his answer...
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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 31 Two separate appeals are here presented. It is agreed that they may be considered together. The first, numbered S.F. No. 11460, is taken from the order denying appellant's motion for a change of the place of trial, and the second, numbered S.F. No. 11683, ...
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The questions herein presented arise upon the motion of the respondent to dismiss certain appeals. The record contains the papers and proceedings in two separate actions, which are themselves so entangled and which are so much further entangled in the transcript herein as to require some orderly statement of the sequences of this litigation in order to arrive at a proper determination of the moti...
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This cause has previously been considered by this court upon an appeal by the defendant from the judgment entered upon a directed verdict in favor of the plaintiff. The judgment was reversed and the cause remanded for a new trial. (Alexander v. Manton JointUnion School District in Tehama and Shasta Counties, 73 Cal. App. 252 [238 P. 742].) At the second trial, the verdict of the jury, by which the...
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— This is an action to quiet title. Plaintiff was the owner of a certain parcel of real property. She and one of the defendants Peters entered into a certain agreement in writing, whereby she agreed to sell the property to Peters and he agreed to buy it. The contract provided for the payment of the purchase price in certain monthly installments. Peters assigned to defendant Sharpe his interests 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 344 This is an appeal by Wilhelmina Johanna Holcomb, defendant, cross-defendant, and cross-complainant, from a judgment rendered against her and in favor of N. Frank Morse, defendant, cross-defendant and cross-complainant, which said judgment awarded to N. Fr...
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The plaintiffs commenced an action to recover a judgment for moneys loaned. The defendants appeared separately and answered. The Schmeiser Manufacturing Company in its answer set up a counterclaim in three different counts. A trial was had before the trial court sitting without a jury. Findings were made in favor of the plaintiffs on their two separate causes of action, and in favor of the defenda...
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There is pending in this action a motion to dismiss the appeal. The moving papers show that the judgment from which the appeal is attempted to be taken was entered July 12, 1922; that on July 14th notice that the judgment had been signed by the judge who tried the action was mailed by respondents' counsel to appellant's counsel; that on November 14th a notice of intention to move for a new trial w...
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— The defendant appeals from a judgment rendered against him in favor of the respondents quieting title to certain real property, and also a judgment in the sum of $1,130 as and for rent under an oil lease covering such real property. The respondents, or in some instances their vendors, had executed a so-called community oil lease to the appellant for which they had received approximately $9,00...
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This is an appeal from a judgment which resulted from the issuance of a peremptory writ of mandate in the court below. The following facts are taken nearly verbatim from the statement of the case appearing in appellant's opening brief: [1] Charles A. Jones, the respondent herein, for many years was a member of the police department of the city of Los Angeles. On or about the fourth day of January,...
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This is an action of forcible entry upon real property consisting of a lot and a store building thereon. Judgment was entered in favor of plaintiffs for restoration of possession and for damages. The defendants have appealed from the judgment. The evidence shows and the court found that in December, 1923, the defendants, as owners, leased the property to W.P. Rutledge and James Tully (plaintiffs h...
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Plaintiff had judgment in an action instituted to prohibit the defendants from enforcing a certain ordinance numbered 284, charter series, entitled, "An ordinance establishing certain districts or zones and regulating the use of property and the location of various industries and business or commercial establishments in the City of Petaluma" and the defendants appeal. The city of Petaluma is a mun...
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During the year 1923 Domenico Casassa was the owner of a vineyard near Santa Rosa, which he had leased for that year to A. Finocchio, the returns from the vineyard to be divided between the parties to the lease. In August of that year Casassa and Finocchio entered into *Page 309 an agreement with the plaintiff, designated as a "grape shipping contract," and providing, among other things, as follo...
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THE COURT. [1] This is an application for a writ of habeas corpus to determine the right to the custody of the minor children named in the petition. The applicant made a similar application for a writ of habeas corpus in the superior court of Sacramento County and said application is now pending in that court and undetermined. This court, therefore, is without jurisdiction to issue the writ. (29 C...
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This case involved a dispute over 3,975 bags of coffee, worth about $74,382, grown on nine fincas or coffee plantations in the state of Chiapas, Mexico, during the winter of 1920-1921, and brought to San Francisco in April and May, 1921. When the coffee arrived in San Francisco it was attached and taken from the possession of respondent by the appellant Thomas F. Finn, the Sheriff of the City and ...
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This is an application "for a writ of review and a writ ofmandamus," and particularly, to compel the court to proceed in an action of divorce wherein the court has made an order dismissing the action. [1] It would appear that the petitioner is not entitled to a writ of review, since she had a right of appeal. The petition shows that she did give notice of appeal, but that through some mistake or i...
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Action by plaintiff to recover the sum of $534.90 paid to the defendant on account of warehouse charges alleged to have been unlawfully made by the defendant for and on account of resacking and reconditioning certain lots of grain deposited by the plaintiff with the defendant, and kept by the defendant in a warehouse belonging to it, situate in the county of Yolo. The defendant had judgment and th...
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— The defendant was tried before a jury on an information charging rape. From the judgment following the verdict of guilty and from the order denying his motion for a new trial he has appealed on a typewritten record. The grounds of appeal are that the information was improperly amended during the course of the trial and that the defendant’s motion for a continuance to enable him to plead to the ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 291 The plaintiff and respondent instituted this proceeding in eminent domain for the purpose of acquiring certain lands in the county of Ventura, alleged in its complaint as being necessary to the completion of a system of state highways contemplated by legi...
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This action was commenced in the district court of Kay county, Okla., by Thomas J. McElroy, as plaintiff, who died during the pendency of this appeal, and the cause was revived in this court in the name of John S. Hunter, executor of the estate of Thomas J. McElroy, deceased, plaintiff in error, against Thomas J. Murphy, as defendant, and Roy *Page 208 C. Kinkaid and Mary A. Sager were made parti...
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It appears that in 1922, one T. S. Cobb was adjudged a bankrupt, and E. W. Whitney was appointed trustee in bankruptcy of the estate of T. S. Cobb, and as such trustee, Whitney brings action praying T. S. Cobb be declared to be the owner in fee simple of an undivided one-third interest in fee simple to certain lands, and a one-half interest in all oil, gas, and minerals and rights thereto in and u...
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The first contention of the plaintiffs in error is that the mining lease executed by Charles Dawes and his wife, Minnie Ball Dawes, under which lease the plaintiff. Elmer E. Klein, claims, is invalid and void because the property covered by the lease was a part of the Indian allotment of Minnie Ball Dawes, a restricted Quapaw Indian woman, and her restrictions had not been removed, nor the lease a...
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Whitney will be designated as plaintiff and James H. Cobb as defendant, as they appeared in the trial court. The record discloses that T. S. Cobb and James H. Cobb are brothers and were engaged in the practice of law as partners. The funds of the partnership were deposited in the name of the older brother, T. S. Cobb, but were subject to check of either partner. T. S. Cobb was stricken with paraly...
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This is an appeal from the judgment of the county court of Atoka county. Plaintiff in error was plaintiff below. The plaintiff in error in due time served and filed its brief in full compliance with the rules of this court, but the defendant in error has wholly failed to file any brief or to otherwise appear in this cause in this court, nor has he offered any excuse for his failure to do so. In th...
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The plaintiff in error was the defendant below and the defendant in error was the plaintiff below. Parties will be referred to as they appeared in the trial court. Judgment was rendered May 15, 1926, granting the plaintiff a divorce from the defendant, and the question of the division of the property was continued for further determination. On May 15, 1926, motion for new trial was filed and on Se...
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On March 23, 1926, Industrial Commission made final award on joint petition for final settlement as provided in section 7325. C. O. S. 1921, as amended by section 13, chapter 61, Session Laws 1923. A copy of said award was sent to all parties affected thereby on March 23, 1926. Thereafter, on April 27, 1926, the petitioner herein, who was claimant before the Industrial Commission, filed his motion...
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This is an appeal from the district court of Oklahoma county. Plaintiff below was Fox the injured employee. Defendant below was the Dunning Construction Company, a copartnership and general contractors, engaged on April 9, 1923, when this cause of action arose, in the construction of the Braniff Building in Oklahoma City. Cotner Patrick were doing certain concrete work on the floors of the said b...
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This cause presents an appeal from a judgment of the district court of Oklahoma county, wherein a demurrer was sustained to plaintiffs in error's petition. It was pleaded that John Clemens, plaintiff in error, was in the employ of John C. Stewart, who was a subcontractor, under defendants in error Reinhart Donovan, a corporation, principal contractor. E. W. Walker was the owner of the building be...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Okmulgee county on a charge of having the unlawful possession of intoxicating liquor, and the defendant Buddie Brown was sentenced to serve 30 days in the county jail and to pay a fine of $50, and the defendant Maude Brown was sentenced to serve 60 days in the county jail and to pay a fine of $150. The...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on May 4, 1925, on a charge of maintaining a place where intoxicating liquors were kept for the purpose of violating the prohibitory liquor law. *436 The defendant Flahart was sentenced to pay a fine of $100 and to serve 30 days in the county jail, and defendant Schwartz was sentenced t...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Canadian county on a charge of unlawfully transporting intoxicating liquor, and each sentenced to pay a fine of $50 and to serve a term of 30 days in the county jail. Briefly stated, the record discloses that at the time charged defendants Inez Taylor and Will Taylor lived at Chickasha. These two defendan...
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This appeal was filed September 10, 1925, and no briefs have been filed in support of the appeal. *440 The plaintiff in error, hereinafter called the defendant, was charged with the crime of unlawful possession of narcotics, and convicted, and his punishment fixed at one year in the penitentiary at McAlester. Under the rule of this court, where an appeal is not supported by briefs, it is as...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county on a charge of stealing an automobile, and sentenced to serve a term of five years in the state penitentiary. The evidence shows that the car in question was the property of A.H. Gates, and that on the evening of June 18, 1925, the car was parked in front of Gates' drug store in Hominy, about ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance, and sentenced to pay a fine of $50, and to be confined in the county jail for a period of 30 days. In February, 1925, certain officers, with a search warrant, searched the residence and premises of defendant, and at the same time searched some ...
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Paul L. Gray, as Administrator with the will annexed of the Estate of Irad Wilson Gray, filed a claim with the receiver of the Platte County State Bank, an insolvent bank, in the sum of $1572.30, asking to be made a preferred creditor. The court allowed the claim as a general claim, but denied the preference, and from this judgment the administrator appealed. Rachel E. Gray has, by agreement of pa...
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This action is between the Consolidated National Bank of Tucson, as plaintiff, and Frank H. Hereford, as defendant, and arises out of a business transaction that took place while Hereford was a stockholder and a director of the bank. In October, 1921, a national bank examiner determined that notes and securities, to the amount of $87,120, carried on the books of the bank, were "undesirable," and d...
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This is a proceeding to review an award by the Industrial Commission in favor of Ruby Elizabeth Rogers and Cynthia Rogers, whose father, Willard DeWitt Rogers, was accidentally killed in this state on August 15, 1926, while in the discharge of his duties as an employee of the Central Arizona Light Power Company. His occupation came within the terms of the Workmen's Compensation Act (Laws 1925, ch...
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In Banc. This is a suit to enjoin the collection of an additional tax assessed against the plaintiff, Dant Russell, a corporation, for the calendar year 1923. General demurrers were interposed to the two causes of suit alleged in the amended complaint and, upon *Page 339 the overruling of the same, the defendants answered over as to the first cause and elected to stand upon their demurrer to the...
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The plaintiff corporation sold to one Irvine Morris 3,000 grain sacks, taking in payment therefor Morris' promissory note for $450, bearing interest at 8 per cent and due 90 days from date. As to securing the note, plaintiff pleads the following written agreement: "Maupin, Oregon, July 30, 1923. "It is understood that the following described note, No. 11, for 3,000 sacks, be secured with wheat del...
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THE plaintiff in error (plaintiff below) applies for a supersedeas. The writ of error is to review the judgment of the district court dismissing the plaintiff's petition for a writ of prohibition directed to the public utilities commission. On August 20, 1923, the relator filed with the public utilities commission a complaint against The Denver and Rio Grande Railroad Company, alleging that rates ...
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Wright had a verdict and judgment against Freeman and Boettcher as receivers of the Denver Salt Lake Railroad Company, in an action for the collision of an engine with his automobile truck. The occurrence was at the crossing of the North Washington road and the railway company's tracks, outside the Denver city limits. The plaintiff was familiar with the crossing, was going south, defendant's engi...
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THE action was mandamus. Some of the court think there are certain technical objections to granting that writ in such a case as this, but since the parties have not urged them, we do not notice these objections except to say that this case is not to be regarded as an authority against them. Mandamus was prayed, on the relation of Vollmar, to compel the respondents to "revoke their said rule requir...
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THE county court allowed the claim of the state of Colorado against William Joyce, conservator of the estate of Edward Joyce, lunatic, for the maintenance of the ward in the state hospital for the insane. The conservator brings error. Edward Joyce was committed to the asylum January 1, 1900. At that time R. S. § 4129 was in force. It was enacted in 1893, and is as follows: "* * * The county court ...
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SUIT by Stock Yards National Bank of Denver on a promissory note. Defendant answered and set up a counterclaim which was allowed, by reason of which allowance, the bank brings the case here for review. The parties will be referred to as in the trial court. No question is raised about defendant's note to plaintiff. The dispute is solely over the allowance of the counterclaim. Brown was cashier an...
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delivered the opinion of the court. A demurrer to Bennett’s complaint was sustained, he elected to stand, judgment went against him and he comes here on error. We think the demurrer should have been overruled. The complaint alleges the following contract: “Memorandum of Agreement Between C. L. Baker and J. W. Bennett, Grower, and American Beet Sugar Company. “1. The grower a...
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Muller brought suit against Guinn to cancel the sale of a house for deceit. He was defeated and brings error. The judgment must be affirmed. The ground of the action was false representations by Guinn concerning certain corporate stock which was part of the purchase price of the house. The company was insolvent. It appears that plaintiff did not rely wholly on defendant's statements, but made inde...
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ACTION on contract brought in justice court by Tenenbone against Emley. Judgment for plaintiff; appealed to county court; retrial to jury and judgment for plaintiff; defendant comes here and asks for a supersedeas. The claim was for an unpaid balance on a promissory note given as part of the purchase price of a house and lot. Defendant asked for damages by way of set-off, but the jury allowed her ...
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delivered the opinion of the court. Bailey, as trustee in bankruptcy of the United Collieries Company, had a decree against the Riant Amusement *391 Company for $40,374.07 and for the sale of certain real estate to pay the same. The Riant Company comes here for a review. One Andrew Walker, president and general manager of The United Collieries Company, was found by the court to have used th...
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OPINION OF THE COURT The Las Trampas Lumber Company, a corporation organized under chapter 79, Laws 1905 (section 884 et seq., Code 1915), filed its articles of incorporation June 15, 1907. On November 12, 1918, said corporation executed and delivered its four promissory notes, each for the sum of $13,750.00, bearing interest at the rate of 8 per cent. per annum, due on d...
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[1] This is a suit to quiet title to real estate. The complaint is in the form prescribed by sections 4387, 4388, Code 1915. A demurrer was interposed to the complaint to the effect that it failed to state facts sufficient to constitute a cause of action in this, that it failed to allege that the plaintiffs were in possession, or that the premises were vacant or unoccupied, or that the defendants ...
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OPINION BY THE COURT [1] The state, by J.W. Norment, special collector, brought suit upon a tax assessment of 1897, praying personal judgment, and for a declaration and foreclosure of a lien upon the property assessed. A demurrer filed was based upon Laws 1921, c. 133, § 474, which reads as follows: "All taxes accrued upon any property in this state prior to January 1, 19...
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OPINION OF THE COURT [1] A suit was brought by appellee (plaintiff) upon an open account for gasoline and supplies furnished appellant and for repairs upon appellant's automobile. The original answer of appellant does not appear in the record, but presumably it presented some counterclaim based upon an alleged oral contract growing out of the purchase of a Nash car, for w...
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OPINION OF THE COURT A writ of error was issued by this court to review a judgment in an election contest. A motion has been filed to dismiss the writ of error on the ground that such judgments are not reviewable by writ of error and may be reviewed only upon appeal. The procedure for review of judgments in election contest cases is prescribed by section 2080, Code 1915, ...
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This action is brought by plaintiff, on behalf of himself and others similarly situated, against defendants Groves, Boone and Markhus, commissioners of Drainage District No. 3 in Ada county, and Ethel T. Clark, treasurer and tax collector of the county, to enjoin the collection of a tax or assessment of one dollar per acre levied by the commissioners of the district upon lands of plaintiff and oth...
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This cause was before this court on a former appeal. (Smith v. Canyon County C. S. Dist., 39 Idaho 222,226 Pac. 1070.) Upon the going down of the remittitur, the trial court entered a judgment. No appeal is taken from that judgment. The trial court interpreted the remittitur as directing judgment but authorizing it to grant a new trial upon facts involved in one ground alleged to support the case ...
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Plaintiff Vial and 84 others bring their combined actions against Charles M. Paradis, treasurer and ex-officio tax collector of Washington county, and the county and the board of county commissioners thereof. On motion, a number of allegations were stricken from the complaint. A general demurrer to the complaint was sustained, and judgment of dismissal entered. A discussion and decision upon one c...
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Defendants, having appealed from an order denying a change of place of trial, now make a motion for stay of proceedings pending that appeal. The only showing made is that the defendants moved for a change of venue *156 upon the ground that they were not residents of the county wherein the action was brought; that this motion was denied, and appeal taken therefrom, the transcript upon which is o...
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Respondents by this action seek recovery of damages to their real property, alleged to have been caused by a slide resulting from the removal of lateral support by the city in its regrade of certain adjacent streets some years before. Their claim for damages was filed with the city on December 1, 1923, and the defendant city, by demurrer, by appropriate motions and by requested instructions and ex...
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The opinion of the court was delivered by The appellant’s motion for a rehearing is overruled. The court does not hold, however, that want of mental capacity to transact business is in itself conclusive proof of want of capacity to execute a deed, nor that later unsworn declarations of the maker of a deed are competent evidence on the issue of undue influence further than as they may tend to show ...
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This case presents, among other things, the question considered and decided in Wong Kee Jun v. Seattle, ante p. 479,255 P. 645. The complaint contains four causes of action, all based upon the removal of lateral support in improving and maintaining a public highway, causing slides of earth and rock over and upon the plaintiffs' agricultural land, obstructing their drainage system, lessening or des...
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In view of our holding in Wong Kee Jun v. Seattle, ante p. 479, 255 P. 645, where we have adopted a rule different from that enunciated in Jorguson v. Seattle, 80 Wash. 126,141 P. 334, the departmental decision herein reported in (Hamm v.Seattle) 140 Wash. 427, 249 P. 778, is modified by striking therefrom the following language: "The objection is sound. Kincaid v. Seattle, 74 Wash. 617,134 P. 504...
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The appeal in this case involves the effect of an attempted intervention. The trial court held that it was not effected. [1] A suit by the state supervisor of banking against the treasurer of Benton county and Western Lands, Inc., had been pending in the superior court for several months, having been commenced on March 5, 1925. On February 13, 1926, John Gaustad and wife filed in the cause a verif...
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The purpose of this action was to recover damages for the breach of an express warranty made in connection with the sale of a rock crusher. The cause was tried to the court without a jury and resulted in findings of fact, conclusions of law and a judgment sustaining a recovery in the sum of $1,430, from which the defendant appeals. On July 26, 1924, the appellant sold to the respondent a Telsmith ...
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On August 25, 1922, the appellant, Mary H. Casey, executed and delivered to the respondent her promissory note for the sum of $4,462.08, agreeing therein to pay the amount of the note in eighty-four equal monthly installments of $53.12 each. The note recited that it was given ‘ 1 on account of a loan of three thousand two hundred and 00/100 ($3,200.00) dollars, and the proportion of twelv...
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These two cases, consolidated for trial and appeal, present questions all of which need not be considered in our view of their controlling features. The Smallwood Motor Company of Seattle by conditional sale contract dated January 2, 1925, sold an automobile to James P. Dugan. He was a salesman for the motor company and the car was to be, and was, used by him in his employment for the purpose of d...
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This cause was first heard by a Department of this court, following which an opinion was handed down affirming the judgment of conviction rendered in the trial court. State v. Fairfield,140 Wn. 349, 248 P. 810. On this second hearing, all of the errors assigned for reversal at the first hearing have been reargued, but we do not feel that we need review them again in detail. We think the informatio...
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The state charged the defendants, Fish and Stuttard with being jointists. Upon trial both were convicted, and Stuttard alone appeals. [1] The main assignment of error is that the court erred in admitting evidence of the reputation of the premises as a place where intoxicating liquors were sold, after the state had introduced evidence of direct sales by both of the defendants. It is thus claimed th...
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The plaintiff, Lumbermen's Indemnity Exchange, a domestic mutual fire insurance association, duly incorporated under the laws of this state, seeks recovery of an amount claimed to be due it from the defendant, Herrick, as one of its members, to aid in its reimbursement for fire loss liabilities incurred in favor of, and paid to, certain of its other members while he was such member of the associat...
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In this action the respondent, Quits-lund, recovered against the appellant, Barton & Company, for injuries received in a collision between a motorcycle on which he was riding and an automobile truck owned by the appellant, and driven by one of the appellant’s employees. *445 The collision occurred on one of the public streets of the city of Seattle. For some distance before the pl...
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Sheffer, the plaintiff below and respondent here, held two promissory notes signed by Griffiths, one for $1,500 and the other for $1,300, secured by two separate mortgages, but on the same described real estate owned by Griffiths, and another note executed by Griffiths for $479, to secure which Griffiths assigned all of his interest as the sole heir in an estate consisting of other real estate, wh...
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The Utah Copper Company, the respondent here and plaintiff below, and the Montana-Bingham Consolidated Mining Company, the principal defendant below and appellant here, are each engaged in mining in the West Mountain Mining District, near Bingham, in Salt Lake county. The Montana-Bingham Consolidated Mining Company, being the chief defendant and appellant, will thus be referred to as the defendant...
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This is an original action in the Supreme Court based upon an application for writ of certiorari. The writ was granted commanding the defendant to certify all proceedings, pertaining to an order annexing certain territory to a consolidated school district, to this court, and to appear and show cause why the order of annexation should not be set aside. The matter is now before the court on its meri...
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This action was begun in the county court of Osage county, Okla. An application was filed with the administrator of the estate of Gilbert Cox, deceased, by Johnson Johnson, Charles A. Holden, and M. L. Holcombe, attorneys at law, asking the county court to fix an attorney fee as compensation for the above-named attorneys in representing C. E. Ashbrook, legal guardian of Catherine Cox, in which th...
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*729The opinion of the court was delivered by This is an appeal by defendant from an order overruling its demurrer to plaintiff’s petition. The legal question involved is the statute of limitations. The petition was filed March 31, 1926. The portion of it material to be considered reads as follows : “That on or about the 19th day of August, 1921, plaintiff was employed by. said defendant at said ...
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The opinion of the court was delivered by This is an action for damages resulting from delay in shipment of live stock. The jury answered special questions and returned a general verdict for plaintiff. Defendant has appealed. The shipment consisted of one car of live stock — 11 cattle and 65 hogs — from Piqua, Woodson county, to the stockyards at Kansas City, Mo. The shipping contract was signed ...
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Herein is presented an appeal from a judgment of the district court of Mayes county wherein the parties occupied positions reverse to their order here. It was a condemnation action and involved land sought to be used in furtherance of the "Spavinaw Water Supply Project," and the same is a continuation of the action as presented *Page 244 to this court in cause No. 14514, wherein the judgment of t...
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The parties hereto will be *Page 252 referred to as plaintiff and defendant, as they appeared in the trial court. The plaintiff was the regular Democratic nominee for the office of county commissioner of district No. 3 of Washington county and the defendant was the regular Republican nominee for the office of county commissioner of district No. 3 of Washington county in the general election held ...
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Since the parties occupy the same relative position here which they occupied in the district court, they will be herein referred to as plaintiff and defendants. One James D. Ward was the owner of two steam shovels located in Tulsa county, and, being indebted to plaintiff in the sum of $20,000, executed his chattel mortgage covering said steam shovels to secure such indebtedness, which chattel mort...
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This is an original proceeding brought in this court by E. W. Koch, as plaintiff, against W. P. Keen, in which he seeks a writ of prohibition restraining the defendant from exercising jurisdiction as judge of the superior court of Custer county in the trial of a certain injunction proceeding brought by Koch against the Security National Bank. Under section 1, chapter 26 of the Session Laws 1923, a...
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Only the first assignment of error is presented and relied on by plaintiffs in their brief, that being that the court erred in sustaining defendant's demurrer to plaintiffs' evidence. It is considered that this assignment is well taken as to the evidence in support of the first cause of action. Plaintiffs' first cause of action was based upon a breach by defendant of the following obligatory coven...
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This action was commenced in the district court of Choctaw county, Okla., by plaintiff in error against the defendants in error. Plaintiff bases its action on a promissory note made, executed and delivered to the plaintiff by defendants. Defendants answered by a general denial, except as to such matters as are specifically admitted. Defendants admitted the execution of said note and answered that ...
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This cause presents error from the county court of Tulsa county. After plaintiff in error had lodged his appeal in this court and filed his briefs and after defendant in error had asked for and had been granted some six extensions of time within which to brief and had failed to file briefs, an opinion was written by Commissioner Ruth, in which opinion the court considered the merits of the cause a...
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The plaintiff in error was the defendant in the trial court and the defendant in error was the plaintiff in the court below. The parties will be referred to herein as they appeared in the trial court. This is a proceeding by petition to vacate the judgment of the trial court, in favor of the plaintiff, on the grounds of unavoidable casualty and misfortune preventing the defendant from defending, a...
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This action was commenced in the district court of Payne county by V. L. Todd, defendant in error, plaintiff below, against Bertha Dial Poulos and Bessie Todd Kemper, defendants below, Bessie Todd Kemper being plaintiff in error, for confirmation of title in defendant in error to certain real estate, situate in Payne county, and to quiet title in defendant in error. The parties will be referred to...
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On June 23, 1923, and during the May term of the district court of Carter county, the plaintiff in error, Purcell Wholesale Grocery, obtained a judgment against the defendant in error, in an action on an account, for $300.46 and interest. After said term of court had expired, the defendant, on September 20, 1923, filed a petition to vacate said judgment and attached thereto his answer which he des...
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Separate petitions in error have been filed in this court by Pierce St. John and Anna St. John, but Pierce St. John alone has briefed the case. Of the numerous assignments of error presented and argued in his behalf the sixth and ninth are determinative of this proceeding. The sixth assignment reads: "6th. That said court erred in overruling the demurrer of this plaintiff in error to the evidence ...
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This was an action for damages by defendant in error as plaintiff against the plaintiff in error as defendant, and we will refer to the parties in this opinion as they appeared in the trial court. On May 16, 1923, plaintiff filed her petition in which she alleged, in substance that about October 19, 1922, she was afflicted with a cancerous growth upon her left breast, which at that time was curabl...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Seminole county on a charge of having the unlawful possession of intoxicating liquor and were each sentenced to pay a fine of $200 and to serve a term of 60 days in the county jail. The first contention made is that the evidence is insufficient to sustain the verdict. Upon this point, the record discloses...
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The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Caddo county, state of Oklahoma, on a charge of intentionally, willfully, and unlawfully playing in a certain game commonly called poker, played with a deck of cards, and at which game so played money was then and there bet, won, and lost, contrary to the form of the statute in such cases made and provi...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of shooting with intent to kill and his punishment fixed at a term of 18 months in the state penitentiary. It appears from the record that defendant and one B.J. Johnson were neighbors of several years' standing, and some time prior to the commission of the offense charged family ...
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This is an original action in this court for a writ of habeas corpus. The petitioner alleges that he is illegally detained by Frank Fox, sheriff of Pottawatomie county, and that a requisition from the Governor of the state of Kansas has been honored by the Governor of the state of Oklahoma, and that said sheriff is about to deliver petitioner to George F. Speed, agent for the state of Kansas, to ...
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The plaintiff in error, hereinafter called the defendant, was informed against in the county court of Hughes county, charged with the crime of selling intoxicating liquor; the charging part of the information being as follows: "That H.A. Saddler did, in Hughes county and the state of Oklahoma, on or about the 6th day of March, in the year of our Lord 1925, and anterior to the presentment hereof, c...
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The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Seminole county on a charge of having the possession of intoxicating liquor with intent to violate the prohibitory liquor law, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. The judgment was rendered on April 15, 1925, and the appeal was lodged in this court on ...
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The complaint does not state a cause of action, unless the bond was given expressly for the benefit of plaintiff-respondent and the other materialmen whose claims were assigned to it. (Sec. 7472, Rev. Codes 1921; McKeever v. Oregon Mtg. Co., Ltd.,60 Mont. 270, 198 P. 752.) The dominant purpose of this bond was protection to the state. This is plain alike from its terms and from the terms of the st...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of *Page 16 Carter county on a charge of driving an automobile while intoxicated and was sentenced to serve a term of one year in the state penitentiary. The facts disclosed by the record are, in substance, as follows: On January 30, 1925, defendant drove an automobile down Main street, in the city of Ardmor...
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This is an action to recover damages for an alleged malicious prosecution of plaintiff by the defendant upon a criminal charge, It has heretofore been before this court (Puutio v. Roman,76 Mont. 105, 245 P. 523), and was remanded to the district *Page 228 court for a new trial. The facts upon which it is based are sufficiently set forth in the opinion on the former appeal, and they need not be re...
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Plaintiff's claim is preferred. The law in this state with reference to the showing necessary to entitle claimant to a preferred claim where an item has been left with a bank for collection and the bank later goes into the hands of a receiver is extremely well settled. The best known recent case is that ofHawaiian Pineapple Co. v. Browne, 69 Mont. 140,220 P. 1114. This case follows the earlier cas...
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It is settled law in Montana that a litigant has no right, as against the same adversary, to have a question, either of law or fact, relating to the same cause of action, twice adjudicated, in the same court or in another court of like jurisdiction, unless a re-examination of the question has been regularly ordered, and an erroneous ruling is just as conclusive as the correct one, if allowed to be...
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On and prior to February 28, 1924, Christian Yegen and Peter Yegen, copartners as Yegen Bros. Bankers, were conducting a general savings and commercial banking business at Butte, Montana. On that day the state examiner, after a careful examination into the affairs of the bank, determined that its assets were greatly impaired and so reported to the governor. The governor, on March 6, 1924, directed...
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THE COURT. The purpose of this petition for a writ of prohibition is to arrest further proceedings in the respondent Superior Court in the matter of the application of one Charles Henry Wood for a writ of review pending in said court. The petitioners are the members of and constitute the California State Board of Chiropractic Examiners, functioning pursuant to an initiative statute adopted at the ...
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This action was instituted to recover one-half of the proceeds of certain partnership assets collected by the defendant subsequent to the dissolution of a partnership between the parties hereto. The cause was tried before the court without a jury, and judgment entered for the plaintiff in the sum of $4,150.74 and costs. The defendant appealed, contending that two items of $588.13 and $443.93, resp...
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Action by plaintiff to recover excess of advances made by the plaintiff to the defendant over and above the receipts of the defendant's crop of beans marketed by the plaintiff for the defendant. Judgment of nonsuit was entered in the trial court and from this judgment the plaintiff appeals. In this opinion the word "Association" will be used to designate the plaintiff and appellant. The Associatio...
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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 217 Plaintiff, by his father as guardian ad litem, sued the above-named defendants to recover damages for personal injuries sustained by him as a result of being run over by an automobile driven by defendant L.A. Arnold. The action was tried before the court ...
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In this action plaintiff sought to recover damages for injuries alleged to have been suffered by her when struck by an automobile negligently driven by defendant. The defendant answered, denying negligence on his part, and affirmatively alleging that the injuries of plaintiff were caused by her own negligence. A trial by jury was had and a verdict returned in favor of defendant. From the judgment ...
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Certiorari to review the lawfulness of an award made by the Industrial Accident Commission. The pleading contains the usual recitals to the effect that petitioner is engaged in issuing employers' liability and workmen's compensation insurance and that it is the insurance carrier for the Kaiser Paving Company. It then alleges that an employee of the insured company met with an accident resulting in...
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In a suit for divorce on the ground of desertion, judgment was rendered in favor of plaintiff, and defendant appeals therefrom. Among other things, the trial court found that all the allegations contained in plaintiff's complaint were true, as were all the allegations of the answer of plaintiff to defendant's cross-complaint; that certain property, known as the Monrovia property, was community pro...
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Plaintiff appeals from a judgment of dismissal after demurrer had been sustained to plaintiff's fourth amended complaint with leave to amend, and plaintiff had failed to amend his complaint. The demurrer was both general and special. It is alleged in the complaint that the parties entered into a certain contract on the twenty-fifth day of March, 1922, wherein the defendant agreed to furnish plaint...
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This appeal is from a judgment recovered by plaintiff as assignee of a contract for the purchase by defendants of a tractor, in the amount of the unpaid purchase price, to wit, $865 and interest and $100 attorneys' fees as provided for in the written agreement. The defendants alleged in their answer that at the time of their purchase the property was inaccessible to them; that the seller knew that...
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A petition for a writ of mandate directing James E. Walsh, as the residuary legatee and as executor and trustee under the last will and testament of Richard Varick Dey, deceased, to execute for transmission to the clerk of the supreme court of New York in and for the city of New York an instrument sufficient to constitute an appearance by him as defendant in an action filed therein against the dec...
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Plaintiff had judgment in the sum of $548.07 on account of moneys found due and owing from the defendant, for and on account of sales of certain crops belonging to the plaintiff, made by the defendant and for damages inflicted by the defendant upon certain property belonging to the plaintiff. These damages amounted only to the sum of $7.90 and are not involved in this appeal. The defendant appeals...
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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 467 J.K. Fronk and Lloyd Albert Landon were jointly indicted by the grand jury of Los Angeles County, charged in two counts with the larceny of $12,500 and $10,300, respectively. They were acquitted by the jury on these two counts. The indictment also charged...
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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 491 This is an appeal by defendant from an order denying his motion for a new trial and from a judgment of conviction for an assault with intent to commit rape upon the prosecutrix, Bettie Horton, a child of six years. As originally drawn, the information thr...
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OPINION OF THE COURT Alfredo J. Otero and Candelaria Otero are husband and wife. The appellee on November 19, 1924, obtined a decree against the husband in a suit brought to foreclose a lien on shares of corporate stock. On December 24, 1924, the husband filed for record a deed from him to his wife conveying [1] 27CJ p. 639 n. 23. [2] 27CJ p. 770 n. 64. *Page 339 the lan...
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Omitting the formal parts, the defendant was charged in the court below with: "did then and there wilfully, unlawfully and maliciously conduct and carry on a certain game played with dice known as craps, for money and other representatives of value, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming. * * * * ...
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This case is here on proceeding in error to review a judgment entered on a conviction of defendant for permitting a gambling game known as twenty-one, as charged in the information under section 3391, W.C.S. 1920. 1. Before the trial of the case in the court below, a petition to suppress the evidence was presented and a hearing had thereon. The defendant claimed that while he occupied the basement...
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Judgment was entered in this action for the plaintiff, and the defendants appealed. Respondent has made a motion to dismiss the appeal, or for an order affirming judgment, on the ground that the notice of appeal was not filed within ten days after notice of entry of the judgment; that the trial judge exceeded his powers in granting certain extensions of time to the defendants within which to prepa...
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The defendant was convicted of bribery under the first and third counts of an indictment, based on section 165 of the Penal Code of the state of California. Upon appeal, the district court of appeal, second appellate district, division one thereof, reversed the judgment. A petition for hearing was filed in this court by the Attorney-General, which petition was granted. *Page 117 As stated in the ...
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This is an appeal by defendants from a judgment against them for damages for breach of a contract for the purchase by them of a large quantity of peach pulp. About many of the facts there is no dispute. On July 9, 1919, the copartnership of Christenson, Hanify Weatherwax ordered in writing from plaintiff 10,000 cases of peach pulp, described in the contract as "6/10s" (which was elucidated by the...
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The respondents have moved this court to dismiss the appeal of the defendant Deacon upon two grounds: First, That the appeal was not taken within the period prescribed by law. Second. That the judgment *191 from which the appeal has been taken was one entered by stipulation of the parties and was a consent judgment, and that for that reason the appellant has waived his right of appeal. The fact...
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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 38 Appellant prosecutes this appeal from an order made by the court below denying her petition to have the estate of Robert Boeson, deceased, assigned to her, as his widow, under the provisions of section 1469 of the Code of Civil Procedure, which authorizes ...
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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 136 This is an application for a writ of mandate to compel the respondents, as members of and constituting the board of public works of the city of Los Angeles, to execute a contract for the improvement of certain streets and to pass upon the form and suffici...
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The petitioners, Homer France and Jack Black, were convicted in the Superior Court of the County of Los Angeles upon two counts, each charging them with *Page 124 the crime of burglary with explosives as defined by section 464 of the Penal Code, and upon a third count charging burglary. An appeal from the judgment of conviction was taken to the district court of appeal and by said last-named cour...
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Joseph Corato died on or about the third day of October, 1922, in the county of San Joaquin, leaving estate therein. The plaintiff is the administratrix of said estate. On February 28, 1923, she filed two claims against the estate, which were rejected by the court. She then filed her complaint thereon in two counts. The first count was *Page 157 for the recovery of the sum of $600, with interest,...
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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 89 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 90 This is an application by the appellants Evelyn Ellis Smith, F.M. Smith, and West End Consolidated Mining Compan...
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By order entered herein on May 17, 1926, the application of petitioner was referred to the board of bar examiners, with the direction that the board take evidence concerning the moral qualifications of the applicant; that the evidence taken, together with the findings of the board as such referee, upon the question whether or not the applicant is possessed of such moral qualifications as to entitl...
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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 461 Defendant appeals from a judgment of conviction of robbery and kidnaping. The facts out of which the charge grew are briefly as follows: Defendant sold the complaining witness J.T. Brown two pumps with operating machinery and an electric range, which were...
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pro tem. — The defendant was charged with the crime of incest with his daughter Melba, a child of eleven years, on two occasions, the first about the beginning of April, 1926, the second on June 19, 1926; and also with the commission of lewd and lascivious conduct on each occasion in violation of section 288 of the Penal Code. The information on which the defendant was tried contained four co...
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Defendant was convicted of maintaining a nuisance in violation of the Wright Act (Stats. 1921, chap. 80, p. 79) and section 21 of the Volstead Act (U.S. Comp. Stats., § 10138 1/2jj). The information as amended charged in part as follows: "The said Joseph Colombo on the 16th day of September, . . . at Martinez, . . . did then and there unlawfully maintain a common nuisance, to-wit: a place situated...
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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 534 Plaintiff sued to rescind a contract for the exchange of real properties executed on September 20, 1917. *Page 535 Judgment went for the plaintiff, from which the defendants have appealed on a bill of exceptions. The complaint is based upon charges of fr...
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This is an appeal by defendants from a judgment rendered upon a verdict by a jury. The action was prosecuted by plaintiffs to recover damages alleged to have been sustained by the plaintiff Laura Peavey, and to recover resulting damages alleged to have been suffered by her husband, James Peavey, the other plaintiff, by reason of the alleged negligence of the defendants in the operation of an autom...
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This is an appeal by appellants from a judgment entered in favor of respondent and against appellants and interveners. The interveners have not appealed. On August 1, 1919, the appellants Delozier and Colvin, being real estate brokers located in Los Angeles, but formerly located in Imperial Valley, where they had known and had business dealings with respondent, received a letter from one Francisco...
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This is an appeal from a judgment entered on a verdict in an action for libel and slander. *Page 606 The complaint contained four counts – each of the first two thereof being for both compensatory and punitive damages on account of an alleged libel published by defendant, and each of the last two counts of the complaint being likewise for similar damages alleged to have been occasioned to plainti...
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Petitioners seek by this proceeding in certiorari to have annulled an award made by the Industrial Accident Commission in favor of respondent Ong Thlu Lem, known also and referred to in the record as Kee Ong, who suffered injuries on May 29, 1926, which resulted in the amputation of his right arm at the shoulder. The Industrial Accident Commission found that the injury occurred in the course of 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 505 Action to recover damages sustained by plaintiff while a passenger on an auto-stage, operated by defendant Watson, which collided at a railroad crossing with an electric railway car operated by defendant Pacific Electric Railway Company. On behalf of the ...
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— The complaint alleges that the plaintiff purchased from the defendant a Flint sport roadster for $2,245 and delivered to defendant in payment therefor a Flint touring car and the plaintiff’s promissory note for $945; that “defendant agreed to give plaintiff a credit upon the purchase price of said Flint sport roadster of $1,300 on account of said Flint touring car, and defendant further agreed ...
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Plaintiffs began this action to recover damages suffered by reason of trespass on lands leased by plaintiffs of certain sheep and cattle belonging to the defendant and recovered damages in the sum of $259. The complaint is in three counts. No question is raised as to the judgment of the trial court awarding the plaintiff the sum of $34 on account of damages inflicted upon the premises leased to th...
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This is an appeal by defendant from an interlocutory decree of divorce granted to plaintiff on the ground of wilful neglect. The parties were married in Chicago in 1887, and for some years prior to 1916 they had been making their home in Milwaukee, though Mrs. Winslow had been in the habit of spending the winters near Los Angeles, where she had sisters and could be near a daughter attending Pomona...
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The above two cases were tried together before a jury in the superior court of Santa Cruz County. The causes of action in both are identical in form, although different amounts are involved therein. In the action against the Santa Cruz National Bank it is alleged that one A.S.T. Johnson was employed by plaintiff as a bookkeeper with authority to collect money and checks due and owing to plaintiff ...
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On February 20, 1926, the plaintiff began this action to recover from the defendant the sum of $322.88, balance alleged to be due on certain promissory notes. On the thirtieth day of March, 1926, the defendant filed a demurrer, a demand for a change of place of trial, and an affidavit of merits. The demand, omitting the title, is in the following words: "I, the undersigned, defendant, in the above...
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An appeal from a judgment in an action to recover damages against appellant as surety upon an undertaking on attachment. The undertaking was filed and an attachment issued and levied on property owned by respondent in an action for money had and received brought against him by one Collins, the trial of which resulted in a judgment for respondent. No proceedings were had to dissolve or vacate the a...
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Petition for a writ of habeas corpus. It is alleged therein that petitioner Frank E. Page is unlawfully imprisoned and restrained of his liberty by the sheriff of the county of Modoc, California; that he is so restrained pursuant to an order and bench warrant issued out of the superior court of said county charging him with the murder of one Pearl Connell. That prior to the filing of the informati...
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The respondent Samuel G. Goucher and the appellant Grace C. Goucher are husband and wife. Each brought an action against the other wherein the former recovered judgments and the latter appealed. The first action was commenced by respondent to obtain a decree adjudicating that certain property, real and personal, the former standing in appellant's name and being claimed by her as her separate estat...
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MEMORANDUM CASE. This is a suit in equity, brought by plaintiff Samuel G. Goucher against his wife Grace Coe Goucher to determine the status of the title to certain property acquired after marriage, most of which stood in defendant's name and which plaintiff claimed was community property. About two months after this suit was begun defendant commenced an action for divorce,...
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Appellant was charged by information in the superior court of Los Angeles County with a violation of the Wright Act, a high-grade misdemeanor, and was tried and found guilty. This appeal is taken from an order of the superior court denying his motion for a new trial, and from the judgment of conviction. [1] Two grounds are urged, upon which it is claimed that the judgment should be reversed. First...
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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 453 This is an appeal by plaintiff, P.H. Straub, from a judgment of the Circuit Court dismissing a writ of review prosecuted by the plaintiff to review the action of the Justice's Court for District No. 9 of Benton County, Oregon, in refusing to grant a motio...
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The substance of the controversy in this case is that the petitioner desired to invoke the referendum upon an act passed by the legislative assembly of 1927 entitled: “An act to provide additional powers and impose additional duties upon the state tax commission, the county assessors and other public officers and persons, firms, associations and corporations with reference *460 to the assessm...
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AFFIRMED. REHEARING DENIED. This is an action by plaintiff, against the defendant as executor of the last will and testament of George W. Dayton, deceased, to recover for services performed by plaintiff for decedent as a nurse. A duly verified claim for the services was presented by plaintiff to defendant who rejected the claim. After its rejection and the expiration of the time limited by the Cod...
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On June 23, 1919, defendants Whitaker and wife executed their real estate mortgage to respondent bank, covering 160 acres of land, to secure their note for $15,000. The mortgage was recorded June 26, 1919. Thereafter, in the same year, Whitaker and wife conveyed 80 acres of the mortgaged tract to one E.G. Frank, who assumed and agreed to pay $7,000, with interest, of the mortgage indebtedness firs...
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On June 25, 1926, a petition was presented the board of commissioners of the Idaho State Bar asking that the board investigate certain alleged unprofessional conduct of C. H. Edwards, a member of the state bar. The board appointed a special committee to investigate the matter and report “as to whether charges should be filed.” In due time the committee reported to> the board, recommending that...
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George F. Barnes, now deceased, being indebted to appellant in the sum of $4,500, evidenced *Page 170 by two promissory notes, delivered to it the promissory note of another, payable to Emma Barnes, as security for the payment of the indebtedness. This action was instituted for the purpose of effecting a foreclosure of the collateral note which bore the forged indorsement of Emma Barnes. The note...
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This action was commenced in the district court for Twin Falls county on February 2, 1920, against defendants H.B. Lorain and Jennie Doe Lorain, seeking foreclosure of two water contracts. On June 25, 1920, the Lorains were personally served with summons; on June 18, 1923, a default was entered against each of them, and the term was adjourned on August 31, 1923; on January 23, 1924, proof was subm...
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Appellant, feeling aggrieved at his conviction and sentence upon a charge of grand larceny, brings the case here for review. The principal ground urged for reversal is that the court erred in not instructing the jury that they might find appellant guilty of petit larceny. Petit larceny is, of course, an included offense in the charge of grand larceny, and should be submitted to the jury if the evi...
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In November, 1922, Ralph Hyde Chick and wife were the owners of an undivided two-thirds interest in a farm in Lincoln county. The other one-third was owned by Florence Hyde Chick, mother of Ralph Hyde Chick. At that time, the owners joined in executing a mortgage on the farm to the John Hancock Mutual Life Insurance Company, in the sum of $42,000. In October, 1923, the same parties also executed a...
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This is the second appeal in this case. The opinion on the former appeal is reported in 135 Wash. 91, 237 P. 19. The controversy arose out of a co-operative association contract signed by A.J. Thompson. In an action to enforce it, brought by the association against Thompson and others, the defendants answered by general denials and three affirmative defenses. The trial court held that the first an...
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By this action the plaintiff, Larson, a farmer of Loon Lake, seeks recovery of damages alleged to have been suffered by him as the result of the defendants, Inland Seed Company, a corporation, of Spokane, and the Garden City Feed Mills, a co-partnership of Walla Walla, shipping or causing to be shipped to him a quantity of seed fall rye in their assumed compliance with his purchase of seed spring ...
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By this action the plaintiff sought to recover the sum of one thousand dollars as the reasonable value for legal services rendered. The answer of the defendants admitted the employment and alleged that the services performed were in pursuance of an express contract for two hundred fifty dollars. The allegation of an express contract was denied by the reply. The cause was tried to the court and a ...
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The plaintiff, Sheffield, seeks recovery of damages alleged to have been suffered by him as the result of a conspiracy entered into and consummated by the defendants, Baker, Hale and Schedler, to defraud him, incident to an exchange of lands between him and one Wilkes. The case proceeded to trial in the superior court for Spokane county sitting with a jury, resulting in verdict and judgment awardi...
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This is the second appeal in this case. The essential facts in the case and the former history of the litigation may be found fully set out in the opinion on the former appeal, 138 Wn. 167,244 P. 400. The matter came on again for hearing in the superior court upon the occasion of hearing the final account and report of the administrator and petition for distribution of the three estates combined. ...
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On July 9, 1924, C.M. Dunn with his wife and Charles W. McClain, a guest, riding in an automobile driven by Dunn, suffered injuries in a collision at a street intersection, in the city of Seattle, with a for-hire car, owned and operated by G.S. Bailey and H.H. Bailey, doing business as the DeLuxe Cab Company, driven by Lester Grove, an employee of the cab company. McClain and wife instituted an ac...
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The appellant, George W. Alcott, instituted this action to recover upon an appeal bond, on *Page 583 which the respondent, Beatrice L. Manning, was principal, and the other respondent was surety. The trial court sustained a general demurrer interposed by the respondents to the complaint, and, upon the refusal of the appellant to plead further, entered a judgment dismissing his action. The ultimat...
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August Krause, desiring to travel in foreign countries, applied to the Ritzville State Bank for $650 worth of travelers checks. The bank issued him this amount in different denominations. The checks read as follows: "TRAVELERS CHECK 10 10 When countersigned below with this signature ...
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On March 31, 1924, Gardner J. Gwinn and his wife were the owners of certain described real property, situated in the city of Seattle, on which was an apartment house. On that day, they leased the property to Edith W. Gay for a term of five years, the term commencing on July 1, 1924. The lease was in writing and was executed in duplicate; one of the duplicate copies being retained by the lessor and...
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These two actions were consolidated in the superior court for the purpose of trial. Each was brought to recover damages for personal injuries. When the cases came on for trial and at the conclusion of the opening statement for the plaintiffs, the defendant moved for judgment. This motion was sustained and separate judgments entered dismissing the actions. The plaintiffs appeal. The facts may be su...
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This was a proceeding instituted under §§ 573-577, inclusive, of Rem. Comp. Stat. [P.C. §§ 7843-7847]. The Federal Land Bank of Spokane *Page 538 had levied upon a herd of dairy cows, together with one bull and some heifers and about forty hives of bees, as the property of Dwight F. Christianson to satisfy a deficiency judgment. James Christianson, Willard J. Christianson and J.E. Fitch filed an ...
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By this action, the plaintiff seeks to recover damages to an orchard owned by it, claimed to have been caused by the use of improper spray material. Four of the defendants are state officers, and on the official bond of each of three of them, the defendant the Fidelity Deposit Company of Maryland was surety. To the second amended complaint, the Fidelity Deposit Company of Maryland interposed a d...
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The plaintiff, Angel, commenced this action in the superior court for King county seeking recovery of damages from the defendant, Ladas. The theory of Angel's claim of recovery, as we understand his counsel, is that he was induced by Ladas to become his tenant by an oral agreement for the lease of his storeroom for a term of four years, commencing March 9, 1923; that he then entered into the posse...
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The purpose of this action was to recover damages for personal injuries to the plaintiff Mrs. Yenor, claimed to have been caused by negligence chargeable to the defendant. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs in the sum of seven thousand dollars. The defendant moved for judgment notwithstanding the verdict, and in the alternative for a n...
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This action was brought by Wm. P. Harper Son, a corporation, against the Pacific Power Light Company, a corporation, to recover judgment on the endorsement upon a written instrument, the instrument being as follows: "Franklin County Irrigation District No. 1. No. 1292 Franklin County, Washington ...
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The defendant was charged with the crime of making a false and exaggerated report of a corporation. From a conviction and sentence thereunder he has appealed. Many assignments of error are noted, but one of which requires discussion. *Page 637 It is urged that the appellant was charged under Rem. Comp. Stat., § 2642 [P.C. § 8899], when the evidence disclosed an offense, if any, under § 3829 [P.C....
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This action was brought as one in replevin to recover possession of certain apples, crop of 1925, that were the subject of chattel mortgages given by Joseph Vaught to the Roche Fruit Produce Company. The apples were grown by Vaught on lands leased to him by E.M. Kerper, the lease contract being dated March 23, 1925. The lease provided that the apples when harvested should be delivered at the Kerp...
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This action was brought to prevent the issuance and sale of bonds by diking district No. 23 and to have the organization of the district declared to be void and of no effect. The cause was tried to the court without a jury and resulted in a judgment dismissing the action, from which the plaintiffs appeal. By diking district No. 23, it was sought to reclaim approximately ten thousand acres of tide ...
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This is a companion case to that of Roche Fruit Produce Co.v. Vaugt, ante, p. 601, 255 P. 953. The questions in it are essentially similar to those in that case and the decision is in all respects the same as in that case. Affirmed. *Page 1 ...
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The facts in this case are sufficiently stated in the following part of the memorandum opinion of the trial court: "In this matter there is offered first the alleged will of the deceased dated February 28, 1926, executed in the presence of George M. Nethercutt and C.E. Schirmer, as attesting witnesses, and an alleged codicil to said will, but separated and detached therefrom, dated October 1, 1926...
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The plaintiff, Brown, commenced this action in the superior court for Kittitas county seeking injunctive relief restraining the defendant city *Page 607 from enforcing or attempting to enforce its ordinance, "particularly in so far as it prohibits or attempts to prohibit swimming, fishing or boating in Lake Cle Elum," from which is taken the city's water supply. A trial in that court upon the mer...
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The appellant, F.S. Harmon Company, is a wholesale dealer in furniture, having its principal place of business in the city of Tacoma. The Eastern Furniture Company was formerly a retail dealer in furniture, its place of business being in the city of Yakima. The Lombard-Horsley Investment Company is a corporation also doing business in the city of Yakima. The appellant sold furniture to the furnit...
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The opinion of the court was delivered by This is an original proceeding in mandamus to require defendants to hear evidence as to the costs, and to make an order dividing the expense between the railway company and the county or township, of installation and maintenance of suitable safety devices or warning signals at a dangerous or obscure improved highway railway crossing. It is presented on de...
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*534The opinion of the court was delivered by This is an action for conversion of 104 head of cattle, which plaintiff claimed to own, which were levied upon and sold by the defendant sheriff under an execution issued upon a judgment in favor of the defendant bank against the husband of plaintiff. The only issues for trial were whether the plaintiff was the owner of the cattle levied upon, and if s...
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The opinion of the court was delivered by The action was one to recover damages for breach of warranty contained in a warranty deed. Plaintiff prevailed and defendant appeals. The facts are substantially these: In the summer of 1920, plaintiff and her children owned 120 acres of land in Cherokee county. She entered into a contract with James H. Elliott, husband of the defendant, to convey the lan...
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The opinion of the court was delivered by This is an action for goods sold on a written contract. It was tried to the court. A demurrer was sustained to plaintiff’s evidence. Judgment was rendered for defendant and plaintiff has appealed. The contract is in the form of an order -signed by the defendant, and, so far as here material, reads as follows: “You may ship us one Columbia Mirror weighing ...
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The opinion of the court was delivered by An opinion was filed in this action on March 12, 1927. (Lenfestey Broom Works v. Atchison, T. & S. F. Rly. Co., ante, p. 104, 254 Pac. 343.) In that opinion it was stated that, “The evidence tended to show that . . . the high- and low-tension wires were loosely strung and in places were only about a foot apart.” The Kansas Gas and Electric Company, in a m...
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The opinion of the court was delivered by This is an original proceeding in habeas corpus. On December 7, 1926, in the police court of the city of Wichita, the petitioner entered a plea of guilty to a charge of violating the city ordinance relating to intoxicating liquors. He was fined $100 and sentenced to 30 days in jail.. On the same day he was paroled by the police judge, upon the condition, a...
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The opinion of the court was delivered by The plaintiff as surety for the National Paving Company of Oklahoma City executed a maintenance bond guaranteeing certain paving. The bond was executed on the application of the defendants, who were the officers and chief stockholders of the *503paving company. Having been compelled to pay the city because of defects in the paving, plaintiff brought this ...
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The opinion of the court was delivered by This is a habeas corpus proceeding for the custody of a minor child. The court below, after a full hearing, made exhaustive findings of fact, also conclusions of law, and rendered judgment in favor of the father, who was an intervener in the case. The material facts are substantially as follows; The child, Gean Gordon Melroy, was born November 10, 1920. Hi...
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The opinion of the court was delivered by An affidavit in support of a petition for rehearing contains the following remarkable statement; “In the opinion of the supreme court in the above-entitled action appears this language: ‘In this instance a flank attack came in due season, in the form of an unwarranted assertion of a contract with the testator for all his property after his death.’ “A searc...
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The opinion of the court was debA^ered by In the opinion the court said that in April following the negotiations out of which the litigation arose, Carroll sold the land which he offered to trade for the bakery, the name of the purchaser was inserted in the deed, the grantors in the deed acknowledged it, and the deed was delivered to the purchaser. Defendant challenges the correctness of this stat...
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The opinion of the court was delivered by This action involves a controversy over the proceeds of a life insurance policy between the administratrix of the estate of the deceased and the beneficiary named in the policy. It was tried to the court. Most of the facts were agreed to. Plaintiff of*555fered additional evidence. Judgment was rendered for defendant, and the plaintiff has appealed. The ma...
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DEFENDANT in error, plaintiff below, brought suit against plaintiff in error upon a promissory note to recover $5,000 and interest. The parties will be referred to here as in the trial court. The complaint alleged that the Champion Oil Shale and Refining Company, hereinafter designated as the Champion Company executed and delivered its promissory note, bearing date July 3, 1920, for the sum of $5,...
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THE Vanadium Corporation December 10, 1923, brought suit against George Stuart Willis, the defendant in error's testator, for damages for failure to furnish securities in accordance with the contract hereinafter set forth; Willis answered, setting up various *Page 311 defenses and a counterclaim for specific performance of the agreement to deliver the 6875 shares of the stock mentioned in said co...
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THIS is a writ of error to review a judgment of the district court removing plaintiff in error as administrator of the estate of Mary Ann Smith. This is a controversy between father and son. These shameless litigants, in their interminable controversies with each other, were here in Smith v. Smith, 76 Colo. 119, 230 P. 597. This petition of the son asks for the removal of his father as administrat...
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THE prayer of the complaint in this action by Mrs. Cheney is for a writ of injunction, which was granted, restraining the defendant Morris from entering upon her premises, farming lands, in possession of her tenant, and from interfering with the tenant's possession in his farming operations. There was a prayer also for damages and other appropriate relief, but the principal object of the action is...
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DEFENDANT in error brought suit against plaintiff in error in the district court, and the parties will be referred to here as there. The action was to recover damages for false and fraudulent representations alleged to have been made by defendant to plaintiff. Trial to the court without a jury, judgment for plaintiff for $100, and for the return to plaintiff of a certain promissory note and chatte...
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H.M. Merrill, hereinafter called plaintiff, brought suit against J.R. Welker, Henry Clifford and Eugene Evans, copartners under the firm name of Welker Clifford, hereinafter called defendants, to recover damages for an alleged breach of a contract of purchase of cotton. The case was tried before the court without a jury, and judgment was rendered in favor of plaintiff. After the usual motion for ...
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On March 31st, 1925, the board of trustees of School District Number Twenty-seven of Pima county, by written contract, employed Catherine A. Sarle to teach school in said district for the term of nine months, commencing on September 21st, 1925, at a monthly salary of $145. The contract contained the provision that "either party to this contract may terminate it by giving thirty days' notice." On M...
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We have come to the conclusion that, on account of the condition of the record, we ought to reconsider an order heretofore made denying the appellees' motion to dismiss this appeal, said motion being made upon the ground that no judgment has been entered or rendered in the trial court. Looking into the pleadings and the issues at the trial, the verdict of the jury, and the court's order concerning...
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Arthur A. Fisher, hereinafter called plaintiff, on January 13th, 1925, brought suit against Connor Livestock Company, a corporation, *Page 82 hereinafter called defendant. The original complaint, in addition to the necessary formal matters, alleged: "That the defendant is indebted to the plaintiff in the sum of two thousand one hundred fifty-four dollars and fifty cents ($2,154.50) as a balance d...
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ON MOTION TO STRIKE No memorandum of errors was filed and served within ten days after service of notice of motion for new trial. There is no provision that requests for extension of time may be made ex parte. Civ. Pr. Act, sec. 380, Rev. Laws, 5322. Lunsford's affidavit does not state that Mack, deceased, one of opposing counsel, failed to serve him, but that no copy wa...
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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 214 Granting of separate trials is matter of legal, not arbitrary discretion. If evidence is admissible against one codefendant, but not against another, separate trials should be allowed, providing application is made in due time on sufficient showing. Stats...
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Appeal is from order refusing to issue restraining order and appoint receiver. Civ. Pr. Act, sec. 387; Rev. Laws, 5329, as amended Stats. 1913, c. 91, p. 113; Maitia v. Allied Land etc. Co., 49 Nev. 451. Defendant elected to stand on so-called demurrer. When no answer is filed, allegations of petition may be taken as true in considering appointment of receiver. 2 Tardy's Smith on Receivers, 1961. ...
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On authority of Black v. Black, 48 Nev. 220, court held certain testimony insufficient for granting divorce and stated that such ruling would dispose of motion thereon to strike. There was therefore no evidence on point and court erred in considering it on either desertion or cruelty. That person is inclined to gossip does not impeach her truth or veracity. Question was as to reputation, though ge...
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From the judgment of the trial court in favor of the defendants in error, the plaintiff in error appeals to this court. There is but one alleged error assigned in the petition in error as a cause for reversal, as follows, to wit: "Said court erred in not rendering judgment for the plaintiff in error on pleadings." The only reference to motions for judgment on the pleadings pointed out by plaintiff...
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This is an original action in this court for a writ of habeas corpus. The petitioner alleges that he is restrained of his. liberty and is unlawfully imprisoned at Anadarko, Caddo county, Okla., by Hon. George Nixon, sheriff of said county, and Mr. Fisher, sheriff of Kingman county, Kan., and that a requisition from the Governor of the state of Kansas has been honored by the Governor of the state ...
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Plaintiff in error, Charley Chance, was convicted in the county court of Ottawa county on an information jointly charging plaintiff in error and Bill Chance with the unlawful possession of intoxicating liquor, alleged to have been committed on or about October 24, 1925. The jury by their verdict found both defendants guilty, and fixed his punishment at a fine of $150 and confinement in the county...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county on a charge of burglary, and sentenced to serve a term of two years in the state penitentiary. The first assignment presented in the briefs is that the evidence is insufficient to sustain the verdict. The evidence clearly discloses that the burglary was committed as alleged in the informati...
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This is a certiorari proceeding in this court wherein the relator, White Pine Sash Company, seeks review and reversal of a judgment of the superior court for Ferry county adjudicating in favor of the Hedlund Lumber Manufacturing Company the necessity for, and its eminent domain right to acquire by condemnation, a right of way for its proposed logging railroad over land of the relator as a private...
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This is an original application for a writ of prohibition, on the relation of L.J. Tefft. Heretofore this court affirmed a judgment of the superior court requiring him to make conveyances of real property he held in trust for those whose estates were being administered in this case by the superior court through a receiver. Elsom v. Tefft, 140 Wash. 586, 250 P. 346. Thereafter he, failing and refus...
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The respondent, Parker, brought this action against the appellant, Smith, seeking to recover upon a promissory note. The appellant denied liability upon the note, and pleaded affirmatively a discharge from the obligation by a proceeding in bankruptcy. The respondent replied to the affirmative plea by pleading a new promise to pay the debt, made subsequent to the discharge in bankruptcy. On the iss...
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Respondent Gilpatrick brought this action to recover the balance due on the purchase price of cedar poles and fir piling sold and delivered to the appellant Downie during the summer of 1925. The agreed price of the poles was $1,095 on which the complaint admitted a payment of $1,000. The price of the piling was $3,256.12. The answer admitted the sale of *Page 672 the cedar poles at the price ment...
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This is an original application in this court for a writ of prohibition on the relation of the New York Oil Company, a corporation. The respondent, the superior court of Grays Harbor county, Honorable Fred G. Bemann, Judge, has made and filed a return to an alternative writ heretofore issued. Action *642 for breach of contract was commenced in the superior court of Grays Harbor county by Dorsey...
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This is a personal injury case brought by Fred William Machenheimer, Jr., by his guardian ad litem against R. Falknor and wife and School District No. 314 of Clallam county. In the complaint it was alleged that the injuries were caused by the negligence of the defendants. The allegations were put in issue by separate answers of the defendants, which affirmatively alleged contributory negligence. T...
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During the year 1921, and for some years prior thereto, the respondents, F.D. Small and D.C. Urie, as copartners, operated a fish cannery at Noyo, near Ft. Bragg, on the California coast. The operation of the cannery was seasonal, usually commencing in May of each year and continuing until sometime in September. The firm purchased the fish which they canned from independent fishermen who operated ...
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The plaintiff state seeks recovery from the administrator of the estate of Agnes McLaughlin, deceased, for care and maintenance of the deceased while an inmate of its hospital for the insane. The defendant administrator demurred to the state's complaint upon the ground that it did not present its claim or commence this action for recovery thereon within the time limited by law, and that therefore ...
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This is a malpractice case. The complaint alleges that the defendant I.M. Radabaugh negligently treated the plaintiff for ulcer of the cornea of the right eye. There was a verdict for the plaintiff. The defendants have appealed from a judgment on the verdict. I.M. Radabaugh, who will be spoken of as the appellant, was, at the time of his treatment of the respondent, engaged in practicing the syste...
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This is an action by the respondent, Holmes, against the appellants, Radford and the Sovereign Investment Company, to recover for services as an architect, and to foreclose an architect's lien on certain described real property. In the month of January, 1925, the appellant, Radford, acting for himself and his co-appellants, employed the respondent to prepare plans and specifications for an apartme...
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On September 9,1924, the Universal Breakfast Foods Co. was engaged in the business of manufacturing and selling cereal food products. Two of such products it sold in cartons, under the trade names of “Meat O’Wheat” and “Meat O’Oats.” The appellant, Coast Carton Company, was engaged in the business of manufacturing cartons. On the date above given, the breakfast foods company sent to ...
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Under section 67f of the Bankruptcy Act, a surety on an undertaking to release or discharge an attachment is released from his obligation by the adjudication and discharge of his principal in the bankruptcy proceedings, when the attachment suit is instituted within four months prior to the filing of the petition in bankruptcy. (Wolf v. Stix, 99 U.S. 1,25 L. Ed. 309, 313; Klipstein v. Allen-Miles, ...
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Appeal from a judgment in favor of defendant. Plaintiff commenced action to quiet title to certain residence property in Livingston. By answer the defendant alleged that he was the holder of a lien superior to plaintiff's title, and prayed that his lien be foreclosed and the property sold in satisfaction thereof. A reply was filed and, issue being joined, the cause was submitted to the trial court...
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Under the facts of this case a plea of estoppel was available to the plaintiff for the purpose of avoiding a defense on the part of the defendant on the ground that the plaintiff and the insured had become divorced after the issuance of the certificates sued upon. In an action arising in Colorado, in which the society, defendant here, was seeking to defend upon the ground that the beneficiary name...
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John Springer died intestate at Judith Gap, Wheatland county, Montana, on November 18, 1918, leaving surviving his widow and a minor son. The widow intended to and did take her husband's remains to his former home in Minnesota for burial. Before setting out upon this journey she consulted James G. Alexander, then cashier of the Security State Bank of Judith Gap, and N.R. Barncord, a lawyer practic...
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delivered the opinion of the court. John Springer died intestate at Judith Gap, Wheatland county, Montana, on November 18, 1918, leaving surviving his widow and a minor son. The widow intended to and did take her husband’s remains to his former home in Minnesota for burial. Before setting out upon this journey she consulted James G. Alexander, then cashier of the Security State Bank of Judith Gap,...
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The appellant as guarantor or surety was released and exonerated by the waiver and release by respondent of its lien and consent to sale of the logs, thereby destroying appellant's right of subrogation pleaded as a defense in amended answer stricken out. If the creditor has a surety or guarantor for the payment of the debt or performance of the contract, and also has a lien or other claim on the p...
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(For syllabus, see Rohr et al. v. Stanton et al., ante, p. 494.) The complaint in this action, with the exception of the name of the plaintiff and the amount involved, is identical with the one in Rohr et al. v. Stanton et al., ante, p. 494,254 P. 869, decided by this court on March 15, 1927. As in the Rohr Case, so in this, the defendants filed a joint general demurrer to the complaint, which...
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This action was instituted by the plaintiff to foreclose a pledge on 16,733 1/3 shares of the capital stock of the Golden Curry Consolidated Mining Company delivered as security for the payment of a promissory note for $5,000, dated July 29, 1916, executed by the defendants Pelletier and Cooper. Separate answers were filed by the defendants Ford, Pelletier and Rothfus, and Brass and Heywood made j...
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Only unaudited claim can be reduced or rejected. When compensation of officer is fixed by law and no judicial inquiry is necessary to determine amount it is audited by law itself. Rev. Laws, 4967; State v. Lander Co., 22 Nev. 71; Alden v. Alameda Co., 43 Cal. 270; 20 Cyc. 235; McCoy v. Handlin, 153 NW. 361. Claim for service performed at request of officials, or for damages, must be audited. Crouc...
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The facts of this case are substantially the same as in the case of Cawley v. Pershing County, No. 2746 [supra], this day decided. Upon the authority of that case it is ordered that the judgment in favor of the defendant county be affirmed, and that the judgment in favor of the plaintiff, Ritts, be reversed. *Page 248 ...
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OPINION OF THE COURT The State of New Mexico by its Attorney General, on the relation of George L. Ulrick, filed a complaint in quo warranto in the District Court of Santa Fe County against Felipe Sanchez y Baca to oust him from the office of associate commissioner of the state tax commission of the state of New Mexico. The defendant appeared and filed a demurrer to the c...
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The Atchison, Topeka Santa Fe Railway Company filed an action against J.L. Chambers, praying that its title to 5.38 acres of land located in Mohave county be quieted. From a judgment granting its prayer and a denial of defendant's motion for a new trial, he prosecutes this appeal. The complaint and answer contained the allegations ordinarily found in an action of this character, and the evidence ...
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On May 8, 1924, the appellant board of county commissioners entered an order on the minutes of a meeting held that date fixing the salaries of clerk of the district court andex-officio auditor and recorder, treasurer and tax collector, sheriff, probate judge, coroner, assessor, superintendent of schools and surveyor, for the term beginning with the second Monday in January, *Page 195 1925, to the...
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Judgment, based upon findings, was entered in the court below, in favor of the plaintiff and against the defendant, in an action brought for the cancellation of a contract, possession of real property, and for equitable relief. The defendant did not appeal from the judgment, but made a motion, pursuant to the provisions of section 663 of the Code of Civil Procedure, to have the judgment vacated an...
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This action was commenced by plaintiff to recover from defendant Grace S. Miller an undivided one-half of two parcels of real property in the city of Long Beach, California. The complaint alleged the ownership by plaintiff of an undivided one-half interest, her incompetency and the appointment of a guardian, and then alleged that for some time prior to the death of Willard E. Miller, a son of plai...
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THE defendant in error moves to dismiss the writ under rule 8, because there was no motion for new trial nor order dispensing therewith. The plaintiff in error replies that there was no occasion for a motion because no question of fact was involved in the case, and he citesArmstrong v. Gresham, 70 Colo. 502, 202 P. 706,Fincher v. Bosworth Co., 76 Colo. 69, 230 P. 596,Steere v. McComb, 71 Colo. 19...
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Mrs. J. H. Martin commenced her action against Fred Beauman to recover on three promissory notes, each for $300, and each due more than eight months after date, and to foreclose a chattel mortgage executed and delivered by the latter to A. M. Cockrell. A. M. Cockrell was later made a party defendant, as indorser of the notes, and the action to foreclose the chattel mortgage was dismissed. On the t...
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The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county on a charge of grand larceny, and sentenced to serve a term of three years in the state penitentiary. The information charges that defendant did take, steal, and carry away ten joints of pipe, of the value of $250, the property of W. B. Pine. It is first argued that the court erred in re...
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The opinion of the court was delivered by The action was one by landowners in a benefit district created for improvement of a city street, to enjoin assessment of their property to pay cost of the improvement. Plaintiffs prevailed, and defendants appeal. The city of Wichita deemed it necessary to widen Douglas avenue between Grove street and Hydraulic avenue. Douglas avenue *431was 80 feet in widt...
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The opinion of the court was delivered by The plaintiff brought this action against the defendants to recover damages for the breach of a contract to drill for *410oil on certain lands in Wyoming covered by a lease which plaintiff had acquired on the faith of defendants’ undertaking. Plaintiff alleged that in 1920 the defendants, Stinson, Houston, Howland, Geiger, Quinn, J. E. Wheeler and three ot...
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The appeal herein is from a judgment of the district court of Kay county, in favor of the defendants, Peyton E. Brown and C. Robert Bellati, and against the plaintiff, Antonie Korte, which judgment denied the right of plaintiff to the recovery sought. The plaintiff had sought to vacate and set aside two conveyances made to the defendants, respectively, to each an undivided one-eighth of the oil an...
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The opinion of the court was delivered by I. M. Blitz, as the sole heir of Theresa M. Blitz, deceased, appeals from a judgment of the district court allowing Mary T. Erickson, guardian of Theresa M. Blitz, a minor, to take credit in her final account as such guardian for the sum of $1,938.56, to pay for the board, room, and care of Theresa M. Blitz from January 1, 1922, to March 24,1925. The facts...
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The opinion of the court was delivered by The plaintiff recovered a judgment on the verdict of a jury for $5,750 damage caused by being shot by J. E. Boone, an employee of the defendant. The defendant appeals. Special questions were answered by the jury as follows: “1. Did J. E. Boone shoot the plaintiff: (a) While ejecting or attempting to eject plaintiff, or ordering him off of the premises cla...
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The opinion of the court was delivered by The question presented by this appeal is whether a deed of real estate deposited by the grantor with a banker, to be given to the grantee at the grantor’s death, was delivered. Lethia Hayes, now Lethia Johnson and plaintiff in the action, went to live with Jake Kessler and his wife, and remained with them until she married, a period of about three years. D...
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The opinion of the court was delivered by This action was brought by Frank L. Brown upon a promissory note for $1,100, executed by the defendant on March 24,1923, in purchase of a tractor, which became due July 15, 1923. The plaintiff recovered and defendant appeals. The sale contract was in writing and recited that the tractor was sold for $1,300 and in part payment the defendant turned over his...
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The opinion of the court was delivered by The action was one for damages against a warehouseman for injury to a stored automobile which was stolen from the warehouse and afterwards recovered. Plaintiffs prevailed, and defendant appeals. When stored the automobile was worth $2,725, and when recovered by the owners it was worth $1,000. The owners carried theft insurance, and the insurance company p...
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The opinion of the court was delivered by This action involves the question whether an order for future delivery of merchandise taken by a traveling salesman was accepted by his principal. Plaintiff sought to recover a balance due for merchandise sold and delivered. A defense that defendants were damaged because of failure of the plaintiffs to fulfill the orders for future delivery was allowed an...
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The defendant, Moss, appealed from a judgment of conviction of transporting intoxicating liquors, and caused the record thereof to be filed with the clerk of this court on November 17, 1925. He has done nothing towards prosecuting the appeal. An examination of the information, the evidence, and the court's instructions satisfies us that defendant had a fair trial and that the conviction should be ...
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THE COURT. [1] Application for a writ of mandate to compel the City Council and other officials of the City of Berkeley to reconsider a certain ordinance relating to the rezoning of a certain restricted district within said city, and to either repeal the ordinance or submit the same to a *Page 770 referendum vote of the electors of the city at the next general election or at a special election to...
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Plaintiff in error, Clem Wilson, was convicted on a charge of selling intoxicating liquor, to wit, “whisky to Timmie Wolf, Thompson Deer, and Jesse Jacobs,” and was sentenced to pay a fine of $50 and imprisonment for 30 days in the county jail. From the judgment he appeals, by filing in (this court on January 9, 1926, a petition in error with transcript of the record attached. On May 2d, the caus...
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The defendant, Moss, appealed from a judgment of conviction of transporting intoxicating liquors, and caused the record thereof to be filed with the clerk of this court on November 17, 1925. He has done nothing towards prosecuting the appeal. An examination of the information, the evidence, and the court’s instructions satisfies us that defendant had a fair trial and that the conviction should be ...
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*398The opinion of the court was delivered by The action was one by the owner of property abutting on a street, for damages against the railway company for obstructing the street. A demurrer was sustained to plaintiff’s evidence, and he appeals. The street is East Second street, extending east and west through the city of El Dorado. Plaintiff’s property, consisting of one and one-half acres, abut...
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The plaintiffs, land and railroad company and Sturtevant, seek a decree awarding in their favor a reduction of unpaid taxes charged for the years 1918 to 1924, inclusive, against lands owned by them in Snohomish county, and a direction to the treasurer of that county to receive approximately $16,000 in full payment of the taxes so charged in the aggregate amount of approximately $40,000. A trial u...
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This is an appeal by the plaintiff, Mrs. Willett, from an order of the superior court for Yakima county denying her petition for a monthly allowance to be paid to her by the defendant, Willett, from whom she had been divorced, for the support of herself and children, in addition to the one hundred dollars per month awarded to her by the decree; and also for some change in the decree relating to t...
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